What Are Amy Coney Barrett’s Views on Health Care & the Affordable Care Act?

Amy Coney Barrett

University of Notre Dame Amy Coney Barrett

Amy Coney Barrett is rumored to be a top contender for President Donald Trump’s Supreme Court nomination. Of major importance will be understanding her views on health care. How does she feel about the Affordable Care Act (ACA)? In what ways has she spoken out against Obamacare? Read on for more details.


Barrett Did Not Agree with the Interpretation that the Affordable Care Act’s Penalty Was a Tax

Barrett did not approve of the Supreme Court’s decision to uphold the Affordable Care Act (also commonly known as Obamacare.) She wrote her opinion in a 2017 paper titled “Countering the Majoritarian Difficulty,” which you can read here. Sen. Chuck Schumer cited the paper when discussing her views on the ACA in a tweet on July 2:

Barrett spoke about the Affordable Care Act briefly within that paper. Under a section on judicial restraint, she writes about the inspiration for Randy Barnett’s book, NFIB v. Sebelius. She wrote: “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power; had he treated the payment as the statute did—as a penalty—he would have had to invalidate the statute as lying beyond Congress’s commerce power. Barnett vehemently objects to the idea that a commitment to judicial restraint— understood as deference to democratic majorities—can justify a judicial refusal to interpret the law as written.”

She went on to write: “Barnett is surely right that deference to a democratic majority should not supersede a judge’s duty to apply clear text… If the majority did not enact a ‘tax,’ interpreting the statute to impose a tax lacks democratic legitimacy.”

In other words, Barrett disagreed with Chief Justice Roberts’ opinion that the ACA penalty was a “tax” and believed the penalty simply as a penalty would invalidate the statute as being beyond Congress’ authority.

It’s worth noting that conservatives have said Schumer’s interpretation of Barrett’s paper is exaggerating her views, since her disagreement was focused on the idea of the penalty being viewed as a tax, rather than disagreeing with the ACA as a whole.


She Disagreed with Covering Contraceptives Under the ACA

Barrett also was against efforts to ensure all women could have access to contraceptives under the Affordable Care Act, Huffington Post reported. She signed a public statement of protest in 2012 against the birth control benefit. The statement said that the benefit was an “assault on religious liberty and the rights of conscience.” The statement also read: “The simple fact is that the Obama administration is compelling religious people and institutions who are employers to purchase a health-insurance contract that provides abortion-inducing drugs, contraception and sterilization. This is a grave violation of religious freedom and cannot stand. It is an insult to the intelligence of Catholics, Protestants, Eastern Orthodox Christians, Jews, Muslims and other people of faith and conscience to imagine that they will accept an assault on their religious liberty if only it is covered up by a cheap accounting trick.”

The statement concluded: “Finally, it bears noting that by sustaining the original narrow exemptions for churches, auxiliaries and religious orders, the administration has effectively admitted that the new policy (like the old one) amounts to a grave infringement on religious liberty. The administration still fails to understand that institutions that employ and serve others of different or no faith are still engaged in a religious mission and, as such, enjoy the protections of the First Amendment.”

The only other closest fact we have so far to knowledge about Barrett’s opinions on healthcare can be found in an opinion she authored for the Seventh Circuit in Henry Fiorentini vs. Paul Revere Life Insurance Company. It’s only tangentially related, however. In that case, Fiorentini was the owner of a technology company. But after cancer left him unable to perform his job, he received total disability benefits. Five years later he was able to return to work and control the company again, so Paul Revere canceled his disability. He said he still satisfied the requirements for “total disability” because he couldn’t generate new business. Barrett wrote that the court agreed with the insurance company that he no longer qualified for total disability. The company had allowed Fiorentini to apply for “residual disability” for the parts of his job he could no longer perform normally for more than 80 percent of the time. Barrett’s opinion never expressed any disdain for disability benefits or health care benefits. She simply upheld following the rules of the insurance and wrote a dispassionate, fact-based opinion.


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