If Amy Coney Barrett is approved to be on the Supreme Court, her viewpoints on health care could become hugely relevant when questions about Obamacare (the Affordable Care Act) are brought before the Supreme Court. What are her viewpoints on health care and the ACA?
Here’s what you need to know.
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 attacked the Supreme Court’s decision upholding the Affordable Care Act, which has helped millions of people secure health insurance coverage. https://t.co/JXJAbCmvN4
— Chuck Schumer (@SenSchumer) July 2, 2018
Barrett spoke about the Affordable Care Act briefly within that paper. Under a section on judicial restraint, she wrote 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 as such, it would invalidate the statute as being beyond Congress’ authority.
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. Brit Hume of Fox News wrote in a tweet: “This is grossly distorted & exaggerated but is but a foretaste of what’s to come.”
This is grossly distorted & exaggerated but is but a foretaste of what’s to come. https://t.co/dCojzYlpBx
— Brit Hume (@brithume) July 2, 2018
She Signed a Statement Disagreeing with Covering Contraceptives & Abortion-Inducing Drugs 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 she signed 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 she signed 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.”
She Authored an Opinion Siding with an Insurance Company, But This Doesn’t Reveal Her Viewpoints on ACA
Barrett authored an opinion for the Seventh Circuit in Henry Fiorentini vs. Paul Revere Life Insurance Company in June 2018. It’s only tangentially related to health care, 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, but she upheld the rules of the insurance company in her opinion.
All of this said, we would affirm the district court even if we agreed with Fiorentini that making sales is essential to his occupation—and, for that matter, that face-to-face contact is the only way he can do it. Even if the language of the policy were on his side, Fiorentini has a problem of proof: the evidence would not permit a reasonable juror to conclude that he is unable to meet with potential clients in person. Fiorentini’s own testimony contradicts his claim that he is unable to make face-to-face sales pitches. … But as we have already said, a reduced capacity to perform job duties is addressed by the policy’s ‘residual disability’ provision. Fiorentini chose not to apply for those benefits. Fiorentini bears the burden of proving that his loss falls within the terms of his insurance policy.
She Has Said Judges Should Recuse Themselves if They Can’t Rule Objectively on a Topic Because of Their Beliefs
She co-authored a paper titled “Catholic Judges in Capital Cases,” which explored the dilemma Catholic judges may face in capital death cases that run against their own religious beliefs. The paper argued that merely identifying a judge as Catholic isn’t enough for recusal, but Catholic judges might find it “morally impossible” to enforce capital punishment in cases such as sentencing. In those situations, it might be better for them not to participate.
The paper concluded:
Catholic judges must answer some complex moral and legal questions in deciding whether to sit in death penalty cases. Sometimes (as with direct appeals of death sentences) the right answers are not obvious. But in a system that effectively leaves the decision up to the judge, these are questions that responsible Catholics must consider seriously. Judges cannot-nor should they try to-align our legal system with the Church’s moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church’s standard. Perhaps their good example will have some effect.”
From that paper, it appears that she might not try to conform her legal opinions to her religious beliefs if they diverged. However, she might step back and recuse herself if she felt a legal decision conflicted with her religion.
She said during her confirmation hearing that if a judge’s morals run against a potential ruling, he might want to step back and recuse himself.
Were I confirmed as a judge, I would decide cases according to the rule of law beginning to end. In the rare circumstance that might ever arise, I can’t imagine one sitting here now, where I felt some contentious objection to the law, I would recuse. I would never impose my own personal convictions upon the law.”
In her Senate confirmation hearing when asked about a report that implied she didn’t believe a judge should faithfully apply the Constitution when she disagrees with them, Barrett said that was not accurate. She said: “I totally reject and have rejected throughout my entire career the proposition that the end justifies the means or that a judge should decide cases based on a desire to reach a certain outcome.”
She addressed this yet again during the hearing when she said: “If you’re asking whether I take my Catholic faith seriously, I do, though I would stress that my personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge.”
In summary, we know that Barrett disagreed with the interpretation that the ACA’s penalty was a tax, and she disagreed with covering contraceptives and abortion-inducing drugs under the ACA. It’s not clear what her viewpoints on Medicare for All are.