WASHINGTON — With limited avenues to block the Supreme Court nomination of Judge Amy Coney Barrett, Democratic senators are mapping out a strategy to undercut President Donald Trump’s pick by highlighting GOP attempts to dismantle the Affordable Care Act and health care protections.
“I will vote ‘no’ on this nomination to try to stop this latest Republican attempt to rip away health care,” Sen. Catherine Cortez Masto, D-Nev., said immediately after the Barrett nomination was rolled out at a Rose Garden ceremony on Saturday.
Cortez Masto, Sen. Jacky Rosen, D-Nev., and Democratic senators are united in their opposition to Barrett, who if confirmed would replace the late Justice Ruth Bader Ginsburg, a liberal icon on the high court and advocate for women’s health care and reproductive rights.
Barrett has questioned the constitutionality of the ACA and has opposed provisions in the law that required coverage of birth control, which she maintains would violate the rights and religious liberties of employers.
Senate Republican leaders are trying to fast-track a vote on her confirmation before the Nov. 3 election. Her hearing before the Judiciary Committee is scheduled to begin Oct. 12.
Senate Majority Leader Mitch McConnell, R-Ky., has promised a vote on the nomination, but he has not committed to holding the vote before the November election.
“Judge Barrett built a reputation as a brilliant scholar at the forefront of the legal academy,” McConnell said.
“For three years on the Court of Appeals for the 7th Circuit, she has demonstrated exactly the independence, impartiality, and fidelity to our laws and Constitution that Americans need and deserve on their highest Court,” McConnell said.
ACA in the balance
GOP leaders said they want to install Barrett on the high court before it hears arguments Nov. 10 on a case brought by Texas and other red states to abolish the Affordable Care Act, commonly referred to as Obamacare.
The ACA passed Congress in 2010 without a single GOP vote and was signed into law by President Barack Obama. The law expanded health care coverage and was the largest overhaul of the health care system since the creation of Medicare and Medicaid.
The rollout of the new health care law was hampered by technical problems with state exchanges, confusion about plans and subsidies and the mandate to purchase coverage to avoid fines levied by the Internal Revenue Service. Millions of Americans saw their premiums increase after Obama promised premium reductions, deductibles rose and existing plans that Americans were told they could keep instead disappeared. Co-ops failed and health insurance choices dwindled across much of the country.
The law led to historic Democratic losses in the 2010 midterm elections, with the GOP taking over the next Congress. But the Supreme Court upheld the individual mandate and the core of the law in 2012 on a 5-4 vote, with Chief Justice John Roberts joining the court’s liberal bloc.
Republicans have tried to repeal the law since taking control of legislative branches, dismantling the funding mechanism but failing to eliminate some portions of the law, including one that requires insurance companies provide coverage to people with pre-existing medical and health conditions. Some Republicans have expressed support for that provision, as well as the law’s expansion of Medicaid.
Cortez Masto said that based on her review of Barrett’s record on the 7th Circuit U.S. Court of Appeals, the nominee would tip the court further to the ideological right, which could impact decisions on issues including health care.
“I’m certain that this nominee would be the deciding vote that rips away protections for pre-existing conditions for over 1 million Nevadans, and millions of Americans,” said Cortez Masto, a former Nevada attorney general.
“President Trump and Senate Republicans have tried for years to repeal the Affordable Care Act through legislation and the courts, and very soon, the Supreme Court will consider a case that could overturn the ACA completely,” Rosen said.
“This means the next justice will decide whether individuals with preexisting conditions could be denied health care coverage.”
Wait for the election
Despite Republicans push to put Barrett on the court before the election, where control of the White House and the Senate are up for grabs, Democrats has been united in their public arguments to wait until after the presidential race is settled to determine who fills the seat.
A New York Times/Siena College poll of 950 likely voters from Sept. 23 to 24 found that 54 percent of those surveyed preferred that the vacancy be filled after the election, and 41 percent preferred that Trump fill the seat.
The poll had a margin of error of plus or minus 3.5 percentage points.
Building public sentiment against filling the seat before the election is one of few strategies Democrats have to delay, halt or stop a confirmation, legal experts agree. Currently, Republicans have the votes, even without Collins and Murkowski, to confirm Barrett to the seat.
It is expected that Barrett will be grilled on her views on health care coverage, abortion rights, and even her past statements on whether to fill a vacancy during a presidential election year.
But legal experts said it is doubtful that hearings will produce the aggressive questioning that Justice Brett Kavavaugh underwent during his hearing when decades-old allegations of sexual assault surfaced.
By contrast, Barrett is a mother of seven children, noted Carl Tobias, a professor with the Richmond University Law School and a former founding faculty member of the William S. Boyd School of Law at UNLV.
The revelations in the Kavanaugh hearings galvanized Democrats against the nominee, who aggressively defended his reputation in a style reminiscent of Clarence Thomas, who in 1991 called sexual harassment allegations against him during confirmation a “high-tech lynching.”
But with the election just weeks away — early voting is already going on in some states — Democrats have to consider the political consequences of an aggressive push against Barrett in hearings.
Instead, with two weeks before hearings begin, they are doubling down on their argument that filling the vacancy could leave millions without health care during a pandemic when furloughs and layoffs continue to leave workers without employer-sponsored plans.
Even Trump, who ran for re-election on the promise to repeal Obamacare, has has told recent rallies, including one in February in Las Vegas, that he would replace the ACA with a plan that would protect those with pre-existing conditions.
Nonetheless, the lawsuit brought by the states and before the high court, however, seeks to abolish all portions of the ACA.