Court Battles

Barrett says she’s ‘not hostile’ toward Affordable Care Act

Bonnie Cash

Judge Amy Coney Barrett said on Tuesday that she is “not hostile” toward the Affordable Care Act (ACA) as Senate Democrats pressed her during a confirmation hearing about the implications for the health care law if she’s confirmed to the Supreme Court.

Barrett defended her criticism of the Supreme Court’s 2012 decision to uphold the Obama-era law as focused on the majority’s reasoning in the case as opposed to the contours of the legislation itself.

“I think that your concern is that because I critiqued the statutory reasoning that I’m hostile to the ACA, and because I’m hostile to the ACA that I would decide a case in a particular way,” Barrett said in response to questioning from Sen. Dick Durbin (D-Ill.). “And I assure you I am not — I am not hostile to the ACA, I’m not hostile to any statute that you pass.”

Democrats have pointed to some of her academic writing during her time as a law professor as a source of concern for how her appointment could affect health care coverage for millions of Americans.

In a 2017 law review article, Barrett criticized Chief Justice John Roberts’s opinion upholding the ACA.

“Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” she wrote. “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.”

Barrett’s Republican supporters in the Senate have tried to tamp down criticisms of her approach to health care cases, dismissing suggestions that her appointment will lead to the ACA being overturned.

A group of red states is trying to persuade the Supreme Court to invalidate the law in a case that will be heard next month. Democrats worry that the ACA’s opponents will get an edge in the case if Barrett is confirmed before then. The court will hear oral arguments on Nov. 10.

Later in Tuesday’s hearing, Barrett also denied that any individual’s health care status is “tied to her nomination to the Supreme Court.”

“I have said repeatedly under oath that I’ve had no conversations with anyone in the White House about that case,” she said. “To the extent that there’s a suggestion that I have an agenda, that I want to strike down people’s protections for preexisting conditions, that’s just not true. I’ve never taken that position and as I’ve said repeatedly, any policy preferences I have don’t matter anyway, they are irrelevant.”

Tags ACA Affordable Care Act Amy Coney Barrett Dick Durbin ObamaCare Supreme Court

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