Jurisprudence

Amy Coney Barrett Explained Why She Doesn’t Care About Preexisting Conditions

Her technical legal theories are too narrow to see 100 million people’s health coverage.

Barrett appears stone-faced during her hearing.
Supreme Court nominee Amy Coney Barrett listens during her confirmation hearing before the Senate Judiciary Committee on Capitol Hill on Tuesday. Anna Moneymaker/Getty Images

From the beginning of Amy Coney Barrett’s Supreme Court hearings, the Democratic members of the Senate Judiciary Committee have been focused on the message that Barrett represents a threat to the survival of the Affordable Care Act: A case that could overturn the entire act, California v. Texas, is due to be heard by the court on Nov. 10, one week after the election. In speech after speech, they brought up the names and pictures of constituents who would face medical or financial disaster if they were to lose the ACA’s guarantee of coverage for people with preexisting medical conditions.

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On Tuesday, as expected, the Democrats put the matter directly to the nominee. Barrett has expressed disagreement with the court’s reasoning in the 2012 case that upheld the Affordable Care Act, but when asked now, she emphasized that California v. Texas involves a completely different question than the previous decision did. Specifically, she said, the new case is about “severability”—that is, whether, with the act’s insurance mandate now cut down to zero, the rest of the statute can survive on its own or must also be abandoned.

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By Barrett’s account, this is a narrow legal question. If the question is decided a certain way, 20 million Americans will lose their health coverage and 100 million people will lose their protections for preexisting conditions. Nevertheless, Barrett told the committee that the upcoming case “doesn’t present the issue” of preexisting condition protections.

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Here, despite her efforts to tell the committee as little as possible about her beliefs, Barrett revealed an enormous amount about her judicial philosophy. In her opening statement on Monday, she told the committee that “courts are not designed to solve every problem or right every wrong in our public life.” Evidently, that meant real-world consequences of the decisions she may make should not be relevant to her, the Senate, or the general public.

Here is that revelatory exchange, in which the ranking minority member, Sen. Dianne Feinstein, told a story about a constituent of Wisconsin Sen. Tammy Baldwin’s who, because of a cascade of health care expenses, depended on the ACA’s protections to be able to afford treatment.

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As you can see, Barrett answered that the case the court would soon be hearing had nothing to do with those protections, as far as she understood it. Here’s the text of the exchange:

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Feinstein: Jimmy is a 34-year-old and member of the Wisconsin state Legislature. In 2010 a drunk driver hit the family’s car as they were returning home from celebrating Jimmy’s 24th birthday. Jimmy’s mother, father, and little brother were killed in the accident. Jimmy was paralyzed from the waist down. His medical recovery was intense. As Jimmy as has said, “Doctors managed to patch me up with dozens of stitches and multiple surgeries and about a pound of steel in my spine.” But soon after, his insurance company told him he was nearing his lifetime maximums and he would have to pay for the rest of his health care expenses. As Jimmy explains: “With hundreds of thousands of dollars still left to go, I didn’t know what I was going to do. I was scared, I was terrified, I was just a student, I didn’t have that kind of money.” Fortunately, a few days later, the insurance company sent him a different letter. This one informed him that the provisions of the ACA had kicked in, which meant there were no longer lifetime maximums and his care would be covered. In Jimmy’s own words, “I was able to put my life back together and I credit the Affordable Care Act for that.” Judge Barrett, how should the loss of the ACA’s protection against lifetime caps, caps that can be used to end coverage for lifesaving care, factor into a court’s consideration of the validity of the ACA?

Barrett: Senator, so far as I know, the case next [month] doesn’t present that issue. It’s not a challenge to preexisting conditions coverage or to the lifetime maximum relief remote cap.

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This is a technical distinction so fine as to cross over into dishonesty. Barrett professes not to see how, if she made a ruling in a case that would strip away protections from people with preexisting conditions, that case would be a challenge to those protections. The people would only be losing their protections incidentally as she decided the completely different question of severability.

Later, Vermont Sen. Patrick Leahy asked a series of questions about whether Barrett had any awareness of how many people would lose protections if she were to rule against the ACA after being elevated to the Supreme Court. She responded that she had no clue.

Here’s the clip:

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And here’s the text of the exchange:

Leahy: Do you know how many Americans have obtained insurance through the Affordable Care Act?

Barrett: I do not.

Leahy: It’s more than 20 million. And do you know how many children under the age of 26 are able to stay on their parents’ insurance because of the Affordable Care Act?

Barrett: I do not.

Leahy: It’s 2.3 million. And do you know how many Americans are covered under the Affordable Care Act’s Medicaid expansion?

Barrett: I do not.

Leahy: It’s a little more than 15 million. … If the Republicans are successful in what they’re trying to do on Nov. 10, then [my constituent] Alex and actually 60,600 other Vermonters enrolled in Medicaid expansion are going to be left behind. And if you contract COVID-19, that’s seen as a preexisting condition. Do you know approximately how many million Americans have tested positive for the coronavirus and survived?

Barrett: I do not.

Leahy: It’s more than 7,700,000. Those are people now considered to have a preexisting condition. And one of the most common preexisting conditions is diabetes. The CDC estimated about 1 in 10 Americans has diabetes. The ACA’s Medicaid expansion is the single most important factor for expanding access to affordable insulin. Leslie is a Vermonter [who was] diagnosed with diabetes at the age of 25. For years she has depended on Medicaid to keep her alive and out of bankruptcy. … Do you have an idea how much her insulin would increase?

Barrett: No, I do not.

Leahy: I wouldn’t expect you to. There’s no reason you should. Leslie’s cost would more than triple—go up to $11,215 a year.

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Barrett doesn’t need to know the cost of insulin; she doesn’t need to know how many people in this country have COVID-19; she doesn’t need to know how many millions of Americans are covered under Medicaid expansion or under the Affordable Care Act as a whole. It’s not the courts’ job to “right every wrong,” even if those wrongs are directly caused by the decision the court would make.

Barrett will in all likelihood enter the Supreme Court next month and hear the severability challenge, the premise of which is absurd but which two Republican-appointed judges on the 5th U.S. Circuit Court of Appeals accepted in a blatantly partisan ruling. She will make her judgment, she says, based solely on her “originalist” principles and not anything else. She will not, she claims, consider such factors as the explicitly stated command of the president who appointed her, or the motives of the dark-money backers who have spent millions to put her on the court against the precedent set by Senate Republicans four years ago and just three weeks before Americans vote on their next president. And it will have nothing to do, she assures us, with the actual results of her ruling.

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