Republicans downplay odds of Supreme Court repealing ObamaCare at Barrett confirmation hearing

Senate Republicans downplayed the odds of the Supreme Court repealing the Affordable Care Act at Amy Coney Barrett's confirmation hearing, as Democrats portrayed the conservative judge as an existential threat to the landmark health care law. 

For years, Republicans have pledged to eliminate the decade-old law, commonly referred to as ObamaCare. But they appeared to backtrack during confirmation hearings for Barrett, President Trump's Supreme Court nominee, with the November election just a few weeks away. 

“No one believes the Supreme Court is going to strike down the Affordable Care Act,” Senate Majority Leader Mitch McConnell said Monday night during a reelection debate against Democratic rival Amy McGrath.

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The Supreme Court is slated to hear oral arguments challenging the constitutionality of the ACA on Nov. 10, one week after the presidential election — something that Democrats have used to repeatedly hammer Barrett. Trump has repeatedly indicated he will nominate a judge who would rule against the ACA.

The White House-backed legal case was brought by a group of Republican states, led by Texas, arguing the individual mandate – the provision that requires Americans to purchase health insurance or pay a financial penalty – was made unconstitutional when the GOP-passed Tax Cuts and Jobs Act reduced the fee to zero. The suit contends that if that part of ObamaCare is invalid, so is the rest of the law. 

But Republicans pointed to Barrett's role as a mother of seven to argue that she would uphold the law. 

“The left is also suggesting Judge Barrett’s confirmation would be the demise of the Affordable Care Act and the protections for preexisting conditions,” Sen. Chuck Grassley, R-Iowa, said. “That’s outrageous. As a mother of seven, Judge Barrett clearly understands the importance of health care.”

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Democrats have made it central to their message that Barrett will join with conservative justices on the court and vote to strike down the law. Giving fuel to that argument is a 2017 Notre Dame Law School article that Barrett wrote criticizing a past judicial decision to uphold the ACA. Chief Justice John Roberts, writing for the majority in 2012, ruled the individual mandate, which was collected by the IRS, constitutes a tax and therefore falls under Congress' purview. 

“For Justice Scalia and those who share his commitment to uphold text, the measure of a court is its fair-minded application of the rule of law, which means going where the law leads. By this measure, it is illegitimate for the Court to distort either the Constitution or a statute to achieve what it deems a preferable result,” Barrett wrote at the time.

Pressed by Democrats on Tuesday about whether her critique of Roberts' majority opinion meant she opposed ObamaCare, Barrett said she was "not hostile to the ACA" and noted the current case before the court involves the complex legal concept of "severability:" If one part of the law is invalidated by the court, does the rest of it still stand?

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"The issue in the case is this doctrine of severability, and that's not something that I have ever talked about with respect to the Affordable Care Act," she said. "Honestly, I haven't written anything about severability that I know of at all."

Texas is arguing the individual mandate is unconstitutional and therefore so is the entire law. Last year, the 5th U.S. Circuit Court of Appeals ruled the insurance requirement is unconstitutional but charged a federal district court in Texas with reassessing how much of the legislation stood without the individual mandate in place.

Sen. Mike Crapo, R-Idaho, noted that in Barrett's critique of the 2012 ObamaCare ruling, she said the individual mandate was unconstitutional but left the remainder of the law intact.

“I think that's kind of an answer, frankly, to a lot of those who are raising this specter that you're going to take the whole Affordable Care Act away from everyone because of this very narrow case,” he said.

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That sentiment was echoed by Sen. Mike Lee, R-Utah, who argued the original case arguing the constitutionality of the individual mandate "has nothing to do" with the current case before the court. 

Legal scholars have laid out a complicated, murky legal process with no clear answer as to what will happen to the ACA when the conservative-dominated court considers the law this November.

The ultimate outcome of the lawsuit will affect millions of Americans, and the repeal of the decade-old law could leave up to 32 million people without health insurance by 2026, according to a Congressional Budget Office report from 2017 about the effects of repealing the ACA.

“I don’t think the case was going to split the court 5-4,” Jonathan Adler, a law professor at the Case Western Reserve University School of Law, previously told Fox News. “The court isn’t split on severability the way it is split on some other issues. Multiple conservative justices on the court have indicated that their approach to severability is not in line with the arguments that the plaintiffs are making in that case.”

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One of Trump’s other court appointees, Justice Brett Kavanaugh, has written opinions focused on the issue of severability, arguing that it’s the court’s obligation to leave as much of the law intact as possible. Over the summer, Kavanaugh authored an opinion, which was joined by conservative Justice Samuel Alito, on robocall restrictions, writing that the Supreme Court “presumes that an unconstitutional provision in a law is severable from the remainder of the law or statute.”

Others suggested the court may be reluctant to strike down the health care law in its entirety during the coronavirus pandemic, which has infected more than 7.8 million Americans, the most in the world, and killed close to 216,000.

“To strike down an entire broad-based law based on a single provision is probably not where the court would want to go,” said Elizabeth Sepper, a law professor at the University of Texas.