To: Interested Parties
From: Brad Woodhouse, executive director of Protect Our Care
Date: July 6, 2018
Re: Health Care on the Line with Trump’s SCOTUS Pick
For the last 18 months, President Trump and his Republican allies in Congress have been waging a relentless war on our health care, resulting in millions of people losing coverage, double digit premium rate increases, and weakened protections for people with pre-existing conditions. Now, with the retirement of Justice Anthony Kennedy, the President has an opportunity to tip the balance of the Supreme Court further in his favor and appoint a justice hostile to our health care, as he has repeatedly promised he would do. Make no mistake: our health care is on the line if Trump succeeds in appointing an extreme judge who will rubber stamp his anti-health care agenda.
Trump’s Shortlist Includes Nominees Who Have Demonstrated Hostility to Health Care
Reportedly, President Trump has narrowed his list of potential justices to three people: Judges Brett Kavanaugh, Amy Coney Barrett and Raymond Kethledge. All three are on the Federalist Society-approved list of justices Trump released. The Federalist Society, as should be noted, has been fighting the Affordable Care Act (ACA) since before it was even signed into law and has consistently pushed judges very hostile toward women’s health.
Specifically, Judge Kavanaugh has argued that a president could declare a law unconstitutional and refuse to enforce it “even if a court has held or would hold the statute constitutional.”
Judge Barrett has already written that she believed the ACA should have been declared unconstitutional, that Roe v Wade was “erroneous,” and the ACA’s birth control benefit was “an assault on religious liberty.”
Consumer Protections, Including Prohibitions on Discriminating Against the 130 Million People with Pre-Existing Conditions, Are At Risk
Prior to the Affordable Care Act, insurance companies were able to cherry pick who they wanted to cover and would often discriminate against people with pre-existing conditions by charging them more, dropping coverage once people got sick, or denying coverage altogether. The ACA banned all of those practices, providing health security to millions.
- Roughly half of nonelderly American adults, or up to 130 million people, have at least one pre-existing condition.
- Nationally, the most common pre-existing conditions were high blood pressure (44 million people), behavioral health disorders (45 million people), high cholesterol (44 million people), asthma and chronic lung disease (34 million people), and osteoarthritis and other joint disorders (34 million people).
These protections have consistently been the most popular component of the law among not only Democrats, but Republicans and Independents as well.
Nevertheless, President Trump has taken every opportunity he has had to dismantle the consumer protections and market reforms in the ACA. Though he failed to enact legislation to repeal the ACA, on his first day in office, President Trump signed an executive order directing his administration to use whatever tools they could to undo as much of the ACA as it could. His administration has further taken actions to sabotage the law by allowing insurance companies to sell junk plans that do not have to cover people with pre-existing conditions, among other things.
Don’t forget: Trump campaigned on ending the ACA by any means necessary, and he had his sights on the Court from the very beginning. In fact, as a candidate Trump said he would have a “very strong test” for Supreme Court nominees, pointing to his “disappointment” in Chief Justice John Roberts, as “somebody that should have, frankly, ended Obamacare, and he didn’t.” As the leading coalition fighting against Republicans’ ongoing efforts to repeal and sabotage health care and working instead to protect coverage for millions of Americans, Protect Our Care knows that Trump’s meaning is clear: he has a litmus test for his Supreme Court nominees, and repealing the ACA is on that test.
After all, ending protections for people with pre-existing conditions is already the official policy of the Trump Administration. Normally, the Department of Justice (DOJ) defends federal law in court. However, the Trump Administration has taken the extraordinary step of joining the latest partisan lawsuit that seeks to invalidate the ACA and has argued the Court needs to take away the provisions in the law that prevent insurance companies from denying coverage or charging people more because of a pre-existing condition. If the Trump administration had its way, overnight the 130 million people with a pre-existing condition would once again be at the mercy of insurance companies.
This case should not be taken lightly — three prior challenges to the Affordable Care Act (NFIB, et al. v. Sebelius, King v. Burwell, Hobby Lobby v. Burwell) have made their way to the Supreme Court, despite early doubts among legal scholars.
Women’s Health Care is on the Line
President Trump’s campaign promise to appoint biased justices who will overturn Roe v. Wade — and the dangerous consequences of making safe abortion a crime in this country — have been widely reported. But many other women’s health services are under threat with this appointment. Among them:
- Access to Planned Parenthood. Three cases working their way through the appellate courts challenge state actions to prevent Planned Parenthood patients’ access to birth control and other preventive care (Andersen v. Planned Parenthood of Kansas and Mid-Missouri, Gee v. Planned Parenthood of Gulf Coast, and Planned Parenthood Greater Ohio v. Hodges).
- Birth control coverage. Three courts of appeals are considering the Trump Administration’s roll back of the birth control benefit under the ACA, allowing any employer to deny coverage (California v. Azar, Pennsylvania v. Trump and Massachusetts v. Department of Health and Human Services).
- Coverage for nursing moms. Moreover, the Supreme Court could consider a case looking at access to coverage for nursing mothers. Briscoe v. Health Care Service Corp and Condry v. UnitedHealth Group would determine whether and what breast-feeding services are covered under the ACA’s preventive care, and therefore available to women at no cost.
Medicaid is Also at Risk
Medicaid is not only supported by three-quarters of Americans, it is a lifeline for one in five people, providing critical preventive care, substance use treatment, acute care, and more to more than 70 million people. Medicaid is the primary provider for long-term care in the country, covering 6 in 10 nursing home residents. It is also the primary provider to help people with disabilities stay in their homes, and pays for roughly half of the births in this country.
But the Trump Administration has launched a new assault on Medicaid enrollees by pushing states to adopt rigid rules (so-called “work requirements”) that are designed to be impossible for to be met and therefore prevent coverage. These new rules are just beginning to work their way through the courts, and while a federal district court judge recently blocked them in Kentucky, they could very well make their way to the high court soon.
THE BOTTOM LINE: All 100 Senators must reject a nominee that would take away, rather than protect, our care.
If Trump appoints an extreme nominee to the bench, and the Senate does not intervene, the balance of the court will turn against Americans’ right to health care. The Supreme Court should be a check on President Trump’s war on health care, not a rubber stamp on it.