Capitol Correspondence - 09.22.20

Honoring the Passing of Justice Ruth Bader Ginsburg and Understanding the Policy Implications

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ANCOR honored the passing of a giant in disability civil rights with its statement on the passing of Supreme Court Justice Ruth Bader Ginsburg: “As the author of the majority opinion in the Supreme Court’s decision in Olmstead v. LC (1999), Justice Ginsburg cemented the right of people to live within the community, rather than in institutions. Her work gave power to the promise of the Americans with Disabilities Act of 1990, and she will forever be remembered as a champion of the rights of millions of people with intellectual and developmental disabilities.”

Even as the nation mourns Justice Ginsburg, it is important to understand the policy implications of a Supreme Court vacancy. As reported by Politico Pulse:

WHAT HAPPENS TO THE ACA? — The health law appears to be in serious peril, with the high court set to hear the latest challenge to its legality on Nov. 10. [ANCOR note: we have been monitoring policy discussions surrounding the Affordable Care Act (ACA) because it contains provisions protecting access to insurance for people with pre-existing conditions, which includes intellectual / developmental disabilities.]

While some legal scholars have dismissed the current case as flawed, a district court judge and two appellate judges have already found reason to knock down part or all of the Affordable Care Act. Obamacare also has just barely scraped by at the Supreme Court before; the health law survived a narrow 5-4 decision in 2012, with Ginsburg joining the majority.

The stakes are huge: Tens of millions of Americans depend on the law for health coverage and other benefits, and it’s a potential lifeline for people who lose their job-based insurance during the pandemic.

— If the high court splits 4-4, that could remand the case back to the district court — which already has ruled that the law is unconstitutional — or open up a new series of legal and logistical problems, POLITICO’s Susannah Luthi writes.

A Ginsburg replacement could also join the majority to strike down the law altogether. Coney Barrett has been critical of Chief Justice John Roberts’ 2012 opinion that helped preserve the ACA. Lagoa’s views on the ACA are unknown.

‘Almost nothing is certain at this point except perhaps that a ruling to strike down the law would be devastating to millions of Americans,’ HuffPost’s Jonathan Cohn writes .

— PULSE readers might recall that Scalia zinged the law as “SCOTUSCare,” suggesting in 2015 that the high court was overly intervening in the ACA’s fate. The new dynamics could end up, particularly if Roberts, who has emerged as the court’s swing voter, ends up engaging in legal gymnastics to help preserve coverage once again.

— Also: the hypothetical exercise where Justice Brett Kavanaugh ends up as the deciding vote on the legality of the health program overseen by his lifelong friend, HHS Secretary Alex Azar, is not so hypothetical anymore.”