In the days leading to his nomination of Amy Coney Barrett to the Supreme Court, President Donald Trump emphasized anew his distaste for the Affordable Care Act. In his third chance to shape the high court, the president is turning to a conservative judge who could tilt its balance toward his goal of abolishing the law.
Barrett has not participated in any cases during three years on the Chicago-based U.S. Court of Appeals for the 7th Circuit that dealt with the decade-old law, which has widened insurance coverage. Yet her academic writing and public action offer glimpses into her views: She has criticized the legal logic behind a Supreme Court decision that preserved the law and opposed a provision involving birth control.
Among the most revealing was an essay she wrote at the start of 2017, four months before Trump nominated her to the circuit bench. In the essay published by a journal of Notre Dame Law School, where she was a professor, Barrett argues that judges should respect the text of laws and contends that Chief Justice John Roberts, who wrote the majority opinion the first time the Supreme Court upheld the health-care law, "pushed the Affordable Care Act beyond its plausible meaning to save the statute."
Barrett represents a striking departure from the views of the justice she would succeed if confirmed by the Senate — Ruth Bader Ginsburg, who was the senior member of the court's liberal wing before she died of cancer. Ginsburg voted twice to uphold the ACA's constitutionality and was widely expected to hold that position in an upcoming case.
Barrett is a favorite of social conservatives, with a vivid history of opposition to abortion and an allegiance to a legal theory known as originalism — the idea that courts should stick to the meaning of the Constitution intended by the nation's founders — an inheritance from the late Supreme Court Justice Antonin Scalia for whom she clerked.
But it is the tidbits showing her dim view of the ACA that are animating those on the left. On and off Capitol Hill, they are planning to use the issue as a rallying cry in the weeks before the November elections, even if Senate Democrats lack enough votes to prevent Barrett from being confirmed.
"I think it is the issue of these confirmation hearings," said Daniel Goldberg, legal director of the Alliance for Justice, a liberal group that monitors judicial nominations and has helped block several of Trump's choices for lower courts.
The new nominee's views on health care have particular relevance because the Supreme Court is scheduled to hear oral arguments a week after the Nov. 3 election in a case challenging the ACA's constitutionality. The case marks the third time the court will consider the validity of the 2010 statute, which was a signature domestic policy achievement of President Barack Obama — and a target for Republicans ever since.
The law reaches into many aspects of Americans' lives — from calorie listings on some menus to how much seniors pay for medicines — but its best-known elements led to health coverage for more than 20 million people through new insurance marketplaces and an expansion of Medicaid in all but a dozen states. The most popular part of the law protects consumers who have pre-existing medical conditions from being frozen out of health plans or being charged more for them.
Goldberg noted that in June 2015 — 10 days after Trump announced his candidacy for the 2016 election — he tweeted: "If I win the presidency, my judicial appointments will do the right thing unlike [former Republican president George W.] Bush's appointee John Roberts on Obamacare."
"I take Donald Trump at his word," Goldberg said, "that [any] person he nominates will declare the Affordable Care Act unconstitutional and, in the middle of the pandemic, will take health care away from millions of people."
Conservatives say they are not as certain. Ramesh Ponnuru, a fellow at the American Enterprise Institute, said Barrett's legal positions and writings overall fall within mainstream conservative views, though he, too, said her essay is critical of the chief justice.
In the essay, Barrett wrote that the court majority in the 2012 case that upheld the law "expresses a commitment to judicial restraint by creatively interpreting ostensibly clear statutory text."
And she praised a dissent by Scalia in a 2015 case in which the court majority again ruled the ACA constitutional. In the dissent, Scalia said the majority decision was "interpretive jiggery-pokery," a "defense of the indefensible" and "pure applesauce."