At Monday’s opening Senate hearing on the nomination of Judge Amy Coney Barrett to the Supreme Court, Senate Democrats focused on the Affordable Care Act as a major issue, explaining that Barrett — who has previously criticized Chief Justice John Roberts for his ruling that upheld the Affordable Care Act in 2012 — poses a major threat of overturning the law’s protections, and in the middle of the coronavirus pandemic.
However, right-wing media have begun a new public charm offensive to assure everyone that the ACA is in no danger — even as the Trump administration and Republican state attorneys general are seeking to get the law overturned in a case to be heard just one week after the 2020 election.
The threat to the Affordable Care Act
The case was brought in Texas, arguing that because Congress in 2017 reduced the individual mandate’s tax penalty to $0 — effectively wiping out the mandate, after congressional Republicans had failed to repeal the law earlier that year – the entire law should now be declared unconstitutional.
According to the Kaiser Family Foundation: “A host of ACA provisions could be eliminated, including protections for people with pre-existing conditions, subsidies to make individual health insurance more affordable, expanded eligibility for Medicaid, coverage of young adults up to age 26 under their parents’ insurance policies, coverage of preventive care with no patient cost-sharing, closing of the doughnut hole under Medicare’s drug benefit, and a series of tax increases to fund these initiatives.”
As a presidential candidate, Donald Trump promised that his appointments to the Supreme Court would strike down the Affordable Care Act:
Two current sitting justices on the Supreme Court, Clarence Thomas and Samuel Alito, voted in 2012 to overturn the ACA completely, and they have also voted against another key provision of the law. With the two other justices Trump has already placed on the court, the confirmation of Amy Coney Barrett would add a potential fifth vote to rule exactly as Trump had promised.
In a tweet from this past September 27 — the day after Trump’s rollout at the White House of the Barrett nomination — the president further reiterated his intention to see the Supreme Court strike down the ACA:
The charm offensive: Convince the public that Trump’s Supreme Court won’t do what Trump promised his Supreme Court would do
- Fox News contributor and National Review contributing editor Andrew McCarthy wrote on September 29, however, regarding this issue: “There is no evidence that President Trump has imposed a litmus test on judges whom he would nominate to the Supreme Court. That Democrats say there is a litmus test, tirelessly, on every media platform available to them, is not proof of anything other than a campaign to drive a fact-free political narrative into the public’s consciousness.”
- As the hearings began on October 12, Fox News contributor Ken Starr said “only two members of the court” — presumably Thomas and Alito — would argue that the elimination of the mandate makes the ACA unconstitutional.
- National Review ran a piece titled “Nobody Should Expect Amy Coney Barrett to Strike Down Obamacare.” Dan McLaughlin wrote: “The Trump administration has not helped itself by the solicitor general telling the Supreme Court that the suit should invalidate the entire statute, but there is no reason to think the justices will bite. The little evidence we have of Judge Barrett’s thinking on the case suggests that she is unlikely to change that.”
- National Review Editor Rich Lowry appeared on MSNBC and said: “The ACA suit is very unlikely to succeed. There's some legal analysts, actually, think it'll go down nine to nothing.”
- Fox News anchor Dana Perino predicted that the suit in the Supreme Court would fail, based on the opinions of even conservative scholars: “You just wonder what the coverage will be like then. Because will the media then say, ‘Oh, President Trump put his hopes in Amy Coney Barrett and it didn't work out?’”
- On Bill Hemmer Reports, guest Carrie Severino of the right-wing Judicial Crisis Network called any talk that Barrett would overturn the ACA “complete speculation,” also adding, “I don't think anyone thinks she's really the fifth vote to overturn Obamacare. And the idea that a mother of a child with special needs wants to eliminate preexisting conditions is crazy.”
- Andrew McCarthy also made the seemingly absurd claim: “I frankly don't think there is a single vote on the Supreme Court to overturn Obamacare in toto, and the idea that Amy Barrett is being put on the Supreme Court to invalidate that statute is just absurd.” (In contrast to McCarthy and Lowry, however, Fox News senior political analyst Brit Hume tweeted his belief that the case would stand in the Supreme Court at 4-4, without Barrett on the court.)
Their next step: Deny that the case is even happening at all
- During Monday’s hearings, The Wall Street Journal’s news page uncritically reported Republican talking points: “Republicans said that such allegations were unfounded, given that Republicans universally support policies such as a guarantee that insurance will cover pre-existing conditions, a provision of the ACA,” despite ongoing Republican efforts to have such guarantees struck down in the courts. (This line in the original article was deleted in an update Monday evening but can still be found via a partner link.)
- And on Monday’s edition of Tucker Carlson Tonight, the host stepped up the denial of basic reality. “There is no case currently pending anywhere in this country before any court in America that would eliminate Obamacare,” said Carlson — despite such a case being set for argument before the Supreme Court a week after the election, and with the backing of the Trump administration. “Nor, by the way, do we have any idea how Amy Coney Barrett would rule in a case like that were it to materialize — which, again, it hasn't.”
- And on Tuesday’s edition of Fox & Friends, the dual message was that Barrett would not get rid of the Affordable Care Act — but besides that, as explained by Fox News medical contributor Nicole Saphier, the protection of preexisting conditions does “not necessarily equate” to the Affordable Care Act itself, and an adverse ruling would not mean the end of those protections.
Just to be clear: It would mean the end of such protections.