President Donald Trump officially nominated Judge Amy Coney Barrett to the Supreme Court on Saturday. Discussing the matter, Fox News anchors dismissed concerns that the court with a 6-3 conservative majority could overturn the Affordable Care Act -- even though Barrett has praised late Justice Antonin Scalia’s dissenting opinion in a 2012 case that would have invalidated the entire law.
Katie Keith wrote of Barrett’s record on health care recently at Health Affairs:
Judge Barrett was confirmed to the Seventh Circuit in 2017 by a vote of 55-43. While her views on Roe v. Wade are likely to receive the most attention, she has discussed ACA issues before. In a review of a book by Professor Randy Barnett—considered among the chief architects of the challenge in NFIB—Judge Barrett critiques the Chief Justice’s opinion in NFIB as a departure from true textualism and contrasts it with Justice Scalia’s dissent. She does not clearly state her own view but signals support for the dissent’s view (full invalidation of the ACA). She also reportedly joined a letter criticizing the Obama administration’s accommodation for religious entities that oppose the ACA’s contraceptive mandate (an issue that was before the Court in its most recent term, as noted below).
At Slate, Mark Joseph Stern elaborated on Barrett’s record:
Abortion and guns, however, are just the beginning. Barrett’s confirmation would heighten the odds that the Supreme Court will eradicate the entire Affordable Care Act in 2021, stripping health insurance from more than 20 million people. Red states challenged the law after Congress zeroed out the penalty for those who forgo health insurance in 2017, a frivolous challenge that nonetheless found support among conservative judges in the lower courts. Chief Justice John Roberts, who twice saved the ACA, seems unlikely to kill it now. Barrett has criticized Roberts’ 2012 opinion saving the law, suggesting she would join the other four conservatives to destroy it root and branch. That decision would reverse Medicaid expansion, abolish the exchanges and federal subsidies for insurance, end protections for preexisting conditions, erase what’s left of the contraceptive mandate, allow insurers to kick young adults off their parents’ plans, and much more. All available data indicates that people will die as a result of such a ruling.
Furthermore, as noted by the Alliance for Justice report on Barrett’s nomination, “appointing judges who will declare the Affordable Care Act unconstitutional is central to the President’s goal.”
Barrett’s record -- and the impact of such a far-right court -- was predictably absent from Fox News’s coverage of her nomination.
When interviewing Rep. Eric Swalwell (D-CA), Fox anchor Shannon Bream dismissed Swalwell’s concern that “most Americans really care about” the possibility that the ACA would be overturned in a case due to be heard by the Supreme Court shortly after the election. “The interesting thing is,” Bream said, “a lot of people across the ideological spectrum think it’s going to be an 8-0 or a 9-0 case at the court, that actually the law will likely be upheld.” She also glossed over Swalwell’s response that Barrett has advocated against the court’s 2012 decision to uphold the ACA.
When the topic came up again a few minutes later, the panel was dismissive of essentially any changes that might result from Barrett being on the court, with Bream saying that “Barrett may not really make a big difference” in the pending challenge to the ACA.
This is a lifetime appointment, and Fox is misleading the public by dismissing Barrett’s record based on vague predictions of what the court will do. Actual news organizations have an obligation to explain the possibilities of what a conservative-majority court could do not just to the ACA and the administrative state but to federal programs like Medicare and Social Security which have been longtime right-wing targets.
The positions of Barrett or any conservative nominee that Trump and Senate Majority Leader Mitch McConnell (R-KY) would consider are wildly unpopular. Fox’s role in this charade is to portray Barrett as an incredible jurist who is wildly persuasive but will presumably have no impact on any major issues of the day.
There’s no reason anyone has to play along.