Senate Democrats made the Affordable Care Act the centerpiece of their effort to block the confirmation of Judge Amy Coney Barrett to the Supreme Court on Monday, portraying her as a threat to the landmark health care law passed more than a decade ago.
In her opening statement, Sen. Dianne Feinstein, the top Democrat on the committee, questioned whether Barrett would vote to overturn the health care law known as ObamaCare if confirmed to the Supreme Court, arguing that "health care coverage for millions of Americans is at stake."
"The president has promised to appoint justices who will vote to dismantle that law," Feinstein said, surrounded by posters of constituents that Democrats said were protected by the Affordable Care Act. "The bottom line is this: there have been 70 attempts to repeal the ACA, but clearly the effort to dismantle the law continues."
That's because the high court is slated to hear oral arguments challenging the constitutionality of the ACA on Nov. 10, one week after the presidential election. President Trump has repeatedly indicated that he will nominate a judge who would rule against it.
The White House-backed case was brought by a group of Republican states, spearheaded by Texas, arguing the individual mandate – the provision that requires Americans to purchase health insurance or pay a financial penalty – was made unconstitutional when the GOP-passed Tax Cuts and Jobs Act reduced the penalty to zero. Another coalition of Democratic attorneys general is trying to uphold the law.
The suit contends that if that part of ObamaCare is invalid, so is the rest of the law.
“In the midst of the pandemic, the Republicans want to strike down a law that 23 million Americans rely on,” Sen. Dick Durbin, D-Ill., said in his remarks. He called the confirmation hearing of Barrett a "shameless, self-serving, venal reversal."
"Republicans in Congress have been obsessed with repealing Obamacare for years, but they don’t have the votes to do it," he said. "They’ve got to rely on the court to do their work."
Still, legal experts have said they expect the majority of the health care law to remain intact, even if Barrett joins the court.
On Sunday, Senate Minority Leader Chuck Schumer called on Barrett to recuse herself from any cases involving the ACA or the outcome of the Nov. 3 election.
"This nominee comes before us with serious conflicts of interest and we're here today to say that given Judge Barrett's conflicts of interest she should recuse herself from any decision involving the Affordable Care Act and its protections and any decision related to the election that we will have on Nov. 3," Schumer said at a press conference in New York.
Democrats have made it central to their message that Barrett will join with conservative justices on the court and vote to strike down the law. Giving fuel to that argument is a 2017 Notre Dame Law School article that Barrett wrote criticizing past judicial decisions to uphold the ACA.
“For Justice Scalia and those who share his commitment to uphold text, the measure of a court is its fair-minded application of the rule of law, which means going where the law leads. By this measure, it is illegitimate for the Court to distort either the Constitution or a statute to achieve what it deems a preferable result,” Barrett wrote at the time.
She has not addressed Democrats' concerns about how she would rule on the ACA.
Republican senators pushed back against Democrats' arguments during the confirmation hearing. In his opening statement, Sen. Chuck Grassley, R-Iowa, said it was "outrageous" to claim that Barrett's confirmation "would be the demise of the Affordable Care Act and the protection for pre-existing conditions."
"As a mother of seven, Judge Barrett clearly understands the importance of health care," the former Senate Judiciary Committee chairman said.
If Republicans confirm Barrett it would tilt the bench 6-3 in favor of conservatives.
The ultimate outcome of the lawsuit will affect millions of Americans, and the repeal of the decade-old law could leave up to 32 million people without health insurance by 2026, according to a Congressional Budget Office report from 2017 about the effects of repealing Obamacare.
Justice Ruth Bader Ginsburg, who died in September, voted to uphold the Obama-era law in 2012 alongside the court's three other liberal justices and Chief Justice John Roberts. She was widely expected to do so again when the high court reviews Obamacare for the third time.