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Public Health Law Experts Discuss the Supreme Court Vacancy and Barrett Nomination

Supreme Court Vacancy

This conversation is excerpted from the October 1 episode of Public Health On Call.

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A new justice on the Supreme Court could make decisions that affect the health of millions of Americans for years to come.

The Supreme Court vacancy left by Ruth Bader Ginsburg, and President Trump’s subsequent nomination of Amy Coney Barrett , raise profound public health questions with potential consequences for millions of Americans: What will happen to the Affordable Care Act? What is at stake for firearms policy? And how would the nomination of Coney Barrett affect reproductive rights and reproductive health?

In this Q&A, adapted from the October 1 episode of Public Health On Call, Joshua Sharfstein, MD, speaks with three experts from the Johns Hopkins Bloomberg School of Public Health: Lainie Rutkow, PhD ’09, MPH ’05, JD, professor in Health Policy and Management, Jon Vernick, MPH ’94, JD, professor in Health Policy and Management, and Joanne Rosen, JD, senior lecturer in Health and Policy Management about the court vacancy and the nominee.


Implications for the Affordable Care Act

Why is there so much discussion of the Affordable Care Act with a Supreme Court vacancy?

Lainie Rutkow: Even before the Supreme Court vacancy arose, we were hearing a lot about the Affordable Care Act this year, and that’s because, once again, the Supreme Court is considering a legal challenge to the Affordable Care Act.

And the twist this time is figuring out whether the Affordable Care Act can be held constitutionally sound, meaning: Is it legal? Even if folks are required to pay no money, should they be in violation of the law?

This has to do with some recent legislation passed by Congress and a big challenge to the law. Do you think that one judge could make a difference here?

LR: I absolutely do, and here’s why. In previous legal challenges that have come before the Supreme Court for the Affordable Care Act, we’ve seen several decisions that were decided 5-4. Five is the smallest majority that you can have on the Supreme Court. A change of one justice could certainly make a difference. It’s quite likely that we’ll see a 6-3 decision or an even stronger majority than that.

If the law is struck down, what happens?

LR: That’s a great question, and there are two answers. One is that if just a piece of the law is struck down, then it means that for most folks, life under the ACA will go on the way it was before. And there may be small changes. But for the average person, they won’t feel them. On the other hand, if the Supreme Court strikes down the entire Affordable Care Act, which could happen, then we would see potentially wide-ranging consequences throughout the country. And what that could mean, for example, [is] elimination of protections for individuals with preexisting health conditions, elimination of expansion of Medicaid at the state level, [and] elimination of coverage for young people up to age 26 on their parents’ insurance policy.

Now, the Trump administration has taken a position on this case

LR: It has, and it’s an unusual position. The Trump administration is actually supporting that the ACA should be overturned. It is very, very unusual for the federal government to support having a federal law be invalidated.

So you have a situation where the law is up for Supreme Court review, the president has a position that under this case the law should be struck down, and there’s a Supreme Court vacancy. What do we know about the nominee’s views on the Affordable Care Act?

LR: Judge Barrett has not addressed the Affordable Care Act explicitly in her capacity as a judge, but she has addressed it in her scholarly writings. In a 2017 law journal article, Judge Barrett spoke directly to the Supreme Court’s 2012 decision to uphold the Affordable Care Act. And in essence, she said that she felt that that decision was made in an error, that had she been part of the decision, she would have thought that the law should be invalidated.

So it’s hard to predict because this is a different case, but what is your level of concern that there could be a very serious disruption of the health coverage that millions of Americans are depending on?

LR: I don’t like to be an alarmist, Josh, but I think it is quite possible, at the very least, that a piece of the Affordable Care Act will be overturned. Of course, the more catastrophic scenario is that the entire law is invalidated. I’m not sure we’re in that world, but it’s quite possible that at least a piece of it will be overturned.


Implications for Gun Policy

Professor Vernick, regarding firearms policy: Are there cases like the Affordable Care Act before the Supreme Court? What do you think is at stake with a Supreme Court vacancy?

Jon Vernick: There aren’t any cases currently that the Supreme Court has agreed to hear with regard to firearms. But actually, if there’s any issue that best illustrates Judge Barrett’s philosophy of how this U.S. Constitution should be interpreted, it actually might be firearms. There is a case that she was part of in 2019 when she was—or is—on the 7th Circuit Court of Appeals. That case is called Kanter v. Barr. And it does a very nice job of illustrating both her legal philosophy and her view of the Second Amendment to the U.S. Constitution.

What is that philosophy?

JV: I think that Judge Barrett would describe herself, and certainly others have described her, as employing both an originalist philosophy and a textualist philosophy. And what that means is that in interpreting the Constitution, she strives to understand what the original meaning of the provisions of the Constitution—in this case, the Second Amendment—might be. And also, she heavily emphasizes the actual words of the Constitution, the text, itself.

And where does that leave her

JV: Well, in this case, in Kanter v. Barr, the case involved a person who had been convicted of felony mail fraud. And there is a federal law and also a law in the state of Wisconsin, where the case took place, that says that people who have been convicted of felony crimes are not allowed to purchase or possess firearms. And Mr. Kanter argued that that law violated his Second Amendment right. The Second Amendment, you remember, is the part of the Constitution that talks about the right to keep and bear arms.

And the Seventh Circuit Court of Appeals, in a 2-1 decision, actually upheld the law. Two judges, both appointed by a Republican president, Ronald Reagan, in the 1980s, upheld the law, [and] said that it was not a violation of the Second Amendment for there to be a law that says that felons, even felons convicted of what might arguably be called a nonviolent felony of mail fraud, would not be allowed to have guns. But Judge Barrett was the dissenting judge, and she wrote a very lengthy dissenting opinion, arguing that based on history, based on text, based on tradition, that nonviolent felons should be allowed, consistent with the Second Amendment, to own firearms.

So what do you think the implications of that might be for the Supreme Court?

JV: The implications could be very substantial. In 2008, the Supreme Court decided a case called District of Columbia v. Heller. And that was the first time that the Supreme Court had explicitly said that individuals are allowed, under the Second Amendment, a right to own at least handguns in their homes. But the extent of that right is still not well understood. The Supreme Court hasn’t clarified what it’s meant by that.

And—so far at least—lower federal courts have upheld, just as this court in Kanter v. Barr did, challenges to a wide variety of federal gun laws. Most recently, last year, in a challenge against a New York City law which made it hard to transport a handgun outside of your home, the Supreme Court decided that after New York City changed its law, the case was no longer a live case. It was moot. Now, with Judge Barrett, if she were to join the Supreme Court, there might be a very solid group of judges who would be prepared to expand the meaning of an individual right to own guns under the Second Amendment. And that could put at risk a wide variety of both federal and state gun laws.

So it’s not so much that there’s a specific case, but this is sort of a specific moment in legal time when the details of this question will be worked out by the court?

I think that’s exactly right, Josh. And it only takes four judges to agree to hear a case, and now there appear to be four judges who clearly would be willing to hear more gun cases at the Supreme Court.

If she were to be confirmed.

JV: That’s right, exactly.


Implications for Reproductive Health Rights

I want to turn to Professor Rosen and the very front-and-center issue of reproductive rights and reproductive health. I’m turning to you last because I think this is perhaps the big one, the one that is the top-of-mind for many people. What’s at stake with a Supreme Court vacancy?

Joanna Rosen: Probably, most likely, a great deal [is] at stake. President Trump has said from 2016 on that he was committed to selecting and nominating justices to the Supreme Court who are prepared to reverse Roe v. Wade, the 1973 case that recognized a constitutionally protected right to make decisions about whether to continue or terminate a pregnancy—sort of the right-to-abortion case. 

There isn’t, at the moment, an abortion-related case on the Supreme Court docket. But many states across the country that have been restrictive toward abortion have introduced a number of abortion regulations that are working their way through the courts now. And it’s only a matter of time until one of these makes it in front of the Supreme Court.

None of the other speakers have said what I think is kind of the elephant in the room, which is the principle of stare decisis. It’s a Latin term. It means that the court will stand by things that have already been decided. In our judicial system, the court abides by precedent, or decisions that it’s made in earlier cases on a specific point, so that the next time a new case comes up that raises the similar point, the court doesn’t start from scratch but they apply the precedent or the principles that they’ve developed in earlier cases.

All lower courts in the country are bound by Supreme Court precedent. But the Supreme Court itself, while it typically does follow its own precedents, is the only court that has the power to reverse its own precedents. And so at stake here is the huge question of whether the court will, for the first time since Roe v. Wade was decided in 1973, explicitly reverse its precedent—whether they will reverse Roe v. Wade.

So you have both at stake these individual abortion laws, which might say things like you need to get hospital privileges in order to do abortion ... these laws that are reducing the access to abortion around the country. But you might also see a bigger case. Or could the court take one of these little cases and turn it into an opportunity to reverse Roe versus Wade?

JR: Yes, yes, and yes to everything you’ve said. The court could address the abortion question in a number of different ways. They could take one of these individual state cases, like a law that requires hospital-admitting privileges, or a law that bans the use of telemedicine. And they could use that to grant the states broader scope within which they are permitted to regulate abortion. So they wouldn’t have to reverse Roe v. Wade or some of the subsequent abortion precedent.

They could simply interpret Roe v. Wade and other precedents more narrowly, thereby giving the states more terrain on which they can regulate. So they could restrict access without explicitly reversing Roe, and that’s sometimes called reversing Roe by stealth, or death by a thousand cuts. They could, alternatively agree to hear one of the state laws that outright bans abortion, one of these state laws that explicitly is contrary to what we know precedent would permit. That would require the court to explicitly revisit Roe v. Wade and other abortion precedents and then decide whether they would uphold or reverse.

While the court has the authority to reverse Roe, the court has—at least in the last almost 50 years—been really cautious about doing so. They’ve refused to do so. And they’ve said that in ordinary circumstances, they don’t want to reverse themselves.

In June, the Supreme Court considered a Louisiana abortion law and [the] admitting privileges requirement, and Chief Justice Roberts joined with the four more liberal justices to strike down that Louisiana law. And so there were five justices in total that said this Louisiana law is unconstitutional., it doesn’t comport with our current precedent. The other four justices would have sent the case back to the lower court to determine it on the basis of more evidence.

In that case, Chief Justice Roberts was the swing vote. He devoted an entire section of his opinion to the principle of stare decisis and said, I would have decided this case differently if it came to me the first time, but that’s not my job here. My job is to apply the precedent we’ve already established.

Right, and four judges disagreed with that in the dissent. And then one of the judges that agreed with him was Ruth Bader Ginsburg.

JR: Justices Breyer, Ginsburg, Sotomayor, and Kagan all clearly wrote that they would strike down the Louisiana law because it was contradictory to a much earlier case in 2016 that considered a virtually identical restriction.

The Chief Justice joined with them, which was a surprise to many because the earlier similar law that came out of Texas, which the court said was unconstitutional in 2016, was decided when Justice Kennedy was still on the court, and the Chief Justice dissented. He would have struck that down. He was hewing closely to stare decisis.

I guess the point that I’m making is that decision only happened, in part, because Ruth Bader Ginsburg was fundamentally against the Louisiana law. With her not on the Supreme Court, and somebody else, that decision could be very different.

JR: You’re absolutely right: Her role on the court and her seat and her vote mattered tremendously to protecting this constitutional right to abortion. What we’ve had for the last many, many years is a sort of 5-4 block, in terms of liberal judges. We’ve had four who are consistently supportive of this constitutional right to abortion and five justices less so, or some of them outright hostile. They don’t believe that there’s constitutional protection.

When Justice Kennedy was on the court, he tended to be the swing vote, and he had sided with the four more liberal justices to form a coalition not to reverse Roe and to protect the constitutional right. We, until now, also had five votes. The chief justice, which was somewhat a surprise to many of us, ended up being that fifth vote siding with the other four, including Justice Ginsburg.

With the additional vacancy and the possible confirmation of Judge Barrett, we don’t have a 5-4 [block]. We potentially have a 6-3. And I would describe it as kind of a supermajority on the conservative block. And I think for abortion cases, it makes it far less likely that you would have one traditionally conservative justice try to form a coalition with the liberal justices on abortion and try to …  preserve stability and certainty and predictability. But with a six-justice supermajority, I think it’s far less likely that you would have this kind of five-justice coalition. The incentives are different.

Yeah, wow, that is very striking. I appreciate that explanation, and I appreciate the discussions with all of you. 

I’m struck not only by how much is on the line with the Supreme Court and these public health issues, but also how imminent changes could potentially be on all of these issues. The Affordable Care Act case is coming right up. The gun litigation is evolving, and the lines are being drawn right now. And there are cases that are coming up all the time  through the state courts, or the circuit courts, that could wind up in the Supreme Court on reproductive health and abortion. So this is far from a theoretical issue, and we’ll have to see what happens as the confirmation hearings get underway.


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