For reasons I’ve written about, I pledge allegiance to the “anti” side on abortion. But if I were a senator, I’d vote against putting my fellow Catholic, Amy Coney Barrett, on the Supreme Court, absent new revelations during her confirmation hearing.
I don’t doubt predictions, based on Barrett’s words, that she’d likely vote to further restrict or overturn Roe v. Wade. But hysterics on the left and obsessive-compulsives on the right both grossly hyperbolize the salience of the issue. On a more important and imminent matter — the fate of Obamacare — Barrett’s querulous utterances against that law suggest that she might condemn thousands to a premature burial.
That’s not pro-life.
First, let’s stop exaggerating the importance of Roe, shall we? That holy writ (or spawn of evil, take your pick) effectively was gutted by a 1992 high court decision that expanded states’ ability to restrict abortion. Ever since, anti-abortion jurisdictions have regulated pregnancy termination to make it difficult if not impossible, while pro-choice states have moved to codify abortion rights. “Neither practically speaking nor as a matter of legal doctrine is [Roe] the law of the land,” Boston University legal scholar Tracy Maclin told me two years ago, an observation confirmed by a Vox review of state laws.
If Barrett joined a court majority overturning Roe, that decision would make de jure what is already de facto state control over abortion. SCOTUS’s stray smackdown of state restrictions, as with this summer’s rebuke of Louisiana, doesn’t change that. (That the abortion fight is much ado about nothing burgers makes all the more obscene evangelicals’ supporting a moral sewer rat of a president, just because he appoints anti-Roe judges.)
On the other hand, when SCOTUS hears arguments next month over the Affordable Care Act, potentially with Justice Barrett on hand, lives really will hang in the balance.
The legal argument that the Trump administration and red-state attorneys general offer for killing the ACA is so dumb that even right-wing legal minds say it flunks the giggle test. But the real-world implications of overturning it are deadly serious, starting with the 23 million Americans who would lose access to health coverage. Recall that Obamacare, in line with most Americans’ wishes (Republican Americans included), requires insurers to cover pre-existing conditions, protection that would be lost if SCOTUS tosses the ACA. (President Trump and his congressional cultists say they’ll continue that protection. They’re lying.)
... when SCOTUS hears arguments next month over the Affordable Care Act, potentially with Justice Barrett on hand, lives really will hang in the balance.
It gets worse. Obamacare gives billions of crucial dollars to states that help pay for expanded coverage under Medicaid, the joint federal-state health program for the poor, subsidies that disappear if the law is overturned. In 2012, SCOTUS permitted states to opt-out of the expansion, handing researchers an invaluable, real-life experiment to compare the three dozen states that grew Medicaid with those that didn’t.
Results: An estimated 19,000 people were saved from preventable death in expanding states, while “opt-out states, accordingly, experienced thousands of avoidable deaths.” Medicaid expansion also resulted in more poor people procuring personal doctors, check-ups, and preventive care, with consequent improvements in care for everything from depression to cancer to diabetes.
Is jeopardizing all of this really Barrett’s notion of pro-life?
The answer clearly is yes for her fan club, which fawns over abstract legalisms rather than real-world results. Supporters bray about Barrett’s originalism, the doctrine that the Constitution’s meaning should be construed as it was understood publicly when it was adopted. True, that meaning did not encompass federally supported health care, the invention of a 19th-century anti-socialist, which ought to be a good enough provenance for putative conservatives.
Yet even conservative justices like Roberts balance historical considerations with others, because rigid originalism fails as both theory and practice. In the former category, while our Founders are justly revered for genius, another BU legal scholar, Jack Beermann, wonders why we’d want to be straitjacketed by the beliefs of a long-dead minority of “property-owning white men.”
Answer: We wouldn’t, which is why, in practice, uber originalist Antonin Scalia, for whom Barrett clerked, ditched this doctrine when it was unworkable.
I said I’d oppose Barrett unless something new comes out at her hearing. I meant that her indisputably sharp mind may recoil at such self-destructive rulings as Obamacare repeal. “Some [SCOTUS] decisions thought inconsistent with the Constitution’s original public meaning are so well baked into government that reversing them would wreak havoc,” she once wrote.
Would the court’s 2012 ruling to uphold most of the ACA meet that standard?
If Senate pro-lifers are serious about their beliefs, they’ll grill Barrett over questions like that, while remembering this: Robust public safety nets, including expanded health coverage, decrease abortions.