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Betsy McCaughey / Sep. 30, 2020

Judge Barrett and Your Healthcare

Democrats and their media allies are warning that putting Amy Coney Barrett on the Supreme Court will doom the Affordable Care Act. They predict tens of millions will be thrown off Medicaid and the sick will lose their preexisting conditions protections.

Democrats and their media allies are warning that putting Amy Coney Barrett on the Supreme Court will doom the Affordable Care Act. They predict tens of millions will be thrown off Medicaid and the sick will lose their preexisting conditions protections.

Don’t fall for this fear-mongering. Here’s a rundown of the false claims, with the facts that disprove them.

Whopper No. 1: Joe Biden warns that Barrett’s nomination is “an opportunity to overturn the Affordable Care Act.”

There’s little chance of that.

Barrett is a true conservative who believes judges should interfere as little as possible in what Congress does. “The harm inflicted by the Supreme Court’s erroneous interference in the democratic process,” she wrote in 2017, “is harder to remedy than the harm inflicted by an ill-advised statute.” That was in an article that expressly dealt with Obamacare.

It’s the same bedrock conviction that Chief Justice John Roberts, and Justices Brett Kavanaugh and Samuel Alito applied last term in Seila Law v. Consumer Financial Protection Bureau. Roberts explained that if one provision of a law violates the U.S. Constitution, the Court should use “a scalpel rather than a bulldozer,” to excise that provision, while leaving the rest of Congress’s work intact.

Obamacare is a 2,572-page legislative colossus — really three laws stuck together. One part set national rules for health insurance and required everyone to have it or pay a penalty. A second part expanded Medicaid, and a third added a hodgepodge of rules, including calorie postings on menus.

In 2012, the first time Obamacare was challenged, the justices ruled the penalty was a tax, and therefore a constitutional exercise of Congress’s taxing power. But in 2017, Congress zeroed out the penalty. The Court is now being asked to decide whether that eliminated the only constitutional basis for the mandate, or even for the entire law.

Expect the conservative majority to surgically remove only the mandate. The good news is that will liberate middle-class buyers, who were priced out of ACA plans and ineligible for subsidies, to purchase coverage they want and can afford, not Uncle Sam’s one-size-fits-all plan.

Whopper No. 2: The New York Times warns that “12 million Americans could lose coverage.” That’s how many people gained coverage through the Medicaid expansion. Despite the gray lady’s hysteria, there is hardly a reason to worry. The Court already addressed the constitutionality of the Medicaid expansion in 2012, ruling that states must be given an option not to expand. That issue is settled. Thirty-five have chosen to expand.

Whopper No. 3: Nancy Pelosi warns Barrett’s nomination “threatens the destruction of life-saving protections for 135 million Americans with preexisting conditions.”

Untrue in every way.

The protections in the ACA for preexisting conditions apply only to people in the individual insurance market, less than 6% of the population, not 135 million people.

More important, there is a consensus across party lines that people with preexisting conditions must be guaranteed insurance. Only a Neanderthal would question it. The issue is how is it paid for.

Obamacare makes healthy buyers shoulder the cost by compelling everyone of the same age to pay the same premium. That’s a rip-off, because a tiny 5% of the population with serious illnesses use 50% of the health care.

A better way is for government to pay the cost of the sick, instead of hiding it inside the premiums healthy buyers pay. Twelve states have adopted this solution since 2013, including blue states like Maryland and New Jersey. It’s called reinsurance. The Trump administration is funding these subsidies of coverage for people with preexisting conditions.

On Sept. 24, Trump signed an executive order making it national policy to protect patients with preexisting conditions, regardless of what the Supreme Court decides.

No surprise, Pelosi says it’s “not worth the paper it’s signed on.” In fact, experience shows it’s the better way forward.

With Barrett on the bench, expect the high court’s ruling to pave the way for more insurance options, a fairer way to subsidize people with preexisting conditions and lower premiums.

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