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Senate Democrats keep focus on Supreme Court case on Obamacare

Letter from 20 senators asks DOJ to stop supporting challenge to law

A group of Senate Democrats is calling on the Trump administration to withdraw its support from a lawsuit challenging the 2010 health care law, even as the likely confirmation of Amy Coney Barrett to the Supreme Court threatens their case.

The 20 Democrats, led by Massachusetts Sen. Elizabeth Warren and including vice presidential nominee Kamala Harris of California, wrote to the Justice Department on Wednesday to urge the administration to back off its decision not to defend the health law, commonly known as the Affordable Care Act or Obamacare, in a legal challenge the Supreme Court is set to hear next month.

“Destroying this progress and ripping away critical protections is cruel on its face,” they wrote. “Looking to do so in the midst of a nearly unprecedented public health emergency — a coronavirus disease 2019 (COVID-19) pandemic that has claimed over 220,000 American lives and infected over 8 million people — is especially unconscionable.”

The Trump administration is supporting the lawsuit California v. Texas, which was brought by several Republican state officials arguing the 2010 health care law is invalid after Republicans zeroed out the penalty for people who do not have health insurance in the 2017 tax overhaul. The states base their argument by saying the federal government is no longer receiving income from the tax penalty, a key facet of Chief Justice John G. Robert’s argument in the NFIB v. Sebelius case that upheld the law in 2012.

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Democrats made the lawsuit a focal point of Senate hearings last week on Barrett’s nomination to the Supreme Court. Barrett, whose nomination is expected to be confirmed by the Senate on Monday, suggested the individual mandate may be severable from the rest of the law, but did not explain how she would approach or rule if she is seated on the court by the Nov. 10 oral arguments for the case.

In response to a question for the record for the Judiciary Committee hearings from Senate Minority Whip Richard J. Durbin of Illinois released late Tuesday, Barrett again avoided a question about the Texas case.

Durbin asked, “Without commenting on the specifics of California v. Texas, when the Court has already accepted a case that could ‘cause chaos,’ what other options or off-ramps are then available to a justice to avoid such an outcome?”

Barrett offered a standard reply, “As a sitting judge and as a judicial nominee, it would not be appropriate for me to offer an opinion on abstract legal issues or hypotheticals.”

In the Wednesday letter, the group of 20 Democrats, which includes Durbin, wrote Barrett’s nomination “is a key component of the President’s self-stated goal to ‘terminate’ the ACA.”

Senate Minority Leader Charles E. Schumer of New York forced a procedural vote earlier this month on legislation that would prohibit the Justice Department from intervening in the lawsuit. Six Republicans, including five on the ballot this year, voted in favor of the resolution, which fell short of the 60 votes required to advance to the bill.

Analysts have projected as many as 20 million people could lose insurance coverage if the Supreme Court strikes down the health law, but they also say that number could now be higher since people who have lost jobs during the pandemic may have purchased coverage on the exchanges set up under the law.

The health care law also includes provisions prohibiting insurance plans from denying coverage to people with pre-existing conditions or charging them more because they are sick. Democrats warn that COVID-19 could be a new pre-existing condition for the more than 8 million people in the U.S. who have contracted the disease.

“Without ACA protections, individuals who face long-term effects of COVID-19 could be considered ‘uninsurable’ in the individual market altogether, and anyone who ever tested positive for COVID-19 could be denied coverage or kicked off their insurance, impairing their ability to access care for complications from the disease or any other health issues for years in the future,” they wrote in the Wednesday letter.

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