Our country lost a great lawyer, jurist, advocate, patriot, citizen, and icon on Friday. And oh yeah, she happened to be a woman. Of course, I’m talking about Supreme Court Justice Ruth Bader Ginsburg, the notorious RBG. She will be missed on a court that is becoming more and more conservative and political.
The debate has already begun as to whether President Trump will be able to get his nominee appointed before the election or before Joe Biden takes office in January, should he win. This issue is very important to the fate of the Affordable Care Act (ACA) as the high Court will hear the California v. Texas case and decide whether the ACA is void in the 2020 term that begins in October..
That case is an appeal of a Texas district court decision holding that because the individual mandate was upheld as constitutional under the taxing power of Congress in 2012, in National Federation of Independent Businesses, and the 2017 Tax Act reduced the tax for violating the individual mandate to zero, the mandate is no longer constitutional. Additionally, since the individual mandate was such an integral part of the Act, the district court held the entire ACA must fall. The United States Court of Appeals for the Fifth Circuit upheld the district court on the individual mandate but remanded the case to the lower court to go through the Act with a “finer tooth comb” to see if any part of it could be saved. However, understanding the importance, several democratic state Attorneys General appealed the case to the Supreme Court and even asked for the Court to expedite the decision as to whether to hear it, so it could be heard last term. The Court denied the request to expedite but agreed to hear the case in the 2020 term. See Supremes: You Can’t Hurry Love or Constitutionality of ACA.
Arguments are scheduled for November 10 and a decision may not be made before the end of the year. The current 8 Justice make up of the Court means that if a ninth Justice is not installed before the case is decided, the vote of the Justices could end in a tie. This would mean the decision of the Fifth Circuit would stand. That would mean the district court would have to decide whether any part of the Act could be saved and it is unlikely it would so find. However, the Justices could agree to delay the case until there is a ninth Justice installed.
RBG knew the importance of her role as a liberal on the Court as she continued working while fighting cancer. Last term she participated in the hearing of the Little Sisters case by phone from the hospital. In that case, the majority upheld the Trump Administration’s expansive exemptions from the contraceptive mandate under the ACA for public companies objecting on religious beliefs and any employer objecting on strongly held moral grounds. The contraceptive mandate requires health policies to cover contraceptive care for women with no co-pays. RBG wrote a scathing dissent stating that the majority has placed religious rights over the rights of women. The consequence of the exemption was that hundreds of thousands of women will lose coverage for contraceptive care resulting in the kind of sexual discrimination in health care that the contraceptive mandate was enacted to prevent. While her view did not prevail, she continued to speak truth to power and champion women’s rights.