Why the Democrats must fight to stop Barrett: With her on the court, the ACA is toast

Sure, Trump wants Barrett on the court for the election. He also expects her to drive the final nail into Obamacare

Published October 13, 2020 8:00AM (EDT)

Supreme Court nominee Amy Coney Barrett is sworn in during her Senate Judiciary Committee confirmation hearing for Supreme Court Justice on Capitol Hill on October 12, 2020 in Washington, DC. (Patrick Semansky - Pool/Getty Images)
Supreme Court nominee Amy Coney Barrett is sworn in during her Senate Judiciary Committee confirmation hearing for Supreme Court Justice on Capitol Hill on October 12, 2020 in Washington, DC. (Patrick Semansky - Pool/Getty Images)

Donald Trump and his henchmen keep promising to protect health insurance coverage for Americans with pre-existing conditions. They're lying to you, probably because it's what they do best and also because the president has no idea how to spell "ACA," much less describe what's in the law. 

The truth is that Trump's entire agenda circulates around re-election and erasing the Obama legacy because he's all about revenge — petty, self-serving Mafia-cosplay — and he doesn't really care if his own supporters aren't able to buy affordable health insurance due to his nincompoopery. This is why the president and his sidekick, Attorney General Bill Barr, are refusing to defend the ACA in court after a ludicrous ruling by a Trump-supporting Texas judge who also doesn't understand how the law works.

That 2018 decision by Judge Reed O'Connor found that the individual mandate, which required everyone to buy health insurance or pay a penalty, was unconstitutional even though Trump and Mitch McConnell had successfully reduced the mandate penalty to zero in late 2017. Without the mandate, O'Connor decided, the entire law had to be flushed. The George W. Bush-appointed jurist, like his messiah in the White House, obviously didn't understand that the mandate has little to do with the vast majority of the law, namely the myriad consumer protections and more. O'Connor had an agenda. A pro-Trump agenda. And here we are.

Nevertheless, this is the ruling that's headed to the Supreme Court for oral arguments beginning Nov. 10, and if Trump gets his way, the Court will agree with O'Connor's nonsensical decision, repealing the entire law — threatening insurance coverage for millions of Americans without any safety net whatsoever from the Trump Republicans.

That's much less likely to happen if Amy Coney Barrett isn't confirmed and seated in time. The ACA case is part of the reason why McConnell is rushing Barrett's confirmation — she could end up being the deciding vote, so they need her on the bench by the second week in November. On the other hand, if she's not seated in time, the outcome would likely be a 4-4 stalemate, returning the matter to the Fifth Circuit, which agreed about the unconstitutionality of the mandate but ruled that the rest of the law was OK.

The bottom line here is that if Barrett is confirmed and seated by Nov. 10, there's a solid chance the ACA will be repealed, along with protections for Americans with pre-existing conditions. 

If Trump and Barrett are victorious, more than 21 million Americans will lose their insurance, and at least 133 million non-elderly Americans with prior illnesses or injuries won't be able to buy either first-time coverage or replacement coverage for the policies they lost. To put it in more concrete terms, Americans with everything from COVID-19 to cancer to diabetes to hypertension to obesity to acne to, yes, pregnancy will potentially be denied new insurance, or be egregiously ripped off by insurers.

Naturally, Trump and his goons keep promising to protect those Americans. In fact, Trump has signed at least one executive order that pretends to shield them from being denied by insurers. Meaningless gesture. During the Barrett hearings on Monday, White House press secretary Kayleigh McEnany, tweeted that Trump "WILL protect Americans with pre-existing conditions. He has signed an executive order to that effect." Trump himself tweeted, "Will always protect pre-existing conditions!!!" 

Nope. No, he won't. It's a scam.

Protecting those Americans requires much more than just a pledge and a symbolic executive order. Even if Trump somehow codifies that order into a law passed by Congress, he'll have to do a lot better than merely announcing, Voila! You're protected! Believe me!

The fact is that without the ACA, some people with pre-existing conditions might be able to buy health insurance — horrible insurance policies that are expensive as hell and cover almost nothing. Without the ACA's consumer protections, there's no point. (And by the way, the ACA's consumer protections apply to all Americans: those who have insurance through their employers as well as those who buy on the individual marketplace.)

See, the ACA not only allows previously sick Americans to buy insurance, it also allows them to buy insurance at the same rates as healthy people. Take away the ACA, and previously sick people might as well not buy insurance at all.

Before the ACA, people with prior injuries or illnesses could occasionally find a company that would cover them. But such coverage was ludicrously expensive, often pricing those customers out of the system entirely or forcing them into medical bankruptcy. Likewise, those policies might not cover the pre-existing condition itself — people with cancer, for instance, wouldn't be covered for it. In those cases, what's the point of having insurance at all? You'd go broke (or die first) with or without it.

That's why the ACA mandated equal access for everyone. The law forces insurers to cover all Americans equally, while applying caps on premiums and out-of-pocket expenses, irrespective of prior medical conditions. Here's where the mandate comes in. Not only does the mandate help finance the premium subsidies for lower-income Americans, it also helps keep costs low by making sure the maximum number of people are buying policies. Without the mandate, rates could start to climb more rapidly. The law also eliminated the practice of "rescission," in which people were routinely booted from their coverage the moment they were diagnosed with a major illness.

Without the ACA, rescissions will return, rates will spike, more than 133 million Americans will be screwed, thousands will die and no one will be safe. No one. That's the Trump health care plan, ladies and gentlemen.

And Amy Coney Barrett is on the verge of helping him accomplish this horrifying victory. 

Trump's obsession with repealing the ACA is one of many reasons why Barrett should be forced by the Senate Judiciary Committee Democrats to pledge under oath to recuse herself from ACA-related matters, especially the current challenge kicked off by Judge O'Connor. While we're here, she needs to recuse herself from possible challenges to the 2020 election as well. It doesn't take a constitutional scholar to realize Trump needs a Bill Barr character sitting on the Court, not only to help him with his crusade against vote-by-mail ballots but also to carry the ball over the goal line in his years-long preoccupation with repealing the ACA. Given what we've witnessed from Trump in the past, it's safe to assume that a corrupt bargain was struck and that Barrett was nominated primarily because she pledged to do his bidding. He's given us no reason to assume differently. Again, that's why Barr was nominated as AG — to protect Trump. Period. 

If the Trump Republicans were serious about making sure everyone can buy affordable health care coverage — which of course they're not — they'd need to explain exactly how repealing the ACA will make things better. Trump needs to tell us in detail, perhaps at the final campaign debate with Joe Biden (assuming that even happens), how he'll stop insurers from bankrupting or killing Americans. Don't hold your breath, though. He'll never explain that because he can't. Nor is he capable of learning how. All he cares about is jabbing at Obama while fluffing his fanboys, many of whom suffer from, yeah, pre-existing conditions. Trump wants to "own the libs" again, and if he wins this fight over the ACA, he will. He'll also own tens of millions of other Americans, including his own loyalists.

All told, Trump is only protecting himself. He's a sadistic, brittle little man who cares only about winning re-election. He'll gladly stand on a mile-high stack of dead bodies to reach that goal.

By Bob Cesca

Bob Cesca is a regular contributor to Salon. He's also the host of "The Bob Cesca Show" podcast, and a weekly guest on both the "Stephanie Miller Show" and "Tell Me Everything with John Fugelsang." Follow him on Facebook and Twitter. Contribute through LaterPay to support Bob's Salon articles -- all money donated goes directly to the writer.