If Confirmed, Amy Coney Barrett Will Put an End to Affordable Health Care

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A February 2017 rally in support of the Affordable Care Act. (Ted Eytan / Flickr)

Senate confirmation of Trump’s Supreme Court nominee Amy Coney Barrett would likely end one of the most important women’s rights laws in generations—the Affordable Care Act (ACA).

Supreme Court to Consider ACA on November 10

supreme court; amy coney barrett; affordable care act; health care; obamacare
(Creative Commons)

The Republicans have repeatedly tried to kill the ACA since its passage in 2010.

They first filed a lawsuit challenging Congress’s authority to pass the law. In 2012, conservative Supreme Court Chief Justice John Roberts surprised the nation by joining liberals on the Court to uphold the ACA by a 5-4 majority. He wrote for the Court that the law’s penalty for failure to obtain insurance was a form of taxation, which Congress had the authority to do.

When Republicans took control of Congress and the White House in 2016, they pledged to end the ACA—but hoards of voters showed up at Congressmembers’ offices and town halls across the nation demanding that they leave the law alone. So instead of repealing the ACA, they passed the 2017 tax law eliminating the ACA’s penalty for failure to obtain insurance, then returned to the courts to argue that removing the penalty eviscerated the constitutionality of the ACA.

In 2018, a federal district court judge in Texas agreed, striking down the entire health care law as unconstitutional. The case is now on appeal before the U.S Supreme Court, with oral arguments scheduled the week after the election. This, of course, is why Republicans are so eager to confirm Trump’s nominee for Ruth Bader Ginsburg’s seat—Amy Coney Barrett—who has made it clear she thinks the ACA is unconstitutional. She condemned Chief Justice John Roberts for having “pushed the Affordable Care Act beyond its plausible meaning to save the statute” in the 2012 case.

What’s at Stake for Women?

Loss of the ACA would have devastating impacts on the health of all Americans, but especially women.

Not since Title IX barred discrimination in education, opening sports to women and girls and eventually barring sexual harassment in schools, has a law had so much impact on women’s lives.

The ACA banned sex discrimination in health insurance, including gender-based pricing for insurance. The Act mandated coverage for pregnancy and maternity care, and required coverage of birth control and mammograms without copays or deductibles.

The ACA also prohibited insurance companies from declining to cover people with pre-existing conditions, a practice that had put health care out of reach for millions of women. Before the ACA, pregnancy was a pre-existing condition that could block access to health insurance, as were menstrual irregularities, obesity, depression, anxiety, and even a history of being a victim of domestic violence.

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The ACA prohibits insurance companies from declining to cover people with pre-existing conditions, which represents 133 million Americans—over one-third of the U.S. (Ted Eytan / Flickr)

The ACA has significantly increased women’s access to health care. The proportion of women of reproductive age who were uninsured declined from 20 percent (12.5 million women) in 2013 to 12 percent (7.7 million) in 2018. The ACA has also saved women billions of dollars.

In 2013 alone, no-copay birth control saved U.S. women $483 million, or an average of $269 per woman.

Ending the ACA would mean millions of Americans would lose their health care. At least 20 million people who buy insurance through the ACA marketplaces or have Medicaid through the law’s expansion could lose their health insurance coverage. People with pre-existing conditions—as many as 133 million Americans—could lose their healthcare. That’s more than one-third of the U.S. population (and roughly half the population under the age of 65).

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The COVID-19 pandemic has made the ACA’s health care safety net all the more important as millions of Americans have lost their jobs and health insurance, leaving them and their family members without access to health care.

(Creative Commons)

If the ACA is overturned, Americans will suffer. But women will especially suffer. In a country with the highest maternal death rate in the industrialized world, especially for Black and Native American women, the highest rates of unwanted pregnancies and teen pregnancy, rampant rates of violence against women, and women lost jobs at higher rates than men because of COVID-19, we need to expand health care access, not eliminate it.

Health Care is on the Ballot

One year after Republicans tried and failed to repeal the Affordable Care Act, health care ranked as the single most important issue for voters, and voter concerns about health care helped Democrats regain control of the House in the 2018 midterms. Today, health care is still a top issue for voters, according to the latest Kaiser Family Foundation poll.

If the Senate confirms Trump’s nomination of Barrett and the Supreme Court strikes down the ACA, the only way to save health care in the U.S. is for Congress to pass a new law. Only a full sweep of Congress and the White House can preserve health care access in the United States.


Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor of American Studies and the chair of the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at cbaker@msmagazine.com or follow her on Twitter @CarrieNBaker.