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Judge Barrett will hold the future of America's health in her dangerous hands

Barrett’s induction onto the Court will have a profound affect on the future of health care, and on the lives and livelihoods of millions of Americans.
Dr Mario Molina
Dr. Molina is a founding member of the United States of Care that advocates for universal insurance coverage.
La jueza Amy Barrett escucha la audiencia de su confirmación para magistrado de la Corte Suprema en el Comité Judicial del Senado. Crédito: Pool/Getty Images

For many Americans, the death of Justice Ruth Bader Ginsburg, was a setback for women’s rights, as her tireless life’s work on gender equality helped end gender discrimination. But her pivotal role in preserving the Affordable Care Act was also an important step forward in ending gender discrimination in our health care system and preserving the most transformational health care legislation in 50 years.

This is what is at stake with impending confirmation of Judge Amy Coney Barrett. If she gets confirmed by the Senate, we will be saying that as a country, we don’t believe that all Americans’ health is worth protecting, and we will be abandoning those with pre-existing conditions, including women, whose gender prior to the ACA, was considered a pre-existing condition.

Since the passage of the Affordable Care Act a decade ago, the Supreme Court has rebuffed challenges to the law. Donald Trump ran on a promise to repeal and replace the ACA, but repeal efforts failed when Senator McCain voted against repeal in 2017.

We have yet to see a credible or workable “replacement” to the ACA that would cover more people including those with pre-existing conditions that would be cheaper and more efficient than the ACA. Donald Trump keeps promising a “great plan,” but it has yet to materialize.

At the heart of the ACA is the “individual mandate” that everyone must have health insurance, and in return, insurance companies cannot deny coverage based on pre-existing conditions. The IRS monitors this and can assess a penalty on anyone failing to show proof of insurance.

Despite a weak mandate to purchase insurance the percentage of Americans without insurance has remained steady at about 10% in recent years, and over 70% of people said that they would purchase health insurance even if the penalty did not exist. The last time the individual mandate was challenged, Justice Ginsburg joined a slim 5-4 majority in supporting the ACA.

In 2018, a Republican led Congress decreased the penalty to zero. Several states then sued to have the ACA thrown out reasoning that without a penalty the mandate was meaningless. Without these two provisions, they argued the entire law was invalid.

But here is the kicker: If the law is thrown out by the Supreme Court, the protection for people with pre-existing conditions goes with it. Ms. Barret has already made her opinion of the ACA known, and she is not a fan. We can conclude that she will be a vote to repeal the ACA, and with it, life-saving protections for millions of Americans.

According to the federal government, up to 50% of nonelderly Americans have at least one pre-existing condition, and as many as 129 million Americans could be denied coverage without protections for pre-existing conditions. A large majority of Americans say it is important to retain the ban on insurance companies’ ability to exclude people with pre-existing conditions.

The covid-19 pandemic has further complicated things. For most Americans, health care or the handling of the coronavirus are among the leading issues for the upcoming election. The United States has not been able to bring the Coronavirus under control, infections are spiking anew, and we just surpassed 200,000 deaths.

Covid-19 could become be the ultimate pre-existing condition as it can lead to long-term complications affecting the heart, brain, and other organs. Nearly 7 million Americans have been diagnosed with covid-19 and another 20-40 million may have gotten it and not known.

In a future without the ACA, insurance companies could exclude people from insurance coverage if they have antibodies to the coronavirus indicating prior infection.

Blacks and Hispanics saw large increases in insurance coverage after the ACA was passed, but despite the law, blacks and Hispanics are still more likely to be uninsured, and, on an aged-adjusted basis, are more likely to become infected, hospitalized and die from covid-19 than the white population.

Without the ACA, millions will lack coverage for basic things like testing for the Coronavirus and may not be able to afford the vaccine when it becomes available. America will revert to a two-tiered health system and those most at risk, blacks, Hispanics, and low-income workers in essential jobs may not have health insurance and hundreds of thousands more Americans will die.

The ACA case is scheduled to be heard by the Supreme Court on November 10, one week after the elections. President Trump and Senate Majority Leader Mitch McConnell have already pledged to hold a vote on Barrett’s confirmation. Barring any unforeseen hiccups, Barrett could get confirmed before the end of the year, even if Trump and the GOP lose the White House and the Senate. Barrett’s induction onto the Court will have a profound affect on the future of health care, and on the lives and livelihoods of millions of Americans.

When the bell rang at Justice Ginsburg’s memorial, they sadly tolled for all of us, our families, and our country’s future.

Dr. Mario Molina is a founding member of the United States of Care that advocates for universal insurance coverage. He was named one of the 25 most influential Hispanics in America by Time Magazine and is the former CEO of Molina Healthcare, the 9th largest health insurance company in America.