October 12, 2020

Whitehouse Delivers Opening Remarks on SCOTUS Nomination’s Effect on Health Care

Nomination threatens the Affordable Care Act—“the law on which over 20 million Americans rely for health insurance; through which 17 million Americans access Medicaid coverage; under which 129 million Americans get pre-existing conditions covered; under which millions of seniors enjoy lower drug prices”; “I hope Republicans consider what’s at stake for the many people who depend right now, in this pandemic, on ACA health coverage”; “This [is a] charade: big donors may love it, but Americans see

Washington, DC – U.S. Senator Sheldon Whitehouse (D-RI) delivered the following opening remarks today at the Senate Judiciary Committee hearing for Supreme Court nominee Amy Coney Barrett. Whitehouse, a senior member of the Committee, highlighted the effect of the rushed nomination on Americans’ health care in the midst of a raging pandemic, noting the decade-old push by Senate Republicans and special interests to tear down the Affordable Care Act. He discussed months of delay by Senate Republicans on vital House-passed coronavirus relief legislation followed by a mad rush to fill this Supreme Court vacancy. He also appealed to his GOP colleagues to honor the legacy of Justice Ruth Bader Ginsburg, who fought tirelessly to preserve the sort of protections for Americans’ wellbeing this hurried nomination now threatens.

As-delivered text of the senator’s remarks is below.

Mr. Chairman. America is worried about one thing above all else right now: our health. This hearing itself is a microcosm of Trump’s dangerous ineptitude in dealing with the COVID pandemic. Trump can’t even keep the White House safe. Here, it’s the chairman’s job to see to the committee’s safety, and though his words were reassuring, I don’t know. Who has been tested? Who should be tested? Who is a danger? What contact tracing has been done on infected and exposed Senators and staff? Nothing. The whole thing, just like Trump, is an irresponsible botch.

The irony is that this slapdash hearing targets the Affordable Care Act. This Supreme Court nominee has signaled – in the judicial equivalent of all-caps – that she believes the Affordable Care Act must go, and that the precedent protecting the ACA doesn’t matter. The big, secretive influences behind this unseemly rush see this nominee as a judicial torpedo they are firing at the ACA. So I hope Republicans consider what’s at stake for the many people who depend right now, in this pandemic, on ACA health coverage. Rhode Islanders are calling, writing, emailing, tweeting me by the thousands, asking me to say ‘no’ to this nominee, mostly because they too see her as a judicial torpedo aimed at their essential protections. My constituents want you, my colleagues —members of the Republican Party—to stand up for once to Mitch McConnell, and to the big donors who are driving this process, and for the sake of regular people, say ‘stop’.

Here’s one person to consider: Laura S. from North Smithfield, RI. Laura’s brother saved her life when he donated one of his kidneys to her. The hereditary nephritis Laura battled was a preexisting condition, protected under the ACA – just like COVID is now a preexisting condition for nearly 8 million Americans. Laura tells me,

“Without the ACA and its protections for people with pre-existing conditions, insurance premiums — IF I am able to get insurance at all — will be financially out of reach for me and I will no longer be able to afford the health monitoring – labs, specialist appointments – and treatment that are essential for my kidney to function. My immunosuppressive medications alone would cost about $48,000 annually.

“Before the ACA, patients like me experienced times when they would come up against a life-threatening wall – not in treatment – but in the annual or lifetime caps on coverage insurers were allowed to impose. I can’t imagine what this would have meant for me: bankruptcy or worse.”

Laura isn’t alone. We are in the midst of a relentless, deadly health crisis — that Trump has botched — which nearly touches everyone in this country. Americans are dying by the hundreds of thousands. Our economy is down 10 million jobs. Despite all the warnings and all the desperate pleas for help, people on the frontline – health care workers, teachers, first responders, police officers, countless others – still struggle for the resources they need. More and more small businesses are closing – for good. Many hospitals teeter at the edge of insolvency. Rhode Island, like so many other states, faces cruel fiscal challenges brought on by this pandemic.

Since May, the House has passed two major COVID relief bills to tackle unemployment insurance, aid to the front lines, help to small business, support for hospitals, support for states and localities, and plenty more. Mitch McConnell’s Senate Republicans won’t budge — “no urgency,” he said.

But, 80 minutes after we learned of Justice Ginsburg’s death, Mitch McConnell signaled he would fill this vacancy. The White House chose a replacement three days later. Justice Ginsburg hadn’t been buried when the president and Senate Republicans celebrated Judge Barrett’s nomination at the White House super-spreader event. This was a hypocritical, tire-squealing 180 for many Republican colleagues. When they blocked Merrick Garland, we heard nonstop about the importance, before an election, of the American people weighing in at the ballot box; nonstop that you shouldn’t have a nominee appointed to the Court after the primary season had begun. Well now, with Americans voting right now in the general election, we get this mad, slapdash rush. Why?

Look at the Supreme Court calendar. Exactly one week after the election, on November 10, the Supreme Court is going to hear California v. Texas, a constitutional challenge to the ACA. It survived its last challenge by one vote. If the new challenge succeeds, with a new justice, the case will tear out the ACA — the law on which over 20 million Americans rely for health insurance; through which 17 million Americans access Medicaid coverage; under which 129 million Americans get pre-existing conditions covered; under which millions of seniors enjoy lower drug prices. Gone. v And make no mistake, this nominee’s signals on the ACA and on respect for the ACA precedent are clear. Clear enough to move her to the top of the big donors’ list. Just three years ago, she wrote that Chief Justice “Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute.” In 2013, she wrote that “Stare decisis [respect for precedent] is not a hard-and-fast rule in the court’s constitutional cases,” the ACA being a constitutional case. Clear signals, that are likely why she’s before this committee now. So back to Laura. With stories like Laura’s coming in from around the country, why would we rush forward?

The answer isn’t pretty: they have a promise to their donors they must keep. When David Koch ran for vice president he campaigned on getting rid of Medicare and Medicaid. Imagine his fury when Obamacare passed. His groups are spending millions right now on this nomination. Republicans in Congress tried – and failed – to repeal the ACA more than 70 times. It’s in the Republican Party Platform for justices to reverse the ACA decision. Trump has over and over said this is his reason. And now we’re in this mad rush to meet this November 10 argument deadline— and colleagues pretend this isn’t about the ACA. Right.

The travel of the ACA case leads to one Senator’s doorstep. In a Politico article yesterday, the senior senator from Texas tried to say that this rushed process isn’t targeting the ACA. But look at his own record. The district judge in Texas who struck down the ACA in the case now headed for the Court is a former aide to the Senator, who has become what the Texas Tribune calls the “favorite” for Texas Republicans seeking big judicial wins – like torpedoing the ACA. The senior Senator from Texas introduced in committee the Circuit Court Judge who wrote the decision on appeal striking down the ACA. Senator Cornyn filed has brief after brief arguing for striking down the ACA. He led the failed charge to repeal the ACA in 2017. He’s said, “I have introduced and co-sponsored 27 bills to repeal or defund Obamacare and have voted to do so at every opportunity.” And now, talking about “socialized medicine” — the old Republican battle cry against Medicare — Senator Cornyn and all of our colleagues on this committee are pushing to get this nominee on by November 10, in time to strike down the Affordable Care Act. Please don’t tell us this isn’t about the Affordable Care Act. From Cornyn judge to Cornyn judge to this nominee. When Texans lose their ACA health care protections, hop, hop, hop to see whose doorstep that sits on.

Lost in this hypocritical rush is the legacy of Ruth Bader Ginsburg. Let me close by remembering her a moment in this unseemly charade. She fought for equality, equity, and dignity. She forged a path for women in the law: to Harvard Law School, to the pinnacle of legal academia, to the apex of legal advocacy, and on to the Supreme Court, where she defended women’s reproductive rights (Gonzalez v. Carhart), the rights of workers (Ledbetter v. Goodyear Tire and Rubber), voting rights (Shelby County v. Holder), the rights of immigrants (Department of Homeland Security v. Regents), and countless other freedoms. In her work, she bent the arc of the moral universe toward justice for all Americans. How fitting that she should be the first woman to lie in state in our Capitol.

As to this charade: big donors may love it, but Americans see what’s going on. They see this ugly, hasty, hypocritical power grab, and they know what it means for their health care in the midst of a pandemic. For Republicans there is no washing your hands of responsibility for the results that your president has told us will ensue.

Thank you, Mr. Chairman.

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