WASHINGTON (AP) — The senator leading Supreme Court confirmation hearings Tuesday launched into revisionist history on “Obamacare,” implying it was designed to help Democratic states like California, New York and Massachusetts while doling out less to states like his, South Carolina.
In doing so, Sen. Lindsey Graham skipped over the fact that health insurance is generally more expensive in places with a high cost of living. Also, South Carolina is among 12 conservative states that have not adopted the law’s Medicaid expansion, a big source of federal subsidies.
For their part, Democrats pressed concerns that their presidential candidate also voiced at the start of the hearings — particularly that Amy Coney Barrett on the court would be a sure vote to kill “Obamacare.” That’s not at all certain based on her words in the past. She declared Tuesday: “I’m not here on a mission to destroy the Affordable Care Act.”
A look at some remarks from the debate over the Supreme Court in Senate Judiciary Committee hearings chaired by Graham and from the presidential campaign:
GRAHAM: “Under the Affordable Care Act, three states get 35% of the money, folks. Can you name them? I’ll help you, California, New York and Massachusetts. They’re 22% of the population. … Now, why did they get 35% of the money when they are only 22% of the population? That’s the way they designed the law; the more you spend, the more you get.”
THE FACTS: That’s misleading.
In a sense, it is true that states with higher premiums and more enrollment in the ACA’s health insurance marketplaces get more federal money. But that’s driven by differences in premiums between states and by the number of people who sign up for taxpayer-subsidized coverage.
It’s not that Democrats who wrote the law put their finger on the scale. The price of health insurance, like the real estate market, reflects underlying local costs such as hospital charges and doctors’ fees, which vary. For example, a 40-year-old nonsmoker in San Francisco would pay $574 a month for an Obamacare “silver” plan compared with $434 in Charleston, South Carolina, assuming no financial assistance.
And there’s another wrinkle: Larry Levitt of the nonpartisan Kaiser Family Foundation says the big reason that some states like South Carolina get much less federal money under Obamacare is that they have chosen not to expand Medicaid, where the federal government picks up 90% of the cost.
Contrary to Graham’s assertion, that wasn’t how the Obama administration and the then-Democratic Congress designed the law, Levitt points out. Obamacare originally required all states to expand Medicaid, with the federal government covering most of the cost, but the Supreme Court made Medicaid expansion optional in 2012.
JOE BIDEN: “This nominee said she wants to get rid of the Affordable Care Act.” – remarks to reporters Monday.
BIDEN: “Why do Republicans have time to hold a hearing on the Supreme Court? … It’s about finally getting his (Trump’s) wish to wipe out the affordable healthcare act, because their nominee has said in the past that the law should be struck down.” – to supporters in Ohio on Monday.
THE FACTS: No, Barrett has not said explicitly that she would strike down Obamacare. Biden may ultimately be right that she votes on the court to eliminate the health law, but there are also reasons to believe she might not.
Biden is alluding to a 2017 commentary Barrett wrote that included a critique of the Supreme Court’s 2012 ruling upholding parts of Obamacare. Barrett was a University of Notre Dame law professor at the time.
In her critique, she specifically took issue with Chief Justice John Roberts’ reasoning that the penalty attached to one part of the law — the mandate that everyone get health coverage — be considered a tax and therefore within the powers of Congress to enforce. She said he stretched the law “beyond its plausible meaning” to uphold Obamacare in the 5-4 vote.
That’s not necessarily the same as her wanting to trash the entire law. It’s difficult to take what a prospective jurist wrote about a complex law and use it to state as fact how she might rule years later when some circumstances have changed. But Biden and other Democrats aren’t hesitating to do so.
All that is certain is that Barrett criticized how her potential colleagues on the high court ruled on the law eight years ago.
“I’m not hostile to the ACA,” she testified Tuesday.