Editorial: Amy Barrett holds court

This week’s confirmation hearings for U.S. Supreme Court nominee Amy Coney Barrett put two critical health issues in the spotlight: a woman’s constitutional right to have an abortion, and the Affordable Care Act (ACA).

Democrats expressed fears that Barrett could provide the key votes to eliminate both. Barrett’s history suggests that concerning possibility. The devout Catholic has expressed her personal opposition to abortion on demand. She also has written critically about Supreme Court decisions that failed to strike down the ACA.

At the hearings, Barrett persistently declined to clarify her positions on issues that may come before her in court. Still, she separated her personal views from a judge’s work of addressing the law.

“My personal views don’t have anything to do with the way I would decide cases,” she said. “I don’t want anyone to be unclear about that.”

In other words, stay tuned. Hawaii has long taken a progressive approach on these issues, so we should be paying attention, too.

In 1970, Hawaii passed a law that legalized most abortions by choice — the first state in the nation to do so — nearly three years before the U.S. Supreme Court’s 1973 landmark case Roe v. Wade, which found that a fundamental right to privacy protects a woman’s right to choose to terminate her pregnancy. Since then, the Roe decision has come under constant attack. It is not one of those cases Barrett would consider “super-precedent” — a decision so settled that it cannot be overruled. If Roe is reversed, Hawaii lawmakers can expect intense pressure from religious and conservative groups to overturn the state’s law.

As for the ACA, most Hawaii residents found they didn’t need the 2010 law — initially. In 1975, the Prepaid Health Care (PHC) Act made Hawaii the first state in the nation to set minimum standards of health care benefits that employers needed to provide their workers. The result: one of the best medical coverage rates in the country. But the COVID-19 pandemic has ravaged local businesses, causing many to close and putting some 13% of Hawaii workers on unemployment. More will need the affordable coverage that the ACA already provides for some 23 million Americans.

The plaintiffs in California v. Texas (scheduled to be argued before the Supreme Court on Nov. 10, likely with Barrett on the bench) want to strike down the entire law. Many legal scholars expect the court to remove just the offending parts, applying a doctrine called severability that protects, as much as constitutionally possible, the ability of Congress to set public policy.

“The presumption is always in favor of severability,” Barrett said. Let’s hope so.