Five ways Ruth Bader Ginsburg’s death, replacement could impact Michigan

Notes and flowers were left at the U.S. Supreme Court this weekend after the death of Justice Ruth Bader Ginsburg. A fight over her successor on the bench could have big implications for Michigan. (Shutterstock photo)

A high-stakes battle over U.S. Supreme Court Justice Ruth Bader Ginsburg’s successor could have big implications for the nation and Michigan, from health care and abortion to the November election.

Ginsburg, who was a liberal champion, died on Friday at age 87, and President Trump has vowed to move as quickly as this week to appoint a justice to succeed her. On his short list is Sixth Circuit Court of Appeals Judge Joan Larsen, a former Michigan supreme court justice appointed by Republican Gov. Rick Snyder.

Senate Majority Leader Mitch McConnell wants the Senate to vote on a justice before the Nov. 3 election, but it’s unclear whether enough GOP senators will agree to do so. Michigan’s two senators, Debbie Stabenow and Gary Peters, joined Democratic colleagues in calling for a delay on the vote until after the election. Republican Senate challenger John James on Monday urged Peters to “fairly and honestly evaluate the nominee on his or her merits, not on the basis of party politics.”

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The outcome could affect the nation for a generation, said Patrick Wright, vice president for legal affairs at the Mackinac Center for Public Policy, a Midland-based free market think tank. 

The death of Ginsburg, who was nominated by Democratic President Bill Clinton in 1993, leaves the court with five justices nominated by Republicans and three by Democrats.

“Any decision that’s been [decided] 5-4 in the past 10 to 20 years — any one where the left has won more than the right — and you would say that’s at least a possibility” for reevaluation, Wright said.

Here’s a look at how a change in the court could affect Michigan.

Issue one: Health care reform

On the top of the court’s to-do list: The yearslong tug-of-war over the 2010 Affordable Care Act, often known as Obamacare. 

More than 1 million in Michigan have insurance because of the act: 

  • 800,000 through Healthy Michigan, the state’s expanded Medicaid, according to the Michigan Department of Health and Human Services.

  • Another 262,000 buy insurance on the federal marketplace — mostly with federally-subsidized premiums to make them more affordable, said Jeff Romback, deputy director of the Michigan Association of Health Plans.

Other provisions of the law allow children to stay on parents’ insurance until their 26th birthday; require insurers to cover certain preventive services with no charge to the patient; ban lifetime coverage limits; subject premium increases to review; and end the so-called donut hole that forced Medicare beneficiaries to pay for medications during gaps in coverage. 

In November, the Supreme Court will consider the law’s “individual mandate,” which originally required nearly every person to carry some kind of health coverage or face tax penalties. In 2012, the court in a 5-4 vote upheld the mandate as constitutional, but in 2017, Congress essentially “zeroed out” the mandate’s penalty. The Fifth Circuit Court of Appeals, in turn, ruled that the move made the law unsustainable.

The Supreme Court could topple the entire law, which some have argued is too costly for business. It also could uphold it, or it could strike down only parts of the law. Without a ninth justice, it also could tie 4-4, and that would allow the lower court decision to stand, said MaryBeth Musumeci, of the Kaiser Family Foundation, which has tracked the law’s impact over the years.

“The big question that has potentially significant ramifications throughout the health care system is: Do other provisions of the law also fall — and that's everything from … coverage in the marketplace to Medicaid expansion to fixing the Medicare … drug donut hole?” she said.

Should the court topple the act, Democrats could resurrect it if they win the White House and Congress in November, said Brad Woodhouse, director of Protect Our Care, a group fighting to protect the Affordable Care Act.

With Ginsburg’s death, he said, “the coming presidential election and all the competitive Senate races in this entire country are all about health care,” he said.

Issue two: abortion

If the Supreme Court overturns Roe v. Wade, the 1973 law allowing abortion nationwide, states would regulate the procedure — and Michigan has had a law since 1846 making it illegal except for when a mother’s life is at risk.

Amended in 1931, the law allows for manslaughter charges against doctors or anyone who performs the procedure.

Democratic Attorney General Dana Nessel has pledged not to enforce that law if Roe is overturned. Abortion opponents, though, could sue Nessel to try to enforce the ban or pass a new law, said Steve Liedel, a Lansing government policy attorney.

Like much of the nation, abortion is already inacessible in much of Michigan, according to the Guttmacher Institute, a nonprofit that advocates on behalf of abortion rights.

Thirty facilities statewide performed 27,000 abortions in Michigan in 2017, but 87 percent of counties had no clinics that offered the procedure; 35 percent of Michigan women lived in those counties. Nationwide, 89 percent of U.S. counties have no clinics offering abortions.

Trump has pledged to appoint justices that would overturn Roe, and his appointments (Brett Kavanaugh and Neil Gorsuch) have sided against abortion providers in recent cases. Chief Justice John Roberts is a swing vote, such as in a case out of Louisiana the court decided earlier this year. That case struck down a law that required abortion doctors to have hospital-admission requirements.

Advocates are watching cases that could soon go to the high court, including one from Texas challenging dilation and evacuation abortions and an Ohio law allowing felony charges against doctors who perform abortions on fetuses with Down syndrome.

Eli Savit, a lecturer at University of Michigan Law School and senior adviser to Detroit Mayor MIke Duggan, said abortion opponents will likely continue a strategy of challenging the legality of certain types of abortion.

“What I do anticipate, if indeed the composition of the court changes, is states becoming more aggressive and imposing restrictions that make it functionally impossible for women [to get an abortion] and the Supreme Court being more disposed to uphold those laws as constitutional,” Savit said. 

Issue three: work requirements

The justices also could decide whether able-bodied Michigan adults must work — or prove why they can’t or shouldn’t — to obtain Medicaid health care coverage.

Michigan had planned to impose the rules in January 2020 for some 238,000 people between 19 and 62, until the U.S. Court of Appeals for the District of Columbia ruled similar requirements are “arbitrary and capricious.

The Trump administration has appealed to the Supreme Court.

In Michigan, the rules would have required able-bodied recipients to either work 80 hours a month or 80 hours or document activities like job searches. Adults with disabilities or who were pregnant, among others, were exempt.

But just as the rules were going to put into place, court challenges about similar rules elsewhere — Arkansas, Kentucky and New Hampshire, threw the Michigan rules in uncertainty.

Of course, Michigan’s Medicaid expansion was made possible through the Affordable Care Act. So if the high court rules that it’s unconstitutional, the question of work rules becomes obsolete.

Issue four: Election law

Michigan is one of several swing states in the presidential election, which some fear could be decided by the courts.

“If there is a contested election in the state similar to Florida in 2000, certainly the Supreme Court could play a role,” said Liedel. 

He’s referring to the Supreme Court case brought by former President George W. Bush against Democratic presidential nominee Al Gore over the results of the presidential election in Florida in 2000. The Supreme Court stopped a recount that effectively awarded the state’s electoral college votes to Bush, which delivered him the presidency. 

A contested election may happen again — Trump won Michigan by just over 10,000 votes in 2016, and Green Party candidate Jill Stein called for a recount until the state Supreme Court halted it. 

“There’s so much that’s in flux right now with our election with the rise in mail-in voting, with states and local jurisdictions trying to make accommodations to safe voting with COVID, and the Supreme Court is often called to hear cases,” said Savit.

Issue five: More political pressure

Ginsburg’s death comes at a pivotal moment in the 2020 election cycle, only weeks out when Michigan voters will choose their candidate for president, Senate, and a host of other offices. 

Nationwide, that’s increasing scrutiny on pivotal Senate races involving  Republican incumbents, said Sarah Hubbard, principal at Lansing-based lobbying firm Acuitas. 

Democrats nationwide smashed fundraising records over the weekend after Ginsburg’s death, money that could trickle down to Peters, the Democratic incumbent who faces a tough challenge from James.

Hubbard said Ginsburg’s death — and the fight over her successor — likely will more impact the presidential race, but that could drive up turnout from both sides.

“There are a lot of Republicans that view this appointment as more important than maintaining the presidency” given its long-term implications, Hubbard said, adding that pushing through a nominee before the election “may be the thing that seals [Trump] losing the election.”

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Comments

Anonymous
Mon, 09/21/2020 - 8:26pm

As a country, we're doomed.

Anonymous
Mon, 09/21/2020 - 8:27pm

I feel especially sorry for all the fetuses who are born in such an uncaring country.

Hyprocisy,
Tue, 09/22/2020 - 12:12am

Thy name is Publicans. Power is what they want, power is what they will get. Kiss your pre existing conditions goodbye! They will wait until after the election, because the court said it already would. They will blame me, middle of the mit, or anyone.

But John James isn't going to bring them back. Neither is any Republican. Goodbye pre existing condition protection!!

They will push their nominee through, despite their hypocrisy..........because that is what republicans are.

Hope you all know what you have to our Country and yourselves. Because I don't think you do........as a matter of fact............I know you don't. Better hope you don't live to regret it.

https://talkingpointsmemo.com/news/sen-loeffler-has-a-weird-new-ad-bragg...

She thinks that Atilla the Hun was looking to stomp out big bad gubmit.........in China!!!

During his reign, he was one of the most feared enemies of the Western and Eastern Roman Empires
-----------------------------------------------------------------------------------------------------
Then she tells us that Atilla wants to stomp out the liberal scribes, the very people that are taking down his words for posteriors sake! Can you get anymore 1984 "newspeak" than that? No history books or press! Coming from a lady who sold a bunch of stock before the virus hit because she had insider info.

Then we get to this. https://talkingpointsmemo.com/news/desantis-unveils-new-legislation-crac...

Among other things, according to a summary of the proposed law, protesters who obstruct roadways could face a 3rd degree felony — and any drivers that run them over won’t be held liable for injury or death if they are “fleeing for safety from a mob.”
-------------------------------------------------------------------------------------------------------------------

Question! What if I "stand my ground "against someone running me over?

These are the moral questions that conservative laws leave no answers to. They are allowed to be vigilantes. Take the law into their own hands. And how does the press report that?

Be prepared for more of this. That is what they want. Can't you see it?

Frank
Tue, 09/22/2020 - 9:32am

Approving a Trump appointee before the election will win him the election not lose it.

So depressing
Tue, 09/22/2020 - 9:47am

This presidency just keeps getting worse. His packed court will bless all his misdeeds.

Arjay
Tue, 09/22/2020 - 10:08am

Trump was elected to serve as president until January 20, 2021. The entire senate serves until January 3, 2021, and after that 2/3 of the senate remains in office, with others depending on results of the November, 2020 elections. President Trump has every right to appoint a new Supreme Court justice of his choosing, and no obligation to wait until after January 20, 2021. You may hate Trump the person, but you should not hate his ideas which are very constitutional.

We live in a society where a number of youngsters believe big government and socialism is the way to go. The United States is not a democracy, but rather a Republic. And if socialism is so great why are people always trying to flee Cuba, Venezuela, Nicaragua, and other socialist regimes?

mw
Wed, 09/23/2020 - 10:14am

While the president has the right to appoint a new Supreme Court justice of his choosing and the Senate has the right to vote that person in, the problem is the blatant hypocrisy by the GOP for doing so. They set the precedent in 2016 to not appoint a Supreme Court justice in the middle of a campaign under Obama and now they are okay appointing a Supreme Court justice, not in the middle of a campaign, but in the middle of actual voting (since some states are already receiving their ballots) under Trump.

Lindsey Graham literally said the following:
"I want you to use my words against me. If there's a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, 'Let's let the next president, whoever it might be, make that nomination,' "

Graham was even more specific in 2018:
"If an opening comes in the last year of President Trump's term, and the primary process has started, we'll wait till the next election."

So yes they do have that right but in doing so, they are proving just how empty their words are. This is party over country and "winning" at all costs, even if the cost is the legitimacy of the Supreme Court.

It's also alarming and shows the GOP priorities when you consider that we are days away from another government shutdown and in the midst of a pandemic that is devastating the economy but the GOP has already announced plans to vote on a SCOTUS appointment before voting on the second coronavirus relief package. It's also alarming that a majority of the GOP has already pledged to vote in favor of Trump's SCOTUS pick even before they know who it is. Do they not care if the person is qualified for a lifetime appointment to the Supreme Court? Do you not want a Supreme Court justice to be properly vetted?

middle of the mit
Wed, 09/23/2020 - 10:08pm

Arjay,

With that interpretation, you would have to agree that Barack Obama had at least his nominee haberdashed by the McConnel rule that McConnel won't live up to.....wouldn't you?

Or you would have to agree that Mitch didn't abide by the constitution. What's it gonna be?

That is a catch-22. You can't say you violated the constitution, because "only the Democrat party does that." LOL....But yet.....you are all on record with your hypocrisy..............but the liveral media......no...not a typo............can't seem to pick it up! Because the Publican party can do no wrong!

Welcome to 1984! It's NOT going to be the year I remember it being!!!

We live in a society where certain individuals think the constitution only applies to them. They are allowed to to run roughshod over the constitution, abrogate and appropriate the law for their well being while claiming anything less is rule by the majority.......ie" MOB RULE!

Do you want me tell you why people are fleeing Cuba? I will make another post. The question is, why do Cubans have a one dry foot policy and the rest of the immigrants get put in cages?

Nick Ciaramitaro
Mon, 09/28/2020 - 4:27pm

The United states is a democratic republic. We began as an autocratic republic, limiting the voting franchise to white land owning men. But we have advanced to a democratic republic expanding the franchise throughout our history.

Unlikely
Tue, 09/22/2020 - 10:41am

The issue of Roe v Wade is a red herring. Democrats like to bring this issue up to dog whistle to their base and drum up donations. Roe v Wade is settled law and not in jeopardy, the author is ridiculous on this issue.

mw
Wed, 09/23/2020 - 10:37am

It's not a red herring, Trump has literally said he will appoint judges who will "automatically" overturn Roe v. Wade. Republican Senator Josh Hawley, a member of the judiciary committee, stated: “I will vote only for those Supreme Court nominees who have explicitly acknowledged that Roe v. Wade is wrongly decided.” In January, 205 Republican lawmakers asked the Supreme Court to reconsider "[...]and, if appropriate, overrule[...] Roe v. Wade. The supreme court has already heard one challenge to the legality of abortions this year, which was narrowly shot down by a 5-4 decision, and is currently hearing a case that is attempting to limit the availability of an abortion pill during the pandemic.

If Roe v. Wade is a "red herring" and "settled law" then why are so many Republicans pushing to have it overturned?

Ouchez
Tue, 09/22/2020 - 10:52am

We cannot allow the SCOTUS to legislate from the bench, this is what Congress and the Senate has to do! The Constitution and Bill Of Rights must be strictly adhered too no matter how liberal or conservative is the Judge. This is Sacred ground.

AJS
Thu, 10/22/2020 - 6:19am

I couldn't agree more. Its time SCOTUS stops legislating from the bench. ACB stated that during her hearing. The job of the court is to interpret and apply the law as written. The job of Congress is to create and pass laws. Clear distinction.

S-Smith
Tue, 09/22/2020 - 1:50pm

This article is so blantently and unfairly political and it should not be. I have valued reading the Bridge Mi articles in the past but when the become so biased it makes me ready to bail on the Bridge!