We have written extensively over the past few weeks regarding the unprecedented importance of the upcoming election. At Tarbell, our commitment to advocating for the right to affordable and adequate health care and the democratic process; and against any threat to these two pillars of our mission, is sacrosanct and non-partisan. If the actions of any political party could possibly result in any form of diminishment of our access to health care or freedom of speech, we will raise our voice against those with whom we view as a threat.
Over the weekend, our country was faced with another tragedy in the form of the passing of the Notorious RBG – Ruth Bader Ginsburg. Regardless of your politics, her life and work should be admired because of her determination, her effort and her constant pursuit for equality.
As expected, President Trump and the Republican led Senate will work ferociously to nominate and confirm a replacement for Justice Ginsburg on the Supreme Court prior to the national elections on November 3rd. As it stands today, there aren’t enough votes in the Senate to stop this process. This likely addition to the Court may be the last major contribution of the current Administration to our divided country that is already reeling from COVID, millions of job losses and a series of natural disasters. Unfortunately, the Trump administration and his enablers in the Senate will leave a lasting legacy that will remain long after the Coronavirus is gone, long after the economy recovers, and well beyond the aftermath of the current western wildfires.
This incredibly harmful legacy will be most present in the US Federal Court System and the Supreme Court in particular. In addition to the coming appointment to replace RBG and the previous two appointments in 2017 and 2018 that creates a 6-3 advantage for conservatives; our lower courts are now filled with dozens of highly conservative and controversial judges. These are life-long appointments who have been ramrodded through the Senate confirmation process by a string of 52-48 votes strictly along party lines despite many of these nominees being dramatically unqualified for their new judgeships.
Why does this matter? It matters because under the cloak of a decades long attempt to repeal Roe v. Wade, the Affordable Care Act is now at risk of extinction. The probable decisions that will be made by these judges on cases in the system now – including at least one to be heard by the Supreme Court and initiated by the Trump Administration – could result in the loss of health insurance for tens of millions of Americans, the loss of protection against discrimination due to pre-existing conditions, the halt of Medicare Expansion, and a legal barrier to any initiatives to improve access to health care by a Biden administration.
What can we do? Unfortunately, and even without the current vacancy on the Supreme Court, we are playing from a poor strategic position. The past four years will haunt us for the next 40 years. But we do have some arrows in the quiver. First and foremost, those of us who believe that health care is a right and not a privilege must vote for Joe Biden on Election Day and we must encourage everyone that we possibly can to do the same. But the vote can’t be limited to the top line on the ballot. Down ballot Democratic candidates must prevail as well. Health care as we know it – as poor as it may be – will only become worse if Republicans remain in control of the Senate. The risk for moderate Republican and Independent voters to help elect Democrats all the way down the ballot is low. Democrats aren’t going to take away anyone’s gun; they aren’t going to cede control of America to the United Nations; they aren’t going to deliberately crash the economy; and they aren’t going to brainwash our children. What they will do is protect our freedom of speech; they will protect what health care benefits we do have and will try to expand them; and they will advocate a social framework that protects those who can’t protect themselves.
But the Democrats, even if they hold a super majority in Congress, cannot reverse the court appointments made by the Trump Administration. There is one possible strategy that could bring the courts, the politicians and the voters back to state that is closer to equilibrium. Our system works (or at least functioned on a working level for most of the last 230 years) because it is based on the wishes of a majority of the citizens. Minority rule is not consistent with our Constitution or the Founding Father’s vision for America. However, compromise has traditionally taken into account minority views when legislators create laws and this compromise is present when courts produce their judgements based on the rule of same laws. Perhaps it is time for compromise on the most polarizing issues in our society, namely abortion.
What if a Democratic led Congress drafted and passed a law that limited legalized abortions to the first trimester? What if it became a Constitutional Amendment? Could this type of compromise be an incubator for a more civil discourse that may bridge the divide that now ravishes the country? We know that at least 65% of Americans are Pro-Choice, but I bet that 95% of Americans would support the end of late term abortions except in the case of health emergencies. Perhaps bringing 95% of Americans together for a common cause that is draped with 40 years of controversy can lead to compromise on a litany of other issues. Perhaps it could help us restore civility to our discourse and to agree on legislation and process that will prohibit any party from manipulating government to the extent that it has been in recent years with Trump and even in some cases the Obama Administration. A reciprocal agreement could be an expansion of the ACA or an agreement on a path to Medicare for All. If we can agree to compromise with a minority view on abortion; then it only seems fair that the overwhelmingly majority opinion on health care can be properly addressed by Republicans. Americans are diverse, we all get sick regardless of race, religion or politics. We all need access to affordable and quality health care and right now, millions of Americans are at risk from a court system that has been manipulated. We can only legislate these problems away to a certain extent – eventually opposition to any law will end up in the court system. For generations to come, the court system will be influenced by the politicization of the Trump appointments. But even the courts can be influenced by the will of 95% of the population. At some point one side or the other is going to have to produce an olive branch. A compromise on abortion may be an avenue to get more of what we want on health care.