Congressional Record, Volume 166 Issue 184 (Sunday, October 25, 2020)

[Congressional Record Volume 166, Number 184 (Sunday, October 25, 2020)]
[Senate]
[Pages S6507-S6518]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

EXECUTIVE CALENDAR--Continued

The PRESIDING OFFICER. The Senator from Nevada.
Ms. CORTEZ MASTO. Madam President, I rise today to join my colleagues
in opposing the confirmation of Judge Amy Coney Barrett as Justice of
the Supreme Court. This is the wrong time to be choosing a Supreme
Court Justice, and Justice Barrett is the wrong candidate for a seat on
that Court.
The timing of tonight's confirmation vote is shocking. The majority
of Americans want to be able to weigh in on who should sit in Justice
Ruth Bader Ginsburg's seat on the highest Court in the land. They want
to vote to choose a President to fill that vacancy.
We are 8 days away from Americans casting their final votes in the
2020 election. Over 58 million Americans have already voted, including
more than 649,000 Nevadans. The American people are making their voices
heard in response to this administration's disastrous handling of the
coronavirus pandemic, which has led to the loss of 225,000 American
lives, including 1,748 Nevadans, and sickened over 95,000 Nevadans.
In the middle of this crisis, Congress should be doing everything it
can to address the needs of the American people. Instead, the Senate
majority leader is ramming through a nominee at breakneck pace. He and
the President are rushing this nominee's confirmation for a reason,
which is because they believe, based on Judge Barrett's own public
statements, that she will be the decisive vote to overturn the
Affordable Care Act in a case that will be heard just a week after the
election.
On November 10, the Supreme Court will listen to arguments from
lawyers in a court case about whether the Affordable Care Act is
constitutional. Majority Leader McConnell and the President want a
Justice who shares their views on the Affordable Care Act seated on the
Court by that date.
Amy Coney Barrett's record on the ACA, not to mention her stance on
the rights for women and the LGBTQ Americans that you have heard from
my colleagues today and you will hear throughout the night, but her
record on the ACA poses tremendous risk to Nevadans at a time when they
need every help we can extend to them during this health pandemic.
That is why I opposed her nomination to the Seventh Circuit Court of
Appeals back in 2017, and that is why I oppose her confirmation to the
Supreme Court today. Instead of rushing her through in a partisan
fashion to a lifetime seat on the Supreme Court, we should be working
together to get the additional coronavirus relief that Nevadans and
Americans so badly need right now.
Most of us here in the Senate understand that the American people
need help to cope with the pandemic. To save lives and to stop the
spread of the virus, people have to wear masks, they wash their hands,
and they socially distance. That has meant that businesses haven't been
able to operate as usual.
Some companies have been able to rethink their business models and
thrive, but others just can't substitute online interactions for in-
person contact. That includes Nevada's world-class travel, tourism, and
hospitality industry.
During April, Nevada had the highest unemployment rate ever recorded
anywhere in the country at 30 percent. We are recovering from that peak
more slowly than other States, and we still have one of the highest
unemployment rates in the country. In August, second only to Hawaii's,
it was 12.6 percent. Nevadans are hurting. Nevadans are hurting,
Americans are hurting, and my constituents tell me about it all the
time, and the data is clear what I see in Nevada. One in seven Nevadans
say they aren't getting enough to eat, and one in five Nevadans say the
children in their household are underfed.
There has been a 14-percent increase in those receiving SNAP benefits
in the Silver State since February. There are 14 percent of Nevadans
who say they are behind on rent or mortgage, and 38 percent are having
difficulty with household expenses. There are 110,000 households in my
home State that could be at risk of eviction by January.
That is why I have spent weeks calling on Leader McConnell to extend
and expand upon the support that we put in place in the relief
legislation that we passed in the first half of this year.
Unfortunately, instead of negotiating another COVID relief package,
Leader McConnell would rather play politics.
Nevadans need to understand the partisan political games that are
being

[[Page S6508]]

played right now. Over the last 7 months, Senator McConnell has refused
to come to the table to even negotiate with the administration, with
Speaker Pelosi, and Leader Schumer.
Now, Speaker Pelosi and Minority Leader Schumer originally asked for
$3.4 trillion in a new stimulus package. They have since come down to
request for $2.2 trillion in relief. That is a decrease of $1.2
trillion from their original position. In return, as they have been
negotiating with the administration, President Trump and Secretary
Mnuchin have offered $1.8 trillion in coronavirus relief. Clearly,
Speaker Pelosi and Secretary Mnuchin have been working to get closer to
an agreement over the amount and structure of the next needed
comprehensive COVID stimulus package.
Meanwhile, while that negotiation is going on, Senator McConnell is
not even at the table. He refuses to even negotiate with the Democrats.
Just this week, last week, he has forced two votes on the floor of the
Senate on relief packages that were crafted behind closed doors with no
bipartisan negotiation, and the second package was half the price of
the one before. That is not a negotiation. That is politics. Senator
McConnell doesn't want to deal. He hasn't participated in the talks,
and he is proposing less than a third of what even the Secretary of the
Treasury thinks we need.
Instead, the majority leader has been laser-focused on one thing and
one thing only, rushing through the Supreme Court nomination for Judge
Amy Coney Barrett. There is a reason he is pushing so hard. He and
others in the GOP have been obsessed with getting rid of the Affordable
Care Act since it passed, and in Amy Coney Barrett, they see their
chance to finally do just that.
Now, I want Nevadans to understand exactly what is at stake and how
we got here. Let me lay out the timeline of just some of the dozens of
Republican attacks on the Affordable Care Act and how Judge Barrett
fits into their larger plan to overturn healthcare protections.
In 2010, the Obama administration passed the Patient Protection and
Affordable Care Act, the ACA, to bring down healthcare costs and make
sure that Americans had access to quality healthcare. Now, Republicans
have been trying to repeal it ever since, voting at least 70 times--70
times--to undo the law in Congress. When they failed in Congress, they
attempted in the courts.
Republicans have repeatedly used the courts to challenge Congress's
power to enact the ACA. Their first attempt ended in failure in 2012
when the U.S. Supreme Court upheld the important provisions of the ACA
in an opinion written by Chief Justice Roberts in the landmark case,
NFIB v. Sebelius, but that has not stopped the Republican leadership.
Even though a majority of the American people have made it clear over
and over that they want the ACA and its extensive protections for
healthcare, this administration and Mitch McConnell have been stacking
the court with Federal judges they believe would overturn the ACA, and
Professor Barrett fits their profile.
In 2017, Professor Amy Coney Barrett wrote a book review article for
Notre Dame Law School making it clear at the time in that book review
that she thought Justice Roberts incorrectly decided NFIB v. Sebelius.
She said that Chief Justice John Roberts ``pushed the Affordable Care
Act beyond its plausible meaning to save the statute.'' Conservatives
who agreed with her, well, they took notice, because in May of that
same year, 2017, they nominated her to serve as a judge on the Seventh
Circuit Court of Appeals--go from professor to a judge of the Seventh
Circuit Court of Appeals
Now, while her nomination was pending in 2017, in July, the
Republican leaders in the Senate again tried to force a vote to repeal
the Affordable Care Act, and during that vote, the late Senator John
McCain gave his famous thumbs down to show that he would not be
responsible for repealing the ACA and ripping healthcare away from
millions of Americans.
Well, a couple of months later, October 2017, Amy Coney Barrett was
appointed to the Seventh Circuit Court of Appeals. I opposed her then
for the same reasons that I oppose her nomination today. One month
later, in November, she is then placed on President Trump's list of
potential nominees to the U.S. Supreme Court. She just got to the
circuit court. A month later, she is now on President Trump's list. Why
is she on that list? Because she made it very clear in her writings
that she was opposed to the Affordable Care Act.
Then 3 months later, in December of 2017, the Republicans in Congress
passed a bill that would continue their attempts to sabotage the ACA.
What they couldn't get done, because Senator John McCain and several
others stopped him, they continued to sabotage it, so they passed a
law. Based on this new law, several Republican attorneys general then
went to Court asking the Court to rule the ACA unconstitutional. That
case is California v. Texas, and it will be argued this year, November
10, just 2 weeks from now.
So their pathway has been consistent; I give them credit for that.
The Republicans have been consistent in wanting to do away with the
Affordable Care Act. They have either tried it here in Congress, or
they are continuing to work the courts, and if they can't win in the
courts, then let's put judges on the Federal benches that we know will
support our position, and that is what you have happening. That is why
this is being rushed through now, because they need Amy Coney Barrett
on the bench when that case is heard November 10 to determine the
constitutionality of the Affordable Care Act.
Let me tell you, the U.S. Department of Justice has done everything
it can to assist their efforts to strike down the ACA. They filed a
brief. The U.S. Department of Justice, on behalf of President Trump's
administration, have filed a brief arguing that the entire law is
invalid in support of those Republican attorneys general who want to do
away with the Affordable Care Act. They have done this because the
President wants them to.
In an interview with ``60 Minutes'' that aired just this evening, the
President said that with regard to the Supreme Court's decision on the
Affordable Care Act, ``I hope that they end it.''
That is not the only time. It is not a secret. President Trump wants
to do away with healthcare coverage and patient protections in the
middle of a pandemic that has killed 225,000 Americans, and he has been
very clear about it. I mean, look back. June 26, 2015:

If I win the Presidency--

When he was a candidate.

--my judicial appointments will do the right thing, unlike
Bush's appointee, John Roberts, on ObamaCare.

February 8, 2016:

I am disappointed--

This is President Trump.

--I am disappointed in Chief Justice Roberts because he gave
us ObamaCare. He had two chances to end ObamaCare, and he
should have ended it by every single measurement, and he
didn't do it, so that was a disappointing one.

May 7, 2020, President Trump reiterated his position:

We want to terminate healthcare under ObamaCare, and
ObamaCare is a disaster.

September 27, 2020, shortly after Barrett's nomination to the Supreme
Court, President Trump tweeted:

ObamaCare will be replaced with a much better and far
cheaper alternative if it is terminated in the Supreme Court.
It would be a big win for the USA.

So, 4 years, at least, while I have been here, Republicans have been
trying to repeal it, and this administration has been promising a
replacement for healthcare in this country if the Affordable Care Act
is repealed, but we see no replacement. We know that they have been
putting judges on the Federal courts that will do their bidding--or at
least think that they will do their bidding.
Now, let me give Judge Amy Coney Barrett credit because here is the
thing: As an attorney, I respect judges, and I am always looking for a
judge--a mainstream judge--who is going to weigh the evidence and the
facts, look at the precedent, and make a decision that is on behalf of
this country and the American people. So it is fair, though, without
knowing her background, to judge which way she is going to rule and if
she has an inherent bias based on her writings. That is what we do all
the time.
What are her writings? Whether it is in private life as a professor
or as an

[[Page S6509]]

attorney practicing law or as a judge in her written opinions, that is
fair game. That will give us insight, because we can't see into
somebody's mind and what they are thinking. That will give us insight
on their legal analysis.
We know what she said at the hearing. There is two hearings: One is
the Seventh Circuit, and one is U.S. Supreme Court. I will say, in her
confirmation hearings, Judge Barrett has said:

I am not hostile to the ACA at all.

But this statement contradicts the thing she said about the ACA
before her nomination to the court.
I believe now what I believed in 2017, Judge Barrett's writing showed
her to be clearly opposed to the ACA. My view is that no one--no one--
not even a judge, should weaken those protections for healthcare in
this country during a once-in-a-lifetime pandemic.
The Affordable Care Act is a crucial part of the Nation's response to
coronavirus. Without it, insurance companies would be able to charge
more or even deny insurance to people with preexisting conditions. That
includes more than 95,000 Nevadans who have had COVID-19 to date
because contracting that coronavirus is a preexisting condition. It
includes another 1.2 million Nevadans with other preexisting conditions
from asthma to cystic fibrosis to depression.
Without the ACA, insurance companies would also be able to consider
pregnancy a preexisting condition as they used to. The 1.5 million
women in Nevada could be charged more for their care than men, and
lifetime and annual benefit caps could be reinstated.
If the Affordable Care Act is repealed or found unconstitutional,
insurance companies would be able to kick children off their parents'
insurance before the age of 26. Across the country, without the ACA,
more than 20 million people would lose their health coverage, and over
135 million Americans would lose protections for their preexisting
conditions. If the Supreme Court eliminates the ACA, millions of newly
uninsured people will be unable to afford coronavirus treatment.
If you don't have insurance and you contract COVID-19, you are
looking at tens of thousands of dollars in hospital bills. Let me tell
you, this is especially alarming because COVID-19 has hit communities
of color the hardest, including in my State. In Nevada, a third of our
population are Latino; with another 10 percent of the population
African-American; and 9 percent, fastest growing Asian-American/Pacific
Islander; 2 percent, Native-American.
Among COVID-19 cases, however, these numbers are practically turned
upside down. Forty-five percent of Nevada's COVID-19 cases are among
Latinos who make up 29 percent of the population. And 29 percent of the
cases are among White Nevadans who are 45 percent of the population.
Nevadans of color are also overrepresented in the numbers of those who
have lost their lives during this pandemic. In Nevada, 12 percent of
those who have died of COVID-19 are African-American and another 12
percent are Asian-American/Pacific Islander.
We also know from national data that COVID-19 has particularly
devastating effects on children of color. Of those under 21 who have
been killed by the coronavirus, more than 75 percent have been
Hispanic, Black, or Native American. In addition, the coronavirus
pandemic has had a disproportionate effect on pregnant women of color
and their babies.
Nationwide, Latino mothers make up nearly half of the coronavirus
cases among pregnant women, according to the CDC data through August.
Young people and communities of color are also seeing the greatest
economic impact as a result of this pandemic. They are losing jobs and
healthcare at higher rates. A recent study suggested that job losses
would mean that 5 million Black, Latino, and Asian Americans would lose
healthcare during the pandemic.
People in these communities don't always have the financial reserves
to keep a roof over their heads, let alone access to critical,
physical, and mental healthcare. Repealing the ACA would just further
jeopardize these Americans, including millions in my home State and
across this country.
And without the ACA protections, women in Nevada would also see
adverse impacts on their health. That is because the ACA requires
insurance plans to offer women essential benefits, like annual wellness
examines, preventive mammograms and other screenings, maternity care,
and access to free birth control. If the law is struck down, these
benefits would go too.
In fact, Judge Barrett publicly signed a statement of protest against
the ACA contraceptive coverage requirements. She said that those
requirements were ``an assault on religious liberty when applied to
religious employers and institutions.''
But that is just the first part of the danger that Judge Barrett
represents to women's healthcare. She puts reproductive health rights
at risk across the board.
In 2006, Judge Barrett signed a letter that called for ``an end to
the barbaric legacy of Roe v. Wade.''
As a judge, she has repeatedly voted to rehear cases that struck down
unconstitutional abortion restrictions.
During her confirmation hearing, she refused to describe Roe v. Wade
as a superprecedent that could no longer be challenged. These views
suggest--her written views and comments--that as she predicted in a
2016 speech, a Trump nominee to the Supreme Court would mean that the
restrictions on abortion would change and that the Court would likely
increase how much freedoms States have in regulating abortion, and if
those States have more freedom to regulate abortion, it will lead to a
patchwork of different laws in different States.
A recent study suggests that if Roe v. Wade were overturned, the
closest abortion clinic would close for 41 percent of women across the
country, and the distance to the nearest clinic would increase from an
average of 36 miles to an average of 280 miles.
In 2020, American women shouldn't have to choose what State to live
in based on what kind of healthcare they think that they can get. These
are fundamental rights that shouldn't be up for grabs.
More than 80 percent of Nevadans believe that women should control
their own reproductive choices, and I stand with them.
I am also concerned about the impact that Judge Barrett would have on
LGBTQ Nevadans if she is confirmed to the Court. The ACA contains
specific protections against discrimination based on gender identity.
The Trump administration has already weakened these protections
significantly. If the ACA is struck down altogether, people who don't
conform to gender stereotypes, including transgender Americans, could
face increased discrimination in healthcare.
A study of transgender patients before the ACA went into effect,
found that one in five had experienced discrimination from doctors and
that 28 percent have postponed medical care in the past in order to try
to avoid that discrimination.
Judge Barrett could also pose a considerable threat to the LGBTQ
individuals in other ways. During her confirmation hearings, she
refused to say whether she agreed with a decision in Obergefell v.
Hodges, which established the right to same-sex marriage nationally.
In 2015, she publicly signed a letter stating that marriage is
founded on the indissoluble commitment of a man and a woman. She has
also publicly argued that title IX of the Civil Rights Act does not
apply to transgender Americans, noting that it seems to strain the text
of the statute to say that title IX demands that the government
guarantee transgender bathroom access.
So, again, I am very concerned that if she is confirmed to the Court,
Judge Barrett will be an additional vote to strike down things like
same-sex marriage and imperil the health of LGBTQ Nevadans.
The truth is that Judge Barrett's views on a whole host of issues are
far from mainstream. In her short time in the Seventh Circuit Court of
Appeals, Judge Barrett has sided with corporations over workers and
consumers in a majority of business-related cases, resulting in the
erosion of workers' rights and consumer protection rights. She has
suggested that voting rights should be more easily restricted than the
right to possess firearms. And she has ruled that the Age
Discrimination in Employment Act does not protect job applicants from
hiring practices that harm older Americans.

[[Page S6510]]

Now, I have received over 18,000 letters from Nevadans opposing her
confirmation. That is compared to 3,900 supporting it. So, clearly,
Nevadans are concerned that Judge Barrett doesn't share their views,
and they are right to be concerned.
The Supreme Court makes decisions about so many issues that affect
our communities, and it will be lifelong. People in this country care
deeply about issues, and in so many cases, Judge Barrett's views are
out of step with what large majorities of Americans want.
Seventy-seven percent of Americans think we should stop unlimited
dark money from influencing our politics, but a 6-to-3 conservative
Court would slam the door on campaign finance reform, allowing
corporations and other groups to throw their wealth behind their pet
policies
Americans believe voting should be easy, safe, and secure, and that
you shouldn't have to risk your health during a pandemic to cast your
ballot. But, again, a 6-to-3 conservative Court with Amy Coney Barrett
on the Bench would make it harder for people to vote, especially people
in low-income communities and communities of color. And, again, bear in
mind that we are in the middle of an election.
If she is confirmed tonight, Justice Barrett would also be in a
position to rule on any legal disputes about that election.
That is one of many topics that she simply refused to answer
questions about during her confirmation hearings.
Now, it is understandable for a judge to avoid questions about a case
that may come before her so that she doesn't prejudge the outcome. But
Judge Barrett refused to answer the most basic of questions--questions
that any high school civic student knows the answer to.
She wouldn't say whether the Constitution allows Congress to protect
the right to vote. Answer: It does in at least five separate
provisions.
She wouldn't say whether the President of the United States can delay
the election. Answer: He can't. That is not within his authority.
She wouldn't say whether the President should peacefully transfer
power to the winner of a Presidential election. The most important
American principle is that we the people get to decide who governs it,
but Judge Barrett wouldn't even affirm that.
And she wouldn't say whether voter intimidation or voting twice in an
election is illegal. Well, it is. Those laws are clearly on the books.
It doesn't take a constitutional scholar to interpret them.
People in Nevada and across the Nation need to realize that many of
the rights and protections they enjoy are one vote away from being
ended by the Supreme Court.
There are at least 120 landmark Supreme Court cases from the past
several decades that were 5-to-4 decisions, with Justice Ruth Bader
Ginsburg the deciding vote in the majority and Justice Antonin Scalia,
whose judicial philosophy inspires Judge Barrett, in the minority.
There is every reason to think that Judge Barrett would take positions
like Justice Scalia's in those areas and more.
With Amy Coney Barrett on the Court, Americans' civil rights,
workers' rights, reproductive rights, healthcare, and, yes, their
voting rights are at risk. For all of these reasons, Judge Barrett is
not only the wrong nominee, but she comes at the wrong time.
Now is not the time to rush a nominee onto the Court. Now, as
millions fill out their ballots, is not the time to deprive the
American people of a voice in choosing the next President who will
choose the Supreme Court Justice. Now is not the time for us to focus
on the immediate crisis at hand.
We need to act to save lives and to protect families in Nevada and
across the country. We need that focus now on what our families are
dealing with because of this pandemic. That is why our focus should be
on passing another comprehensive COVID-19 stimulus package.
We need pandemic unemployment insurance for those who have been laid
off or furloughed, through no fault of their own, and subsidized health
coverage for those workers. We need additional funds to address the
health aspects of this pandemic--everything from PPE to COVID-19
testing and tracing, to funding to develop vaccines and treatment. We
need rental and homeowner's insurance to keep people safe in their
homes as winter approaches. Our small businesses need extended PPP so
they can retain staff. And many of our large industries need support as
well.
State, local, and Tribal governments must have assistance so they can
afford to fund EMTs, police, firefighters, and healthcare providers,
not to mention teachers who are reinventing education on the fly.
All of these essential services are keeping our communities safe and
functioning during this crisis.
I can keep going on and on with this list, or I can just simply point
my colleagues to the Heroes Act, which the House passed months ago.
If Senator McConnell really wanted to get meaningful relief passed,
he would do it. We know he can move quickly because we can see that
with this Supreme Court nominee.
If he would just come to the table with Senators from both parties
who are eager to find a compromise to help out their constituents, and
he could make that deal happen, that is what should happen. Instead, he
and the majority in this Chamber have decided to fast-track this
nominee. They have decided the most important thing they can do for
this Nation during a once-in-a-lifetime health crisis is to confirm a
Justice to the U.S. Supreme Court.
The cruelty and blindness to the real needs of Americans is
astounding to me. Instead of working for our constituents, Republican
leadership has focused on a last-minute power grab that threatens
Americans' health. I can't support that.
There is no reason to rush this nominee. There is every reason to act
on a comprehensive COVID-19 relief package. It is what we should have
been doing months ago.
My priority is and will continue to be getting Nevadans comprehensive
and meaningful support that they need right now.
Thank you
I yield the floor.
The PRESIDING OFFICER (Mr. Burr). The Senator from Pennsylvania.
Mr. CASEY. Mr. President, I rise to speak about the nomination of
Judge Amy Coney Barrett to be an Associate Justice on the U.S. Supreme
Court. That has been the subject of, I know, a number of floor remarks
tonight and this morning.
We know that in terms of the history of the nomination at this time
before an election, no person has ever been confirmed this close--just
days away from a Presidential election--and no election, of course, has
had so many votes cast this early. Fifty-nine million is the last
number I saw a couple of hours ago. And this is all happening--this
rushed confirmation process--while people are voting, all while
Republicans here in the Senate are ramming a nomination through and not
voting on a COVID-19 relief bill, which should be the subject of our
work at this time, in my judgment, because of the nature of the
pandemic, the threat that it still poses, and the relief that is needed
all across the country.
But as much as we focus, in this Supreme Court Justice nomination
debate, on this judge from the Seventh Circuit Court of Appeals,
ultimately, it is really, in the end, not about her nomination; in the
end, it is about real people's lives, especially as to how the Supreme
Court will impact those lives, those families, when it comes to the
Patient Protection and Affordable Care Act. That will be the focus of
my remarks this morning.
This is a debate about people, and I will talk about a few people
from Pennsylvania in my time here on the floor, people like Erin
Gabriel, who is from Beaver County, PA, right on the Ohio border, way
out in the western part of our State. It is about Erin and her 11-year-
old daughter Abby, as well as Shannon Striner. Shannon is from
Pittsburgh, just a little south of where Erin is from.
I will be talking about Shannon and her 4-year-old daughter, but I
will start with Erin Gabriel's daughter Abby. I will use this
photograph to tell everyone who Abby is. Abby is this child in the
middle. She is in this picture with her brother and sister.

[[Page S6511]]

Here is what Erin Gabriel said about her daughter. She said:

My youngest daughter Abby just celebrated her 11th birthday
last Saturday.

This is just in the month of October, this month.

That was something that was never promised to us. Abby is
growing up in her community with her family and friends.
Normally, she enjoys shopping, going to the movies, Disney on
Ice. She travels. She swims at a local lake, and she snuggles
with her dog at home, and she rides all the rides at
Idlewild--

Which is a local amusement park--

Abby is autistic, deaf, blind, nonverbal, and has a rare
progressive neurological syndrome affecting multiple organ
systems, with a long list of life-threatening symptoms that
we are all still trying to learn more about.
Medically, Abby has to go through a lot. She sees multiple
specialists in Pittsburgh, Cleveland, and Boston. She is
undergoing blood work to monitor her anemia and to watch for
signs of leukemia. She has regular EEGs and MRIs to monitor
the progress of her seizures. She uses hearing aids and
glasses and a wheelchair and a speech-generating device. She
relies on protections for people with preexisting conditions,
and she relies on the ban on lifetime caps to access this
care. Without the Affordable Care Act, Abby would be
uninsurable.

Then Erin goes on to talk about the benefit of living in Pennsylvania
because of some extra protections that Abby has. Then she continues:

Because she receives this care, Abby is right now healthy,
happy, and thriving. As you might expect, Abby is considered
very high risk should she contract COVID-19. Abby has not
been inside any building that is not our home or a hospital
since March 10 of this year. Summer vacations, play dates,
outings, travel plans to visit grandparents--they have all
been canceled. This fall, we pulled Abby out of her school--a
place that had become community to her over the last 8
years--to homeschool her.
She, like many children with disabilities, simply cannot
access a virtual education, and it is not safe to send her
back into a school building while this virus is spreading.
But Abby misses her school and her friends.
Normally, ongoing speech, occupational, and physical
therapy help Abby to keep the progress she has made learning
to walk, to eat, swallow, and to communicate. But with COVID-
19, they have all come to a halt.
It is just not safe, and it has also provided us a window
into what her world looks like without access to these
therapies.

So that is just part of Abby's story, as told to us by her mom. As I
made reference to in the statement of her mom, Erin wrote that Abby
would be ``uninsurable'' without the ACA.
I have to ask: Are we really going to say, again, that children like
Abby are uninsurable? Are we going to allow that to happen in America?
Is that the intent of this whole exercise, the exercise that has played
out over years now--years--of repeal efforts?
All of them so far have failed, so the second strategy was to run
cases up through the judicial system, to get to the Supreme Court, and
then, ultimately, to stack the Court with rightwing justices who could
then strike down the Affordable Care Act. That is what we are heading
toward right now.
Is that America? Is that the America we want--where we advance
healthcare to make sure families like Erin's and her daughter Abby have
all the protection, all the coverage that she needs--after all the
progress that has been made, instead of coming together and saying that
we are going to make improvements to our healthcare system but we are
going to grow the number of people who are covered and we are going to
ensure that any child like Abby has the protections that she needs,
that her family should have a right to expect in the United States of
America, the most powerful, the wealthiest country in the history of
the world?
Erin went on to say that, because she receives this care, the care
she is getting now--largely because of the Affordable Care Act, not to
mention Medicaid: ``Largely because she receives this care, Abby is
healthy, happy, and thriving.''
So I have to ask: What does justice demand here? St. Augustine said
hundreds of years ago: ``Without justice, what are kingdoms but great
bands of robbers.''
So any government--certainly our government--that makes it possible
for a child to have those protections, those programs, those services,
the therapies--and I could go on--and then takes an action that could
result--and if this law is struck down by the Supreme Court will
result--in those benefits and protections either to have been taken
away or to be threatened or undermined or compromised or limited--any
government which does that is robbing that family of justice.
I mentioned earlier that Shannon's daughter Sienna is another example
of what we are talking about here. Here is what Shannon says about
Sienna, her 4-year-old daughter with Down syndrome. She says:

Sienna is a remarkable little girl that loves life. She is
a smiley, energetic, empathetic ray of sunshine. Her favorite
activity is spending time with her big sister, whom she
adores. If we let her, she would watch Sesame Street all day.
Elmo is a way of life in our house. She loves music, books,
therapy, and playing outside. She is mischievous, funny, and
beautiful. She has the ability to bring smiles to our family
on the worst of days. We wouldn't change one thing about her.
Sienna happens to have an extra copy of her 21st
chromosome, also known as trisomy 21 or Down syndrome.
Sienna's diagnosis came as a surprise to us. After enduring
four miscarriages, she was our miracle baby. Our miracle baby
surprised us on the day of her birth with her diagnosis and a
heart condition.
We were completely unprepared to raise a child with a
disability. After I delivered her, a kind nurse explained to
me how lucky we were to have Sienna here in Pennsylvania
after passage of the Affordable Care Act.

Then she went on to talk about how Pennsylvania had some benefits in
Medicaid. And then Shannon continues:

As I entered this new world of early intervention,
therapies, and medical needs, I began to realize just how
much of a financial toll this would take on all of us if it
weren't for the protections of the ACA and Medicaid: custom
orthotics, outpatient weekly therapies, overnight hospital
stays, adaptive strollers, walkers, safety sleepers,
echocardiograms, communication devices, blood work. The list
goes on.
Sienna receives seven weekly therapies. The cost of those
alone are $3,400 per week. Without the ACA, her therapies and
medical care would have quickly exceeded the lifetime cap,
and Sienna would be uninsurable for the rest of her life and
left without access to lifesaving care.

Shannon goes on:

I am proud to be Sienna's mom. The journey is full of
wonder, joy, and unimaginable love. It changes life's most
ordinary moments into the extraordinary. But with constant
attacks on our healthcare, it is also agonizing work, hard
decisions, and constant advocacy. It gets exhausting fighting
for your child, having to prove their value to the world.

Then she goes on at the very end:

Once again, we as parents are forced to suit up for battle
and prove that our children are worthy of healthcare.

Her last line of this statement is:

Everyone loses if our children are unable to reach their
fullest potential.

So that is Shannon talking about Sienna, her daughter. She used that
same word that Erin used. Different stories, similar burdens, but she
used that same word that Erin used--``uninsurable''--uninsurable if the
Affordable Care Act is taken away.
She talks about life with the Affordable Care Act and without it.
That is what a lot of parents do when they write to us. They tell us
what their life was like before the Affordable Care Act and what their
life is like now--and what their life would return to, those dark days
when an insurance company could make a determination about a child's
insurance, their coverage, their treatment--frankly, their life
Then, toward the end, she talks about what she and other parents feel
under these constant attacks, having to prove their value, the value of
their child: We as parents are forced to suit up for battle--suit up
for battle--and prove that our children are worthy of healthcare.
I am going to ask the same question again: In America? In America,
that is what we want to do--have this constant battle? Parents have to
come here, to the U.S. Senate and to the House?
The organization that this mom is a part of is called Little
Lobbyists. This is a group for and because of the battles on
healthcare. Why the hell is this going on in America?
Why should we be fighting about progress that has been made? Why
aren't we talking about improvements, getting the cost of healthcare
down, getting the cost of prescription drugs down? Let's make
improvements.
Why do these parents have to continually battle to ensure that their
children have this kind of protection? Should mothers really have to
suit up for battle in the United States of

[[Page S6512]]

America, where the powerful get their way all the time in this place?
They are different kinds of lobbyists that come in. They are not
Little Lobbyists. They are not mothers and their sons and daughters.
They are a different kind of lobbyist. Corporations did really well in
the tax bill of 2017, a bill that was rammed through between
Thanksgiving and Christmas.
What did they get? Well, they got about a 14-point reduction in their
corporate tax rate--permanent tax relief, jacked up the debt to do it--
because they have power.
I thought that was--when you compare that action that the Senate took
at the time to what some in the Senate want to do on healthcare, to
roll back the protections, to rip away protections for these children--
and I am not even talking tonight about the adults who are impacted.
But when you compare those two actions, it is really perverse and
disgusting that the powerful get to come in here and get permanent tax
relief and get a bonanza the likes of which we haven't seen in modern
American history.
And all these parents are asking us to do is preserve what we have.
They are not asking for anything more. They are just saying: Please
make sure my child doesn't lose their coverage. Please make sure that
they have the therapies they need when they have these complex medical
needs, multiple disabilities--not one, in many cases, but multiple.
That is all they are asking us to do.
That is why it is such an important matter in the Supreme Court fight
because you have to ask: Why the rush to get this nominee through by
election day? That has never happened before this close to an election.
Well, I will tell you why. This nominee is being fast-tracked, first
of all, because this nominee has been vetted by the two groups that
matter--the Federalist Society and the Heritage Foundation--both groups
totally committed to undoing, striking down the Affordable Care Act. So
she has already passed that test, and she apparently passed with flying
colors, as she moves very quickly to a likely confirmation.
But why the fast-track to get there in a matter of days? What is
coming up? Is it election day? No. There is a date after the election;
it is November 10. That is the argument date. They know that, if she is
not on the Supreme Court, if she is not confirmed as a member of the
Court by the argument, November 10, she can't participate in the
decision.
What is the decision? The decision to strike down the Affordable Care
Act. That is what it is--the decision that really is the proxy for what
did not happen on the floor of the U.S. Senate in July of 2017. When
the repeal effort failed and when it failed multiple times in the House
over many years, this is the proxy for it. Litigate it, fund it, and
run that case right up the chain to the Supreme Court.
So that is what this is about. They want to make sure that she is on
the Court and at the argument so she can be the deciding vote on the
Affordable Care Act. That is why we are rushing.
How about another healthcare issue? How about Medicare? I mentioned
Medicaid. How about Medicare, the program that used to have bipartisan
support all across the board?
Now, Judge Barrett was asked a direct question about Medicare, and
she didn't want to give an opinion on Medicare. She was asked it in the
context of the constitutionality of Medicare. And a member of the
Judiciary Committee, Senator Feinstein, asked her because she
referenced a law review article questioning the constitutionality of
Medicare.
I think that is a loopy theory. I think that is a theory that most
Americans--probably 90 percent of Americans--don't agree with,
questioning the constitutionality of Medicare, passed more than 50
years ago. It has benefited tens and tens and tens of millions of
Americans and still today benefits numbers like that--45 million,
roughly, I think it is.
I understand why the judge doesn't want to say: Well, in this case
that is before the Court or this case that is unsettled, I might have
a--I can't give you a determination. But on Medicare couldn't she have
at least said--instead of mentioning, as she did in her answer, the law
professor's name twice who has this loopy theory on Medicare
constitutionality, couldn't she have said simply: Well, I can't tell
you how I am going to rule on a Medicare case, but I can tell you that,
just like Brown v. Board of Education is a superprecedent in a judicial
sense, I think most people would agree that Medicare is a
superprecedent in a legislative sense.
She wouldn't have violated any principle of not telling how you are
going to come down in a case. She could just tell us or relate to us
the reality that most Americans believe about Medicare.
Now, I know there has been some commentary about her law review
article that--or I should say her writings about the 2012 Supreme Court
case. We know that the case she was referring to was a 2012 case. So,
in 2017, Judge Barrett wrote an article about what Chief Justice
Roberts ruled in the case. She wrote: ``Chief Justice Roberts pushed
the Affordable Care Act beyond its plausible meaning to save the
statute.''
In light of her frequent criticism of the act, the Affordable Care
Act, Senator Leahy of Vermont asked her during her confirmation hearing
whether she had ever written or spoken in favor of the law. She has
not. So that is what she was writing in 2017.
I have to ask: If she felt so strongly about the 2012 decision by the
Court and the position of Justice Roberts, she didn't seem to write
much about it for a couple years--until 2017, when you had a new
President. And what followed a few months later was she was nominated
in the circuit court of appeals. So that is curious.
But what we know is that the President who nominated her, President
Trump, certainly wants to strike down the Affordable Care Act. In fact,
in May he said he wanted to ``terminate healthcare'' under the
Affordable Care Act.
We know the impact of that. That destruction, the act of striking
down the Affordable Care Act, would harm tens of millions of Americans.
In Pennsylvania, 5\1/2\ million people with a preexisting condition
would be affected. Over 840,000 Pennsylvanians who are enrolled in
Medicaid expansion would be, of course, adversely impacted. So that is
the reality of what we are talking about with regard to this
nomination.
I will make reference to one more family before I conclude my
remarks. It is the Kovacs family from--also from Western Pennsylvania,
Plum Borough, PA, in Allegheny County, not too far from Pittsburgh. The
Kovacs' 11-year-old son Thomas is blind and has multiple disabilities.
He has epilepsy, microencephaly, and intellectual disabilities.
His mom, Jessica, says the Affordable Care Act has made all of their
lives better: ``The ACA has made it possible for Thomas to receive
therapy services at his school, Center Elementary School in Plum
Borough.''
The ACA has given his parents the option to change jobs and advance
in their careers without fear of not being able to obtain health
coverage for him because of his preexisting conditions. And they don't
need to worry about busting through lifetime expense caps and losing
coverage for Thomas. The ACA has brought peace of mind and comfort to
their family because they know that he is protected by the essential
healthcare benefits the law provides.
Striking down the ACA isn't only about the essential health benefits.
It is about a lot more than that.
There is so much more that I could talk about tonight, so many more
examples, but I will conclude with that and just make one final
comment. When I think about what could happen and what is likely to
happen if Judge Barrett is confirmed and becomes a member of the Court,
participates in the argument on November 10, and then because of that
participation is allowed to, as a member of the Court, to rule on this
ACA case, it is highly likely that the Affordable Care Act will be
wiped out.
I have to ask about the fate of Abby and Sienna and so many other
children like them all across our Commonwealth and all across the
country. I think often in government we must ask, here in the U.S.
Senate or in the House or in the other branch of government--the
judicial branch or in any branch of government, the executive,
legislative, or judicial branches--we should all ask ourselves, Is this
action

[[Page S6513]]

I am taking or is this policy or program advancing the cause of justice
or not?
I would submit that striking down the Patient Protection and
Affordable Care Act by virtue of a Supreme Court decision is not only
the wrong policy, it is a giant step backwards in the interests of
justice. Justice demands that these children have these protections;
that these protections are not undermined, they are not compromised,
and they are not taken away by judicial fiat.
This nomination threatens the healthcare of children like Abby and
Sienna right now--right now in the United States of America, where we
advanced into the light of protection for those children. When you
consider what is at stake right now, it is that case. I think it is
potentially the most important case the Court will decide in the next
quarter century. That is the impact of it.
Very few Americans are not directly affected by this case, either
because they are affected by way of loss of coverage or they are
affected because of the scope of the protections that were brought
about by the passage of the Affordable Care Act, the enactment of it.
A lot is at stake, not to mention so many other issues and so many
other matters that will come before the Court. For that reason and
several others, I will be voting against the nomination of Judge
Barrett to be on the Supreme Court.
If I have an opportunity between now and the vote, I will outline
some other reasons why. But for purposes of tonight, this morning, I
wanted to talk about children like Abby and Sienna and their moms. The
moms, Erin and Shannon, should have the peace of mind that has come
with the protections of the Affordable Care Act.
With that, I will yield the floor.
The PRESIDING OFFICER (Mr. Cramer). The Senator from Maryland.
Mr. VAN HOLLEN. Mr. President, I want to start by thanking my friend
and colleague, the Senator from Pennsylvania, for talking this evening
about what is at stake for so many of his constituents with this
Supreme Court nomination and the very real possibility that the
Affordable Care Act will be struck down and what that means to so many
of his constituents.
I do think this is a moment where we need to reflect and take stock
of where we are as a country on many fronts. We are in the middle of a
global pandemic. We just saw the highest single day of new reported
cases on Friday. Millions of Americans are unemployed and worried about
how they are going to pay their rent and how they are going to pay for
their medications.
We are here at a time when a Republican-led lawsuit to strike down
the Affordable Care Act, supported by President Trump and his
Department of Justice, is scheduled for a fateful hearing in the
Supreme Court on November 10--1 week after the upcoming election.
We are here in the wake of the killings of Black men, like George
Floyd, and Black women, like Breonna Taylor, which sent throngs of
protesters into the streets across the country to rightly demand
greater police accountability and racial justice.
We gather here as wildfires in the West and hurricanes in the South
demonstrate with deadly and destructive voracity the accelerating and
dangerous consequences of climate change. We meet as voters are filling
out mail-in ballots as early as they can to make sure that the Postal
Service, which this administration has deliberately slowed down, can
get their ballots delivered on time so that they can be counted and as
voters stand in long lines, with their masks, 6 feet apart, to cast
their ballots in the early vote.
At this moment, this country is facing all these pressing issues, but
as I come here this evening or early this morning, we are not
considering solutions to any of those critical and urgent issues, not a
single one. Instead, we are blowing up the precedent that the Senate
Republican leader and other Republican Senators themselves established
4 years ago and considering a Supreme Court nominee closer in time to
the Presidential election than ever before in American history, as
millions of Americans have already have already cast their ballots.
We are blowing up this Republican Senate established precedent and
racing toward a nomination that will turn the clock back, take us
backwards on all of those pressing issues that I just outlined. But
sadly, I suppose none of us should be surprised that we are focused
here on another judicial nomination at the expense of focusing on
legislation to advance and address the interests of the American people
on so many front-burner pressing issues.
Indeed, as I reflect on the last months and years, just about the
only thing this Republican Senate has done is pass nominations. Week
after week, we ignore our job as legislators in favor of an agenda of
rubberstamping, blindly supporting whatever nominee this President puts
forward. In many cases, it hasn't even mattered if a judicial
nomination is qualified, if they have even tried a case. Our Republican
Senate colleagues have abandoned any principles they claim to hold with
respect to our Judiciary Committee
When President Obama was in office, those Republican Senators who
were here in this Chamber erected a wall of opposition to scores of his
nominees, refused to even consider many of them. They outright rejected
President Obama's efforts to fill seats on the DC Circuit, the court
just below the Supreme Court.
Republican Senators at the time claimed that it wasn't necessary to
fill those vacancies. They rejected qualified nominees up and down the
bench, denying simple consideration and withholding blue slips. It was
a deliberate effort to stonewall President Obama's judicial nominees.
In fact, they rejected a highly-qualified nominee for the very seat
Judge Amy Coney Barrett currently holds. President Obama nominated Myra
Selby for the Seventh Circuit in January of 2016. She had served on the
Indiana Supreme Court and would have been the first African-American
and first woman from Indiana on that circuit.
Senate Republicans--what did they do? Didn't even give her a hearing.
Then, 1 month later, February 2016, Justice Scalia passes away.
President Obama nominates Merrick Garland to the Supreme Court, a good
and very fair judge who had been confirmed to the DC Circuit by a
Republican-controlled Senate by a vote of 76 to 23. What did Senate
Republicans do? They refused to consider the nomination.
They said, February--February of 2016, February of that election--was
simply too close to a Presidential election to fill the slot. The
American people should have a voice, they said. Let the people choose a
President this year and then that President, whomever that may be, make
the nomination to the Supreme Court.
Not only did Senate Republicans oppose Merrick Garland, they refused
to meet with him. They refused to hold a hearing. This is February
2016. The American people should have a voice. It is a Presidential
election year, they said, 8 months--8 months--before that November 2016
election was just too close.
And yet, here we are today, 4 years later, 8 days--not 8 months, 8
days--from the beginning of the last day of this Presidential election,
November 3. Over 50 million ballots are already cast, and suddenly,
there is nothing more important than rushing to fill the Supreme Court
vacancy--not responding to a global pandemic.
And we just learned from a very reputable Columbia University study
that had this administration acted and followed the advice of
healthcare experts, we could have saved at least 130,000 American
lives--up to 220,000 American lives. But here we are, taking no more
meaningful action, not giving a lifeline to people who are out of work,
through no fault of their own; not closing the digital divide so
children who can't go to school because of COVID can access their
classes; not reforming our justice and policing system to make sure
that everyone, no matter the color of their skin, is protected and
treated equally; not securing our elections against foreign attacks and
interference.
Just a few days ago, I was right here on the Senate floor, asking
this Senate to take up what had been a bipartisan piece of legislation
called the DETER Act. I introduced it years ago with Senator Rubio,
after we learned of the Russian interference in 2016. We wanted to make
sure that we send a clear message in advance of the 2020 election that
if we catch the Russians or any other adversaries interfering in our
election, this time, there will be a swift and certain price to pay.

[[Page S6514]]

Just earlier this past week, we got not surprising news from the DNI
that, yes, what we have known all along, the Russians are interfering,
other adversaries are interfering, and yet we couldn't even take up the
bipartisan bill to send a clear message to Putin and others because the
Trump administration continues to oppose it and the Senate Republican
leader continues to bury it here in U.S. Senate.
No response to global pandemic of meaningful note at this point,
nothing to do on justice and policing, nothing to secure our elections.
No, the top priority has been to jettison the precedent that our
Republican colleagues themselves established under President Obama 4
years ago and rush to confirm a Supreme Court Justice.
Why? Why this 180-degree turnaround? After all, it is not as if our
Senate Republican colleagues have always been so worried about an
eight-person Supreme Court. They kept the Supreme Court to eight
Justices for a year--for a full year--when they refused to consider
Merrick Garland's nomination. Some of our Senate Republican colleagues
praised the idea of only having eight Justices on the Supreme Court
forever if Hillary Clinton had won the Presidency in 2016. So what is
different this time around?
Well, as we have been hearing on the floor of the Senate and from the
President himself, there are a number of irresistible opportunities--at
least irresistible for our President and the Republican colleagues--
things they have been trying to do for years and have not succeeded yet
in doing.
First, they can pack the Court--pack the Court with increasingly
ideological and rightwing Justices to align the very top Court--the
Supreme Court--with the increasingly ideological rightwing judiciary
they have been creating over years, first by stonewalling and blocking
President Obama's nominees and then fast-tracking them for President
Trump's nominees.
Second, they can achieve another goal that they have been striving
for, for a decade: overturning the Affordable Care Act. Ten years ago--
I was a Member of the House of Representatives at the time--Republicans
did everything--I mean, everything they could--to block passage of the
Affordable Care Act to stop ObamaCare. We heard outright lies about it.
They said it was going to cause massive job loss. They said that the
government would be picking your doctor. They said a government panel
would decide whether your grandparents lived or died. They called them
death panels. None of it was true. None of it has come true.
The first part of the Affordable Care Act was signed into law on
March 23, 2010. On that very day, House Republicans filed a bill to
repeal it outright. Also, on that same day, the first Republican
lawsuits were filed against it. That two-pronged approach--trying to
undo it legislatively and trying to undo it through the courts--
continued for the next decade, dozens of votes in the House of
Representatives and the Senate to attempt to repeal the law and dozens
of Republican attorneys general and special interests filing lawsuits
to challenge it in the courts. They failed. They failed in the
Congress. And so far, they have failed in the courts.
In the courts, in 2012, the Roberts Court upheld the
constitutionality of the Affordable Care Act in a 5-to-4 decision in
one of the very first cases that had been filed against the law. It
wasn't a complete victory for the Affordable Care Act. It did make
Medicaid expansion optional. And a number of Republican-held States
refused to implement that unless and until voters demanded it at the
ballots. But that Supreme Court decision did uphold the central tenets
of the Affordable Care Act.
The Supreme Court upheld the ACA again in a 6-to-3 decision in 2015.
But that hasn't stopped the Republican Party's quest to eliminate it
entirely. Just look at the 2016 Republican Party platform where they
continued the attack with three strategies.
First, President Trump: ``With the unanimous support of Congressional
Republicans, will sign its repeal.''
Second, while working to legislatively repeal it, the President would
use his administrative authority to undermine, weaken, and sabotage it.
Third, the President would appoint Justices to reverse past
decisions, including the Affordable Care Act decisions made by the
Supreme Court.
That was the three-pronged plan. Well, they ran into problems with
the first part of the plan because despite President Trump's campaign
promise to convene a special session of Congress to ``immediately
repeal and replace ObamaCare very, very quickly''--despite that
pledge--our Republican colleagues soon realized they had no replacement
plan. They promised that they could repeal the Affordable Care Act and
replace it with something much, much better and less expensive, but
there was no real plan. There was no ``there'' there, and the idea they
offered to the American people was to trade healthcare for millions of
Americans for tax breaks for the very rich. Tens of millions of
Americans would have lost access to affordable healthcare. People with
preexisting conditions would have lost protections, deductibles, and
copays would have gotten more expensive. Insurance companies would have
been able to get tax breaks on the bonuses they gave to their CEOs.
That is what was in the Republican replacement plan--giving tax breaks
to companies for the bonuses they pay to their CEOs.
Not surprisingly, they couldn't sell it to the American people, and I
think we all recall here, in 2017, it dramatically failed by one vote
in the U.S. Senate. Every Democratic Senator voting against destroying
the Affordable Care Act, three Republicans joining us, including, of
course, Senator McCain giving it a big thumbs down.
Republicans have been a little more successful trying to sabotage the
law through the Trump administration's Executive authorities by scaling
back outreach for enrollment plans.
What does that mean? That means don't tell the public about what
opportunities they have to get healthcare coverage in the Affordable
Care Act. We just won't provide as much public information so people
won't know about it, and then they won't be able to sign up for it;
also, by ending cost-sharing in an attempt to destabilize the
healthcare exchanges and allowing more junk health plans that don't
offer critical benefits or protections, the kind of plans we used to
see when people thought that they had coverage, and then, when they
really needed it, they suddenly discovered, no, in the fine print, it
just wasn't there.
But despite these efforts by the administration, the law has
survived. All their efforts to slash it with 100 cuts, it continues to
provide affordable coverage to millions of Americans, and, in many
States, including mine in Maryland, they have taken efforts to try to
protect the Affordable Care Act from the Trump administration's
attacks.
But on November 10, when the Supreme Court hears that Affordable Care
Act case, all of that could change. They could decide, after upholding
it on two separate occasions, that now they have got another Supreme
Court Justice, we are going to strike it down.
And make no mistake, Donald Trump wants this law overturned. I mean,
no one should be under any illusions about that. You can take it from
the word of the brief--the legal brief filed by the Solicitor General
of the United States on behalf of the Trump administration. It is the
country's lawyer before the Supreme Court.
He filed a case and said that the entire law ``must fall.'' The
entire law must fall. Not one piece of it or another piece, the entire
law must fall. That is the position of the Trump administration. You
can listen to President Trump back in May of this year. We are in the
middle of a pandemic, when he said: ``We want to terminate healthcare
under ObamaCare.''
You can listen to him just this week on ``60 Minutes.'' It aired
tonight, and he tweeted out to make sure everyone could see it just in
case they missed the show. President Trump said of the Supreme Court's
ACA case: ``I hope that they end it--it'll be so good if they end it.''
That is President Trump. It will be so good if they--the Supreme
Court--end the Affordable Care Act. That has been his plan from the
Supreme Court from the start.
In 2015, when he was running, he said: ``If I win the presidency, my
judicial appointments will do the right thing unlike Bush's appointee
John Roberts on ObamaCare.'' Candidate Trump hasn't changed his tune.
And he has found his nominee in Amy Coney Barrett, who has publicly
criticized past Supreme Court decisions on the Affordable Care Act. She
is President

[[Page S6515]]

Trump's torpedo aimed at fulfilling his pledge to destroy the
Affordable Care Act.
She criticized the decision in NFIB v. Sebelius, saying that Chief
Justice Roberts' argument ``pushed the Affordable Care Act beyond it
plausible meaning to save the statute.'' She applauded the dissent in
King v. Burwell, saying that they had ``the better of the legal
argument.''
So it is no wonder that Republican Senators who tried unsuccessfully
to defeat the Affordable Care Act legislatively in 2017 are now rushing
to appoint her before that case is heard 1 week after the election.
The stakes could not be higher for the American people. I want
everybody to think back to the days before we had the Affordable Care
Act. Back then, if you had a preexisting health condition, companies
could deny you coverage outright. If you didn't have the coverage, you
might otherwise be offered it at a price that you couldn't possibly
afford--outrageously expensive. Instead of denying it outright, we will
offer you that coverage, but you have got a preexisting health
condition, so we are going to charge you something that you can't
possibly afford and so you can't buy it.
If you did have coverage and then developed a health issue, you would
be locked into your current plan no matter how high the costs arose,
unable to shop around because of what had become a preexisting
condition. It is called job lock. You have to stay in a job even if you
have a better opportunity or you want to pursue your dreams because you
now have a preexisting health condition and you can't get coverage
elsewhere.
One Marylander, Angela, wrote to me about her daughter Rachel, who
was diagnosed with epilepsy when she was in 8th grade. She had to take
expensive medications, which she can afford thanks to the Affordable
Care Act. Here is what Rachel's mother wrote:

She now has a lifetime preexisting condition. If she were
to be kicked off her healthcare, I imagine she would be
bankrupted having to pay full costs of the medications that
help her be a productive member of society.

Rachel is a teacher, and her mother Angela says: ``It is because of
ObamaCare that she is able to be where she is today.''
Another constituent, Megan, wrote to me that she turned 26 on the
Thursday that the Senate Republicans on the Judiciary Committee
reported out the Barrett nomination. She turned 26 just last Thursday.
She has asthma. She pays $60 a month for her medications. And here is
what she wrote to me:

If I lost my job or my insurance. . . . I would have to
make a choice between my medicine or paying the electric bill
on time.

And she ended her note to me with the following:

For my 26th birthday, my only wish is that the Affordable
Care Act not be overturned. There are so many people like me,
Americans with preexisting conditions, that depend on this
crucial legislation that provides necessary protection and
guarantees that they will stay covered no matter what.

That is what Megan wrote.
And before the Affordable Care Act, women could be charged more just
because they were women. Being a woman was a preexisting condition that
allowed insurance companies to charge more. It is also true that before
the Affordable Care Act, if you had a catastrophic accident or a long-
term health issue, you would hit a coverage gap and be bankrupted by
millions of dollars in hospital bills. There were no annual caps and no
lifetime caps.
Sometimes that meant that people wouldn't go to the hospital or see a
doctor because they didn't want to face unending, uncapped bills. That
is what would have happened to another constituent of mine, Robin, if
she did not have the Affordable Care Act.
She wrote:

I am 64.

So she is not yet 65, so she is not covered by Medicare.

I am 64, took a tumble at home. My older son urged me to go
to the emergency room due to my family health history. I was
kept in the hospital due to a low thyroid level and almost
non-existent potassium level among other problems. I would
not have recovered if I did not have [the] ACA. I would not
have health insurance and I know I could not pay a hospital
bill, so I would not go to the emergency room. I would have
died. [The Affordable Care Act] saved my life.

Before the Affordable Care Act, if you were a recent college graduate
but you hadn't found a job with health insurance yet, you couldn't stay
automatically on your parents' health insurance policy. You were on
your own, out of luck, young people thinking they are invincible until
they are not. Insurance companies could deny coverage to them, and now
they can't.
I heard from one Marylander who worries about his son's future if
this particular provision is taken away. He wrote to me:

If the ACA is overturned and we lose the coverage for my
son on my policy, this would be a disaster for my son and for
my family. . . . I would hate to see him have to drop out of
school just to find a job to cover health insurance--this
would destroy his future. And we don't have--

He continued to write--

the extra $5,000 or so a year lying around that would be
required for him to have a policy under our current provider
that would cover his preexisting conditions. My son could be
one of the millions to lose health insurance if the
Republicans have their way.

This provision of the Affordable Care Act has been lifesaving for
Pamela's family. She wrote:

This year, my 23-year-old daughter was diagnosed with stage
3 breast cancer.

Stage 3 breast cancer.

Thanks to the [Affordable Care Act] she is still on our
insurance. Even with our insurance, she will be in debt for a
very long time. Without it she would be dead. I have not
heard a single Republican guarantee this will be in any bill
they propose.

It is also a fact that before the Affordable Care Act, you had to pay
for annual checkups and preventive coverage like breast cancer
screenings. It is also a fact that if you want to quit your job to
start a small business, you had to figure out how you would pay for an
expensive health plan, which might not provide very good coverage on
the individual market.
Another Marylander, who had a lump in her breast that was treated as
a preexisting condition even after it disappeared, decided she had to
limit her employment options to those with decent health insurance
before the ACA was enacted. She wrote:

This experience steered me to work only for employers large
enough to offer stable, subsidized healthcare insurance. . .
. The downside has been the golden handcuffs. It is important
to have universal decent healthcare coverage to encourage
small businesses, nonprofits, and entrepreneurs.

Kathleen from Maryland decided to leave an office job to find
something that suited her better, but the job she took in the
restaurant industry didn't offer any medical coverage. She wrote:

I developed adult-onset asthma, more than once resorting to
the ERs or Urgent Care. I searched everywhere I knew for
medical insurance but was refused, either because I was just
an individual and/or because I now had a ``pre-existing
condition.'' Knowing nothing about asthma treatment, and
unable to cover medical bills entirely on my own, I was
chronically ill, and more than once almost died.

She had to rely on friends and family for help, and after 10 years
without insurance, she finally found a job with coverage. Kathleen
wrote:

We ALL need medical coverage, ALL the time, no matter your
employment status.

The Affordable Care Act dramatically expanded Medicaid in many
States--those that opted to participate--providing subsidies for low-
income Americans to find affordable plans and gave small business tax
credits for providing health insurance for their employees. It also
closed the prescription drug doughnut hole for seniors on Medicare.
A lot of people forget, seniors on Medicare benefited from the
Affordable Care Act and continue to benefit. That is part of the law
that the Trump administration is trying to overturn in its entirety.
These are seniors who have faced a big coverage gap from the initial
spending threshold, and on the other side of the doughnut hole,
catastrophic spending--a big doughnut hole.
In 2016, the most recent years where we have complete data, close to
5 million seniors on Medicare received an average of over $1,000 in
Part D prescription discounts because the doughnut hole was closed.
Another 46 million seniors are on Part D Medicare today. If any of them
all of a sudden develop a condition that requires high drug costs, any
of those 46 million Americans could fall into that doughnut hole,
costing them as much as $3,000 more per year.
Now, the Affordable Care Act isn't a perfect law, but it did set a
key standard for essential health benefits, cut

[[Page S6516]]

the rate of uninsured Americans, and started improving healthcare
outcomes for Americans. And, right now, while we are in the middle of
the COVID-19 pandemic, it is more important than ever.
The United States has had over 8.6 million COVID-19 cases, a number
that we see grow by the day. For patients who require hospitalization,
the Kaiser Family Foundation reports that the average stay can cost
more than $20,000 a person and rise to closer to $90,000 if the patient
requires a ventilator.
So what would happen to those Americans if they are once again
subjected to a lifetime out-of-pocket limit on their insurance coverage
where they are not protected against huge expenditures?
We are all glad that when President Trump got COVID, he got world-
class care. It is a good thing. We are glad he got airlifted to Walter
Reed in Maryland. It is a great national military medical facility. We
are glad he had a team of doctors devoted to his case. We are glad he
got access to cutting-edge drugs. He won't have to pay for that
coverage.
But that is not the kind of treatment every other American gets, and
it is offensive for the President to relish his first-class treatment
while denying his fellow Americans simple protections, as he would, by
calling for the destruction of the Affordable Care Act.
Speaking of COVID-19 and the impact of preexisting conditions, we are
seeing many COVID-19 patients who have long-term health effects. They
call them the ``long-haulers.'' The CDC noted last month that COVID-19
can have an impact on the heart, including heart damage that can lead
to long-term symptoms like shortness of breath, chest pain, and heart
palpitations.
An article this month in the Harvard Medical School Health Blog notes
that COVID can damage the brain, causing cognitive effects comparable
to those who have suffered traumatic brain injury.
So while Senate Republicans have refused to take meaningful action to
confront the next step of COVID-19 relief, including refusing to pass a
strong testing and tracing plan to halt the spread of the virus as
proposed in the Heroes Act--both 1 and 2--from the House of
Representatives, they are pushing for a nominee to take the Affordable
Care Act away from the American people who have gotten sick, and now up
to 8.6 million of them have a preexisting condition due to COVID-19.
But they will no longer be protected from that preexisting condition if
the Affordable Care Act goes away.
This isn't crying wolf. I want to remind everybody again, the
Solicitor General of the United States, acting on behalf of the
President of the United States, wrote in his brief supporting the case
for the Affordable Care Act that the entire law--the entire law,
coverage for preexisting conditions, closing the Medicare doughnut
hole, and ending lifetime limits for care--``must fall.'' All of it
``must fall.''
We know President Trump has no plan to replace it. He has had plenty
of time to present one. For years, he kept telling us: It is going to
be a matter of weeks. Four years after his inauguration: It is going to
be a matter of weeks. Two years ago: It is a matter of weeks. Three
years ago: It is a matter of weeks.
He was asked about it in the last debate. He said don't worry. He is
going to come up with ``a brand new, beautiful health [plan].''
Women's health, in particular, is in jeopardy with this nomination.
Not only do women stand to lose the Affordable Care Act protections
against discrimination--because before that, as I said, just being a
woman was a preexisting condition that would and could cost you more--
they will no longer have access to the guarantee of precancer
screenings for breast cancer and other screenings. But it is also a
fact that President Trump and Republicans have long sought to deny them
reproductive health freedom.
That brings us to another longtime priority of President Trump and
Senate Republicans--putting a Justice on the Supreme Court who will
provide a majority to strike down a woman's right to reproductive
choice in accordance with the Roe v. Wade decision.
The Roe v. Wade decision was 7 to 2 in the Supreme Court. It was
founded on the right to privacy, that a woman's healthcare choice was
her own, without interference from the State, in accordance with the
Roe v. Wade framework.
Before Roe v. Wade, when abortion was illegal in most States, unsafe
abortions caused one-sixth of all pregnancy-related deaths. Many low-
income women jeopardized their lives with self-induced procedures.
Now, women have safe options, both to obtain abortions and also,
thanks to the Affordable Care Act, no-cost contraception that is used
both to plan families and manage a variety of health conditions. Women
can make decisions about their own bodies, in consultation with their
doctors, that are best for their health and the well-being of their
families.
The vast majority of Americans support comprehensive healthcare,
including a woman's right to reproductive choice under Roe v. Wade, but
there has been a long fight chipping away at this protection, this
care, with the ultimate goal of overturning Roe v. Wade altogether.
Overturning that case has been one of President Trump's litmus tests
for this Supreme Court nominee and his other picks. Like the Affordable
Care Act, it is not like he has been subtle about this.
In a Presidential debate in 2016, he was asked if he wanted the
Supreme Court to overturn Roe v. Wade. He said:

Well, if we put another two or perhaps three justices on,
that's really what's going to be--that will happen. And that
will happen automatically, in my opinion, because I am
putting pro-life judges on the court.

There it is. This would be President Trump's third Supreme Court
nominee--the magic number he talked about for overturning Roe v. Wade
and a woman's protected right to choose under the Constitution of the
United States. This comes on top of the more than 60 judges with anti-
choice records whom he has already nominated and the Senate has
confirmed to the lower courts.
More States are passing laws to drastically limit or effectively ban
abortion in order to set up cases to challenge Roe v. Wade in the
courts, to set up those cases to take to the Supreme Court.
Again, as with his intention to overturn the Affordable Care Act,
President Trump has found the perfect nominee to overturn Roe v. Wade
in Judge Barrett.
We don't have to rely on the President's words alone or on all the
anti-choice groups who have vigorously lobbied for her appointment and
who have said that she ``believes that Roe v. Wade is something that
can be reversed.'' That is what all the advocacy groups supporting her
nomination are saying. One of our Republican Senate colleagues said he
absolutely will never vote for a Justice who has not shown that they
believe Roe v. Wade was wrongly decided and has told us that Judge
Barrett ``certainly would meet that standard.''
Just as we can see Judge Barrett's opposition to the Affordable Care
Act in her own record, we can see her opposition to Roe v. Wade in her
own record. She signed on to an advertisement calling Roe v. Wade ``an
exercise of raw judicial power'' that advocated for ending ``the
barbaric legacy of Roe v. Wade.'' That is what she said.
She signed another advertisement criticizing Roe v. Wade when she was
a member of Notre Dame's University Faculty for Life, an anti-choice
group. She has said that Roe v. Wade is not settled precedent.
Indeed, at her hearing in the Senate, she questioned the principle
that the Constitution protects certain fundamental rights from
government interference on privacy grounds, saying that there is a
debate about how far that can go--a debate that is generally waged by
those looking to overturn Roe v. Wade and Obergefell, the case that
allows for gay marriage.
She would not even concede--and this is very telling--she would not
even concede in her hearing that the decision in Griswold v.
Connecticut was settled law. Griswold v. Connecticut is the case that
protects access to contraceptives. There was a Connecticut law on the
books that prohibited any person from using contraception, and the
Court invalidated that law in a 7-to-2 decision on the grounds that it
violated marital privacy.
I want our colleagues to think about this. This is a State law that
said that

[[Page S6517]]

adults could not use contraception, and she would not say that is
settled law under the Constitution of the United States. She would not
even concede that in vitro fertilization, which has helped many women
start their families, was constitutional and could not be made illegal.

It is clear from President Trump's stated intentions from the words
of anti-choice groups, the promise of our own colleagues, and from
Judge Barrett's own words that her nomination is the culmination of a
decades-long effort to overturn a woman's right to choose.
We also see that with respect to the decision in Obergefell v.
Hodges. On that day in 2015, the Supreme Court showed us what it could
be--a body that would ensure, rather than restrict, the rights of
Americans. In a 5-to-4 decision, it told LGBTQ Americans that the love
they had for each other and their wish to declare that love in marriage
was their right, as it has been for straight couples for the whole
history of our Nation. Five years later, the American people support
this decision at record-high levels. But that was a 5-to-4 decision,
and we are now facing a fundamental shift in the balance of the Court,
and we have seen time and again this President attack laws designed to
protect people against discrimination based on sexual orientation.
We also see this not just from the administration but, again, through
Judge Barrett's own words and actions. She received an honorarium to
teach at a program run by the Alliance Defending Freedom, which the
Southern Poverty Law Center has categorized as a hate group for its
efforts to prohibit same-sex marriage and recriminalize homosexuality,
and she called the experience ``a wonderful one.'' She has referred to
sexual orientation as a ``sexual preference,'' which are the buzz words
used by those who want to overturn LGBTQ rights on the grounds that
this is not a question of ``immutable characteristic'' but simply
someone's chosen preference.
There are a number of cases coming to the Supreme Court that deal
with the issue of discrimination against foster families headed by
same-sex couples. One will arrive at the Court on November 4, the day
after the election--another reason you see this nomination being
rushed.
If you look through the issues I outlined at the start--from racial
justice and police accountability, to other questions on the ability to
access healthcare--you will find time and again in Judge Barrett's
record telltale signs and clear signs--flashing warning signs--that she
wants to turn back the clock.
We see that with respect to criminal justice reform, where she
dissented in a case on whether a defendant who had been convicted but
not yet sentenced when the First Step Act was enacted by this Congress
and signed by the President--as to whether the new sentencing
requirements of that law would apply. Fortunately, the Seventh Circuit
ruled 9 to 3 that the First Step Act applied to the defendant. Judge
Barrett was one of the three dissenting votes who adopted a cramped
interpretation of the law devoid of any mercy.
There are other cases relating to the rights of those who have been
injured, including a pregnant teenager who was repeatedly sexually
assaulted by a prison guard, where Judge Barrett found that the prison
guard could not be held liable under his employment with the prison
system. If you read through that case and the horrifying facts, I think
you come away very troubled with the fact that she had such a cramped
reading of the law.
On a question that is not a legal matter but a matter of fact--
climate change--we would have thought that the question that was put to
her was quite easy. Judge Barrett admitted that the coronavirus was
infectious. Why? Because that is what the medical experts say. But when
she was asked about climate change--again, not a tricky, legal
question--she refused to say what the overwhelming scientific consensus
is--that climate change is real. We see it, as I said, with the forest
fires. We see it with the hurricanes. We see it in my State of
Maryland, just in the city of Annapolis, the home of the Naval Academy.
We see flooding at our docks that is wreaking havoc on local
businesses.
Time and again, when Judge Barrett was given an opportunity to answer
basic fact questions or pretty straightforward legal questions in the
Judiciary Committee, she ducked them entirely, but we have her record
to indicate where she stands.
On the issue of voter protection and voting rights, we also find
another troubling pattern in Judge Barrett's record. This is especially
important when you think about the fact that she is filling the seat of
Justice Ruth Bader Ginsburg, who wrote that very powerful dissent in
the 5-to-4 decision in Shelby v. Eric Holder that took a big bite out
of the Voting Rights Act.
If you look at the statements by Judge Barrett, she distinguishes
between what she calls individual rights, like the Second Amendment
rights, versus what she calls a civic right, the right to vote--putting
the right to vote in a lesser protected category than what she defines
as individual rights. In fact, Judge Barrett wrote: ``As a right that
was exercised for the benefit of the community (like voting and jury
service), rather than for the benefit of the individual . . . it
belonged only to virtuous citizens.''
``Only to virtuous citizens''--that is what Judge Barrett wrote about
the right to vote. The right to vote, as we all know, is fundamental to
our democracy.
Our dear colleague John Lewis, who recently passed away and was
nearly beaten to death for fighting for that right to vote, said many
times:

The vote is precious. It is almost sacred. It is the most
powerful, non-violent tool we have in a democracy.

That right to vote should not be relegated to some kind of secondary
status, as Judge Barrett's writings indicate she would do.
So if you look at all the challenges that we face as a country--
dealing with the pandemic, dealing with issues of police accountability
and racial justice, dealing with climate change, dealing with
protecting voting rights--all these pressing issues that we should be
focused on here in the U.S. Senate, we are not. Instead, we are rushing
through this illegitimate process to put a Justice on the Supreme Court
who in each of these areas--each of these areas where we should be
focusing on attention--is actually going to take us backward.
So I urge the Senate--I can see the march that is going day after day
toward the vote tomorrow, but I urge this Senate to reconsider the path
that it is on.
This has been a very shameful episode--watching the complete flip-
flop from 2016, rushing to put on a Justice whom the President wants
and who Senate Republicans, I think, believe will act to overturn the
Affordable Care Act, take away a woman's right to choose, and be part
of an ideological majority that will strip away important rights from
the American people.
I will end by just pointing out that public surveys right now show
the American people are not fooled by this process. They don't like
what they see. They want us to be focused on dealing with COVID-19.
They want us to pass a robust, comprehensive emergency response
package. That is what the American people are calling for. Instead,
this Senate has embarked on this charade of a process.
There will be a verdict on all of this by the American people in a
matter of 8 days, and I believe there will be a reckoning on the
actions the Senate is taking and the actions the Senate has refused to
take in addressing the urgent issues that are really facing the
country.
I yield the floor.
The PRESIDING OFFICER. The Senator from Hawaii.
Mr. SCHATZ. Mr. President, I am going to give some remarks in 4 or 5
minutes. I just wanted to encourage the staffers, especially the
stenographers, to feel comfortable to keep their distance from U.S.
Senators who are delivering remarks. There is no reason, if we have
microphones on, to be anywhere near us. So I would just encourage them
to keep their distance, especially since most Members are delivering
remarks without masks on.
So if there is something the staff could do to just encourage them to
keep their distance, we do want them to be safe.
I will be giving remarks in a few minutes.
I yield the floor.

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The PRESIDING OFFICER. The Senator from Hawaii.