Stuart M. Gerson, Member of the Firm in the Litigation and Health Care & Life Sciences practices, in the firm’s Washington, DC, and New York offices, was quoted in Law360, in “Will Barrett Deliver Pivotal Vote to Strike Down the ACA?” by Jeff Overley. (Read the full version – subscription required.)

Following is an excerpt:

Democrats are understandably scared that Judge Amy Coney Barrett will vote to vaporize the Affordable Care Act if she joins the U.S. Supreme Court. But whether she’ll actually do so, much less deliver a decisive fifth vote against the landmark law, is far from clear. …

The high court’s three liberals are virtually certain to leave the ACA unscathed. The law’s supporters are also optimistic that Justices Roberts and Brett Kavanaugh — authors of recent opinions that deemed individual statutory provisions invalid but also severable from broader laws — will join them on everything but the mandate’s constitutionality.

Epstein Becker Green member Stuart Gerson, who served as a high-ranking U.S. Department of Justice attorney in Republican and Democratic administrations, told Law360 there’s a good chance Judge Barrett would wind up in that camp as well.

“It wouldn’t surprise me, assuming that Judge Barrett is confirmed as a justice, that she well could go along with a significant group of other justices and hold that the offensive provision is severable, and the rest of the ACA can go on,” Gerson said. …

And a ruling that wipes out the entire ACA would be deeply controversial, given that the law covered about 20 million Americans even before the coronavirus pandemic triggered enormous job losses that drove many Americans into the ACA’s health insurance programs.

“If you threw out the Affordable Care Act, you’d be left with just a huge number of people who [could] be without insurance,” Gerson said. “So, in a sense, both the easy way out and probably the right way out is just to sever the noxious provision.”

The justices, of course, are ostensibly beholden first and foremost to reach the correct legal result, even if that result has some troubling consequences. And if Judge Barrett is confirmed, “she [and] several of the other justices are not going to consider exogenous circumstances, like what’s going on in the world,” Gerson said.

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