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

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

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

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

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

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

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

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

Issue one: Health care reform

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

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

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

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

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

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

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

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

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

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

Issue two: abortion

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

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

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

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

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

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

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

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

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

Issue three: work requirements

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

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

The Trump administration has appealed to the Supreme Court.

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

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

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

Issue four: Election law

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

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

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

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

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

Issue five: More political pressure

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

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

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

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

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