‘All the rights we hold dear are in jeopardy,’ famed lawyer Kathryn Kolbert warns of conservative Supreme Court | John L. Micek

October 1, 2020 3:15 pm

Veteran Philadelphia attorney Kathryn Kolbert speaks during a news conference in Chester County on Thursday, 10/1/20 (screen capture)

For Kathryn Kolbert, the current threat to women’s health care could not be more clear: A strengthened conservative majority on the U.S. Supreme Court will result in both the Affordable Care Act and Roe v. Wade being overturned.

In the case of the former, that would mean the end of protections for people with preexisting conditions, and the ban on lifetime caps, as well as the end of a provision that allows young people to stay on their parents’ plans up to age 26 — moves that would all disproportionately impact women.

In the case of the latter, the regulation of abortion would be returned to states, where it’s likely that between 18 and 24 states would ban or severely restrict abortion services entirely, she said, adding that access to other important reproductive health services, such as contraception, also would be impacted.

“All the rights we hold dear … are in jeopardy,” Kolbert said during a joint news conference in suburban Philadelphia, where she, Gov. Tom Wolf, and two Democratic state lawmakers called on the Republican-controlled U.S. Senate to put the brakes on confirming President Donald Trump’s high court pick, federal Judge Amy Coney Barrett, until after the election.

“The ascension of Amy Coney Barrett to the U.S. Supreme Court is extremely dangerous,” Kolbert said, noting that if Barrett is confirmed, which now seems locked in, the high court “will have a 6-3 vote margin, all conservative, many of whom will alter our understanding of constitutional law.”

That puts rights ranging from abortion access and marriage equality to voters rights and workplace discrimination protections on the chopping block.

Kolbert’s musings are hardly idle.

In 1992, she was the lead attorney in Planned Parenthood v. Casey, the landmark U.S. Supreme Court case that effectively guaranteed the right to abortion, though it did give states the right to regulate the procedure after a fetus was considered “viable,” or able to survive on its own outside the womb.

CNN legal analyst Jeffrey Toobin has called Kolbert’s defense of the right to abortion “one of the most audacious litigation strategies in Supreme Court history.” Between 1985 and 1998, the Philadelphian was involved in every reproductive rights case to be argued before the Supreme Court, according to an official biography.

Pennsylvania’s senior senator, Democrat Bob Casey, of Scranton, has already said he has no plans to meet with Barrett, who was unveiled as the White House’s high court pick just days after the death of Justice Ruth Bader Ginsburg, an icon to progressives, and stalwart defender of women’s rights.

That leaves Republican U.S. Sen. Pat Toomey, who’s publicly reversed himself on the position he took on President Barack Obama’s Supreme Court pick, federal Judge Merrick Garland. Back then, with 11 months to go before the election, Toomey joined fellow Republicans to say the Senate needed to put off naming a replacement until after the election.

This year, Toomey says moving ahead with Barrett’s nomination is fair game because, unlike 2016, the White House and Senate are both controlled by Republicans, and that Trump should get his pick. It’s a bit of rhetorical sound and fury signifying some epic hypocrisy. 

If Republicans manage to ram through Barrett’s nomination before Election Day — or worse, during a lame-duck session in which potentially defeated senators would not have to face the voters — the Indiana jurist could be on the bench in time to rule on the Republican spearheaded challenge to the Affordable Care Act.

It’s a tight timeline: The court is scheduled to hold oral arguments on Nov. 10, Simon Haeder, a Penn State University public policy professor, wrote in a recent Capital-Star op-Ed.

But it could still happen, Duquesne University Law School professor Bruce Ledewitz, an expert in constitutional law and Capital-Star opinion contributor, said Thursday.

Barrett already has said she opposes the law, and once wrote that she believes that U.S. Supreme Court Chief Justice John G. Roberts, who had previously voted to save the statute, “pushed the Affordable Care Act beyond its plausible meaning,” when he did so, according to the Washington Post.

“It seems to me that women suffer the most if Affordable Care Act goes down,” Kolbert said, adding that. “many of us forget what insurance was like before Affordable Care Act,” as she noted that women will “be forced to pay more mammograms,” as well as pregnancy care and well-women services.

Trump, who faces former Vice President Joe Biden in November, has argued that the entire law “must fall,” though, to date, he has not offered a formal plan to replacement beyond a vaguely worded executive order that tells the government, without any administration guidance, to come up with something, an expert at the right-leaning American Enterprise Institute told Kaiser Health News.

For Kolbert, the attack on the Affordable Care Act, is “just really mean-spirited … in the days of the pandemic.”

In an age of weaponized hyperbole, Kolbert’s soberly offered assessment feels like an epic understatement.

Which is precisely why it’s so unnerving.

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John L. Micek

A three-decade veteran of the news business, John L. Micek is the Pennsylvania Capital-Star's former Editor-in-Chief.