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Supreme Court Leaves Affordable Care Act in Place; Two Big Rulings, Supreme Court Leaves Obamacare in Place, Backs Catholic Agency That Refused to Work with Same-Sex Couples. Aired 10:30-11a ET

Aired June 17, 2021 - 10:30   ET



JEFFREY TOOBIN, CNN CHIEF LEGAL ANALYST: Many people may remember the famous Colorado wedding cake case, where a baker -- a bakery in Colorado said they didn't want to bake a cake for a same-sex marriage because they have religious objections to same-sex marriage. The court sort ducked that issue but that is part of this movement.

Here today, you have a social service agency, all social service agencies in Pennsylvania are supposed to allow LGBT couples to adopt and become foster parents. Here, they say, because of religious objections, this group doesn't have to follow the law that everyone else has to follow. That's a big cause in the conservative movement now.

Unless you think because of the ACA decision today, that the Supreme Court has suddenly gone moderate, this is an example of how the conservatives have won this big case and they won it unanimously, but most of these cases are not unanimous. And the COVID cases certainly were not unanimous. This is a very controversial issue about religious liberty versus LGBT rights usually and conservatives and religious institutions are winning most of these cases.

POPPY HARLOW, CNN ANCHOR: Joan, your thoughts on this and the fact that it is unanimous. There were those that signed on to the main opinion and then there was the concurring Breyer joined all but the first paragraph of the majority. What's the takeaway for people at home?

JOAN BISKUPIC, CNN SUPREME COURT ANALYST: Well, because it was unanimous, it means that it was narrowly written. And we have all been on the air here so I don't know exactly what the chief said in it. But it might apply, frankly, in this situation, where Catholic social services is contracting with Philadelphia. And it might, frankly, be limited in terms of its scope, just because they got all nine to agree to that.

But I do want to add this has been one area of the law where an easy majority has been making lots of inroads. So even if the chief was able to get nine to agree that in this particular case, involving the Catholic social services, screening of foster parents, they don't have to include gay parents for foster care, that would be -- maybe that's as far as it goes. But it's another step, and I'm sure it's another step, no matter what the legal reasoning is just because we've seen this pattern over time, to allowing more exemptions for religious groups for general laws, favoring of -- frankly, it's usually Christian groups that are bringing causes to the Supreme Court, not Muslims. The Muslims lost back in 2018 before the Supreme Court in the travel ban case. But I would think this one involving the Catholic social services, it's of another piece.

The big question though, Poppy, is how far does it sweep? And if the chief was able to get all four liberals to sign on mostly, then it's got to be a little bit more narrow than we might have anticipated.

HARLOW: You read these with more of an expert eye than I do, but in my reading of the first four pages, it's pretty narrow. And here is a key sentence, Jeffrey Toobin, a government policy can survive strict scrutiny only if it advances the compelling interests and is narrowly tailored to achieve those interests. And it really is focused on CCS and its contract with the city.

TOOBIN: I'm with Joan. You can write these things as narrowly as you want, but the message that is sent by cases like this, and by the result in this case, regardless of what the words that the chief justice used are, is that religious organizations, and it's almost always Christian, and it's usually Catholic, organizations do not have to follow the laws that everybody else has to follow. They can excuse themselves when they have religious objections.

And that is a message that is being sent loud and clear, whether it's holding religious services during COVID, whether it is fulfilling the requirements to pay for contraceptions for employees, whether it is baking a cake for a same-sex wedding, is that you can get out of obligations that are imposed on everyone else if you have a religious objection.

A lot of people think that's a great idea that that is something that the court should protect. But it is a controversial notion and we should lots more cases in this direction.

HARLOW: Okay. Everyone, stay with us. If you're just joining us, significant breaking news in the Supreme Court on two major cases, we were just talking about religious liberty case out of Philadelphia.

And now, Jessica, back to you, if you could reset the table for our viewers, if they're just joining us, on the decision to, for a third time, uphold Obamacare with a 7-2 majority opinion to keep it intact.


JESSICA SCHNEIDER, CNN JUSTICE CORRESPONDENT: Yes. The bottom line for people here, Poppy, is that the Supreme Court has left the Affordable Care Act in place. All of those millions of Americans who had secured health care coverage under the law and have continued to over the past many years, they are no longer in jeopardy of losing the health care coverage. The Supreme Court in this opinion coming down 7-2, conservatives joining liberals to come to this decision. It was a narrow decision on procedural grounds. Basically, the Supreme Court saying that the Republican states who had brought this case, the attorneys general, didn't have the necessary injury to bring this case, in legal terms, didn't have the standing.

So the Supreme Court not even going to the heart of this issue, they had been asked to decide whether or not the fact that Congress had zeroed out the penalty, made it zero dollars for people who weren't getting insurance, whether that made the law unconstitutional, and if so, if the entire law must follow as a result, the Supreme Court not dealing with those two issues. And instead saying, plaintiffs, you don't have the standing to even bring this case to us. We can't even hear this case.

It's interesting, in reading part of this opinion, the Supreme Court, in a sense, as was reflected in the dissent here from Justices Alito and Gorsuch, they kind of twisted themselves into a pretzel to come up with a way to uphold the Affordable Care Act, saying that since the penalty is now zero dollars, there's no enforcement if you don't get insurance. Therefore, you can't be injured because no one is going to come after you if you can't get insurance.

And what we saw in Justice Alito's dissent is really exasperation of the fact that these seven justices found a way to uphold the law on this issue of standing. Saying that, of course -- Justice Alito in dissent saying, of course, these states have standing. They have to bear the penalties, they have to pay the costs when it comes to providing health care in these exchanges.

But no doubt, this is a major victory for President Joe Biden, taking office just six months ago. And in those six months, his administration told the Supreme Court it was a change from the Trump administration's stance. The Biden administration saying this law should be upheld. And the Supreme Court today upholding the Affordable Care Act in a roundabout way procedurally, saying that the challenge to the Affordable Care Act, it cannot move forward and, therefore, the law must stand.

So, again, Poppy, a victory for people who were very uncertain about what would happen if the Supreme Court did strike it down. This case was heard just about a week after Amy Coney Barrett was confirmed and put on the court. It was one of the first cases that she heard here. And she joined the 7-2 majority to essentially knock this case off, have it not stand, because it shouldn't have been brought in the first place, Poppy.

HARLOW: And, you know, Jessica brings up a really interesting point because this was such a large part, do you remember, guys, of Amy Coney Barrett's confirmation hearing, questions about where she stood on the ACA.

But, Jeffrey Toobin, to you, this is not really voting on the constitutionality of what remains on the ACA. TOOBIN: It is not. But forgive same cynicism about the way the Supreme Court goes about deciding these cases. You are certainly right, as a technical legal matter, that this is only a decision about the doctrine of standing, which is the doctrine that says who can bring a case to the Supreme Court. But don't kid yourself. Justice Alito's frustration in his dissent is real and understandable.

I think it is safe to say, certainly of Chief Justice Roberts, leave us alone with this law already. We do not want to overturn this law. If you want to overturn the ACA, you can do it in Congress. You can win the presidency again. You can win Congress. You can win the House and Senate again, as they did in 2016, and they didn't manage to overturn ACA.

But I think what you are seeing from the -- even in the current conservative Supreme Court, the chief justice is saying to his fellow conservatives, and he's still conservative, you want to overturn ACA, you do it. We are not doing your work for you.


TOOBIN: And I think we're pretty much done with existential threats to the ACA. I don't think there will --

HARLOW: Famous last words, Jeffrey Toobin.

TOOBIN: Yes, I'm wary of predictions, especially my own. But I think that's a pretty good one.

BISKUPIC: Poppy, can I remind people of what Justice Scalia said the second time the court upheld it.


He referred to it as -- it might not be called Obamacare. Maybe it should be called SCOUTScare, Supreme Court of the United States, because, he was saying, it's the Supreme Court that keeps saving it. And as we all know, he passed away in 2016. His former law clerk, Amy Coney Barrett, is on the court. And I wonder what he would think about her now voting to keep it free from another legal challenge.

But there's some truth to the fact that rather than Obamacare, it is now SCOTUScare.

HARLOW: That's such -- I completely forgot that Scalia story, a very good point.

Dr. Zeke Emanuel is still on the phone with us. Thank you for sticking with us, Doctor.

You were, for anyone who doesn't know, one of the chief architects. You helped craft this, the significant political fight that ensued over and has continued since then, while you were in the Obama White House. Your thoughts on this. I mean, obviously, it's protected again. What are your thoughts for the American people at home on this decision? DR. EZEKIEL EMANUEL, ARCHITECT OF OBAMACARE (voice over): Well, I do think the Supreme Court has made clear, the ACA is the law of the land. It's going to stay the law of the land. We're not repealing it. And now we should get on to doing additional things to help improve the health care system. We have got 20 million people covered by the Affordable Care Act. Lots of Americans are worried about the affordability of health care despite insurance coverage, with things surprise medical billing and other problems like high costs of drugs, high costs of hospitals.

And so I think the issue is let's stop with the debate of how can we get people covered in the Affordable Care Act. There will be exchanges, will the Medicaid expansion stay? And let's talk about the issues of improving the health of the population.

And so I think Jeffrey is 100 percent right. They made clear, stop annoying us. This is a recurring fly and we're not going to deal with it. We're going to find every reason not to deal with it. And, remember, it wasn't just Amy Coney Barrett but Justice Kavanaugh agreed with the majority here. So, we're not going back. And I don't think you're going to see another ACA case before the Supreme Court.

But there are still big issues with the health care system. It's a $4 trillion system. It's got lots of problems. And I think we need to address them. And it's quite clear that this breathes a sigh of relief. We can put that behind us and now we can continue focus on issues that the American public says are really top of mind for them once we get through COVID.

HARLOW: Dr. Zeke Emanuel, thank you for your perspective and sticking with us as we got through all this breaking news. We appreciate it very much.

Let's bring in David Chalian, our Political Director here. David, can you sort of set the stage, big picture for us? This was conceived of, crafted and made law in the Obama White House, where Joe Biden was his vice president. It has now survived three challenges. And it's a big thing for the Biden administration to celebrate.

DAVID CHALIAN, CNN POLITICAL DIRECTOR: Yes. You may recall, he called it a big something deal at the time.

HARLOW: That's right. That was about this.

CHALIAN: Yes. So, we know where the president stands on the Affordable Care Act. And, Poppy, I think what everyone has been saying here, I think it's really important underscored. Because, politically, as more time goes on that this remains the law of the land and more and more Americans feel the benefit of it, we've seen it get more and more popular.

Now, you may recall, in the midst of the presidential race for the democratic nomination in 2019, so much of that debate was about health care. This was before the onset of the pandemic, of course. And whether sort of the Bernie Sanders Medicare for all and Joe Biden represented a whole different approach to this, which was taking Obamacare and trying to expand it, fix it, augment it in many ways, but not to scrap it entirely.

So this decision from the Supreme Court, that says please stop with these challenges to the ACA, we're not going to toss people off their health care here at the Supreme Court, is the opening of a new opportunity for Biden to put forth his plans to actually augment it, enhance it, expand it.

And, in fact, we've seen expansion of the ACA from the Biden administration in the recovery act, in the COVID relief, earlier this year, dealing with lowering some of the premiums and making sure subsidies are greater for people during this time of economic recovery. So we've seen already some approach but there's more to come from the Biden administration and getting this kind of ruling from the Supreme Court that solidifies yet again the ACA's position in American politics, gives Biden that opportunity now to build on it.

HARLOW: Okay. David, thank you. Stay with us. Let me bring in CNN Senior Political Correspondent Abby Phillip. Your thoughts, Abby.


ABBY PHILLIP, CNN SENIOR POLITICAL CORRESPONDENT: Yes. And I think David is exactly right on that. And, in fact, the Biden administration has already begun building on the Affordable Care Act through some of the pandemic-related legislation that they've been able to pass this year.

Look, Democrats now are looking at the Affordable Care Act as a starting point, not a finishing point, for this effort, to continue to transform how health care is dealt with in this country. And they are becoming, I think, even more emboldened in their idea that things need to move forward, things need to move closer toward even some a version of a single-payer system. I think you're going to see many progressives feeling buoyed by this kind of decision.

Obviously, the conservatives on the court didn't weigh in on the substance of the Affordable Care Act but it buoys their argument that this is settled law. And that Congress has the ability to weigh in in this avenue, and they will continue to if they have an opportunity from a political perspective. And Republicans are now in a tough spot because they do have to start winning the presidency, winning majorities in the House and the Senate in order to do that. Even when they had those majorities, they weren't able to do it. So I think it really raises the bar here for any changes on health care.

HARLOW: And remember, David Chalian, such a big part of former President Obama's drive, to make this happen so early in his first term, was because of his mother. And it was because of pre-existing conditions and a denial of a claim she had had, for example, because of a pre-existing condition.

And I ask you this in the context of the big picture of, again, beyond the political infighting about it, what it means for people at home, and the way that it changed a guarantee or more equal access to health care for people with pre-existing conditions, for example. CHALIAN: Right. Poppy, I think you just have to remember, it has been a decades' long quest inside the Democratic Party as a mission to expand health care access. I mean, you can go back to 1980 and Ted Kennedy's presidential run there and talking about health care as a right not as a privilege for the few. That's been a major theme through Democratic politics.

You are right to note, that when President Obama took this on and pushed this through, he did sell it on the personal side. They tried very hard to bring in not only his own personal story about his mother but personal story after personal story about the real-world impact this was having. That was something that was a bit of a course correction from previous failed attempts in the Clinton years and beyond as a way to try to sell it.

But as you note, the politics were rocky at the beginning. This passed as a law that was not popular. But what happens is that when people start feeling the benefits of it and some of the scary rhetoric around it from the opposition fades away because reality doesn't match up with it, the law becomes more popular. And more and more Americans depend on it to have access to health care.

And so when that happens, and it grows more popular, and then the Supreme Court comes in behind and keeps and continues to keep it as the law of the land, it will be -- while at the time in the Obama administration, it may have been contributing factor to his losing the House of Representatives in 2010, for his party. It, no doubt, was a contributing factor to some of the real partisan relations that we saw throughout the Obama years. But when history looks back, it will be likely his crowning achievement as president.

HARLOW: It's an important point. David Chalian, I know you have got a lot to get to. Thank you for being here and weighing in on all of this.

There is another significant decision that we got moments ago out of the Supreme Court. Jessica Schneider, could you lay out for any of our viewers just joining us now what the court has decided in this First Amendment case against the city of Philadelphia?

SCHNEIDER: Yes. A major victory, Poppy, for religious liberty advocates. The Supreme Court here saying that the city of Philadelphia actually violated the First Amendment rights of a Catholic foster agency, when the city of Philadelphia canceled its contract because the Catholic foster agency would not recruit use same-sex couples. This was a unanimous decision very narrowly tailored, some of the justices taking different opinions but all joining together to say the same thing, that the First Amendment was violated for the Catholic foster agency.

This was a big win for the religious liberty advocates. And it comes from a court that has consistently, at least in the past term, upheld religious institutions, their rights to work in their own way, to move towards their own religious beliefs, even, in this case in particular, if it means discriminating against same-sex couples. The Catholic foster agency here saying that same-sex marriage violated their religious beliefs.


And that because there were other foster agencies within the city of Philadelphia, that they didn't need to recruit same-sex couples. They had other options available to them. And because of those religious beliefs, they did not have to work with them.

And the Supreme Court here saying, Philadelphia, you violated the right of the Catholic foster agency to exclude those couples because of their religious beliefs. You violated their First Amendment rights, specifically freedom of speech and freedom of religious expression.

So, Poppy, this is a significant decision for religious institutions who have repeatedly said through the years that they shouldn't have to serve or work with certain people who maybe violate their religious beliefs. This is happening here for this Catholic agency.

TOOBIN: Poppy?


TOOBIN: Well, I just -- I think Jessica is exactly right about who won in this case but it's also worth thinking about who lost. Who loses in these religious liberty cases usually are gay people. And they lost here. And they are not able to become foster parents in Philadelphia, in Pennsylvania. This is a message that religious institutions can tell gay people, in general, that we will not deal with you.

I mean, this is related to the Colorado bake shop case. The case that says religious bakers argued that they didn't have to bake a wedding cake for a same-sex marriage. The court ducked that precise issue but that issue keeps coming up in different context. It empowers religious owners of companies to say, we have a religious objection to providing contraception as we required to do under ACA to the women employees here. So, the winners are the -- are the owners of the companies but the losers are the women who don't get to have the contraception covered, as if they worked in any other business.

So these cases, they definitely have big winners but it is also important to point out that they have losers as well.

HARLOW: Jeffrey, just to clarify something for our viewers that you just said, that gay couples cannot be foster children in the state of Pennsylvania, this relates to this Catholic foster service, correct, not more broadly. Is that -- just to be very clear.

TOOBIN: Yes, I'm glad you pointed that out. It's not that all foster care agencies in Pennsylvania can't deal with LGBT people. What it says is -- but many foster care agencies are affiliated with churches. And so if they have a religious objection to same-sex couples, they can say, no gay people need apply. And that's what the message is of today's case.

HARLOW: It's an important point. Everyone stay with us. I'm told that we have Andy Slavitt on the phone with us.

Andy, it's good to have you. Let's switch back to the Obamacare decision being upheld for a third time by the Supreme Court. Your thoughts, the White House thoughts this morning.

ANDY SLAVITT, FORMER ACTING ADMINISTRATOR, CENTERS FOR MEDICARE AND MEDICAID SERVICES (voice over): Well, certainly, I think it a 7-2 ruling by a conservative court, that says, you don't have standing, is, in effect, get this out of my court once and for all. And I think that's where this case belongs. I think it's great news for people who have been in a whirlwind over the last ten years, being told to just be nervous, that their coverage might be snatched from them at any moment. So Americans (INAUDIBLE) it's easier, one more step, towards a better country.

HARLOW: Have you heard from President Biden or anyone on that team about this team yet, any texts?

SLAVITT: Not the president himself but some texts have been going back and forth with folks this morning in the White House, folks White House, folks in the department, reacting to the news. I don't think he expected it to occur today. But the definitiveness of the ruling, I think, sends a very strong message to all those folks.

HARLOW: Okay. Andy, thank you very much.

Joan -- stay with us. Andy, if you're still with us --


HARLOW: It is notable, I mean, that this was such a political fight for Obama and, ultimately, not a single Republican Senate vote in favor of it. And now, as you point out, an increasing popularity nationwide and a 7-2 decision on a court that now leans more to the right, granted they did not rule on the constitutionality or the merits of it, but it's notable.


SLAVITT: Yes. You've got to ask yourself who brings a case to take away insurance from people and pre-existing condition protection when they don't even have standing, when they are not even being harmed? I mean, this is a really interesting question that we've got to take a step back and understand. People were trying to sue to take coverage away from people, even though it wasn't harming them.

HARLOW: Andy, can you -- okay, Andy, thank you very much for calling in. We appreciate it, Andy Slavitt.

Joan Biskupic, to you. You are -- you know more about John Roberts in the John Roberts court than anyone in the world, I think, maybe other than John Roberts. You wrote the book on him. What are your thoughts on this in the Roberts court?

BISKUPIC: I think he's feeling really good about this decision. I think that not only that he got seven votes together for it but also that he assigned it to Justice Stephen Breyer. And I'll tell you. David Chalian referred to the fact that Teddy Kennedy had been part of this health care push for decades before his own death and Stephen Breyer once worked for Teddy Kennedy. And Stephen Breyer is interested in the institutions of government. And I'm sure the chief was concerned about being able to also bring in someone like him for this major ruling.

So I think the message that he pulled it together but he was going to share the leadership here with his colleague, who happens to now be the leader of the left. Stephen Breyer, after the death of Ruth Bader Ginsburg, is now the most senior justice on the left.

So this was clearly the court's version of bipartisanship, the court's version of a cross-ideological ruling. So just remember, Poppy, we have several other decisions that are to come in this term, including on voting rights. So the chief will show probably much more of a conservative turn. But for now, I think he shows much more unity. Poppy?

HARLOW: Which is exactly how he wants this court to appear to the American people. Joan Biskupic, a pleasure, thank you very much, to everyone, to Jeffrey Toobin, Jess Schneider, Dana Bash, David Chalian, Abby Phillip, John Harwood, to our excellent team helping us digest all of this breaking news out of that high court. Jim and I appreciate you being with us. We will see you back tomorrow morning. I'm Poppy Harlow. At This Hour with Kate Bolduan is next.