Five questions to ask the Supreme Court nominee Amy Coney Barrett

On Saturday, September 26, 2020, Amy Coney Barrett was nominated to succeed Justice Ruth Bader Ginsburg, who had been a strong advocate for older adults on the Supreme Court. According to a recently published AARP Foundation report, the Supreme Court could decide a number of cases that will affect the lives of older adults. Here are the top five questions Senators should ask Barrett:

Should Victims of Consumer Fraud Get Their Money Back?

Older adults are at high-risk for fraud and deception and tend to be duped more often than other age groups. The Supreme Court will hear two consumer protection cases about remedies available to the Federal Trade Commission (FTC) under the FTC Act to protect consumers by preventing unfair or deceptive business practices and methods of competition.

One case pits the FTC against one of the biggest payday loan companies in the U.S., for piling on undisclosed fees; in the second, the FTC sued the Credit Bureau Center, LLC, and others for using fake Craigslist ads to lure consumers onto its website.

If the Court sides against the FTC, it will affect the agency’s ability to get money back for consumers who were victims of unfair, deceptive or anticompetitive practices. Also the cases could impact the FTC’s ability to seek restitution from cases related to drug companies that violate the FTC Act, which could affect the already onerous cost of prescription drugs.

Should Older Adults Have Access to Quality Affordable Healthcare?

The Affordable Care Act (ACA) is a lifeline for millions of Americans, including older adults, and has become an integral part of our country’s healthcare system. It expands access to quality affordable care, guarantees coverage for those with pre-exiting conditions and limits what insurers can charge older adults. The ACA strengthens the financial viability of Medicare, lowers Medicare prescription drug costs and expands Medicaid eligibility. And it protects nursing home residents from fraud and abuse.

In what is the most expansive legal challenge to the ACA so far in its 10-year history, the case will decide if the ACA’s minimum coverage provision is unconstitutional now that Congress dropped the penalty for not securing ACA-compliant coverage. And if that provision is unconstitutional can it be cut from the rest of the ACA or does the ruling render the entire ACA invalid?

If the ACA were found to be invalid, millions of older adults will lose life-saving healthcare coverage and consumer protections. It will throw Medicare and Medicaid programs into fiscal and administrative chaos, disrupting the nation’s healthcare system and economy.

Should Older Adults Be Able to Afford Their Homes?

Millions of older Americans carry mortgage debt and once used home equity to finance healthcare, home maintenance and other large expenses during retirement. Although the housing collapse took many of these options off the table for older adults who were foreclosed upon during the Great Recession, affordable homeownership is a cornerstone of financial stability and should be open to all Americans.

This case will decide if the Federal Housing Finance Agency’s (FHFA) structure violates the separation of powers, and whether the courts should set aside a final action the FHFA took when it was unconstitutionally structured to strike down the statutory provisions that make FHFA independent.

Although the impact may be delayed, a decision against the FHFA may restrict mortgage lending and put affordable homeownership out of reach for aspiring homeowners.

Should Facebook Stop Robocalling Older adults?

Robocalls have become ubiquitous and older adults are some of the most likely people to answer and fall prey to their scams. In 2019 alone there were 3.7 million complaints to the federal government concerning robocalls.

This case is a class-action suit against Facebook for violating the Telephone Consumer Protection Act (TCPA) of 1991. It will decide whether the definition of “automatic telephone dialing system” in the TCPA encompasses devices that store and auto dial phone numbers, even if they don’t use a random or sequential number generator. This case will affect the scope of the TCPA to protect consumers against unwanted robocalls that benefit from new technology.

If affirmed, the definition of automatic telephone dialing system will be broadened to include dialing from a pre-existing customer list, better protecting consumers from unwanted calls and messages. Or if decided against, it could lead to increased calls and harassment.

Should Prescription Drugs Be Affordable for Older Adults?

More than half of adults ages 65 and older report taking four or more prescription drugs, and one-third of adults ages 50–64 years old do the same. Prescription drug prices are the largest healthcare expense for consumers with private insurance.

This case will decide if the U.S. Court of Appeals for the 8th Circuit erred in holding that Arkansas’ statute regulating pharmacy benefit managers’ drug-reimbursement rates is pre-empted by the Employee Retirement Income Security Act (ERISA) of 1974, and if it was in breach of the Supreme Court’s precedent that ERISA does not pre-empt rate regulation.

The case’s outcome could significantly affect states’ ability to regulate the exorbitant costs of prescription drugs. If the Court holds that ERISA pre-empts state action in this sector, states would find it more and more difficult to help people who are dependent upon prescription medications, i.e., especially older adults.

For more details on how the next Supreme Court justice could impact upcoming decisions, visit The Supreme Court: What’s at Stake.