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April 7, 2017

Senate confirms Trump's Supreme Court nominee. Here's what that could mean for health care.

Daily Briefing

    The Senate on Friday voted 54-45 to confirm President Trump's nominee for the Supreme Court, Neil Gorsuch.

    Gorsuch, 49, serves on the 10th U.S. Circuit Court of Appeals in Denver. Several observers have said Gorsuch's temperament and philosophy resemble those of former Justice Antonin Scalia, whose death created the vacancy that Gorsuch will fill, and that Gorsuch is likely to join the court's conservative-leaning justices.

    New justices typically do not participate in cases that have already been heard but not ruled upon, unless they are needed to break a tie, according to Amy Howe, editor and reporter at SCOTUSblog. When a tie-breaking vote is needed, Howe said, "The court usually orders a re-argument." For instance, she noted that re-arguments were held "a couple of times" during the transition between Justice Sandra Day O'Connor and Justice Samuel Alito.

    The Supreme Court currently is considering two health care cases, including one that potentially could require a tie-breaking vote:

    Life Technologies Corporation v. Promega Corporation. The justices are considering whether the biotechnology company Life Technologies infringed on patents related to genetic-testing kits held by the company Promega. Currently, only seven justices are expected to vote on the case because Chief Justice John Roberts withdrew from the case due to a potential conflict of interest.

    Advocate Health Care v. Stapleton, St. Peter's Healthcare v. Kaplan, and Dignity Health v. Rollins. These three cases have been consolidated into one case in which the justices are considering whether pension plans maintained by church-affiliated employers, such as not-for-profit religious hospitals, qualify for religious exemptions to the Employee Retirement Income Security Act of 1974 (ERISA). The justices heard oral arguments in this case last month.

    Confirmation hearings

    During his Senate confirmation hearings, Gorsuch faced scrutiny from Senate Democrats on the Senate Judiciary Committee over his stances on several health issues, including contraception access and abortion rights.

    Gorsuch has twice ruled against the Affordable Care Act's (ACA) contraceptive coverage rules, and though he has not ruled on cases regarding medically assisted suicide or abortion, several observers have said they expect him to support the constitutionality of restrictions on abortion should the issue make its way back to the Supreme Court.

    Sen. Dick Durbin (D-Ill.) said Gorsuch's opinion in the Hobby Lobby v. Sebelius case expanded corporate rights "at the expense of the voices and choices of the American people" and that he found the legal theories Gorsuch used in the opinion "painful."

    Gorsuch told senators during the hearings that both of the contraceptive cases were "hard" and that he and his colleagues took a textualist approach to the cases, which he would use in other cases if confirmed. He said, "I will apply the law faithfully, fearlessly and without regard of persons," adding, "Anyone, any law is going to get a fair and square deal with me."

    In regard to abortion cases, Gorsuch repeatedly emphasized the importance legal precedents in cases such as Roe v. Wade. Gorsuch said Roe was a precedent that had been "reaffirmed several times" and that such precedent should be approached with deference. He said, "I'm not in a position to tell you if I personally like or dislike a certain precedent," adding, "Precedent is like our shared family history as judges. It deserves our respect because it represents our collective wisdom."

    Nuclear option

    In order to confirm Gorsuch, Senate Majority Leader Mitch McConnell (R-Ky.) on Thursday deployed the so-called "nuclear option," and changed Senate rules on a 52-48 vote to bypass a Democratic filibuster of Gorsuch's nomination.

    The procedural change eliminates the 60-vote threshold required to end a filibuster of Supreme Court nominees, and, according to the Times, "fundamentally alter[s] the way the Senate handles one of its most significant duties." Senate Democrats first changed the rules in 2013 to get around Republican filibusters of presidential nominees to lower courts and government posts, but lawmakers previously had left the filibuster option in place for Supreme Court nominees.

    Democratic minority leader Sen. Chuck Schumer (D-N.Y.) warned against the long-term repercussions of the move, saying, "When history weighs what happened, the responsibility for changing the rules will fall on the Republicans' and Leader McConnell’s shoulders" (Liptak/Flegenheimer, New York Times, 4/7; Flegenheimer, New York Times, 4/6; Teichert, Modern Healthcare, 3/21; Teichert, Modern Healthcare, 3/20).

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