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February 2, 2017

How Trump's Supreme Court nominee could affect health care

Daily Briefing

    By Heather Drost, Senior Editor

    President Trump on Tuesday nominated to the Supreme Court Neil Gorsuch—whom experts described as a "constitutionalist" who could play a role in pending health care cases, if his nomination is approved in time.

    About Gorsuch

    Gorsuch, 49, serves on the 10th U.S. Circuit Court of Appeals in Denver. He was nominated for his current post by former President George W. Bush and shortly after was approved by the Senate in a voice vote.

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    Gorsuch is a graduate of Columbia University and Harvard Law School, and he served as a law clerk to Justices Anthony Kennedy and Byron White. He has been described as a "constitutionalist," and in his speech accepting the nomination, he reaffirmed his belief in the court's role as a neutral arbiter of laws as written. "It is the role of judges to apply, not alter, the work of the people's representatives," Gorsuch said.

    Several observers say Gorsuch resembles former Justice Antonin Scalia, whose seat he would be replacing, in both temperament and philosophy and that he would be likely to join the high court's conservative-leaning justices in many cases. According to AP, Gorsuch "has contended that courts give too much deference to government agencies' interpretations of statutes."

    Gorsuch has twice ruled against the Affordable Care Act's (ACA) contraceptive coverage rules. First, in Burwell v. Hobby Lobby, Gorsuch sided with the company, which had sought a religious exemption to the provision requiring that they provide contraceptive coverage to their employees. In a separate case, Gorsuch joined in a dissenting opinion that criticized the majority opinion's ruling uphold the rules. The dissenting opinion stated the "law imposes a substantial burden on that person's free exercise of religion."

    Gorsuch has not ruled on cases regarding medically assisted suicide, but in 2009 he wrote a book that argued against medically assisted suicide from both a moral and legal standpoint. According to STAT News' Lev Facher, federal rulings on the issue have been limited. The most recent Supreme Court ruling on the issue, Washington v. Glucksberg, upheld states' authority to handle the matter.

    Though Gorsuch has never ruled on abortion, observes expert that Gorsuch would uphold many restrictions on abortion as constitutional should the issue make its way back to the Supreme Court.

    When Gorsuch might join the court

    According to the Wall Street Journal, the White House aims to get Gorsuch confirmed in time to participate in the current term's cases.

    To hear oral arguments this term, Amy Howe, editor and reporter at SCOTUSblog, said Trump's nominee "would have to be confirmed by mid-April" because the "court's final scheduled argument session begins on April 17 and ends on April 26."

    "Once he is confirmed, he can start virtually right away, including because he can be working to prepare ahead of time," Howe said. However, she noted that 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.

    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.

    Pending health care cases

    The Supreme Court currently has two health care cases that potentially could require a tie-breaking vote.

    The justices heard oral arguments for one such case, Life Technologies Corporation v. Promega Corporation, in December. At issue in is whether the biotechnology company Life Technologies infringed on patents 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.

    The second case consolidates a trio of cases–Advocate Health Care v. Stapleton, St. Peter's Healthcare v. Kaplan, and Dignity Health v. Rollins–that question whether pension plans maintained by employers, such as not-for-profit religious hospitals, qualify for religious exemptions to the Employee Retirement Income Security Act of 1974 (ERISA). ERISA generally applies to employers that offer pensions and other benefits to their employees but does not apply to church plans. According to SCOTUSblog, the justices are expected to hear oral arguments in late winter or early spring.

    Abbe Gluck, a professor and faculty director at Yale Law School's Solomon Center for Health Law and Policy, said the ERISA case could go either way. "This court as a whole has been a strong enforcer of ERISA, but as the same time, half of the court also has been very sensitive to the interests of religiously affiliated employers, especially in the health care context," Gluck said, adding that in this case "a new justice could be an important tie breaker."

    There also are several health care cases currently in the lower courts that could make their way to Supreme Court in the next year or so. For instance, Tim Jost, a professor at the Washington and Lee University School of Law, speculated that the ACA's contraceptive cases could eventually "bounce back to the Court again."

    Gluck noted that there also are a couple of lawsuits in the courts of appeals with lingering challenges to the ACA. She said House v. Burwell, which challenges the provisions of the cost-sharing reduction payments to insurers under the ACA, "could go all the way" depending on how the new administration chooses to approach the suit. The case is stayed until February to give the Trump administration time to solidify its position.

    Further, Gluck said, "Depending on what the president does and what kinds of orders he issues with respect to weakening the ACA, it is always possible we could get a new case challenging that kind of use of executive power."

    Senate Democrats resist

    However, before Gorsuch could weigh in on pending cases, he would have to be confirmed. Senate Democrats—many of whom still keenly resent Republicans' refusal to consider Obama's nominee—have vowed to make that an uphill battle.

    In order to confirm Gorsuch, Senate Republicans in coming days may have to weigh whether to enact a procedural rule, often described as the "nuclear option," that would allow Senate Majority Leader Mitch McConnell (R-Ky.) to change Senate rules to eliminate the 60-vote filibuster threshold.

    According to Politico, McConnell has been "reluctant to change the chamber's rules in the past." And last night he refused to comment on how the Senate would confirm Gorsuch, stating instead that Democrats "have set the standard."

    Navigating the first 100 days of the Trump administration


    Since Donald Trump won the presidential election in November, health care reform has since quickly risen to the top of the GOP's policy agenda—and heath care executives are grappling with a new sense of uncertainty.

    While many unknowns will remain across the next few months and potentially even years, the first 100 days of the Trump administration will provide significant insight into the direction of reform efforts. Read our briefing to learn what five key issues you should watch.

    Download the briefing

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