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June 28, 2018

Justice Kennedy is retiring. These health care decisions are on the line.

Daily Briefing

    Editor’s note: This story has been updated.

    Supreme Court Justice Anthony Kennedy on Wednesday announced his retirement—and observers say his departure as the high court's key swing vote could affect the outcome of future health care cases.

    Access our health care cheat sheets on top-of-mind legal landmarks

    Kennedy's retirement paves the way for Trump and congressional GOP leaders to nominate a conservative-leaning judge. According to the Washington Post, this marks the first time in more than 25 years that a new justice could significantly change the direction of the high court's rulings.

    Kennedy, who will officially retire July 31, was appointed to the Supreme Court in 1988 by President Ronald Reagan and throughout his tenure has represented a key swing vote on cases related to abortion, the Affordable Care Act, and other health care topics.


    In a letter to Trump, Kennedy wrote, "For a member of the legal profession it is the highest of honors to serve on this court. ... Please permit me by this letter to express my profound gratitude for having had the privilege to seek in each case how best to know, interpret, and defend the Constitution and the laws that must always conform to its mandates and promises."

    The White House in a statement lauded Kennedy's time on the court, calling him "a true man of letters." "Justice Kennedy has been a tireless voice for individual rights and the Founders' enduring vision of limited government. His words have left an indelible mark not only on this generation, but on the fabric of American history," the statement said.

    Throughout his tenure, Kennedy has served as the deciding vote on several controversial health care topics, breaking what would otherwise be a 4-4 tie between the court's more conservative- and liberal-leaning justices.

    What will—and won't—change under the next Supreme Court justice?

    In health care cases, Kennedy often ruled alongside the court's more conservative justices. Because Trump's next Supreme Court nominee is widely expected to shift the high court in a more conservative direction, experts say the court's jurisprudence in these areas—where Kennedy already sided with the court's conservatives—will likely remain unchanged.

    For instance, Kennedy joined conservatives to cast deciding votes in cases that denied U.S. residents who are injured by generic drugs the right to sue generic drugmakers for adverse reactions to their products, allowed U.S. employers—including those in health care—to use arbitration clauses to prohibit workers from filing class-action lawsuits over potential labor law violations, and walked back the Affordable Care Act's (ACAs) contraceptive coverage rules.

    Kennedy notably was among the justices who argued that the ACA's individual mandate was unconstitutional—although in that case, Chief Justice John Roberts served as the swing vote that upheld the individual mandate. And earlier this month, Kennedy joined the court's right-leaning justices in a 5-4 ruling that blocked a California law that called for crisis pregnancy centers (CPCs) in the state to post information about publicly funded abortion care and contraceptives.

    But there are several cases in which Kennedy threw his weight behind the court's left-leaning justices, and experts say similar cases could see different outcomes in a post-Kennedy world.

    Abortion care: Roe v. Wade and Whole Woman's Health v. Hellerstedt

    Kennedy cast the deciding vote in two key Supreme Court rulings related to abortion care: Planned Parenthood v. Casey, a 1992 Supreme Court ruling that reaffirmed a woman's right to access abortion care, and Whole Woman's Health v. Hellerstedt, in which Kennedy and the court's left-leaning justices struck down a Texas state law that they determined created an undue burden on women seeking abortion care.


    Marjorie Dannenfelser, president of the antiabortion-rights group Susan B. Anthony List, called Kennedy's retirement "a pivotal moment for the fight to ensure every unborn child is welcomed and protected under the law."

    Dawn Laguens, EVP of Planned Parenthood Federation of America, said, "The significance of today's news cannot be overstated: The right to access abortion in this country is on the line," adding, "With this vacancy, Donald Trump and [Senate Majority Leader] Mitch McConnell [R-Ky.] hold the balance of the court in their hands—and with it, the legal right to access abortion in this country."

    Same-sex marriage: United States v. Windsor

    Observers say Kennedy's retirement also could have implications for same-sex couples. Kennedy cast the deciding vote in a 2013 landmark case that recognized same-sex marriage under federal law. The ruling, for which Kennedy wrote the majority opinion, struck down the Defense of Marriage Act and gave married same-sex couples access to marital benefits under more than 1,000 references to marital status in federal laws and regulations, including those that cover medical and family leave.

    How Trump will find his next Supreme Court nominee

    Trump on Wednesday said he would move "immediately" to select a nominee to replace Kennedy. According to USA Today, Trump is expected to choose a nominee from an existing list of 25 potential nominees compiled with the help of conservative groups.

    According to USA Today, some of the names on the list include former clerks for Kennedy, such as Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit, while others are newer judges, such as federal appeals court judges Amy Coney Barrett of Indiana and Amul Thapar of Kentucky.

    Leonard Leo, who advises the White House on judicial nominations and is on leave from the Federalist Society, said he expects the next nominee will be similar in judicial philosophy to Justice Neil Gorsuch, whom the Senate confirmed in April 2017 to replace the late Justice Antonin Scalia.

    "I expect the nominee to be like Justice Gorsuch, to demonstrate excellence in every respect, and to earn widespread support from the American people, and bipartisan support for confirmation in the Senate," Leo said.

    Any Trump nominee will need to be confirmed by the Senate. Republicans currently hold a 51-seat majority in the Senate, and Democrats will have little ability to block a nomination after McConnell changed Senate rules to allow justices to be confirmed with a simple majority vote, rather than the former 60-vote threshold (Wolf, USA Today, 6/27; Barnes, Washington Post, 6/27; Matthews, Vox, 6/27; Baker, Axios, 6/28; Luthi, Modern Healthcare, 6/27; Kendall/Bravin, Wall Street Journal, 6/27).

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