July 10, 2018

How Brett Kavanaugh, Trump's Supreme Court nominee, has ruled on health care

Daily Briefing

    President Trump announced Monday that he will nominate D.C. Circuit Court Judge Brett Kavanaugh to serve as the next associate justice on the Supreme Court following Justice Anthony Kennedy's retirement.

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

    Kavanaugh, 53, has served on the D.C. Circuit Court of Appeals for over a decade. He graduated from Yale Law School and worked in former President George W. Bush's White House before Bush nominated him for the federal court. He served as a clerk for retiring Justice Kennedy in the 1990s alongside Justice Neil Gorsuch, who Trump nominated to the Supreme Court last year.

    Record on health care

    During his tenure on the D.C. Circuit Court of Appeals, Kavanaugh has ruled on several high-profile health care cases, and observers say these rulings could shed light on his potential future positions if confirmed to the Supreme Court, CQ News reports.

    Abortion: Last year, Kavanaugh dissented in the case Garza v. Hargan, in which the majority ruled that an undocumented immigrant minor should have access to an abortion while in HHS' custody. According to Politico's "Pulse," some conservatives argued Kavanaugh's dissent did not go far enough, as his ruling appeared to acknowledge Roe v. Wade as binding precedent. He wrote, The government has "permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating an abortion," and it "may further those interests so long as it does not impose an undue burden on a woman seeking an abortion."

    Affordable Care Act: Kavanagh also has ruled on several key cases challenging the ACA: one that challenged the law's individual mandate, and another that challenged the constitutionality of the entire law. In the 2011 individual mandate challenge, Seven-Sky v. Holder, the D.C. Circuit Court ruled that the individual mandate was legal under the Commerce Clause. However, Kavanaugh in a dissent wrote that the individual mandate qualified as a tax, and because the tax had yet to be levied, it was not yet eligible for legal review. The Supreme Court ultimately agreed with Kavanaugh that the mandate was a tax while rejecting the appeals court's ruling that it was legal under the Commerce Clause.

    In a separate 2015 case, Sissel v. HHS, Kavanaugh ruled that the ACA was a bill that raised revenue and lawfully originated in the House, even though the Senate had struck and replaced the House's text.

    Contraception: Kavanaugh also ruled on the ACA's contraceptive coverage rules in a 2015 case, Priests for Life v. HHS. In that ruling, Kavanaugh stated in his dissent that the ACA's religious accommodation to the contraceptive coverage rules, which required religious nonprofits to apply for an accommodation by notifying the government or their insurance provider of their religious objections to birth control coverage, infringed on the rights of religious organizations. While religious groups have praised Kavanaugh's position on the case, some conservative critics have noted that his ruling acknowledged the government may have a role to play in regulating access to contraceptives. Citing Supreme Court precedent, Kavanaugh wrote, "The Government may of course continue to require the religious organizations' insurers to provide contraceptive coverage to the religious organizations' employees, even if the religious organizations object."

    Pharmaceuticals: Kavanaugh in 2007 joined the majority of judges on the D.C. Circuit Court to uphold a ruling that terminally ill patients have no constitutional right to access drugs for uses not approved by the FDA. According to STAT News, so called right-to-try laws have gained traction in recent years, and in May Trump signed into law a bill that establishes federal rules to create pathways for patients to use drugs for non-approved purposes.

    Possible cases to come

    Observers say Kavanaugh could play a pivotal role in deciding future Supreme Court cases—and there are a few health care cases in lower courts that could reach the court soon. For example, according to CQ News, Indiana could decide to appeal a 7th Circuit Court of Appeals ruling that blocked a state law banning women from having an abortion because of the gender, race, or disability of their fetuses.

    But Kelly Nash of the Guttmacher Institute said the "state to watch" for abortion restrictions that could lead to Supreme Court challenges is Texas, which in 2017 enacted a state law to ban a type of second-trimester abortion called dilation and evacuation. A federal judge in November 2017 ruled the law was unconstitutional, but the state appealed the ruling the 5th Circuit Court of Appeals. Texas state Sen. Charles Perry (R-Lubbock), who authored the law, said, "This is the landmark decision in the making."

    Another case that experts say could make its way to the Supreme Court is Texas et al. v. U.S. et al., which alleges that the ACA's individual mandate—and the law as a whole—are no longer valid because Congress last year eliminated the mandate's penalty for remaining uninsured. The Trump administration has signaled it will not defend the ACA in the suit. While individual mandate challenges have crossed Kavanaugh's path before, Axios reports that Kavanaugh never ruled on the merits of such a challenge.

    According to CQ News, a case brought by insurers over the ACA's risk corridors program also could appear before the Supreme Court next year. A panel from a federal appeals court last month ruled the federal government is not obligated to pay insurer Moda Health $214 million in ACA risk corridors payments, but observers say the insurer could ask for the full appeals court to hear the case, or it could appeal the ruling directly to the Supreme Court.

    Next steps

    Before Kavanaugh has a chance to rule in future Supreme Court cases, he must first be confirmed by the Senate.

    Senate Majority Leader Mitch McConnell (R-Ky.) said the Senate will vote on Kavanaugh's nomination this fall before the midterm elections. Republicans currently hold a 51-seat majority in the Senate, and Democrats will have little the 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.

    However, according to Vox, Kavanaugh could still face a tough confirmation. Sen. John McCain (R-Ariz.) has been absent from Congress while he battles cancer at home. If he remains in his seat and absent for the vote, McConnell either would need to gain some Democratic support—as occurred during Neil Gorsuch's confirmation—or would need all Republican senators to vote in favor of Kavanaugh.

    According to Vox, a few Republicans—including Sens. Susan Collins (Maine), Lisa Murkowski (Alaska), and Dean Heller (Nev.)—could prove hard sells on Kavanaugh's confirmation because of the upcoming elections (AP/Houston Chronicle, 7/9; Raman, CQ News, 7/9 [subscription required]; Porter, HealthLeaders Media, 7/9; Baker, "Vitals," Axios, 7/10; Diamond, "Pulse," Politico, 7/9; Stempel, Reuters, 4/19; Wallace, Houston Chronicle, 7/2; Prokop, Vox, 7/9; Costa et al., Washington Post, 7/9; Facher, STAT News, 7/10).

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