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October 8, 2018

What Kavanaugh's confirmation means for SCOTUS' health care rulings

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    Retired Justice Anthony Kennedy on Saturday swore in Brett Kavanaugh as the Supreme Court's next associate justice, after the Senate voted 50-48 to confirm his nomination to the Court, the Los Angeles Times reports. Kavanaugh has ruled on several high-profile health care cases that some observers say could shed light on how he would rule if cases on those issues reached the Supreme Court.

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

    Kavanaugh's contentious confirmation process

    Kavanaugh, 53, 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 retired Justice Anthony Kennedy in the 1990s alongside Justice Neil Gorsuch, who Trump last year nominated to the Supreme Court. President Trump in July nominated Kavanaugh to replace Kennedy as an associate justice on the Supreme Court.

    While Kavanaugh was on track to be confirmed before the Oct. 1 start of the new Supreme Court session, his confirmation was delayed after Christine Blasey Ford, a Palo Alto University professor of clinical psychology, late last month publicly accused Kavanaugh of sexually assaulting her while the two were teenagers.

    Kavanaugh has "categorically and unequivocally" denied Ford's allegations against him, saying he "did not do this back in high school or at any time." At least two other women have come forward with additional sexual assault allegations against Kavanaugh, which he has also denied.

    The Senate Judiciary Committee delayed its vote on Kavanaugh to allow Ford and Kavanaugh to testify before the committee. Ultimately, the committee on Oct. 1 voted 11-10 to advance Kavanaugh's nomination to the full Senate after Sen. Jeff Flake (R-Ariz.) requested the Senate delay a final vote for one week to allow the FBI to investigate the sexual assault allegations.

    According to USA Today, a summary of the investigation released Thursday by Senate Judiciary Committee Chair Chuck Grassley (R-Iowa) said the investigation found "no corroboration of the allegations made" against Kavanaugh by Ford and Deborah Ramirez, who had claimed that Kavanaugh had exposed himself to her during a party while the two were students at Yale. FBI investigators interviewed 10 people who were seen as potential witnesses to the sexual assault allegations, the New York Times reports. While White House and former FBI officials, who spoke with the Times on the condition of anonymity, said the FBI's examination was in line with previous background checks the bureau has conducted on nominees, some questioned FBI's decision not to interview either Ford or Kavanaugh for the investigation—a point that Ford's legal team also condemned.

    A full copy of the FBI's report was made available to senators, and on Saturday, the Senate voted largely along party lines to confirm Kavanaugh by one of the narrowest margins in U.S. history, the Times reports.

    Sen. Joe Manchin (D-W. Va.) was the only Democrat to join most Republicans in voting in favor of Kavanaugh's confirmation. Sen. Lisa Murkowski (R-Alaska) had her vote recorded as "present" rather than "no" under an agreement she reached with Sen. Steve Daines (R-Mont.), who was attending his daughter's wedding and did not vote, but would have voted in favor of Kavanaugh's confirmation, the Times reports.

    Kavanaugh's record on health care

    Kavanaugh ruled on several high-profile health care cases during his tenure on the D.C. Circuit Court of Appeals, and observers say those rulings could shed light on his potential future positions.

    Abortion: Kavanaugh last year 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. He wrote that 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." Some conservatives argued Kavanaugh's dissent did not go far enough, as his ruling appeared to acknowledge Roe v. Wade as binding precedent.

    Affordable Care Act: Kavanaugh also has ruled on several key cases challenging the Affordable Care Act (ACA), including 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. 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. So called right-to-try laws have gained traction in recent years, and Trump in May signed into law a bill that establishes federal rules to create pathways for patients to use drugs for non-approved purposes.

    The health care cases that could make it to the high court

    Some experts have said Kavanaugh is likely to be the deciding vote in many future Supreme Court cases, including those regarding health care.

    According to CQ News, there are a few health care cases in lower courts that could soon reach the Supreme Court.

    Abortion: CQ News reports that Indiana could decide to appeal a 7th Circuit Court of Appeals ruling that blocked a state law banning women from having an abortion based on the gender, race, or disability of their fetuses.

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

    Affordable Care Act: 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.

    Another ACA-related case brought by insurers over the ACA's risk corridors program also could reach the Supreme Court next year, CQ News reports. 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 (Haberkorn, Los Angeles Times, 10/6; Gibson, Reuters, 10/6; Gay Stolberg, New York Times, 10/6; Raman, CQ News, 7/9 [subscription required] Baker, "Vitals," Axios, 7/10; Kelly, USA Today, 10/5; Shear et al., New York Times, 10/5).

    Cheat sheet: What you need to know about the ACA


    The Patient Protection and Affordable Care Act, otherwise known as the ACA, is the comprehensive health care reform bill passed by Congress in March, 2010. The law reshapes the way health care is delivered and financed by transitioning providers from a volume-based fee-for-service system toward value-based care.

    Download the ACA cheat sheet to get a quick overview of this significant U.S. health care legislation.

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