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February 28, 2022

What Ketanji Brown Jackson's nomination to the Supreme Court could mean for health care

Daily Briefing

    President Joe Biden on Friday announced he would nominate Ketanji Brown Jackson to the Supreme Court to replace retiring justice Stephen Breyer, marking the first time a Black woman has been nominated to the court.

    Who is Ketanji Brown Jackson?

    Jackson, a native of Miami, is a graduate of Harvard University and Harvard Law School and served as an editor of the Harvard Law Review. Following law school, Jackson clerked for Justice Breyer, then later worked in private practice and at the U.S. Sentencing Commission before becoming a judge.

    In June, Jackson was nominated by President Biden to serve on the U.S. Court of Appeals for the District of Columbia Circuit and received Congressional approval with the support of all 50 Democratic senators and Sens. Lindsey Graham (R-S.C.), Susan Collins (R-Maine), and Lisa Murkowski (R-Alaska).

    In a press conference on Friday, Biden said that Jackson will bring "extraordinary qualifications, deep experience and intellect, and a rigorous judicial record to the court."

    Reaction to the nomination

    Jackson's nomination received praise from many Democratic members of Congress and concern from some Republican members.

    "In the final analysis, I think this is a good choice," said House Majority Whip Jim Clyburn (D-S.C.). "It was a choice that brings onto the court a background and some experiences that nobody else on the court will have."

    Senate Majority Leader Chuck Schumer (D-N.Y.) said Jackson "will be a [j]ustice who will uphold the constitution and protect the rights of all Americans, including the voiceless and vulnerable."

    However, Senate Minority Leader Mitch McConnell (R-Ky.), said Jackson is "the favored choice of far-left dark-money groups that have spent years attacking the legitimacy and structure of the Court itself." And Sen. Marsha Blackburn (R-Tenn.) said the Senate should not "blindly confirm a justice to serve as a rubber stamp for a progressive agenda."

    Murkowski, who previously supported Jackson's nomination to the Court of Appeals, noted that "previously voting to confirm an individual to a lower court does not signal how I will vote for a Supreme Court Justice," and added that she will do her "due diligence before making a final decision on this nominee."

    What Jackson's nomination means for health care

    The Supreme Court is slated to rule on a number of health care cases in its upcoming term, including:

    • A dispute between 340B-covered hospitals and CMS over reimbursement rates for outpatient drugs
    • A dispute between the Empire Health Foundation and CMS over the mathematical formula used to determine Medicare disproportionate share adjustment
    • A case in which the Florida Medicaid program argues it has a right to a share of an $800,000 civil settlement in which a young girl was struck by a car and has remained in a vegetative state since 2008
    • A case regarding a Mississippi abortion law that could challenge the 1973 Roe v. Wade decision establishing a constitutional right to abortion
    • A case alleging that drugmakers Eli Lilly, Novo Nordisk, and Sanofi-Aventis as well as pharmacy benefit managers OptumRx, Caremark, and Express Scripts inflated the price of insulin drugs (Daily Briefing is published by Advisory Board, a division of Optum, which is a wholly owned subsidiary of UnitedHealth Group.)
    • A case in which the Federal Trade Commission is attempting to undo the $7.1 billion merger between Illumina and Grail Inc.
    • A whistleblower case alleging that Kaiser Permanente systematically overbilled Medicare

    Notably, if Jackson is confirmed to the Supreme Court, the ideological balance of the court won't change, USA Today reports.

    But Jackson has ruled on some health care-related cases in the past. For example, in 2001, while in private practice, Jackson co-authored an amicus brief on behalf of some reproductive rights groups defending a Massachusetts law that established a protective space around a person within a certain distance of an abortion clinic, aiming to protect patients and staff.

    And when Jackson served on the U.S. District Court for the District of Columbia in 2018, she ruled against the Trump administration's termination of Teen Pregnancy Prevention Program grants, arguing the termination was arbitrary, capricious, and a violation of the Administrative Procedure Act.

    Margarida Jorge, executive director of Health Care for America Now, also noted that Jackson's track record "shows that she will be a champion for the right to access affordable health care, regardless of gender, age, race, or income." (Hooper, Politico, 2/27; Frieden, MedPage Today, 2/25; Rogers, CNN, 2/25; Wright/Dovere, CNN, 2/27; Fritze/Subramanian, USA Today, 2/25; Hulse, New York Times, 2/25; Barker, Medicaid and The Law, 7/20/21; Pierson, Reuters, 12/30/21)

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