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April 8, 2022

Ketanji Brown Jackson's historic confirmation: What it means for health care

Daily Briefing

    The Senate on Thursday confirmed Judge Ketanji Brown Jackson to the Supreme Court to replace retiring Justice Stephen Breyer, marking the first time a Black woman has been named to the court.

    Our take: The legislative, regulatory, and judicial outlook for health policy in 2022

    Background

    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 2021, 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 February, Jackson was nominated by Biden to replace Justice Breyer, who will serve on the Supreme Court until the end of its term in late June or early July.

    Jackson questioned at confirmation hearings

    At Jackson's confirmation hearings, Republicans questioned her sentencing record, accusing her of giving lenient sentences in child pornography cases. However, defenders of Jackson argued her sentencing record is in line with a large majority of federal judges.

    Republicans also raised concerns regarding a brief written by Jackson while she represented Guantanamo Bay detainees as a public defender and questioned her about her views regarding critical race theory, to which Jackson stated she doesn't share the view.

    When Republicans asked Jackson her thoughts on the idea of adding seats to the Supreme Court. Jackson said that decision was up to Congress.

    "Judges should not be policymakers," Jackson said. "That's a part of our constitutional design, and it prevents our government from being too powerful and encroaching on individual liberty."

    Senate confirms Jackson

    On Thursday, Jackson was confirmed to the Supreme Court by a 53-47 vote, with Sens. Murkowski, Collins, and Mitt Romney (R-Utah) joining all 50 Senate Democrats on the vote.

    Murkowski on Monday said her support of Jackson "rests on Judge Jackson's qualifications, which no one questions; her demonstrated judicial independence; her demeanor and temperament; and the important perspective she would bring to the court as a replacement for Justice Breyer."

    Meanwhile, Romney called Jackson "a well-qualified jurist and a person of honor."

    "Even in the darkest times, there are bright lights," said Senate Majority Leader Chuck Schumer (D-N.Y.). "Today is one of the brightest lights. Let us hope it's a metaphor, an indication of many bright lights to come."

    Vice President Kamala Harris said she was "overjoyed, deeply moved" after the confirmation. "There's so much about what's happening in the world now that is presenting some of the worst of this moment and human behaviors," she said. "And then we have a moment like this."

    "I'm a senator, I'm a pastor, but beyond all of that I'm the father of a young Black girl. I know how much it means for Judge Jackson to have navigated the double jeopardy of racism and sexism to now stand in the glory of this moment," Sen. Raphael Warnock (D-Ga.) said. "What a great day it is in America."

    What Jackson's confirmation means for health care

    The Supreme Court is slated to rule on a number of health care cases in its current 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 LillyNovo Nordisk, and Sanofi-Aventis as well as pharmacy benefit managers OptumRxCaremark, 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, Jackson's confirmation to the Supreme Court won't change the ideological balance of the court.

    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.

    When asked about abortion rulings like Roe v. Wade and Planned Parenthood v. Casey during her confirmation hearing, Jackson said that "Roe and Casey are the settled law of the Supreme Court concerning the right to terminate a woman's pregnancy."

    However, she added that whatever the Court decides in Dobbs v. Jackson Women's Health Organization, "will be the precedent of the Supreme Court."(Hulse/Karni, New York Times, 4/8; Liptak, New York Times, 4/7; Firth, MedPage Today, 4/7; Everett/Levine, Politico, 4/7; DeBonis/Kim, Washington Post, 4/7; Breuninger, CNBC, 3/22)

    Health policy topics to watch in 2022

    The legislative, regulatory, and judicial outlook for health policy in 2022

    policy

    The Biden administration's first year in office was unsurprisingly dominated by the Covid-19 pandemic. While Democrats in Congress were able to pass part one of President Biden’s infrastructure package, other health care priorities were largely sidelined. As we look to 2022, there are 10 key health care topics that are ripe for congressional or regulatory action. If and how Congress and the Biden administration move on those actions will have strategic implications for industry executives across the health care ecosystem.

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