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Collins Defends Kavanaugh's Healthcare Record, Clinches His Confirmation

Analysis  |  By Steven Porter  
   October 05, 2018

The senator's speech defended the nominee's track record on the ACA and abortion, rejecting claims that confirming him could endanger healthcare-related legal precedent.

With a highly anticipated speech on the Senate floor Friday afternoon, Sen. Susan Collins, R-Maine, announced that she will vote in favor of Judge Brett Kavanaugh's nomination to the U.S. Supreme Court, virtually guaranteeing that a contentious vetting process will end with Kavanaugh's confirmation.

Due to a lack of corroborating evidence, the allegations of sexual misconduct brought against Kavanaugh did not overcome the presumption of innocence, Collins said, scolding her fellow senators for allowing the process to devolve into a partisan fight.

Collins defended the nominee's record on a number of topics, specifically rejecting claims that confirming Kavanaugh could spell trouble for the Obama administration's signature healthcare law and decades of legal precedent on abortion rights.

"One concern that I frequently heard was that the judge would be likely to eliminate the Affordable Care Act's vital protections for people with preexisting conditions. I disagree with this contention," Collins said. "In a dissent in Seven-Sky v. Holder, Judge Kavanaugh rejected a challenge to the ACA on narrow procedural grounds, preserving the law in full. Many experts have said that his dissent informed Justice Roberts' opinion upholding the ACA at the Supreme Court."

Roberts' opinion upheld the ACA as constitutionally authorized by congressional power to tax. In light of the ACA's individual mandate being zeroed out, a Texas-led coalition of conservative states has claimed that dropping the tax penalty to $0 renders the entire law unconstitutional, so they have asked a federal judge to impose an injunction. The judge, who reportedly seemed sympathetic to the plaintiffs' argument, could rule on the request any day now, setting off a chain of appeals that could land before the Supreme Court.

Related: What Judge Brett Kavanaugh's Nomination Could Mean for Healthcare

Related: If High Court Reverses Roe v. Wade, 22 States Poised to Ban Abortion

Related: Maryland Sues to Head Off Texas-Led ACA Challenge

Collins argued that Kavanaugh would be disinclined to overturn the ACA in its entirety because his approach to severability is narrow.

"When a part of a statute is challenged on constitutional grounds, he has argued for severing the invalid clause as surgically as possible, while allowing the overall law to remain intact," Collins said, citing Kavanaugh's dissent last January in PHH Corp. v. Consumer Financial Protection Bureau.

"Given the current challenges to the ACA, proponents—including myself—of protections for people with preexisting conditions should want a justice who would take just this kind of approach," she added.

Shortly after Collins delivered her speech, Sen. Joe Manchin, D-West Virginia, released a statement signaling he would vote in favor of Kavanaugh's confirmation.

"With respect to any cases that may come before him impacting the 800,000 West Virginians with pre-existing conditions, Judge Kavanaugh assured me personally that he would consider the human impacts and approach any decision with surgical precision to avoid unintended consequences," Manchin said in the statement.

Abortion Rights

On the campaign trail, then-candidate Donald Trump promised to pick Supreme Court nominees who would overturn Roe v. Wade, the 1973 decision affirming a woman's constitutional right to an abortion prior to a fetus achieving viability.

Collins said Friday, however, that this pledge has been part of the Republican platform in every presidential campaign since at least 1980 and that Kavanaugh views abiding by legal precedent as constitutionally required, "except in the most extraordinary of circumstances."

"In short," Collins said, "his views on honoring precedent would preclude attempts to do by stealth that which one has committed not to do overtly."

Sen. Mazie Hirono, D-Hawaii, said Sunday that the threat to Roe may not come head-on. States are passing a variety of laws to limit abortion rights, and those are the legal disputes that could effectively "nullifyRoe without overturning it, she said, as The Hill reported.

Senators voted 50-48 on Saturday in favor of Kavanaugh's confirmation, and Kavanaugh was sworn in on Sunday. His first day on the bench is Tuesday.

Editor's note: This story was updated Monday, October 8, with additional information, including statements from Manchin and Hirono.

Steven Porter is an associate content manager and Strategy editor for HealthLeaders, a Simplify Compliance brand.

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