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Analysis

What Judge Brett Kavanaugh's Nomination Could Mean for Healthcare

By Steven Porter  
   July 09, 2018

The president's pick to replace retiring Supreme Court Justice Anthony Kennedy could have a long-lasting impact on U.S. healthcare policy.

President Donald Trump announced Monday evening that he will nominate D.C. Circuit Court Judge Brett Kavanaugh to serve as the next associate justice of the U.S. Supreme Court following the retirement of Justice Anthony Kennedy.

The nomination—Trump's second since taking office less than 18 months ago—would replace Kennedy's swing vote with a more-reliably conservative voice, perhaps with long-reverberating consequences for the nation's healthcare policy.

Kavanaugh's past rulings on politically charged healthcare topics, including the Affordable Care Act and abortion, are likely to face fresh scrutiny as senators mull his possible confirmation.

Despite railing against the ACA and promising on the campaign trail to nominate only justices who would overturn Roe v. Wade, Trump claimed Monday that he selected Kavanaugh without asking him about his personal opinions.

"What matters is not a judge's political views but whether they can set aside those views to do what the law and the Constitution require," Trump said, lauding Kavanaugh's accomplishments.

"There is no one in America more qualified for this position and no one more deserving," Trump later added.

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

For his part, Kavanaugh introduced himself and his family Monday with a brief summary of his approach to the law and the judiciary.

"My judicial philosophy is straightforward," he said. "A judge must be independent, must interpret the law, not make the law. A judge must interpret statutes as written. A judge must interpret the Constitution as written, informed by history and tradition and precedent."

Past Healthcare Rulings
 

Senators will have a veritable mountain of material to sift through as they review Kavanaugh's nomination, possibly including millions of records from his time working for former President George W. Bush's administration and Whitewater Independent Counsel Ken Starr, as Politico reported.

For a window into his views on healthcare—especially on the ACA and abortion rights—there's perhaps no better place to look than his past rulings:

  • On the individual mandate: In 2011, the D.C. Circuit Court held 2-1 that the individual mandate was legal under the Commerce Clause. Kavanaugh dissented, contending that the mandate qualified as a tax (and was, therefore, not yet eligible for legal review). In 2012, the Supreme Court affirmed the mandate as a tax, rejecting the appellate court's Commerce Clause justification.

    Kavanaugh's reading could come full circle, if a legal challenge launched by conservative states progresses to the Supreme Court. The states argue that the entire ACA was rendered unconstitutional when Congress zeroed out the tax penalty tied to the individual mandate, canceling its status as a tax. In response to the lawsuit, the Trump administration abandoned its defense of key ACA provisions.
     
  • On contraception: Kavanaugh concluded in 2015 that the ACA's requirements around mandatory contraception coverage violated the freedom rights of religious employers. But his dissent included a bit of a clarification: "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," he wrote, citing Supreme Court precedent.
     
  • On abortion: Kavanaugh, who identified himself Monday as part of D.C.'s Catholic community, dissented in 2017 in a case wherein the court sided with an immigrant seeking an abortion. 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," Kavanaugh wrote. All parties in that case had acknowledged Roe v. Wade as binding precedent, he noted.

At 53 years old, Kavanaugh could serve on the Supreme Court for decades to come.

Steven Porter is editor at HealthLeaders.


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