Past rulings may provide insight on how Supreme Court nominee Kavanaugh may impact health care
The Senate Judiciary Committee began hearings this week for Supreme Court nominee Brett Kavanaugh. The former Supreme Court law clerk and presidential staff member received the American Bar Association committee’s highest rating of “well-qualified,” which the association said is not based on philosophy or political ideology.
A review of his rulings in past cases as well as statements he has made may provide some idea on how his judicial philosophy could impact several health care and public health issues likely to reach the Supreme Court in the near future, several experts told Healio Family Medicine.
“He’s not a paradox, but he is a complicated guy,” Georges Benjamin, MD, executive director of the American Public Health Association, said of Kavanaugh. “As we look at the sum total of him, we have enormous concerns and ... we would like someone else to be chosen for the court.”
Simon F. Haeder, PhD, MPA , an assistant professor at the John D. Rockefeller IV School of Policy and Politics at West Virginia University, called Kavanaugh “one of the most conservative justices we have in the entire federal court system right now.”
“Kavanaugh seems a little leery of most federal agencies and is willing to rule against them if he believes the agency is going against its mandate or above its authority,” Mari Rockenstein, JD, an adjunct law professor at California State University Channel Islands said. “If we look at that track record, there is the possibility that an overreaching federal agency or insurance company’s medical regulations or rules could be struck down and feasibly benefit the patient and their doctor."
Supreme Court Justices can surprise, noted Michele Goodwin, the University of California Irvine School of Law Chancellor’s professor, pointing out how John Roberts, a Republican, cast the critical vote that decided the government had the authority to control some aspects of the Affordable Care Act, the creation of former President and Democrat Barack Obama.
“One argument is that, if confirmed, Kavanaugh may turn out to be a different jurist than he has been at the appellate level. In other words, he might develop his own jurisprudence that is different than what we’ve seen before. It’s hard to know. All we currently have is the record before us and deciphering his responses during the confirmation hearing,” Goodwin said.
Healio Family Medicine spoke with several legal experts on what can be learned about Kavanaugh from his previous rulings and reviewed an analysis published by the American Public Health Association before the confirmation hearings commenced that studied Kavanaugh’s career, with particular attention to cases related to health care.
The American Public Health Association cited four decisions in the past decade Kavanaugh has made in regarding Medicare: he agreed in a decision against HHS that allowed hospitals to challenge Medicare reimbursement determinations; he concluded that HHS violated federal legislation when it changed its Medicare reimbursement adjustment formula without providing adequate notice and opportunity for comment; he rejected patients’ efforts to disclaim their Medicare Part A benefits to secure private insurance; and he deferred to Congress in allowing CMS to recover mistaken Medicare Part D prescription drug premium refunds through the participants’ Social Security benefits rather than allowing the participants to avoid recovery through waiver.
“Those last two decisions by Kavanaugh give me pause,” Rockenstein said, echoing some of the American Public Health Association’s concerns.
“We have a large elderly population in this country,” she continued, “and if one is legally entitled to certain medical benefits, they should be able to have them without having to sacrifice another set of medical benefits.”
Affordable Care Act
Haeder said it’s important to look at Medicaid and the ACA together in gauging how Kavanaugh could impact former President Obama’s signature piece of legislation: “We have thousands of studies that show people do better — in health, in work, in everything — when they have access to health care services. I have concerns that if confirmed, Kavanaugh could issue rulings that could result in significant loss of coverage for many Americans. He also has talked about using more private services for public assistance programs such as Social Security and welfare, which could also affect many recipients of these programs,” he said.
Haeder also referenced the lawsuit that 20 states have filed indicating arguing that if the individual mandate is repealed, the entire ACA becomes void because, according to the lawsuit, one cannot exist without the other.
“Kavanaugh has indirectly referenced this argument in some of his rulings. He feels the idea behind the ACA is that you have to have the individual mandate to make it work, and so he might be the one to rule in favor of those 20 states,” Haeder said.
The American Public Health Association cited Kavanaugh’s 2016 comments that the Supreme Court’s consideration of Affordable Care Act tax credits for health exchange consumers in King v. Burwell (2015) was essentially “... about how to interpret statutes.” The group also wrote that Kavanaugh had chided the court for ruling on Congress’ commerce authority, suggesting the court lacked jurisdiction under the aforementioned federal Tax Anti–Injunction Act and, in a separate challenge, Kavanaugh argued in favor of the ACA, saying “it was properly introduced in the House of Representatives as a revenue-raising bill under the Origination Clause of the Constitution.”
“Kavanaugh has a view on interpreting the Constitution that may not bode well for the future of the Affordable Care Act,” Benjamin agreed. “This is also particularly true if HHS, which [previously] had enormous discretion in writing the rules regarding the ACA, has that power taken away, which Kavanaugh seems to support.”
Rockenstein and Goodwin said the nominee seems to be taking a superficial look at ACA rather than the specific details of it.
“Kavanaugh seems more focused on procedural issues involving ACA, rather than assessing the substance of it. There was a case he heard on the D.C. circuit that also discussed the tax that is the subject of the lawsuit with the 20 states. Kavanaugh dissented on this one, because he said he felt its inappropriate to discuss until the tax is actually levied,” Rockenstein said.
“Kavanaugh’s jurisprudence is in the vein of [current Supreme Court Justice Neil] Gorsuch, but perhaps more adroit than Gorsuch. He has developed a record where on one hand he recognizes the constitutionality and legitimacy of a law such as ACA, but at the same time, he has ruled in such a way (by dissent) that would undermine the practice of the law, or undermine some of its most important provisions,” Goodwin added.
Trump had campaigned on the promise of appointing federal judges and Supreme Court justices who would overturn Roe vs. Wade, and if Kavanaugh is confirmed, the experts said in one way or another, that promise may be fulfilled.
“Long-term, we run an extreme risk of the eventual overturning of Roe vs. Wade,” Benjamin said. “Short-term, Kavanaugh could also put barriers in the way of women making other decisions regarding their bodies such as contraception coverage.”
To illustrate this point, the American Public Health Association reported that at a 2006 judicial nomination hearing, Kavanaugh indicated he “would follow Roe v. Wade faithfully and fully,” however, in a speech given in September 2017, Kavanaugh heralded former Chief Justice Rehnquist’s dissent in Roe for “stemming the general tide of free-wheeling judicial creation of unenumerated rights that were not rooted in the nation’s history and tradition ...”
In October 2017, Kavanaugh joined a three-judge panel order delaying abortion care for an undocumented minor in federal custody to allow more time for HHS to locate an immigration sponsor. According to the Association, Kavanaugh said the delay was not an “undue burden” provided HHS’ sponsor search was expeditious. This order was overturned by the District of Columbia Court of Appeals, with Kavanaugh dissenting from that ruling.
“Kavanaugh [also] said the minor had a right to an abortion, but the federal government didn’t have to help her get one, which is in effect precluding her from getting an abortion,” Haeder said. “This seems to indicate Kavanaugh will move the federal government away from having input in reproductive health issues.”
The American Public Health Association also stated that 3 years ago, Kavanaugh tried, without success, to rehear claims that the ACA’s contraception coverage requirements violated the federal Religious Freedom Restoration Act, the law that allows religious employers who objected to providing contraception coverage to seek an exemption from HHS. The Association said while Kavanaugh acknowledged the “[g]overnment has a compelling interest in facilitating access to contraception for the employees” of religious employers,” he “averred to requiring such employers to submit exemption forms” and “interpreted the requirement as an overly restrictive means of effectuating government’s interests.”
Haeder said that Kavanaugh would likely side with the Trump administration in that employers do not have to provide birth control if it conflicts with their religious or moral beliefs.
He added that on the issue of abortion, Roe vs. Wade would remain law, but various contributing factors will be chipped away at.
“You can have symbolic access to all sorts of things, but what conservatives have done, is strategically limited the effects of the ruling — such as provider, clinic and fetus regulations — and thus made it harder and harder for a woman to get an abortion,” he said. “Kavanaugh is going around saying he doesn’t want to touch the precedent of Roe vs. Wade, but he could uphold every challenge coming in front of the Supreme Court that undermines it and thus renders Roe vs. Wade just as useless,” Haeder said.
Goodwin shared his sentiment, saying should Kavanaugh be confirmed, there will likely not be one court decision that overturns the 1973 landmark decision, but rather an elimination of the components that provide access to abortion over an uncertain period of time.
“One can have a right on paper, but it doesn’t mean exercising that right doesn’t come without significant obstacles,” she said. “The question will center on whether certain burdens are unconstitutional. It could be a gradual elimination, it could be robust, but the point is it won’t be something that is explicit and in a direct connection to Roe. It will be death by a 1,000 slices, but it might happen with 500 slices in two separate cases or it could be 100 slices in 10 different cases, but this could be what happens.”
The American Public Health Association also stated that in 2011, the D.C. Circuit Court of Appeals upheld a local ordinance that prohibited most semi-automatic rifles and necessitated firearm registration, and that Kavanaugh “dissented primarily to the court’s use of an intermedia level of scrutiny to assess the D.C. law.”
Rockenstein said Kavanaugh’s comments during his confirmation hearings and some of his previous remarks seem to support the notion that Americans should have broad gun rights, including carrying semi-automatic firearms.
She added that Kavanaugh’s stance on gun control concerns her “as a parent and as a lawyer.”
“The constitutionality of the second amendment has been argued for decades,” Rockenstein continued. “But Kavanaugh’s stretching of the second amendment to include protections for semi-automatic weapons is outside the judicial mainstream.”
Goodwin indicated that Kavanaugh, if confirmed, has shown a willingness to follow previous Supreme Court justices on the rulings such as those that overturn state and local attempts to control gun ownership.
“Kavanaugh will find no controversy with the Supreme Court having previously struck down gun control legislation,” she said.
The American Public Health Association and Haeder agreed that Kavanaugh has not said much in terms of using marijuana as a deterrent to pain, making the nominee what Haeder called a “wild card” on this issue.
“He might surprise in that he comes down in favor of state rights, but it’s more likely he will side with the federal government,” Haeder said.
Rockenstein concurred that Kavanaugh is a bit of an enigma in this area.
“He has upheld the authority of the FDA, which has only begun to see the potential of medical marijuana, but he has also limited the power of other agencies and has also strongly supported drug-free workplaces, so we’re not sure how he will rule on future cases,” Rockenstein said.
NBC News has previously reported that Senate Republicans hope to confirm Kavanaugh by the end of the month so that he is in place for the Supreme Court’s term that starts in October. With the appointment of Richard Kyl (R - Ariz.) to fill the seat of the late John McCain at least through the end of the year, there are 51 Republicans in the Senate, which last year changed its rules to allow a simple majority to confirm a Supreme Court nominee.
Benjamin strongly recommended medical professionals to contact their lawmakers with their opinions on Kavanaugh’s nomination, whatever they may be.
“We would encourage all health care providers to take a look at Kavanaugh’s record on health, and ... contact their local legislators and speak their views on what their concerns are,” he said.
Benjamin added that should Kavanaugh be confirmed, the American Public Health Association will still pursue what it feels is right when it comes to health care.
“If he is approved by the Senate, we will make our best arguments, he takes a view that is in line with justice and health and efforts to improve the health of the American people.” - by Janel Miller
Reference: APHA.org. Assessment of Key Constitutional, Health and Public Health Policy Positions Honorable Brett M. Kavanaugh Associate Justice Nominee, U.S. Supreme Court. https://www.apha.org/-/media/files/pdf/topics/kavanaugh_assessment.ashx?la=en&hash=C9451DBE96CB89D9B034EF9E6F56B71C4C6BAAFD. Accessed Sept. 4, 2018.
Disclosures: Benjamin is executive director of the American Public Health Association. Goodwin is University of California Irvine School of Law Chancellor’s professor. Haeder is assistant professor at the John D. Rockefeller IV School of Policy and Politics at West Virginia University. Rockenstein is an adjunct professor at California State University Channel Island.