Experts: Kavanaugh may have lasting impact on health care


As the Supreme Court sits for its second session on Oct. 29, legal analysts question what impact its newest Associate Justice, Brett M. Kavanaugh, may have on health care cases that might come before the court.

Collection of the Supreme Court of the United States

Brett Kavanaugh

The addition of Justice Kavanaugh cements a conservative majority on the high court, said Eric J. Segall, a constitutional law professor at Georgia State University in Atlanta.

“Where Justice Kennedy was moderate or liberal, Justice Kavanaugh will move the court dramatically to the right in most areas of law,” Mr. Segall said in an interview.

One area drawing considerable attention is abortion, with abortion rights advocates raising concerns that Justice Kavanaugh’s appointment may mean the reversal of Roe v. Wade. Legal analysts, however, say fall of the momentous ruling is not probable.

Based on his decisions written while he sat on the Court of Appeals for the District of Columbia Circuit, it’s more likely that Justice Kavanaugh would attempt to narrow the instances in which state abortion restrictions are considered to impede a woman’s constitutional right to an abortion, according to Timothy S. Jost, a legal analyst and retired health law professor at Washington and Lee University in Lexington, Va.

In Garza v. Hargan for example, then-Judge Kavanaugh dissented from a majority decision which ultimately allowed a teenage immigrant in U.S. custody to have an abortion. Judge Kavanaugh argued that it was wrong for unlawful immigrant minors in U.S. detention to obtain “immediate abortion on demand.” However, his dissent was not as far-reaching as that of another judge who argued that a minor undocumented immigrant had no constitutional right to an abortion.

Timothy S. Jost, Washington and Lee University, Lexington, Va.

Timothy S. Jost

“[Justice] Kavanaugh certainly could vote to overturn Roe v. Wade, but based on his past opinions, I think it much more likely that he would simply expand Roe’s undue burden exception on a case by case basis until it was meaningless,” Mr. Jost said in an interview. “He doesn’t have to overturn Roe v. Wade to allow states that want to effectively bar abortion [to succeed].”

Mr. Segall agrees that Justice Kavanaugh will likely water down the undue burden test for abortion and through this softening, essentially dismantle Roe and return the issue of abortion to states.

As for the fate of the Affordable Care Act, legal experts foresee a restrained stance by Justice Kavanaugh, rather than a strong rejection of the entire law. In 2011, Judge Kavanaugh wrote a dissenting opinion in Seven-Sky v. Holder, a case that challenged the constitutionality of the health law’s individual mandate. While his fellow judges ruled that Congress had the authority to enact the mandate, Judge Kavanaugh argued the mandate was a tax and thus, it was too early for the court to hear the case since the tax had not yet been levied.

The dissent by Judge Kavanaugh in this case amounted to a “procedural cop-out,” according to Thomas P. Miller, a resident fellow at the conservative American Enterprise Institute and a health care policy scholar.

Thomas P. Miller, American Enterprise Institute

Thomas P. Miller

“That tells you he is a relatively cautious judge as opposed to going right to the metal because other circuit court of appeals judges were able to say this is an unconstitutional mandate,” Mr. Miller said in an interview. “That suggests a degree of tactical caution on these issues, very similar to [Supreme Court Chief Justice John] Roberts.”

Justice Kavanaugh may get his first chance to rule on the ACA’s future through Texas v. United States. The case centers on a challenge by 20 Republican state attorneys general over the constitutionality of the health law’s individual mandate. The Trump administration has reduced the penalty for failing to have health insurance to $0 starting in 2019. The plaintiffs allege that the mandate cannot be severed from the rest of the ACA and that if the mandate is eliminated, the rest of the law should fall. Because the Trump administration has opted not to protect the ACA, Democratic state attorneys general in 16 states have intervened to defend the health law. Arguments were heard before the federal district court in the Northern District of Texas in September and a decision is expected any day.

If appealed, the Fifth Circuit would next take on the case, but the challenge could eventually reach the Supreme Court, Mr. Jost said.

“Chief Justice Roberts could save [the ACA] one more time, but I could see [Justice] Kavanaugh voting to uphold the ACA as the question would likely be a question of severability of the individual mandate from the rest of the ACA, and I can see [Kavanaugh] holding it severable,” he said.

Justice Kavanaugh may also weigh in on a handful of Medicaid cases that could go before the Supreme Court. The first case involves how much deference the federal government should have in allowing states to impose work requirements on Medicaid patients. In June, a federal judge in Washington D.C. struck down the federal government’s approval of a Kentucky Medicaid waiver that would have imposed work requirements and other rules for eligibility. That judge ruled that the Centers for Medicare & Medicaid Services did not adequately evaluate whether Kentucky’s requirements were consistent with federal Medicaid law.

Mr. Miller said it is too early to tell which way Justice Kavanaugh would vote on a Medicaid work requirements case, and that the decision depends on the context of the case and the reading of the law involved.

“[Justice] Kavanaugh has a less predictable record in this more narrow area of administrative law,” Mr. Miller said. “I doubt he alone is going to drive the court anywhere on this issue it doesn’t otherwise want to go – or at least drift.”

Two other Medicaid cases pending before the Supreme Court revolve around the right of a private Medicaid patient to sue a state over the exclusion of Planned Parenthood in its Medicaid program. Gee v. Planned Parenthood of Gulf Coast Inc. and its sister case, Anderson v. Planned Parenthood of Kansas and Mid-Missouri, stem from separate efforts by Kansas and Louisiana to remove Planned Parenthood from their Medicaid programs. The question is whether the Medicaid patients have a right to challenge the exclusions.

If the Supreme Court accepts the cases, Mr. Jost said it’s likely that Justice Kavanaugh would side with the states and bar the patients from suing.

“I could see him holding that Medicaid recipients can’t sue if a state violates federal law, which would effectively end Medicaid as an entitlement,” Mr. Jost said. “This would have disastrous consequences for low-income Americans.”

Justice Kavanaugh also could make an impact on gun control, Mr. Segall noted. The Supreme Court has not taken a Second Amendment case in several years; in the past, there was uncertainty about how Justice Kennedy would vote on a gun control case. Not so with Justice Kavanaugh, Mr. Segall said. In Heller v. District of Columbia (known as Heller II), Judge Kavanaugh dissented from the majority, writing that the District’s ban on semiautomatic rifles and its requirement that handguns be registered were unconstitutional.

“[The dissent] gave the Second Amendment as broad a reading as any judge has ever given,” Mr. Segall said. “Gun control, gun reform, and gun limits ... this is where [Kavanaugh] is going to make the biggest difference.”

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