WASHINGTON — The installation of Brett Kavanaugh as the newest Supreme Court justice will have important effects on healthcare cases that come before the court, experts and healthcare groups said.
“I think it’s very possible, [even] likely that Kavanaugh would not vote to explicitly overrule Roe,” Tim Jost, JD, emeritus professor of law at Washington and Lee University in Lexington, Virginia, said in a phone interview, referring to Roe v. Wade, the 1973 Supreme Court decision legalizing abortion nationwide.
Jost said the more likely scenario is that Kavanaugh would “do what he did in the one abortion case he did consider — a case involving an immigrant minor, which is to say, ‘The question is whether there’s an undue burden, and I don’t see an undue burden in her having to wait a few weeks or days for them to sort things out.'”
“There are a lot of cases percolating up through the courts where courts have held that state law does impose undue burden or does not, but I think Kavanaugh can just say over and over, ‘I don’t see an undue burden here’ and eventually Roe‘s pretty meaningless,” he said. “I just think that would be easier for him than explicitly overruling it. He doesn’t strike me as someone who has a strong commitment to taking controversial ideological positions; he’s more likely somebody who will find ways to undermine the existing law.”
Thomas Miller, JD, resident fellow at the American Enterprise Institute, a right-leaning think tank here, agreed with Jost that overturning Roe was highly unlikely. “But some further chipping away at the margins, using updated scientific rationales regarding viability to allow more limited state-level restrictions, could develop over time,” he said in an email.
Kavanaugh was confirmed Saturday in a 50-48 Senate vote that followed a contentious set of Senate Judiciary Committee hearings over his nomination. During the first few hearings, he was sharply questioned by Democratic committee members on his views about Roe v. Wade.
Kavanaugh said he viewed the case as settled law, especially after another high court decision, Planned Parenthood v. Casey (1992), in which the court justified its reasons for deciding Roe the way it did. But Kavanaugh’s assurances that he would follow the precedent set in those cases did not satisfy committee Democrats.
The latter half of the hearings was dominated by testimony from Christine Blasey Ford, who alleged that Kavanaugh had sexually assaulted her when they were both in high school — an allegation that Kavanaugh vehemently denied. Two other women came forward later with similar allegations, which Kavanaugh also denied.
Now that Kavanaugh is on the court, “one might assume his greatest impact will be in carefully adjusting the current boundaries of administrative law,” Miller said. “In the near term, this puts in play upcoming challenges to recent executive branch limits on payments for … cost-sharing reduction (CSR) subsidies, as well as Medicaid waiver work requirements. My best guess is that CSRs will have to be paid … [and] Medicaid waivers will be trimmed back to apply only in new expansion states.”
Jost noted that “right now, the court is considering two cases that put at issue the ability of two Medicaid recipients to sue if the state violates federal Medicaid law … I could easily see Kavanaugh holding that poor people don’t have the right to sue when the state violates some or maybe all Medicaid provisions. What it would basically mean is that states can do whatever they want as long as the federal government wants to go along. That’s what I would worry the most about with [Justice] Kavanaugh.”
Affordable Care Act Case
Another case that may come before the Supreme Court is a Texas case questioning whether the Affordable Care Act (ACA) is constitutional now that Congress has gotten rid of the ACA’s individual mandate requiring everyone to buy health insurance or pay a penalty. Miller said he thought Kavanaugh was too cautious to want to invalidate the law completely. “Kavanaugh appears to be more in the limited and deferential ‘Mend it, don’t end it’ camp,” he said.
Some liberals have floated the idea of “packing the court” — that is, adding more justices to the court in order to blunt the influence of the five conservatives now on it. But Miller was skeptical of that idea. “Been there. Not done that. See 1937,” said Miller, referring to President Franklin D. Roosevelt’s unsuccessful attempt to expand the number of justices. “That’s not likely even if an unforeseen ‘wave’ election produced close to a 60-vote Democratic majority in the Senate by 2021.”
“I don’t see that as a realistic alternative,” Jost agreed, though added that this isn’t his area of expertise.
An “equally uphill alternative” would be a constitutional amendment to switch life tenure to 15-year terms for Supreme Court justices, said Miller. “The blocking power of minority opponents remains great under our constitutional structure and foreseeable politics.”
Healthcare Groups Weigh In
Several healthcare groups expressed disappointment at Kavanaugh’s confirmation. “Planned Parenthood Action Fund condemns the Senate vote to confirm Brett Kavanaugh to a lifetime appointment to the Supreme Court,” the pro-abortion rights organization said in a statement. “The vote will have a profound and lasting impact on people’s constitutional rights for generations to come — including the right to access safe, legal abortion … If Roe v. Wade were overturned or further eroded, more than 25 million women of reproductive age who live in 20 states that are poised to ban abortion could face no access to abortion at all in their states. That is more than a third of women of reproductive age in this country.”
“Registered nurses see the health impacts of the trauma of sexual violence in our patients, and as a predominantly female profession, many of us are survivors ourselves,” Jean Ross, RN, and Deborah Burger, RN, co-presidents of National Nurses United, said in a statement. “We condemn in the strongest terms the Senate’s willingness to knowingly confirm a man who has been accused by multiple women of sexual misconduct and assault.”
Kavanaugh had a private swearing-in ceremony on Saturday evening and will be publicly sworn in Monday night.