Healthcare issues to place Kavanaugh nomination in path of political buzzsaw

Supreme Court nominee’s positions on abortion and the Affordable Care Act will be the focal points for scrutiny in confirmation process.

With the announcement by President Trump that he’s nominating Brett Kavanaugh for a position on the Supreme Court, the partisan battle will be fierce in the weeks ahead.

The fight over the choice of Kavanaugh for the position to be vacated by retiring Judge Anthony Kennedy is already underway, primarily under strict party lines. The healthcare leanings of Kavanaugh are expected to play a pivotal role in his fate as a candidate.

Cases currently in the federal court system are expected to eventually reach the nation’s highest court, where judges’ philosophical leanings can influence eventual court decisions. As such, the composition of the court can have implications for provider organizations, particularly in what services are reimbursed and how the nation funds them.

Kavanaugh, 53, has spent 12 years as a judge in the U.S. Court of Appeals for the District of Columbia Circuit. Before that, Kavanaugh worked for the Office of the Independent Counsel under Ken Starr, where he helped write the Starr Report about President Clinton and Monica Lewinsky. He held numerous positions in the George W. Bush administration.

Here are some of the key areas of interest to healthcare providers regarding Kavanaugh’s past decisions; in his years as a judge on the D.C. Circuit Court of Appeals, he’s written more than 300 opinions on cases that have been tried before him.

To woo conservatives in 2016 in the run-up to the presidential election, Trump promised them that he would only select judges for the Supreme Court that would overturn Roe v. Wade, the 1973 ruling that legitimized the right of a woman to have an abortion.

It’s no surprise that this is one of the lightening rod issues that will determine who supports the nomination and who does not.

Kavanaugh was on a short list of potential replacements for Kennedy that was developed by the Federalist Society for Trump, and it’s unlikely that any of the judges on the list of the conservative organization would deviate from opposition to Roe v. Wade.

Even so, Kavanaugh has a slim record of written opinions on cases involving abortion that have been appealed to his court. In Garza v. Hargan, he wrote the dissent in a case in which the court held that an undocumented teenage immigrant was entitled to an abortion without having to obtain familial consent. In his dissent to the decision, he asked, “Is it really absurd for the United States to think that the minor should be transferred to her immigration sponsor—ordinarily a family member, relative, or friend—before she makes that decision?”

Some abortion foes have noted that Kavanaugh has declined to weigh in with written opinions on several other abortion cases that his courts have decided upon, leaving uncertain his exact position on the landmark decision that established a constitutional right to abortion. Critics sometimes cite comments he made in 2006 in which he pledged to follow Roe v. Wade, at the timing calling it “the binding precedent of the court.”

Senators likely will demand to know more of his views on the law before making a decision on confirming him to the Supreme Court post, which likely will rule on cases that challenge the abortion law.

“I hope they (Senators) force him to say what his position is on abortion and women’s equal access to healthcare,” said Cecile Richards, former president of Planned Parenthood, in comments immediately after Trump’s announcement Monday night.

Affordable Care Act

Kavanaugh’s past judicial rulings on legal precedents involving the Affordable Care Act also are expected to attract inquiry in the confirmation process.

His written comments suggest a mixed history. In 2011, he dissented in a case that upheld the constitutionality of the ACA, specifically its individual mandate requiring every American to have health insurance. Kavanaugh’s dissent suggested that the federal courts had no right to hear the case in the first place.

Kavanaugh also has written an opinion on religious organizations’ objections to the fact that Obamacare requires health plans to offer contraceptive coverage. “When the government forces someone to take an action contrary to his or her sincere religious belief or else suffer a financial penalty (which here is huge), the government has substantially burdened the individual’s exercise of religion.”

Otherwise, Kavanaugh has on occasion agreed with the Obama administration on challenges to the law. The Supreme Court likely will be hearing several other cases from states intending to chip away at coverage afforded by the ACA.

Some senators on Monday indicated that Kavanaugh’s position on healthcare will be crucial to their support of his nomination.

Sen. Joe Manchin (D-W.Va.), said Kavanaugh’s views on Obamacare will affect his decision to confirm him. “The Supreme Court will ultimately decide if nearly 800,000 West Virginians with pre-existing conditions will lose their healthcare,” Manchin said, referring to a case now in the courts challenging the law’s legality. “This decision will directly impact almost 40 percent of my state, so I’m very interested in his position on protecting West Virginians with pre-existing conditions.”

Sen. Elizabeth Warren (D-Mass.) was more blunt in an interview after Kavanaugh’s unveiling. “We know healthcare is going to be on the line with this pick,” she said. “Everyone on the (Federalist) list was committed to overturning healthcare rights. His views affect what it will mean for the healthcare of tens of millions of Americans.”

Other healthcare cases

In his time on the bench, Kavanaugh has weighed in on a variety of cases involving healthcare, medical research and devices and the federal government's role in influencing medical care and technology.

For example, he wrote an opinion in a 2013 case that supported the Food and Drug Administration. The agency had ruled against Cytori Therapeutics, a manufacturer of medical devices, which then filed suit against the agency's decision, contending it had inappropriately denied quick approval for its devices meant to extract stem cells from fat tissue. The suit highlighted differences in the approaches the agency had used to approve other such devices and the Cytori products.

Kavanaugh upheld the lower court’s ruling, and in his opinion said the reason was the FDA and other federal scientific agencies, have more expertise than the judicial system in ruling on such technologies. “A court is ill-equipped to second-guess that kind of agency scientific judgment” as it pertained to federal agency procedure," he wrote.

However, in 2014, he ruled against the FDA in another suit, saying it had erred in its decision to approve rights for a company to sell a surgical mesh, then chided it for failing to follow its own guidelines in rescinding those marketing rights.

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