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Four Ways Supreme Court Nominee Kavanaugh Could Impact Healthcare

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By Karen Appold

On July 16, President Trump nominated Judge Brett Kavanaugh, 53, to the Supreme Court seat being vacated by retiring Justice Anthony Kennedy. Kavanaugh is a conservative jurist who served on the U.S. Court of Appeals for the D.C. Circuit since 2006. A graduate of Yale and then Yale Law, Kavanaugh clerked for President Kennedy and then worked for independent counsel Kenneth Starr, assisting with Starr’s investigations into President Bill Clinton.

Although Kavanaugh’s paper trail on health policy is not vast, it does include some intriguing clues about how he might rule on future cases, says Daniel Ehlke, PhD, associate professor, Health Policy and Management, SUNY-Downstate School of Public Health in Brooklyn, New York. Given Kavanaugh’s previous stances and voting history, here’s a look out how he could impact healthcare legislation.

  1. He might support limiting government regulation in healthcare. In Seven-Sky v. Holder, which challenged the enforcement of the minimum essential coverage or individual mandate required under the ACA, Kavanaugh authored the dissent opinion. “Although he did not make a decision on the merits in this case, he indicated that the individual mandate may be under the purview of the federal tax code and that only the IRS could assess, collect, and enforce the tax penalty,” says Maria D. Garcia, JD, of counsel, KozyakTropin& Throckmorton, Coral Gables, Florida. “Regarding future ACA legislation, it is probable that Kavanaugh would be amenable to limiting government regulation of the healthcare market.”
  2. He might support FDA’s oversight of experimental drugs. In the 2007 case, Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, Daniel E. Dawes, JD, associate professor, Complex Health Systems, Nova Southeastern University, Fort Lauderdale, Florida, says Kavanaugh, along with the 8-2 majority, concluded that, “there is no fundamental right ‘deeply rooted in this nation’s history and tradition’ of access to experimental drugs for the terminally ill.”

“The court sided with the FDA and upheld the process for how the FDA should provide access to experimental drugs,” Garcia says. “Thus, although Kavanaugh has ruled against the FDA in other cases, here Kavanaugh showed support for FDA oversight in specific instances for the use of unapproved drugs. This may play a part in his future decisions.”

  1.  He might favor government policies regarding pharmaceuticals. In a number of cases, Kavanaugh has ruled to maintain the status quo of deference to the FDA and seems to agree with its objective of ensuring systems and approaches are in place to protect consumer safety, Dawes says. “If he becomes a member of the Supreme Court, he could very easily continue this path of deference to the government agencies that have managed the pharmaceutical industry.”

In the 2016 Cytori Therapeutics v. FDA case, Kavanaugh said, “a court is ill-equipped to second-guess that kind of agency’s scientific judgment.” “Considering that the Trump Administration has singled out and is keen on reforming the pharmaceutical industry, and Kavanaugh seems sensitive to legislative and administrative actions that bolster healthcare access and quality as well as judicial decisions undermining markets, he may very well rule in favor of the government if their policies do not overreach,” Dawes says.

  1.   He might vote conservatively in contraception and abortion cases. In the 2015 Priests for Life v. HHS case, Kavanaugh stated that the ACA’s requirements around mandatory contraception coverage violated the freedom rights of religious employers. “This shows that he is a fairly traditional conservative legal thinker when it comes to contraception and reproductive rights, and will tend to value religious belief, broadly defined, over the health decision-making of women,” Ehlke says. “The blanket protections afforded by Roe v. Wade are therefore very much under threat, even if a national ban on abortion is unlikely.”

Another example of Kavanaugh’s conservative approach to contraception is his willingness to be on record, in a dissent, stating that allowing a 17-year-old immigrant to have the autonomy to decide to get an abortion is a “radical extension of the Supreme Court’s jurisprudence on abortion,” Dawes concludes.

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