Health care issues, namely the pre-existing-conditions provision of the Affordable Care Act and access to abortion, are likely to animate the confirmation process for President Donald Trump’s second U.S. Supreme Court nominee, Brett Kavanaugh.
And with a dozen years as a judge on the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh’s record does show that he’s taken views on these controversial issues.
Though Kavanaugh’s past record doesn’t necessarily dictate future rulings, if he makes it to the high court, his D.C. Circuit opinions can be good predictors of how he’ll rule. Here’s how Kavanaugh has come down on some key health care-related topics:
Affordable Care Act
The Affordable Care Act has been hit with challenges from state attorneys general, and the Trump administration has rejected key aspects of the law. But what would Kavanaugh do—or what has he done—around the health care law?
In 2011, Kavanaugh upheld the Affordable Care Act and found that federal courts had jurisdiction to rule in the case in spite of the Anti-Injunction Act. Without opining about the ACA itself, Kavanaugh dissented on the jurisdictional point, writing: “For judges, there is a natural and understandable inclination to decide these weighty and historic constitutional questions. But in my respectful judgment, deciding the constitutional issues in this case at this time would contravene an important and long-standing federal statute, the Anti-Injunction Act, which carefully limits the jurisdiction of federal courts over tax-related matters.”
Kavanaugh critics described that ruling as writing “a road map for saving Obamacare.”
A few years later, in 2015, Kavanaugh wrote that the ACA’s requirement that employers cover contraception in their employees’ health-insurance plans violated religious liberty protections.
And in 2016, Kavanaugh was a member of a unanimous three-judge panel that rejected what it called an “unusual” challenge by West Virginia to the Obama administration’s decision in 2013 not to enforce certain ACA provisions during a transitional period after the health care law’s enactment.
Last fall, Kavanaugh dissented in an immigration case in which the D.C. Circuit, in an en banc decision, vacated an order that blocked an undocumented pregnant teenager from having an abortion.
He wrote: “The en banc majority … reflects a philosophy that unlawful immigrant minors have a right to immediate abortion on demand, not to be interfered with even by government efforts to help minors navigate what is undeniably a difficult situation by expeditiously transferring them to their sponsors.”
In deeming the majority’s decision “inconsistent with the precedents and principles of the Supreme Court,” Kavanaugh reiterated the standard for the government’s regulation of abortion: it may impose reasonable regulations that are not unduly burdensome.
During his time on the bench, Kavanaugh has dealt both wins and losses to the U.S. Food and Drug Administration.
In 2010, for example, he was a member of the three-judge panel that ruled the FDA lacks the authority to regulate e-cigarettes as drugs or devices under the Food, Drug and Cosmetic Act as long as they are not marketed as smoking-cessation products or for other therapeutic purposes. Six years later, the FDA finalized a rule that allows it to regulate all tobacco products, including electronic nicotine delivery systems.
And in 2014, Kavanaugh wrote the opinion for a 2-1 court that found the FDA lacked the authority to rescind approval for a surgical mesh device to be used in knee-replacement surgeries.
Allowing the FDA to assert inherent authority to reclassify medical devices would make the section of the Food, Drug and Cosmetic Act that provides for a notice-and-comment process when a medical device is going to be reclassified a “dead letter,” Kavanaugh said.
“Notice and comment helps to prevent mistakes, because agencies received more input and information before they make a final decision,” Kavanaugh wrote.
A year earlier, however, a Kavanaugh-led three-judge panel of the D.C. Circuit supported the FDA in a medical device manufacturer’s suit over the agency’s decision to deny quick approval for the devices. He wrote that courts are “ill equipped to second-guess that kind of agency scientific judgment.”
Health Care Mergers
The market for health care mergers has been on a roll for several years. Would a Justice Kavanaugh keep that momentum going?
Last year, Kavanaugh dissented from the D.C. Circuit’s rejection of Anthem Inc.’s proposed $54 billion acquisition of Cigna Corp. The majority of the court upheld a trial judge’s decision to block the deal on the grounds that it would substantially reduce competition.
Kavanaugh said in his dissent, however, that the Anthem-Cigna deal should be saved for the cost savings it would create for consumers.
“The merged Anthem-Cigna would be a more powerful purchasing agent than Anthem and Cigna operating independently,” he wrote. “The merged Anthem-Cigna would therefore be able to negotiate lower provider rates on behalf of its employer-customers. Those lower provider rates would mean cost savings that would be passed through directly to the employer-customers.”