Health Policy Hangs in the Judicial Balance

In case we haven’t met, hi–I’m Molly and I’m a huge fan of School House Rock. Thanks those VHS’, I grew loving the checks and balances built into our government–the legislative branch creates the laws, the executive branch enforces the law, and the judicial branch interprets laws as constitutional or unconstitutional. Today we’re going to focus on the Supreme Court, the ultimate arbiter of the judicial branch. It is comprised of nine Justices with a lifetime appointment who hear and rule on cases that question federal constitutional issues or conflicts between states.

If you’ve been on social media, any news site, or turned on the T.V., you know that Judge Brett Kavanaugh has been nominated to fill the current Supreme Court vacancy. But we’re not going to delve into the allegations of sexual assault against him or the Judiciary Committee majority’s complete disregard for process, order, or even common decency today. No, we’re going to talk about the impact that one person, Judge Kavanaugh, can have on the entire U.S. health care system.Health care has certainly been on the agenda at #SCOTUS in nearly every recent decade as the federal government as gotten more involved in that policy area since creating the Medicare and Medicaid programs in 1965. But even dating back to Jacobson v. Massachusetts in 1905, when the Supreme Court upheld the authority of states to enforce compulsory vaccination to protect the public health, SCOTUS has been involved in health issues.

So, what impact can one Supreme Court Justice have on health policy? Well, Judge Kavanaugh has an extensive conservative record and has been nominated to replace the “swing” vote on the Court–Justice Kennedy–who has voted to uphold, among other important issues victories, reproductive health rights in the Casey decision.

In a recent JAMA article, Lawrence O. Gostin and Judge James G. Hodge, Jr. highlighted eight consequential health policy areas that could see a shift if Judge Kavanaugh is confirmed. Let’s take a look at a few of them:

• Public Health Regulation: Federal agency regulation governs everything from health care access and food safety to the approval of pharmaceuticals and tobacco control. The Supreme Court has historically given substantial leeway to agencies to create and enforce regulations (#ChevronDeference). However, according to Gostin and Hodge, Judge Kavanaugh has overrode agency action 75 times and called Chevron deference as “textual invention by courts.”
• Health Care Access and Coverage: In 2012, the Supreme Court upheld the ACA but allowed states to opt-in to Medicaid expansion. Judge Kavanaugh has stated that the individual mandate (a key part of the ACA) exceeds Congressional authority. [The Tax Act of 2017 removed the tax penalty for the individual mandate.] Congress has attempted to repeal the ACA 70 times and multiple legal challenges are pending. It will end up at SCOTUS again in the near future.
• Reproductive Health: First, reproductive health is health care. Full stop. Period. Second, Judge Kavanaugh has praised Justice Rehnquist’s dissent in Roe v. Wade and ordered a delay in accessing abortion services for an undocumented minor in federal custody. [This order was overturned and Judge Kavanaugh called it a “radical new right to immediate abortion on demand.”] He has also called the ACA’s contraception mandate a violation of religious freedom in a dissenting opinion of the Priests for Life v. HHS case.

These are just three areas of health policy that could be impacted if Judge Kavanaugh is confirmed. As we wait and watch to see if his nomination continues to move forward, it is worth noting that it is unlikely President Trump will ever nominate someone to the Supreme Court who is not hostile in some manner to public health. He has chosen both Justice Gorsuch and Judge Kavanaugh from a list supported by the Federalist Society, which promotes a strict adherence to the intent of the original text of the Constitution. This is a misguided approach to the health care issues the judiciary branch rules on–health insurance, hospitals, and virtually every other part of our modern health system did not exist in 1789 when the Constitution was written. The health of our nation and our patients are at stake.

Image from AP.