Trump selects Kavanaugh for Supreme Court nominee, raising plenty of questions about implications for healthcare

View of the Supreme Court building
President Trump selected Brett Kavanaugh, 53, as his pick for the Supreme Court. (sframephoto/iStock/Getty Images Plus/Getty Images)

President Donald Trump announced Brett Kavanaugh as his pick for the Supreme Court on Monday evening. Kavanaugh, 53, is a judge for the U.S. Court of Appeals for the D.C. Circuit. 

Of course, health experts have been searching through his former cases like tea leaves to offer a glimpse at where he might land on some of the most pressing healthcare issues—including challenges to Roe v. Wade and the Affordable Care Act.

Kavanaugh has established himself as a voice to be listened to with a number of his opinions adopted by the court, said Aaron Nielson, an associate professor of law at Brigham Young University in a blog for the Yale Journal on Regulation in a collection of his opinions.

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"It is safe to say that when Judge Kavanaugh dissents, the Supreme Court pays attention," Nielson wrote.

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Just what has Kavanaugh weighed in on when it comes to healthcare? Here are some of the cases:

  • In 2011, as a D.C. Circuit Court judge, Kavanaugh dissented when the court upheld the ACA in a challenge to the health care act's penalties, according to an analysis in Justia. In his dissent (PDF), Kavanaugh argued against the court's jurisdiction in the case.  "If Congress wants the courts to decide the individual mandate suits now, Congress can always remove the jurisdictional limit; the Anti-Injunction Act’s jurisdictional bar is statutory, not constitutional," Kavanaugh wrote. "Absent such congressional action, however, we must adhere to the statutory constraints on our jurisdiction no matter how much the parties might want us to jump the jurisdictional rails and decide this case now."
  • In 2017, Kavanaugh dissented in a case in which the majority said that a teen immigrant could have an abortion. The majority decision “is ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. government detention to obtain immediate abortion on demand, thereby barring any government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision," he wrote, according to ABA Journal.
  • In 2017, Kavanaugh was part of a panel of three federal appeals court judges to express skepticism about the idea that an Anthem-Cigna merger would ultimately benefit consumers. The deal later fell apart.

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Majority Whip Sen. John Cornyn, R-Texas, defended Kavanaugh's selection on the floor Tuesday, pushing against the idea that critics should use his former cases to discern a political agenda.

"There's no reason to drag this out other than for partisan politics," Cornyn said. "Let's not falsely attribute to the nominee beliefs he does not have or make wild predictions."

As expected, Democrats raised alarms about the health implications. 

Sen. Chris Murphy, D-Conn., warned that a selection of Kavanaugh would could mean the end of protections under the Affordable Care Act, pointing to a challenge in Texas District Court, which has received support from the Trump administration.

He said it could likely make its way to the Supreme Court.

"Their new strategy is to use the court system as a means to invalidate the protections in the law for people with preexisting conditions," Murphy said. "This should freak out tens of millions of Americans with pre-existing conditions. Without the protections in the law today, healthcare will be unaffordable and unavailable."