Public health law protections at risk with Kavanaugh on Supreme Court

Panelists discuss Brett Kavanaugh at the Public Health Law Conference on Oct. 5. (Rose Meltzer)

PHOENIX—Hours before Sen. Susan Collins, R-Maine, cleared the way for the confirmation of Supreme Court Justice Brett Kavanaugh, a panel of legal experts warned of the public health implications of his appointment during a "late-breaking" session at the Public Health Law Conference on Friday. 

On Saturday afternoon, shortly after the conference concluded, Kavanaugh’s seat on the court was confirmed.

It “may be the most serious threat to ... health justice we could possibly imagine,” said James G. Hodge, Jr., professor of public health law and ethics at Arizona State University.

Because Kavanaugh “unabashedly” opposes federal regulation, Hodge said, he will likely reject laws that indirectly, though importantly, protect the public’s health and promote health equity, such as EPA regulations and gun control measures.

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The Affordable Care Act could also be in jeopardy, particularly as Texas v. United States—the GOP's latest attempt at repealing the law—progresses through the courts.

Kavanaugh’s place on the court could also be bad news for Medicaid, said Sarah Somers, an attorney with the National Health Law Program. 42 USC §1983, which provides a cause of action for deprivation of federal rights, has often been used to enforce various provisions in Medicaid.

But conservative judges and justices have been eating away at that for the last 15 years, including in a recent decision from the Eighth Circuit Court of Appeals, making it more difficult to enforce Medicaid provisions, Somers explained.

If the Supreme Court uses the Eighth Circuit decision for reasoning in a future Medicaid case, there will be “no way to enforce these laws,” Somers said.

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Wendy Parmet, director of the Center for Health Policy and Law at Northeastern University, analyzed the confirmation debate from a broader angle. Kavanaugh’s ascent, and the deepening partisanship on the Supreme Court more broadly, delegitimizes the court in the eyes of many Americans, which can have serious ramifications.

“Law is a tool because it’s the rule of law … health is most secure when the rule of law is safe and respected," she said. "People have to believe in the law in order for public health laws to be trusted, to be effective."

There may also be public health implications of the hearings themselves.

“What are young people learning, and what could be the long-term health impacts?” Parmet mused. “There’s a research project out here. Will there be more assault right now? I don’t know, but I think we need to think about that."