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Supreme Court Nominee May Be Hard To Pin Down On Obamacare


If Judge Brett Kavanaugh is confirmed to the U.S. Supreme Court, he will likely hear several cases related to health care - specifically, the Affordable Care Act. President Trump and congressional Republicans have been trying for years to dismantle the health care law, and many of their actions have ended up in court. But NPR's Alison Kodjak reports that based on Kavanaugh's record, his decisions could please President Trump in some cases, and in others, he may surprise the president.

ALISON KODJAK, BYLINE: Appeals court Judge Brett Kavanaugh had the chance to rule that the individual mandate, the core of the Affordable Care Act, was unconstitutional. But Kavanaugh didn't take the opportunity.

CHRIS JACOBS: Judge Kavanaugh basically said that the court should not decide the mandate case because Congress could easily fix the mandate prior to it taking effect.

KODJAK: That's Chris Jacobs, a conservative health policy analyst and founder of Juniper Research. In the same ruling, he says, Kavanaugh laid the groundwork for the Supreme Court to later uphold the law. He argued that if Congress treated the mandate's penalty like a tax that people could choose to pay if they didn't want insurance, then it would pass constitutional muster. Congress didn't change the law, but the Supreme Court bought the argument.

JACOBS: That was the argument that Chief Justice Roberts adopted in 2012 at the Supreme Court.

KODJAK: That opinion by Kavanaugh makes some conservatives worried about how he'll rule if he's confirmed to the high court. And it also shows that when it comes to the Affordable Care Act, Kavanaugh may be hard to pin down. Sara Rosenbaum is a professor of health law and policy at George Washington University.

SARA ROSENBAUM: The cold, hard truth is, of course, there's no one thing as the ACA, right? The ACA was a bundle of changes to many, many U.S. laws. I think it's actually very difficult to say with any kind of certainty where someday maybe Justice Kavanaugh would be.

KODJAK: There are several ACA-related cases winding their way through the courts, like one in Kentucky related to Medicaid. A federal judge less than two weeks ago ruled that the Trump administration was wrong to allow Kentucky to require Medicaid recipients to work for their health benefits. If Kavanaugh hears it, he could well end up siding with the patients over the executive branch.

ROSENBAUM: He is somebody who really looks skeptically at agency overreach.

KODJAK: In other Medicaid-related cases, Kavanaugh could go the other way, says Sarah Somers of the National Health Law Program. For example, courts are divided over whether states can block Medicaid from paying for health care services provided by Planned Parenthood, even if they're not abortions. Suppose that case came before Kavanaugh. Somers worries he might not even agree that Medicaid patients have the right to take such cases to court.

SARAH SOMERS: We haven't seen a lot of clear evidence about how Judge Kavanaugh would rule on Medicaid cases, but the general philosophy that, you know, is consistent with his writings and his decisions, you know, makes us wary.

KODJAK: Kavanaugh described himself in his speech last year to the Heritage Foundation as a judge who sticks to the legal text. And that could make it hard to predict exactly how he'll rule on questions of health law, says Nicholas Bagley, a professor at the University of Michigan Law School.

NICHOLAS BAGLEY: Politics matters. You don't want to blind yourself to that. If you have a conservative justice on the court, that's very different from having a liberal justice. But the law also matters, and the law does constrain.

KODJAK: And by all accounts, the Affordable Care Act is a complicated law. Alison Kodjak, NPR News.

(SOUNDBITE OF THE ALBUM LEAF'S "DESCENT") Transcript provided by NPR, Copyright NPR.

Alison Fitzgerald Kodjak is a health policy correspondent on NPR's Science Desk.
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