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Supreme Court Nominee Brett Kavanaugh Could Leave His Mark On Many Health Care Cases


If Judge Brett Kavanaugh is confirmed to the Supreme Court, he may have the opportunity to rule on a series of cases related to health care and the Affordable Care Act. President Trump and congressional Republicans have been trying for years to dismantle the health care law.

To talk about the impact Judge Kavanaugh could have on health care, NPR health policy correspondent Alison Kodjak is here in the studio again. Hi, Alison.


SHAPIRO: How much do we know about Judge Kavanaugh's view of the Affordable Care Act?

KODJAK: Well, we don't know a whole lot directly. I've talked to a lot of experts on the left and on the right today. And the issue is that the Affordable Care Act is really an umbrella that covers a whole bunch of laws that reach into lots of different federal agencies, lots of federal programs. There's tax. There's Medicaid. There's insurance. There's, you know, hospital regulation. He could very well have some decisions that please opponents of the law, and he could make some decisions that make ACA supporters really happy.

SHAPIRO: Well, on the D.C. Circuit Appeals Court where he currently sits, he's already had at least one opinion on the Affordable Care Act which is getting a fair amount of attention. What did he say there?

KODJAK: Well, so that one was related to the individual mandate, which is the Obamacare rule that everyone has to buy insurance or pay a penalty. It was a 2011 case. And Kavanaugh said that the court shouldn't even consider the case at that time. It was too early. And he had argued that since nobody had paid the penalty yet, it wasn't time to rule on it. But he went on in that ruling, and he talked about how Congress could fix the mandate by changing the penalty to a tax. And he's argued that that would make it legal.

In the following year, when the Supreme Court did take up the individual mandate, Justice - Chief Justice John Roberts, he used that exact logic to uphold the law as constitutional. And so conservatives were not very happy. Many of them now point to that as how Judge Kavanaugh helped pave the way for the Affordable Care Act to stay.

SHAPIRO: That case was 2011, as you said - the initial ruling from Judge Kavanaugh, anyway. The mandate has been repealed since then. Congress took action recently. So is it still relevant?

KODJAK: Well, it's not relevant in the sense - the individual mandate itself isn't at issue in the courts anymore. But there's another case that's percolating out there that includes the mandate as part of it. And it's brought by a group of attorneys general from conservative states. It's led by Texas. And actually, the Trump administration have joined the case. And it challenges the other important parts of the ACA - the rules that say they have to cover people's pre-existing conditions, for example. And it argues that all those parts are tied together with that individual mandate. So there's some concern that Judge Kavanaugh may not want to strike that whole thing down.

SHAPIRO: Is that case likely to reach the Supreme Court?

KODJAK: Well, it's unclear. A lot of people say that the legal logic is pretty weak in that case, so it's not clear it'll get there at all.

SHAPIRO: So when you take a step back and look at the broad picture, how do you think a Supreme Court Justice Kavanaugh would likely affect health care in the United States?

KODJAK: Well, the most obvious way has to do with Medicaid. There's a case pending out of Kentucky that challenged these work requirements that a lot of states are putting in place on Medicaid. The Trump administration's been encouraging states to put them in place, and the federal judge ruled just less than two weeks ago that the rules were, quote, "arbitrary and capricious" because they don't further the core mission of Medicaid, which is to make sure people have insurance.

So there are a lot of legal experts who have told me that Judge Kavanaugh, he has a track record against what's called agency overreach - when a federal agency takes things a little too far. And it shows up in a lot of his cases related to environmental regulations. But in this case, the Medicaid work requirements could be one of those things where the agency has taken things too far. And so he might actually rule in favor of people who don't want those work requirements in place.

SHAPIRO: Beyond Medicaid, other big ways you think Justice Kavanaugh on the Supreme Court might reshape health care in America?

KODJAK: There are some other cases out there related to Planned Parenthood access and Medicaid, and it's unclear how he might rule. But some people I talked to today who were concerned that he would rule that Medicaid recipients don't actually even have standing to take those cases to court. So there's some tension there on the Medicaid front.

SHAPIRO: NPR health policy correspondent Alison Kodjak, thanks a lot.

KODJAK: Thanks, Ari. Transcript provided by NPR, Copyright NPR.

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