President Donald Trump's second Supreme Court nominee Brett Kavanaugh begins his confirmation hearings September 4. While abortion and Roe v. Wade are in the spotlight, his positions on other key healthcare issues will come into play, including Obamacare.
Kavanaugh's record includes significant writings on the Affordable Care Act, Medicare, contraception and abortion, but they are nuanced—offering a difficult task for Democrats on the Judiciary Committee who will try to pin him down on how he might rule from the Supreme Court bench.
Below are five cases that offer insights into his thinking on controversial healthcare questions.
1) Obamacare Appeal No. 1: Seven-Sky v. Holder
Kavanaugh wrote the lengthy sole dissent in the 2011 federal appellate ruling that upheld the Affordable Care Act, but notably he did not indicate opposition to the law itself.
He questioned the precedent set by allowing Congress to penalize people for failing to comply with the federal mandate to buy insurance. He also opined that the mandate may show a new legislative approach for how Congress could design the safety net through the private sector, in which case he advised that the judiciary should stay out of Congress' way. Conservative critics say Kavanaugh's opinion laid the groundwork for the Supreme Court's 2012 decision upholding the law.
"Privatized social services combined with mandatory-purchase requirements of the kind employed in the individual mandate provision of the Affordable Care Act might become a blueprint used by the Federal Government over the next generation to partially privatize the social safety net and government assistance programs and move, at least to some degree, away from the tax-and-government-benefit model that is common now," he wrote. "Courts naturally should be very careful before interfering with the elected Branches' determination to update how the National Government provides such assistance."
2) Obamacare Appeal No. 2: Sissel v. HHS
This appeal argued that because the Senate replaced the House version of the ACA with its own language before passage, Congress violated the constitutional clause requiring any major tax legislation to originate in the House. Kavanaugh sided with the majority in upholding the ACA, but for a different reason than his colleagues. He wrote that Congress did not violate the clause in question; the other judges ruled that the so-called origination clause did not apply to the ACA.
It remains to be seen whether Kavanaugh can satisfy Democrats on his stance on the ACA coverage protections. Democrats who have met with him personally have pressed him on the issue have expressed varying degrees of skepticism.
"It is an issue that will affect millions of American families in really profound ways," said Sen. Sheldon Whitehouse (D-R.I.), who sits on the Judiciary Committee. "And Kavanaugh being way too cute about his thoughts about it opens wide the prospect he will follow the Sessions path of inventing a constitutional problem with it."
3) Abortion: Garza v. HHS
Abortion-rights groups point to this case from last October as being most indicative of Kavanaugh's position on abortion and, potentially, Roe v. Wade.
Kavanaugh dissented from the majority decision to reverse an HHS order that barred an immigrant minor in federal custody from obtaining an abortion. In his opinion, Kavanaugh acknowledged the plaintiff's right to abortion under Roe v. Wade, but argued the U.S. government shouldn't be mandated to facilitate abortion on demand for undocumented immigrant minors in its custody. He said that a delay until the plaintiff found a U.S. sponsor didn't qualify as “undue burden.”
Notably, he did not join another colleague in a dissent that argued an undocumented immigrant minor does not have the constitutional right to an abortion.
Republican Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska), who support abortion rights, are facing the most intense pressure on this issue.
After meeting with Kavanaugh for more than two hours, Collins said that the nominee "expressed agreement with Chief Justice Roberts' confirmation hearing statement that Roe is settled precedent and entitled to respect under principles of stare decisis."
While legal experts consider Roe v. Wade safe for now, Planned Parenthood has counted 13 lawsuits involving strict abortion laws that could make it to the Supreme Court and analysts expect Kavanaugh would narrow the definition of what qualifies as an undue burden. This is enough to draw criticism from abortion rights advocates.
"The reality is that people in some states have to navigate nearly insurmountable barriers just to access care, including medically unnecessary waiting periods and the need to travel farther distances to get to clinics, which increases the cost if they have to pay for travel and child care," said Dr. Willie Parker, board chair of Physicians for Reproductive Health.
4) Contraception: Priests for Life v. HHS
This religious liberty case upheld the ACA mandate that employers must offer coverage of contraception even if they object on religious grounds.
Kavanaugh dissented but, as in Garza v. HHS, took a more nuanced position than the other dissenters. He argued that the government "has a compelling interest in facilitating access to contraception" for employees of a religious organization, but stated the government should do so in the least restrictive way possible.
The insurer of these employees must continue to offer them contraceptive coverage, he wrote, but the employer should not be required to pay for it.
5) Medicare: Hall v. Sibelius
Kavanaugh sided with the majority in ruling against plaintiffs who didn't want to be entitled to Medicare Part A because it would limit their ability to get private insurance.
Kavanaugh wrote that the law would not allow that.
“If you are 65 or older and sign up for Social Security, you are automatically entitled to Medicare Part A benefits,” he wrote. “You can decline those benefits. But you still remain entitled to them under the statute.”
