5 Kavanaugh rulings that will loom large this week
CONFIRMATION HEARINGS for Supreme Court nominee Brett Kavanaugh are slated to begin Sept. 4. These five cases offer some questions. insights into his thinking on controversial healthcare
1 OBAMACARE APPEAL NO. 1: Seven-Sky v. Holder
Kavanaugh wrote the lengthy sole dissent in the 2011 federal appellate ruling upholding the Affordable Care Act; 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. Conservative critics say Kavanaugh’s opinion laid the groundwork for the Supreme Court’s 2012 decision upholding the law.
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.
3 Garza ABORTION: v. HHS
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.”
4 Priests CONTRACEPTION: 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, took a more nuanced position. 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 must continue to offer them contraceptive coverage, he wrote, but the employer should not be required to pay for it.
5 Hall MEDICARE: v. Sebelius
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.”