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Four Ways Our Health Care Is at Risk in the Supreme Court Nomination Fight

By Eliot Fishman,


View Families USA’s Sign-On Letter: SCOTUS Vacancy and Health Care

With last night’s announcement of Brett Kavanaugh as President Trump’s nominee to replace Justice Anthony Kennedy on the Supreme Court, a confirmation battle begins in earnest in the Senate. In the coming years, federal courts will be hearing cases that involve the basic pillars of our health care system, jeopardizing the health care of millions of people. Between now and 2020, there is a significant chance that the Supreme Court could decide on any or all of the following major health care issues:

  1. Whether to overturn the entire Affordable Care Act, including core patient and consumer protections.
  2. Whether abortion services are legally and/or practically available to low-income women in many states.
  3. Whether the Trump administration has the authority to significantly roll back health coverage for low-income people through Medicaid using “Demonstration Waiver” authority.
  4. Whether there is any ability for providers to sue state Medicaid agencies for paying inadequate rates or otherwise violating Medicaid legal standards regarding access to care.

Major health care issues the Supreme Court could decide in the next two years

  1. Overturning the Affordable Care Act: Eliminating Protections for People with Preexisting Health Conditions and Legalizing Junk Insurance: A case effectively repealing the entire Affordable Care Act and another involving the law’s requirements for essential health benefits may make their way to the Court.
    • Invalidating the entire Affordable Care Act: Earlier this spring, a group of state attorneys general opposed to the health law filed a suit—Texas v. Azar—arguing that the repeal of the ACA individual mandate penalty in the recent Republican tax bill renders the entirety of the ACA unconstitutional. Families USA and a broad array of consumer organizations filed an amicus brief describing the lawsuit’s potentially devastating impact. In a shocking move, the Trump administration—the actual target of the suit—declined to defend the law’s protections for people with preexisting health conditions or who have been sick previously. This unprecedented refusal to defend federal law precipitated the public disavowal of the three career Justice Department lawyers working on the case and the resignation of the most senior of the three. The suit’s first step in the federal courts is with a highly partisan District Court judge. Various Republican elected officials have tried to downplay the threat to popular insurance protections for people with pre-existing conditions, noting that Justice Kennedy was not one of the five justices who upheld the constitutionality of the ACA in 2012. But this time the Solicitor General will apparently be arguing the other side.
    • Weakening ACA regulations that guarantee comprehensive coverage for people who buy coverage on their own or through associations: Three weeks ago, the Trump administration finalized a regulation allowing the sale of substandard junk plans to millions of Americans currently receiving comprehensive insurance in the individual and small group markets. The regulation exempts these plans from the requirement to cover the 10 essential health benefits and from limits on age rating of premiums or premium increases based on geography or gender as a way to avoid covering people with higher health care costs. This regulation manifestly exceeds the statutory authority: Under federal law, Association Health Plans are supposed to be insurance plans offered to member companies by business associations, like chambers of commerce, which have as their primary goal business functions entirely unrelated to health coverage. The administration’s final rule effectively ends those limitations and allows any fly-by-night operation to declare itself an association and begin selling loosely regulated pseudo-insurance. Several Democratic attorneys general immediately announced that they would sue to overturn the new, distorted reading of the statutory definition of Association Health Plans, a case that could easily end up in the Supreme Court.
  2. Rolling Back Access to Reproductive Health Care, Including Abortion and Contraception:Access to abortion, a vital health care service, is at risk most dramatically because the court could overturn Roe v. Wade or even revisit the right to privacy established by Griswold v. Connecticut. Justice Kennedy was famously the swing vote in multiple decisions maintaining the core holding in Roe. But abortion rights are also vulnerable if the Court allows greater state restrictions on the time or manner of abortions despite not overturning the decision in Roe. Furthermore, the federal courts are also the last line of defense against a broad assault via federal regulations and state legislation on women’s health providers who provide abortions as part of their broader service delivery. Instruments used against women’s health providers in these cases include denial of federal Title X family planning funds to Planned Parenthoodstate efforts to exclude Planned Parenthood and other providers who deliver abortions from their Medicaid programs; and various state laws placing onerous licensing requirements on women’s health providers in order to shut them down. Any or all of these attacks on women’s health could come to the Supreme Court.
  3. Cutting Health Coverage through Medicaid and Marketplace Waiver Authority:Section 1115 of the Social Security Act gives states the ability to modify their Medicaid programs to pursue demonstration projects that “promote the objectives” of the Medicaid program: that is, to better deliver health care to low-income, eligible people. A number of states currently have, or have applied for, Section 1115 waivers to reduce coverage for adults in the Medicaid program using new eligibility requirements, cuts to income eligibility or requirements to work or volunteer for a certain number of hours per week. None of these requirements is allowable under the Medicaid statute. Advocates and people who rely on Medicaid for life-saving health care have begun to challenge the approval of these waivers in federal court. On June 29, a District Court rejected the federal justification for approving Kentucky’s draconian waiver.  These legal challenges may well be appealed eventually to the Supreme Court. These go to the heart of whether there are enforceable statutory parameters for state operation of the Medicaid program. With the Trump administration likely to try to rework the Section 1332 state waiver authority in the marketplaces as well, the Supreme Court could be deciding on the scope of executive branch waiver authority across health programs covering almost 1 in 3 Americans.
  4. Deciding Whether Medicaid Access Standards Are Enforceable in Court:Federal law requires that states to “assure that payments … are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area.” Recently the Supreme Court has significantly restricted the ability to sue in federal court to enforce this legal standard. The Trump administration has proposed to cut back administrative oversight of rates and access in Medicaid, meaning that for some services there could be no administrative oversight or ability to enforce access standards in the courts. This is an area that the Court has taken on before and is likely to take on again, and one in which Anthony Kennedy has been a key swing vote.

Any or all these critical health care issues are likely to be decided by the Supreme Court in the near term.  As the Senate considers the Kavanaugh nomination, the fate of our health care system and millions of people’s ability to see a doctor when they need one hangs in the balance.