Supreme Court nominee Brett Kavanaugh could deal death blow to Obamacare

With the nomination of Judge Brett Kavanaugh to the Supreme Court, President Donald Trump has now engaged all three branches of government in his fight to get rid of the Affordable Care Act and protections for people with pre-existing health conditions.

Kavanaugh made clear last year in a speech at the Heritage Foundation that he thinks the court was wrong to uphold the ACA’s insurance mandate as constitutional. He has also said a president should be allowed to not enforce components of a law if he personally deems it unconstitutional (encouragement this president doesn’t need). There couldn’t be a more in-your-face threat to the ACA than from a Justice Kavanaugh.

In pursuit of his goal to kill the ACA, Trump first tried Congress — making repeal the principal thrust of his first year in office. But legislators pay attention to popular opinion. And provisions that guarantee coverage for people with medical conditions and offer Medicaid to millions of lower income Americans turned out to be immensely important to the public. At least for this Congress, the legislative route to repealing the ACA failed.

Next Trump turned to administrative solutions, or as he calls it, “gutting” the ACA. Here, the list of his sabotage efforts is long. Trump has already cut funds to communicate with the public by 90 percent; introduced “junk” plans which can exclude coverage for pre-existing conditions and make ACA policies more expensive; cut off “cost sharing reduction” payments to help low income people pay for coverage; and just last week without warning or good reason, stopped billions in “risk adjustment payments” that help insurers pay for covering sicker people. 

While we are likely not done with the sabotage, the effect of these administrative “solutions” so far seems to be increasing premiums for millions of Americans, while leaving the ACA strong enough to still cover millions and millions.

So the judicial branch is Trump’s best hope to finally repeal the ACA and pre-existing condition protections. And the timing couldn’t be better for the Trump administration. It has just decided not to defend a case brought by Republican states that would dismantle the law and coverage requirements for people with pre-existing conditions, increasing the likelihood that it ends up at the Supreme Court. No matter that the case is widely considered to be frivolous; this is what the spoils of Supreme Court appointments are for. 

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So on top of the docket of cases he is likely to face on limiting access to birth control or reproductive rights, a Justice Kavanaugh could deal the death blow to pre-existing condition protections — a single, unelected arbiter of what Congress and the president could not do. 

And the cases will come. While Barack Obama was president, and nothing attacking health care rights could get past his desk, the courts were the principal means of trying to overturn the ACA. Yet even a right-leaning court led by Chief Justice John Roberts found these attempts to exploit drafting errors and reinterpret meanings were not convincing.

But that was a different court.

As a prominent judge, Kavanaugh took the unusual step of publicly airing in his Heritage speech his view of how the court should have ruled on the ACA. It was easy to read as a job interview on a matter of importance to the president.

New challenges to the health law have a good chance of ending up in front of the court in one of the next two terms. Kavanaugh’s appointment would be an open invitation to hear such cases — an invitation Sen. Orrin Hatch, R-Utah, appeared to make when he saidthis week after meeting with Kavanaugh that the ACA is “going to be litigated.”

Attacking the ACA may be a partisan Republican idea, but it isn’t a conservative one. The ACA is established law and insurance exchanges and consumer protections are enshrined in statute and regulated by states. Conservative jurists like Chief Justice John Roberts or retiring Justice Anthony Kennedy, regardless of how they may feel about the ACA politically, recognized that and prevented the courts from overstepping their bounds. Kavanaugh cannot be counted on to do the same.

Rarely has a Supreme Court nominee been so closely associated with a past and likely future ruling that affects so many. Any senator, Democrat or Republican, who is concerned about the court becoming a political vehicle for changing health policy, ought to be deeply troubled by Kavanaugh’s nomination. Their constituents, the public at large, should be clear-eyed about the stakes: A vote to confirm Kavanaugh could be the final straw, the one that ends their access to affordable health care.

Andy Slavitt, board chair of United States of Care and a member of USA TODAY’s Board of Contributors, is a former health care industry executive who ran the Affordable Care Act and the Centers for Medicare and Medicaid Services from 2015 to 2017. Follow him on Twitter: @ASlavitt 

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