SCOTUS Nominee Kavanaugh’s Health Care Opinions Spotlighted

Published August 17, 2018

President Donald Trump nominated D.C. Circuit Court of Appeals Judge Brett Kavanaugh to fill retiring Justice Anthony Kennedy’s vacant seat on the Supreme Court, sparking speculation the nominee’s perspectives on controversial health care issues will play an important part in his confirmation hearing.

A Senate hearing may begin as early as September, before this year’s midterm elections.

Kavanaugh, who clerked for Kennedy from 1993 to 1994, served as a staff secretary and senior associate counsel for President George W. Bush. In announcing the nomination, Trump cited Kavanaugh’s “impeccable credentials” and “proven commitment to equal justice under the law.”

The July 9 nomination has garnered widespread attention from groups that foresee a potential shift in rulings on health care issues such as the constitutionality of the Affordable Care Act and the Court’s striking down of state abortion laws in Roe v. Wade. Abortion industry giant Planned Parenthood quickly responded to the nomination with a “take action” exhortation on its website homepage, urging people to tell their senators to reject Kavanaugh’s nomination, claiming he is “unfit to serve on the Supreme Court” with a track record of “anti-reproductive health care extremism.”


‘Best Person for the Job’

Gayle Trotter, an attorney and spokeswoman for the Judicial Crisis Network, says the assertions about Kavanaugh’s positions on health care are alarmist rhetoric and Kavanaugh’s past actions prove he’s an excellent choice for the position.

“Extremists and their allies in the Senate are doing a lot of scaremongering to make this confirmation process about one issue,” Trotter said. “But it’s really about putting someone on the bench who is fair and independent and who understands perfectly the role of judge, which is to remain faithful to the Constitution and follow the text of the law.

“Judge Kavanaugh’s track record clearly shows that he is the best person for the job,” Trotter said.


‘The Person the Court Needs’

Justin Haskins, executive editor and research fellow for The Heartland Institute, which publishes Health Care News, says health care is certainly within the purview of the Supreme Court in interpreting law, but the issue really belongs to the states.

“As we learned in 2012, when Justice John Roberts infamously ruled Obamacare’s individual mandate isn’t a penalty, fine, or fee but a tax, the Supreme Court has had and will continue to have a tremendous amount of influence in health care,” Haskins said. “It’s not a surprise, then, that many senators are concerned about Judge Kavanaugh’s views on the constitutional authority Congress has in regulating and controlling the health care market.

“But the Constitution is clear that all those powers not specifically granted to Congress in the Constitution—and ‘health care’ is mentioned nowhere in the Constitution—belong to the states and the people,” Haskins said. “It’s vital that whoever fills Justice Anthony Kennedy’s seat understand the limited role the federal government should play in health care, in accordance with the Constitution, and there are good reasons to believe Judge Kavanaugh might be just the person the court needs to move the country in the right direction on this and a number of other important issues.”