Policy

Kavanaugh’s Health Care Positions Hint at Future Abortion Views

Trump’s pick said 2010 health care law was a substantial burden on religious employers

Protesters gather outside the Supreme Court in June. President Donald Trump’s latest nominee to the court has the support of anti-abortion groups and could play a key role in attempts to overturn Roe v. Wade. (Tom Williams/CQ Roll Call file photo)

The prior positions on health care cases by Brett Kavanaugh, President Donald Trump’s pick for the Supreme Court, hint at his potential future positions if confirmed to the court.

Kavanaugh, a conservative judge for the U.S. Court of Appeals for the D.C. Circuit, has the support of anti-abortion groups and could play a key role in attempts to limit or overturn the 1973 landmark Roe v. Wade case, as a number of abortion cases make their way through the lower courts. Roe v. Wade upheld the constitutional right to an abortion, with the court finding that a right to privacy extended to a woman’s right to an abortion.

Kavanaugh is an active member of The Federalist Society, a group that had been helping Trump with his list of candidates. The group’s executive vice president, Leonard Leo, is also a board member of the anti-abortion group Students for Life of America.

Last year, in the high-profile federal case Garza v. Hargan, which considered whether an undocumented immigrant minor should have access to an abortion, Kavanaugh dissented.

“The en banc majority, by contrast, reflects a philosophy that unlawful immigrant minors have a right to immediate abortion on demand, not to be interfered with even by Government efforts to help minors navigate what is undeniably a difficult situation by expeditiously transferring them to their sponsors,” Kavanaugh wrote.

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In a separate case filed in 2015, Priests for Life v. Department of Health and Human Services, a Catholic organization filed suit against the Obama administration related to a mandate in the health care law that required most employers to cover contraception. Under the policy, religious nonprofits are able to apply for an accommodation by notifying the government or their insurance provider that they object to covering birth control on religious grounds.

The plaintiffs argued that this paperwork violated their rights under a 1993 religious freedom law that requires strict scrutiny to be used to determine if the Free Exercise Clause of the First Amendment has been violated.

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Kavanaugh stated in his dissent that the 2010 health care law’s religious accommodation to the birth control policy placed a substantial burden on religious employers’ beliefs even “if the religious organizations are misguided in thinking that this scheme … makes them complicit in facilitating contraception or abortion.”

Before becoming a federal judge, Kavanaugh contributed in 1999 to candidates who oppose abortion including Republican Sen. Orrin G. Hatch of Utah and Henry J. Hyde, a former Illinois GOP House member.

Possible cases to come

Kavanaugh could play a pivotal role in deciding future cases related to abortion and the continuation of the major health care law.

Retiring Justice Anthony Kennedy played a key role in abortion cases over his tenure, joining the plurality in cases such as Whole Woman’s Health v. Hellerstedt and Planned Parenthood v. Casey.

One case that could affect abortion might come if Indiana decides to appeal a 7th Circuit Court of Appeals decision that ruled that the state could not ban an abortion after a Down syndrome diagnosis. Another case to watch, a challenge to a state law that would ban a common second trimester abortion method known as dilation and evacuation, could emerge from the 5th Circuit in Texas.

Kennedy also joined the plurality in upholding provisions of the 2010 health care law in King v. Burwell, which ruled that individuals who purchase insurance from the marketplaces are entitled to tax subsidies to help them purchase their insurance regardless of whether the state or federal government runs an exchange in the consumers’ state.

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In February, 20 state attorney generals filed suit in Texas et al. v. U.S. et al., in an attempt to enjoin the 2010 health care law. The suit alleges that the law’s individual mandate, which required most Americans to get coverage, was crucial to the viability of the health care law. The tax law last year effectively repealed the individual mandate by eliminating the penalty for it. That takes effect next year.

Hundreds of health plans are also suing the administration over one of the law’s programs, known as risk corridors, that stabilize profits between plans that enroll sicker-than-expected members and those that end up with healthier-than-expected members. An appeals court recently shot down the lawsuit, but the insurers are expected to file for a re-hearing in a case with implications for more than $12 billion in federal payments.

It is possible that one of these cases could be decided by the Supreme Court.

Senate Majority Leader Mitch McConnell has said the Senate will vote on the nominee this fall before the midterm elections.

Lauren Clason contributed to this article.

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