Analysis: What the Supreme Court Appointment Could Mean for Health Care

By Heather Boerner
November 8, 2018

As Congress confirmed Brett Kavanaugh to the Supreme Court after a bitter partisan battle, physicians on both sides of the aisle spoke up for their patients and practices.

William B. Jordan, MD, MPH, had had enough. He’d been following the changes to health laws under President Donald Trump’s administration, and he watched with dismay as Justice Anthony Kennedy announced his retirement from the U.S. Supreme Court.


Heather Boerner

In August, he joined his colleagues in the National Physicians Alliance, a multispecialty nonprofit organization advocating quality health care for all, in signing a letter to leaders in Congress, urging them to “carefully consider the stakes to our health care system and for millions of people’s ability to access care” as they considered the eventual confirmation of Justice Brett Kavanaugh to the highest court in the land.

“In the coming years, the Supreme Court is likely to hear cases that involve basic pillars of our health care system,” states the letter, which was co-signed by 63 other organizations. “Adverse decisions in these cases would jeopardize the health care of millions of people.”

Key issues include access to health care for people with pre-existing conditions; access to reproductive health care, including contraception; work requirements and other limitations on Medicaid, and the rights of consumers and others to sue in court over alleged violations to federal Medicaid requirements.

And while many physicians support those changes, the physicians who seem to be leading discussion on the issue are those who see a right-leaning Supreme Court as a threat to their ability to deliver care.

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“I’ve seen firsthand how policy impacts patients’ lives day to day, and how trying to solve someone’s problems by trying to adjust dosages doesn’t address the real problems,” Jordan, who spent nine years at a community health clinic and now serves as clinical assistant professor at Albert Einstein College of Medicine in New York, said before the confirmation. “There are some Supreme Court nominees that would defend the rights to access health and health care. But I’m worried that this nominee is particularly someone who would accelerate the dismantling of health care.”

‘Pursuit of Life’ — But Not Health

The Supreme Court is an interesting place to hash out health care policy, because, according to a 2017 paper in the Journal of Health Politics, Policy and Law, “the U.S. Constitution is silent about health.”

“The Constitution has no general protection for individuals’ ‘pursuit of health,’ ” writes Mark Hall, director of Health Law and Policy at Wake Forest University in North Carolina, in the review. “As constitutional lawyers put it, our Bill of Rights is a charter of negative, not positive, liberties, meaning that the government constitutionally owes us nothing as long as it leaves us alone.”


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And yet the court is often where health care decisions, practice and access are determined. Roe v. Wade and the passage and subsequent challenges to the Affordable Care Act are obvious examples, but there are less-obvious ones as well. For instance, by refusing to hear Simkins v. Cone in 1963, the court essentially upheld the lower court’s ruling that segregation in health care is illegal.

Meanwhile, 2001’s Alexander v. Sandoval found that individuals can sue only for poor treatment based on race if that discrimination is intentional — so-called “disparate treatment.” Left out of that were policies that aren’t explicitly discriminatory, such as doctors who sterilize all women after their third child but are likely to result in more black women being sterilized against their will (“disparate impact”). In this way, Hall states in his piece, the court has upheld the rights of physicians to refuse treatment in a way that lays the groundwork for current discussions about moral objections to providing access to contraception; abortion; transgender and lesbian, gay and bisexual health care; and care for people with HIV.

Kavanaugh and His Philosophy

Much has been written about Kavanaugh’s past rulings. He’s written opinions against the ACA’s individual mandate; he’s ruled that the ACA’s contraception mandate violates religious freedom but added that insurers for religious organizations can continue to cover it despite an employer’s objection. He also ruled that the government “has permissible interest in favoring fetal life, protecting the best interests of a minor and refraining from facilitating an abortion,” but that those interests shouldn’t impose an undue burden on a woman who wants an abortion.

Timothy Jost, law professor emeritus at Washington and Lee University in Virginia, says he doesn’t see Kavanaugh “as a bomb thrower” who is going to “grab the first abortion case and reverse Roe v. Wade,” but there’s still lots of room to roll back access.

“ ‘Undue burden’ is a huge hole you can drive anything through,” he says. “So if you require 10 doctors to sign off on an abortion and a four-week waiting period and make them see all these movies — that might not be an undue burden [to the court]. I could see him expanding limitations that way. Or on Medicaid lawsuits, perhaps not holding that Medicaid laws prohibiting work requirements are unconstitutional but holding that Medicaid patients can’t sue in court to enforce Medicaid’s statutes.”

A Rightward Shift

Although Congress has confirmed Kavanaugh, it was likely that anyone nominated by the Trump administration would have replaced Kennedy’s swing vote with a conservative one  which will have a commensurate impact on patients and physicians.

In addition to cases on conscience clauses, Medicaid work requirements and women’s health care services, including contraception and abortion, Jost says the Supreme Court is likely to hear cases on periods of exclusivity on drug patents; cases related to the Employee Retirement Income Security Act and how companies administer pensions and health insurance plans; and antitrust and consolidation laws that could influence health care systems.

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It’s also possible that the court will be asked to decide Medicare and Medicaid fraud cases, says Bruce Howell, attorney in the health care industry group of Oregon-based law firm Schwabe Williamson & Wyatt and co-founder of the American Bar Association National Board of Health Lawyers. These qui tam cases protect whistleblowers for a year or more as they investigate charges that a medical system or practice knowingly based their Medicare billing on erroneous statements, thereby defrauding the government of millions of dollars. If found guilty of any violation, previous practice had been to levy massive fees for every infraction.

Two years ago, the Supreme Court upheld the legality of treating every claim submission by a physician to Medicare as a certification of truth that everything within it, including the statements underlying the submission. But it also found that errors or false statements underlying a claim might not matter — that is, they might not be significant enough to trigger fines. That ruling has led to several other cases seeking to establish what is actually germane to the False Claims Act, and what will trigger fines of millions of dollars or more.

“The whole thing is going back to the Supreme Court, probably,” Howell says. “Some of it may start next term.”

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But the biggest cases the court is likely to hear could invalidate the remaining provisions of the Affordable Care Act. One case in Texas seeks to eliminate the mandate for coverage of pre-existing conditions — which Jost says is something every physician should be watching.

“In the last eight years since the passage of the ACA, we’ve seen a fairly dramatic reduction in the number of uninsured patients, which means that doctors are more likely to get paid for the work they do,” Jost says. “So, to the extent that the Supreme Court would, for example, in the case in Texas right now, invalidate the pre-existing condition guarantee, you would see a lot of patients with pre-existing conditions who no longer have coverage but still need care. And that would almost certainly end up as bad debt for physicians.”

Friend of Court, Advocate for Patients

It might be no surprise, then, that as these cases find their way through the court system, physicians and their associations are speaking up.

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Just in the past few years, just about every medical association has issued an amicus brief on one case or another. The Association of American Medical Colleges issued one to support the injunction against the so-called Muslim travel ban. The American Hospital Association filed a brief in support of the ACA, one against consolidation and another in support of the 340B drug discount program. The American Medical Association filed one on the Texas ACA case.

And a consortium of organizations — the American College of Obstetricians and Gynecologists, the AMA, the American Osteopathic Association, the American Academy of Pediatrics, the American Academy of Family Physicians — issued a brief opposing a Texas abortion law.

The list goes on. For Jordan, this kind of advocacy and leadership makes sense. In addition to having served on the board of the National Physicians Alliance, he also coordinates a local group for physicians to interact and support programs and legislation that support their patients.

“I’ve had patients in the past who worked two jobs, 80 hours a week, to make ends meet and support their families,” he said. “They don’t necessarily have time to show up for rallies or to lobby people in Congress. As a health professional who is in a privileged place, it’s my responsibility to speak out.”

Heather Boerner is a freelance health care writer based in Pennsylvania. She covers health law and policy for the Physician Leadership Journal.

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