Brett Kavanaugh, President Donald Trump’s pick to replace Supreme Court Justice Anthony Kennedy, has a long judicial record that will be scrutinized as he prepares for congressional questioning for approval. His record on healthcare will likely be thrust into the spotlight, as several cases involving the Affordable Care Act, abortion and Medicaid make their way through lower courts.
Kavanaugh, 53, served as a judge on the D.C. Appeals Court for 12 years and crossed paths with the ACA in at least two cases.
Individual mandate challenge
One lawsuit took aim at the individual mandate, challenging the requirement that Americans purchase and maintain healthcare insurance at risk of facing a financial penalty.
While Kavanaugh didn't take a position on the mandate itself, he maintained that it should be treated as a tax and could not be challenged in court before it went into effect.
“Kavanaugh, citing the federal Anti-Injunction Act, said the courts should not entertain taxpayers' lawsuits over a tax until they've had to pay it,” Axios reported.
A second case challenged the constitutionality of the ACA, because legislation that effectively raise revenues must originate in the House, while the ACA was mostly completed in the Senate. Kavanaugh ruled that the ACA procedure was permissible.
In 2007, Kavanaugh, among an 8-2 majority in the D.C. Circuit Court, ruled that terminally ill patients had no constitutional right to access to unapproved drugs, siding with the FDA in a lawsuit, STAT reported.
President Trump recently signed a “right-to-try” bill into law that allows terminally ill patients access to experimental drugs not fully approved by the FDA.