The sudden, though not altogether surprising retirement of
Supreme Court Justice Anthony Kennedy has created a great deal of fear and
anxiety among HIV advocates and our allies regarding the composition of the
Supreme Court. Based on the short list of 25 potential nominees put forth by
the Federalist Society and used by President Trump in his deliberations, HIV
advocates knew that whoever was chosen as the Court's newest prospective member
would almost certainly be less likely to rule in ways that were as beneficial
to people living with and affected by HIV as Justice Kennedy, who has occupied
the role of the Supreme Court's moderate swing vote in recent years and wrote
majority/plurality opinions in Obergefell vs. Hodges and Casey vs.
Planned Parenthood, which made same-sex marriage the law of the land and
helped reaffirm a woman's right to choose.
After President Trump's primetime, televised selection of DC
Circuit Court Judge Brett Kavanaugh as nominee to succeed Justice Kennedy on
the high court, the primary question on the minds of most HIV advocates was, how
will this guy impact people living with HIV? The short and honest answer to
that question is that we don't know how Kavanaugh's appointment to the Supreme
Court would impact people living with HIV. The longer and more speculative
answer is that, based on 12 years' worth of his opinions on the DC Circuit
Court and his personal statements, it is exceedingly unlikely that his decisions
on the bench would be beneficial to people living with HIV.
Using a metric that converts judges' rulings into a score
along an ideological spectrum, Kavanaugh would be more conservative than
President Trump's first appointee, Neil Gorsuch, and would rival
Justice Clarence Thomas as the most conservative judge on the Court. With
that being said, Kavanaugh was not the most conservative judge being seriously
considered by President Trump in recent weeks and a number
of conservative pundits and policymakers have expressed concerns that he
might be too moderate for their tastes. In their minds, Trump should have
chosen someone who was more stridently anti-abortion and overtly religious,
like Amy Coney Barrett, a United States Circuit Court Judge in the 7th
Circuit Court of Appeals who emerged as the darling of the far right and social
conservatives during the nomination process.
Based on his past decisions, it's clear that Kavanaugh is
not a fan of the Affordable Care Act, but it also uncertain to what degree he
would be comfortable ruling to overturn the law. In 2011, Kavanaugh wrote the
dissenting opinion in a case before the DC Circuit Court on the
constitutionality of the ACA's individual mandate, not because he thought
the individual mandate was unconstitutional, but because he thought the court
lacked the jurisdiction to consider the question. In fact, Kavanaugh wrote in
his dissent that he believed a “minor tweak to the current statutory language”
by Congress could enable the individual mandate to fit “comfortably within
Congress's Taxing Clause power.” A year later, Chief Justice John Roberts would
use similar reasoning—namely viewing the individual mandate as a taxation
issue—to uphold the majority of the ACA. With that being said, Kavanaugh also
wrote in the same opinion that he was worried that the ACA could, "usher
in a significant expansion of congressional authority with no obvious
principled limit," going so far as to speculate about the government using
their authority to imprison individuals who fail to purchase health insurance.
Kavanaugh's stated fears about the expansive reach of the
ACA has led Congressional Democrats to openly worry about how he would rule
should a case concerning the constitutionality of the health care law like Texas
vs. Azar come before the Supreme Court. In remarks earlier this week, Senator
Chris Coons (D-DE) remarked that “The fact that Judge Kavanaugh went out of
his way to talk about his fears about how broad the ACA may be...tells you that
if you have pre-existing conditions, you are in the crossfire right now.”
While Kavanaugh's appointment to the Supreme Court might not
spell the end of the ACA—after all, Kennedy was one of the 4 justices to
dissent in the case that upheld the ACA's constitutionality—it could certainly
lead to the chipping away at protections for millions of Americans who benefit
from it, particularly where Medicaid expansion is concerned. It is not a
stretch to think that a Supreme Court Justice Kavanaugh would vote in favor of
the Department of Health and Human Services and uphold the legality of their
onerous and discriminatory Medicaid work requirements or to green light the
Trump administration's incredibly damaging association health plans that would
drive up premiums for people living with HIV.
The bottom line is that a Supreme Court Justice Brett
Kavanaugh would put a laundry list of rights and laws that are vital to people
living with and impacted by HIV on the chopping block. It is unclear, based on
his past decisions, if Kavanaugh would overturn Roe vs. Wade or, but
reproductive rights advocates speculate that, at the very least, he would rule
in ways that would make it increasingly more difficult for women to access
abortion. And, while he has received a somewhat tepid reception from many of
the far religious right over his track record on issues related to “religious
liberty” his 2015
dissent against the ACA's contraceptive mandate for religious employers is
troublesome to say the least. Hopefully, Kavanaugh's confirmation hearings will
shed a little more light on his judicial intentions.
Posted By: AIDS United, Policy Department - Friday, July 13, 2018
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