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5 Things to Know About SCOTUS Nominee Brett Kavanaugh's Healthcare Views

Samantha DiGrande
Here are 5 of Supreme Court nominee Judge Brett Kavanaugh’s opinions on heavily debated healthcare topics.
Here are 5 of Supreme Court nominee Judge Brett Kavanaugh’s opinions on heavily debated healthcare topics. 

1. The Affordable Care Act 

If Kavanaugh is confirmed, he and the court may have to consider a lawsuit by Texas and other states that challenges the Affordable Care Act (ACA)’s health insurance protections for patients with preexisting conditions such as cancer, diabetes, and Parkinson disease.

Supporters of the ACA: Some people have voiced concern that Kavanaugh has publicly discussed fears about how broad the ACA can be and have also noted that he may be the deciding vote on whether Americans with preexisting conditions will continue to receive healthcare. 

Critics of the ACA: In 2011, Kavanaugh wrote a narrowly focused dissent from the appeals court’s decision that upheld the law. He did not dissent because he thought the law was unconstitutional; rather, he thought the court lacked the jurisdiction to consider the question according to the Anti-Injunction Act. In the dissent, he wrote that the ACA is “unprecedented” in US history and warned that upholding it would “usher in a significant expansion of congressional authority with no obvious principled limit.”

2. Right to Try Laws

Supporters of Right to Try: In May 2018, President Trump signed a version of a right-to-try bill into law, allowing terminally ill patients a pathway for accessing unapproved drugs. In a statement during the signing, the president promised it would help many patients get faster “access to experimental treatments that could improve or even cure their conditions.”

Critics of Right to Try: In 2007, Kavanaugh was among an 8-2 majority when the DC Circuit Court upheld a ruling that terminally ill patients did not have a constitutional right to access unapproved drugs. Kavanaugh sided with the FDA, and the Supreme Court later declined to hear an appeal.

3. The FDA

Critics of the FDA: Cytori Therapeutics sued the FDA in 2013 after the agency denied fast-tracking the approval of 2 devices for the extraction of stem cells from fat tissue, stating that the company needed to conduct extensive clinical research as part of a premarket approval. Cytori argued the claim that the product was similar to another device already approved on the market, which required less testing.

Supporters of the FDA: Kavanaugh sided with the FDA, stating that the “FDA concluded and explained that fat is not blood and that the difference matters. A court is ill-equipped to second-guess that kind of agency scientific judgment.” 

4. Abortion Rights

Supporters of access to abortion: Certain supporters of the landmark 1973 Supreme Court decision Roe v Wade are concerned that Kavanaugh could overturn or threaten the right to abortion access for women, though many have also agreed that it may not come down exclusively to Roe v Wade.

Critics of access to abortion: In a speech in 2017, Kavanaugh stated his support for the late Chief Justice William H. Rehnquist’s dissent in Roe v Wade. In his dissent, Rehnquist wrote that the Bill of Rights did not include a specific right to abortion, and that a new “unenumerated” right should only gain constitutional status if it was “rooted into the traditions and conscience of our people.” Further, Rehnquist also wrote that he believed the states had the power to legislate with regard to abortion rights.

5. Big Pharma

In a recently decided case, the Federal Trade Commission v Boehringer Ingelheim (BI), the FTC alleged that a 2008 patent negotiation between BI and generic manufacturer Barr which ended in a reverse payment settlement was violation of antitrust laws. The FTC sued BI over the settlement, and subpoenaed documents related to the arrangement, which the court then ruled were covered by attorney–client privilege.

Supporters of Big Pharma: Kavanaugh agreed with the District Courts decision, stating that “The attorney-client privilege applies to a communication between attorney and client if at least ‘one of the significant purposes’ of the communication was to obtain or provide legal advice. Under that standard, the attorney-client privilege applies to the documents at issue here.”

Critics of Big Pharma: Some critics of the practices of Big Pharma have alleged that certain companies are taking part in “pay-for-delay” schemes in order to maintain a monopoly on the market with the exclusivity of its drug. However, Kavanaugh’s opinion was not specific to industry-wide issues.

 
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