Republicans have been on a relentless war on health care, wielding legislation, executive action and litigation as weapons in their war on the protections that prevent insurance companies from charging women, people over age 50 and people with pre-existing conditions more for health care — and on Medicaid.
Here’s how confirmation of Judge Brett Kavanaugh to the Supreme Court could wreak havoc on Medicaid:
1. Kavanaugh Could Allow States To Restrict Enrollment Through Onerous Work Requirements designed to make it harder for people to get the coverage they need. As a lawsuit against Kentucky Governor Matt Bevin’s work requirements makes its way through the courts, President Trump’s next Supreme Court justice could rule on them, shifting Medicaid’s role away from its core purpose of providing health care to the most vulnerable Americans.
- Abbe Gluck, Yale Professor Of Health Law, Could See Kavanaugh Opening The Door To More Restrictions On Medicaid: “We don’t know very much about how Judge Kavanaugh will approach work requirements…It’s unclear to me how deferential he would be to the CMS. I could see him opening the door to more restrictions on Medicaid.”
2. Kavanaugh Could Prevent Medicaid From Covering Health Care At Planned Parenthood. Several states have taken to excluding Planned Parenthood from their Medicaid programs. In those states, Planned Parenthood is fighting back. If Kavanaugh, who just last year forced a young woman to continue a pregnancy despite her will, is confirmed, he could prevent Medicaid from covering life-saving preventive health services, such as cancer screenings, at Planned Parenthood.
3. He Could Deny Individuals And Providers The Right To Sue When A State’s Medicaid Program Isn’t Complying With The Law, Which Experts Suggest Will Enable States To Decimate Their Medicaid Programs. As Axios has reported, conservatives on the Supreme Court including Justice Clarence Thomas and the late Antonin Scalia have argued that because Medicaid is a contract between states and the federal government, individuals and providers do not have the right to sue for entitlements the statute requires.
- Cases Involving Providers’ and Patients’ Right To Court Are Working Their Way Up To The Supreme Court, including one case in which an appeals court ruled that Planned Parenthood does not have the right to sue Arkansas over its Medicaid program.
- Timothy Jost, Law Professor At Washington And Lee, Thinks Kavanaugh Could Make A Huge Difference In Cases Involving The Rights Of Poor People To Sue To Enforce The Medicaid Statute: “Where I do see Kavanaugh making a huge difference is in cases involving the rights of poor people to sue to enforce the Medicaid statute.”
- If The Right To Sue Goes Away, George Washington University Law Professor Sara Rosenbaum Warns States May Start Hacking Away At Medicaid. She says, “it’s certainly possible that a state would start hacking away at its program. There would be no deterrence at all.”
4. He Could End Medicaid Expansion. The Affordable Care Act enabled states to expand access to Medicaid for people earning up to 138 percent of the federal poverty line. Should the Affordable Care Act come before the Supreme Court, Kavanaugh, who has previously criticized Justice John Roberts for voting to uphold the ACA, could vote to end the law and its Medicaid expansion.
- Trump’s Justice Department Has Already Backed A Texas Lawsuit Challenging The Legality Of The Affordable Care Act, And Prominent Republican Leaders Have Assured That The ACA Will Continue To Be Litigated. Senator Orrin Hatch said, “The Affordable Care Act is one of the broad, inclusive bills that you’ll ever see. And anybody who thinks it’s not going to be litigated sometime in the future is nuts.”
Why this matters: Medicaid is how one in five Americans have health insurance. If confirmed, Brett Kavanaugh could be a key player in sabotaging the program and threatening coverage for children, older adults, people with disabilities, people struggling with addiction, in states across the country.