What if access to health care for 130 million Americans and at least 229,000 Mainers with pre-existing conditions rested in the hands of one person? What if access to the full range of reproductive health services rested in the same hands?
This is the situation with President Donald Trump’s nomination of Judge Brett Kavanaugh to the U.S. Supreme Court.
Kavanaugh’s confirmation would give the Supreme Court’s reactionary wing a majority, making the court a regressive, activist body ready to strike down legislation and longstanding precedents upon which Americans rely. While Consumers for Affordable Health Care has not previously taken positions on judicial nominees, we are compelled to forcefully oppose his nomination.
Kavanaugh has demonstrated deep skepticism of the Affordable Care Act, which provides health insurance to approximately 20 million Americans and more than 77,000 Mainers. Dissenting in Seven-Sky v. Holder, a 2011 appeal to the U.S. Court of Appeals for the District of Columbia Circuit challenging the constitutionality of the individual mandate, Kavanaugh described the health care law as “unprecedented on the federal level.” He also wrote the president “may [under the Constitution] decline to enforce a statute that regulates private individuals when the President deems the statute unconstitutional, even if a court has held or would hold the statute constitutional.”
This position has profound implications for millions of Americans, particularly as the Trump administration has sought to undermine the Affordable Care Act.
Under the health care law, insurance companies cannot discriminate against people with pre-existing conditions — regardless of whether their coverage is acquired through the law’s marketplace, private health insurance or an employer. Yet in June, the Trump administration announced it would not defend the Affordable Care Act against a lawsuit (Texas v. Azar) challenging its constitutionality. If it is struck down, access to health care will be jeopardized for 130 million Americans, including 229,000 Mainers, with pre-existing conditions.
Kavanaugh is equally suspicious of the legal precedents supporting reproductive freedom. In a speech last year, he praised the dissent in Roe v. Wade, the 1973 decision that decriminalized women’s access to abortion services. Kavanaugh recently attempted to interfere with a detained immigrant minor’s constitutional right to terminate her pregnancy (Garza v. Hargan).
The decision in Roe derived from two earlier cases. In Griswold v. Connecticut (1965), the Supreme Court held that the state’s prohibition on birth control violated a right to privacy. Justice William Douglas wrote: “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives?”
In Eisenstadt v. Baird (1972), the court extended protections to unmarried people. Justice William J. Brennan wrote: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” In Roe v. Wade, the court extended the right to privacy to include abortion.
Publicly, Kavanaugh has conveyed respect for Supreme Court precedent. Those who take this position to mean he would not vote to overturn Roe or any other precedent are either naive or disingenuous. While lower court judges are constrained by precedent, Supreme Court justices are not.
At Consumers for Affordable Health Care, we believe the Affordable Care Act and its protections for people with pre-existing conditions are integral to the proper functioning of the law. We also believe the Supreme Court got it right in Griswold, Eisenstadt and Roe.
Each year, we help thousands of Maine people find, understand and use health insurance, fielding thousands of calls from people who benefit from the Affordable Care Act’s protections for people with pre-existing conditions, as well as other benefits, such as coverage for preventive care, maternity care, birth control, mental health care, lab tests, prescription drugs and emergency room visits.
We can stop Kavanaugh’s appointment to the Supreme Court. The effort will require everyone who cares about the Affordable Care Act, its consumer protections and reproductive freedom to speak up. Now. Contact Sens. Susan Collins and Angus King to register your opposition to Kavanaugh’s appointment to the Supreme Court.
Julia M. Underwood is the associate director for Consumers for Affordable Health Care, a Maine nonprofit with the mission to improve access to quality and affordable health care for all people living in Maine.
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