In 2011, Judge Kavanaugh wrote a dissenting opinion on Seven-Sky v. Holder, noting that the ACA’s individual mandate was in fact a tax and that the court could not hear questions about the law’s constitutionality because the tax had not been levied.
That dissenting opinion could become germane in the currently debated Texas v. Azar, which looks destined to reach the high court.
In Texas v. Azar, the Department of Justice has refused to defend the ACA and is siding with Texas and 19 other states. Texas and 19 other states in the case contend that the penalty for not carrying health insurance under the individual mandate is a tax; however, since the penalty was reduced to zero by the Tax Cuts and Jobs Act of 2017, the plaintiffs argue that the individual mandate is unconstitutional. They further contend that the ACA provisions of guaranteed issue and community rating are inseverable and should be eliminated as well.
If confirmed, Judge Kavanaugh’s views that the penalty for the individual mandate is in fact a tax could shift the Supreme Court’s majority view, further putting the law in jeopardy.
Judge Kavanaugh currently serves on the U.S. Court of Appeals for the District of Columbia Circuit, he was appointed by President George W. Bush and has held the position since May 30, 2006. He previously served as White House staff secretary for nearly 3 years.
As an attorney, he had a lead role in drafting the Starr Report, which recommended impeachment of President Bill Clinton.
Judge Kavanaugh will face a contentious confirmation process. In addition to health care, abortion rights will be front and center to the debate as moderate Republican senators who are proponents of abortion rights may not support his nomination. The GOP currently holds a slim 51-49 majority in the Senate, but with the medical absence of Sen. John McCain (R-Ariz.), the majority party may only have 50 members present to vote, meaning only one GOP vote against Judge Kavanaugh could deny his confirmation.
Judge Kavanaugh does not have a stated position on Roe v. Wade; however, his dissenting opinion in Garza v. Hargan questioned whether the government should be involved in provisioning abortions for undocumented immigrant minors.
That opinion is a reason Physicians for Reproductive Health have come out against Judge Kavanaugh’s nomination.
“The Trump administration has already enacted numerous policies restricting access to vital reproductive health services, including contraception, abortion, and maternity care, and will continue to chip away at health care access,” Willie Parker, MD, board chair of Physicians for Reproductive Health, said in a statement. “This nominee will harm not only abortion rights, but will imperil other fundamental rights as well.”
Senate Majority Leader Mitch McConnell said in a statement that Judge Kavanaugh “understands that, in the United States of America, judges are not unelected super-legislators whom we select for their personal views or policy preferences. A judge’s duty is to interpret the plain meaning of our laws and our Constitution according to how they are written. Judges need to be unbiased. They need to treat all parties fairly. They need to approach every case with open ears and an open mind. Judges’ decisions must turn on the facts of each case and be based on the texts that it is their job to interpret. By all accounts, Judge Kavanaugh is precisely that sort of judge.”