“Regardless of where you think the Chief Justice and Brett Kavanaugh are on these issues, the realignment means there may be four judges to their right,” said Yale Liberal Law Professor Abbe Gluck.
Democrats were looking for clues during this week’s hearings on how Barret would tackle abortion cases and the Trump-backed lawsuit against Obamacare. Much to the Democrats’ disappointment, she gave little guidance on how to govern, despite recognizing how legal doctrine could save Obamacare from his recent challenge.
Meanwhile, much of Trump’s broader health agenda is at stake in court, as is new controversy that may arise during the coronavirus pandemic. Just this week, JAMA health experts investigated whether plans to distribute coronavirus vaccines that prioritize vulnerable minority populations severely affected by the virus are a priority could face legal challenges. It is further expected that a pandemic-related abortion rules case that was rejected by the Supreme Court just last week could quickly move through the lower courts and come back before the judges.
A solid conservative bank is more likely to be able to uphold a court of appeals ruling that upheld Trump’s expansion of short-term health insurance plans, which are cheaper than Obamacare coverage, as they typically exclude protection from the law, including protection for pre-existing ones Conditions. A similar challenge involving another Obamacare alternative known as the Association’s Health Plans is still being led by the lower courts. Republican-appointed judges who examined these cases have dismissed challengers’ claims that health plans are invalid because they undermine Obamacare.
The Supreme Court is also widely expected to endorse the government’s position regarding the challenge to its rules, which cut federal family planning funds for planned parenting and other abortion providers. A conservative-minded panel of the 9th appeals court has allowed the policy to go into effect nationwide, while another appeals court has only blocked it in Maryland. Proponents of abortion rights have asked the Supreme Court to repeal Trump rules.
The court could also soon take up Trump’s “public indictment” rule, which would make it more difficult for legal immigrants to get green cards when using public services like Medicaid. The Supreme Court earlier this year allowed the rule to go into effect while ongoing challenges in the lower courts unfold. However, the administration asked the court to rule on the merits of the policy.
Barrett would be forced to withdraw from the Supreme Court review of the public charges as she previously ruled in favor of the administration on a lawsuit she heard in the 7th Circle Court of Appeals. In her ruling, which was rejected by the other two appellate judges, Barrett said the courts were not the place to settle what they believed was a political dispute.
There is no guarantee of which cases the Supreme Court could accept, but the vast majority of Conservatives will give them a huge advantage in setting the court record.
However, decisions by lower courts are taken into account in their decisions about which cases should be taken. Medicaid’s work rules, the effort signed by the Trump administration to reduce enrollment in the low-income health program, were rejected by two lower courts. These decisions indicated that the approval of the labor rules was “arbitrary and capricious” and did not adequately take into account how many people could lose cover as a result of these rules. This may make the administration’s challenge to these judgments less attractive to the Supreme Court, although judges tend to pay more attention to requests from the executive for review of cases. About 20 states, most of which are Republican-led, have received or sought permission from the Trump administration to enact working rules for some participants.
Conservative legal experts pointed out that the court’s Conservatives may be unfavorable about some of the health policies put forward by the Trump administration. Some of these, like an overhaul of Medicare payments to prevent hospital consolidation and rules forcing hospitals to disclose negotiated insurance rates, have bipartisan appeal but test the limits of executive power to force change through regulation. An administrative policy under which drug manufacturers are obliged to include prices in television advertising has already been criticized by two federal courts, according to which the health department is not authorized to do so.
“Some of the things the Trump administration tried were aggressive interpretations of legal authority,” said Jonathan Adler, a law professor at Case Western University. “It is unlikely that more conservative judges will find a favorable ear.”
Regardless of who wins the presidential election, the longstanding litigation over Obamacare’s “culture war” issues is likely to continue. The Trump administration’s recast of the law’s anti-discrimination provisions to remove care guarantees for transgender patients faces numerous challenges in the lower courts. This also applies to Trump rules, which would expand the protection of “conscience” for doctors and other providers who oppose performing certain procedures such as sex reassignment services and abortion.
If Joe Biden wins the presidency, he will seek to reverse much of Trump’s regulatory changes to the healthcare system. However, this will spark a new wave of legal challenges that will arise before a federal judiciary staffed with conservative Trump candidates.
“Everything goes to court in health care,” said Katie Keith, a law professor at Georgetown. “And you have to prepare for that.”