Supreme Court Justice Kennedy’s decision this week to retire will set in motion a battle royal to fill his seat. Many are focused on the implications of a stacked conservative court for abortion rights, but a new right-wing justice handpicked by Trump likely will also reach much further into healthcare issues. We need to start thinking about what Kennedy’s retirement means for Medicaid work requirements, Medicaid expansion, and even the very legality of the Affordable Care Act (ACA).
Kennedy became a reluctant but staunch defender of Roe v. Wade in his time on the Court, and Trump is certain to appoint a far-right justice hand-picked by pro-lifers. And as a Republican Senator said this week, “not even Trump can screw this up.” The Court could get an opportunity to address abortion quickly. In addition to a lawsuit against an Iowa bill banning abortion once a heartbeat is detected, suits are pending over a state prohibition at 15 weeks of pregnancy as well as state regulations of abortion providers. Recently, the Court turned down opportunities to revisit Roe by declining cases that challenged states’ laws to make abortion illegal after 20 weeks of pregnancy.
Just today it was announced Kentucky lost in federal district court on the legality of its proposed draconian Medicaid work requirements. This was a huge victory for Medicaid beneficiaries and their health plans and advocates alike…until we consider the likelihood the case will now end up at the Supreme Court, where its outcome without Kennedy’s moderate position is very much in question. Kentucky was the first of four states that won the Centers for Medicare & Medicaid Services (CMS) approval this year to advance a work requirement, a fundamental change in Medicaid’s 53-year history: Arkansas, Indiana, and New Hampshire. It’s unclear if this federal court ruling invalidates the other states’ work requirement plans. Seven more states have work requirement proposals pending with CMS: Arizona, Kansas, Maine, Mississippi, Ohio, Utah, and Wisconsin.
Earlier this month, a Maine state judge ordered its Trump “mini-me” Governor LePage to implement Medicaid expansion after an overwhelming vote on a state ballot initiative on which he was refusing to. LePage continues to defy the judge’s order and has promised to appeal her ruling…to the Supreme Court, where a right-wing Trump appointee could claim states’ rights. Maine was the first state in the nation to expand Medicaid through a public referendum. Governors and legislatures in 17 other states that refused to expand Medicaid under the ACA, as well as activists advancing ballot initiatives in states like Utah and Idaho, are all watching closely. But none more so than in Virginia, which just expanded Medicaid to over 400,000 people.
That brings us to Obamacare. The latest conservative challenge to the ACA surged back into the news last week when Trump’s Justice Department argued it believes the law’s protections for preexisting conditions are unconstitutional. They argued in support of a case brought by 20 red states, led by Texas, that because Republicans in Congress repealed Obamacare’s individual mandate penalty in their 2017 tax bill, the mandate is now unconstitutional — and so is the rest of the law. The argument is ludicrous, and legal scholars on both sides of the aisle have stated it’s likely dead. But Texas filed the lawsuit in a very conservative federal district court, and lawsuits challenging Obamacare that appear weak have gotten traction with conservative judges before. It’s now possible the Texas suit or another like it could end up in front of the Supreme Court, meaning the ACA itself may be in mortal peril.
The next several months will bring some dark days in healthcare jurisprudence and will likely result in the clock being set back more than 45 years. Women could be consigned to back-alley abortions again. Millions of Medicaid beneficiaries could see their coverage ripped away or subjected to Orwellian work requirements. And America’s struggling healthcare system could be further undermined by Trump and his appointee.
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