The Retirement Of Justice Kennedy Threatens Health Care For Millions Of Americans

July 2, 2018

In June 2018, President Trump’s Department of Justice broke with longstanding department precedent and decided it would no longer defend the Affordable Care Act (ACA).  In a brief filed by the Trump administration in Texas v. United States, the administration joined with 20 Republican-led states to argue that the ACA’s protections for people with preexisting conditions should be invalidated. 


  • A 2016 analysis by the nonpartisan Kaiser Family Foundation suggests that this attack could take health care away from 52 million Americans with pre-existing conditions, including cancer patients, people with diabetes, and pregnant women.


  • According to physician groups, the Trump administration’s brief “would have a devastating impact on doctors, patients, and the American health care system as a whole.”


  • The Republican Chairman of the Senate Committee on Health, Education, Labor, and Pensions even called the Trump administration’s arguments “as far-fetched as any I’ve ever heard.”


  • Legal scholars have called the Justice Department’s position “so radical, and so self-evidently without merit, that career lawyers in that agency would not sign their names to it.”  In fact, while one of President Trump’s Sixth Circuit nominees, Chad Readler, signed the brief, three career DOJ lawyers refused to sign it, and one veteran DOJ lawyer resigned in protest.


  • Currently, Texas v. U.S. is pending before a federal trial court in Texas.  Once the trial court rules on the case, the losing party will appeal this decision to the United States Court of Appeals for the Fifth Circuit.  Any appeal from that court would be to the United States Supreme Court.


  • Texas v. United States could make its way to the Supreme Court in an upcoming term, giving President Trump’s nominee to replace Justice Kennedy a critical role in determining whether Americans with pre-existing conditions will continue to have access to affordable, quality health care.




If President Trump fulfills his promise to nominate a justice who would overturn the ACA, a new challenge to the ACA, Texas v. United States could succeed in taking away protections for people with pre-existing conditions, disabilities, and older Americans. 


  • The previous challenges to the ACA that reached the Supreme Court (King v. Burwell and NFIB v. Sebelius) were narrowly decided and do not predict how the court will rule. 


  • Given the deference Chief Justice Roberts has shown to the administration, another justice hostile to the ACA places it at a huge risk.


The issue in the Texas case is whether by repealing the penalties associated with the ACA’s individual mandate, the Republican Congress effectively eliminated the ACA’s critical protections for Americans with pre-existing conditions, disabilities and older Americans.


  • Rather than defend laws that protect Americans’ health care as it did during the Obama administration, the Department of Justice under President Trump has chosen to fight against those laws.


  • Under President Trump, the Department of Justice is arguing that the individual mandate and the protections for people with pre-existing conditions are inextricably linked and therefore the protections have to be repealed along with the mandate.  This is an argument legal scholars have called “so radical, and so self-evidently without merit, that career lawyers in that agency would not sign their names to it.”


Given that this question about “severability” has not been previously decided, it is an open question how Chief Justice Roberts would rule.  If the president nominates someone hostile to the ACA as he has promised, critical protections under the ACA, like protections for people with pre-existing conditions and disabilities and older Americans, will be facing a huge risk.




In addition to Texas v. United States, there are dozens of health care cases pending in the lower courts which are likely to be appealed to the Supreme Court in upcoming terms.  The outcomes of these cases in the Supreme Court will directly impact access to health care for millions of American families, including the most vulnerable in our society.  These cases deal with critical issues, such as:


  • The scope of health care coverage for nursing mothers, the transgender community, and individuals with disabilities. (Briscoe v. Health Care Service Corp, Condry v. United Health Group, Inc., Prescott v. Rady Children's Hospital)


  • False advertising by health insurance companies. (Harvey v. Centene Corp)


  • Whether employers are required to provide health care coverage to their employees. (Marin v. Dave & Buster’s, Inc.)


  • In each of these cases, there is a question about whether the ACA creates rights that individuals can enforce in courts.  The Supreme Court is likely to weigh in, which could impact every pending case about access to health care under the ACA.




  • Our current health care system ensures that women have full and equal access to health care coverage, which includes a prohibition on insurance companies charging women more than men for insurance and a right to contraceptive coverage.  However, this guarantee of equal access to health care for women is under attack. 


  • In a narrow 5-4 decision in Hobby Lobby, the conservative Supreme Court already ruled that the owners of a company could deny their employees access to contraception coverage based on their religious beliefs.


  • Additional legal attacks are making their way through the courts as we speak. The Supreme Court sent back to the lower courts seven cases that had been consolidated in Zubik v. Burwellchallenging the ACA’s contraceptive coverage requirement, and these cases are likely to be back in the Supreme Court in the next year or two.  Many of those on President Trump’s short list to replace Justice Kennedy have actively fought against the ACA’s contraceptive coverage requirement. 


  • The right to privacy established in Roe v. Wadeguarantees women a right to contraceptives and to make their own family planning decisions.  President Trump has made clear that any Supreme Court nominee must be willing to overturn Roe.  But a conservative Supreme Court will not stop at overturning Roe, it will also eliminate a woman’s right to privacy in making choices about her health care choices, including reproduction and contraception.