Ron and Brady dissect the Texas decision that challenges the legality of the ACA, what it actually means, and what is next – as well as what you could (should?) be doing now.
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By: Brady Bizarro, Esq.
After more than thirty-two hours of testimony (and a record number of interruptions) before the Senate Judiciary Committee, the Supreme Court confirmation hearings for Judge Kavanaugh finally concluded last Friday. Republicans have already set a date for a vote and plan to have him seated for the Supreme Court’s new term, which begins in early October. Democratic opposition to Judge Kavanaugh is multi-faceted, but for our purposes, specifically related to health law, many fear he would vote to overturn Roe v. Wade and strike down the Affordable Care Act’s (“ACA”) pre-existing condition protections. Given the fact that a case to overturn ACA protections is currently sitting before a federal court in Texas, the Supreme Court may indeed be asked to weigh in sooner rather than later.
Judge Kavanaugh, like many nominees before him, refused to give assurances on specific hypotheticals. After all, he argued, independent judges should not give a thumbs up or thumbs down before litigants have appeared before them in court. Senators knew ahead of time that Kavanaugh would answer hypotheticals about abortion rights and the ACA in this way; yet, many of them still asked such questions in a rhetorical fashion to dramatize their points. A more effective strategy, at least politically, would have been to ask rhetorical questions, but also to ask Judge Kavanaugh about specific wording he used in prior dissents to expose signals that the judge might be prepared to overturn Roe v. Wade and/or the ACA.
Of all the committee members that questioned Judge Kavanaugh (and I watched them all), Senator Richard Blumenthal (D-CT) did this most effectively. The senator asked Judge Kavanaugh about his dissent in a case called Garza v. Hargan, the only abortion case on which the nominee has ruled. In that case, Judge Kavanaugh wrote that his colleagues on the D.C. Circuit Court of Appeals had decided that “unlawful immigrant minors have a right to immediate abortion on demand.” To Senator Blumenthal, this was a coded message to the White House. The phrase “abortion on demand,” according to the senator, is often used by the anti-abortion community to refer to repeal of Roe v. Wade.
In addition, in a 2003 memo, Judge Kavanaugh noted that the Supreme Court “can always overrule” Roe v. Wade. In particular, he wrote, “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since [the] Court can always overrule its precedent,” adding that some conservative justices then on the Court “would do so.” Finally, Senator Blumenthal noticed Kavanaugh’s description of Roe as “existing precedent.” In his review of hundreds of Judge Kavanaugh’s prior opinions, Senator Blumenthal could not find the use of the adjective “existing” before the word “precedent.” To the senator from Connecticut, this implies that Judge Kavanaugh believes that there will be a time when Roe can be overturned and will no longer be the legal precedent on abortion.
Regardless of the Democratic opposition, the simple fact remains that Republicans, in solidarity, have enough votes to confirm him. Unless something dramatic happens between now and the end of September, we can expect Judge Kavanaugh to soon become Justice Kavanaugh, the newest member of the United States Supreme Court. When cases reach the Court that deal with abortion rights and the ACA, we will learn whether or not Senator Blumenthal’s concern was warranted.
If you thought 2012 was a wild ride, wait until you see 2013. Obamacare is the law of the land, and it’s here to stay. The entities empowered by PPACA to issue mandates are prepared to unleash a tidal wave of regulations in 2013. Subrogation and coordination of benefits once again appear before the Supreme Court. The very definition of self-funding, rights under ERISA, and access to stop-loss have come under attack. Join The Phia Group’s CEO, Adam V. Russo, Sr. V.P. and General Counsel, Ron E. Peck, and V.P. of Consulting Services, Jennifer McCormick, as they discuss what we can expect to see in 2013, and how best to prepare for what’s coming.
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Mitt Romney has been distancing himself from the healthcare reform he signed into law whilst governing Massachusetts. His team has responded to comparisons between “Romneycare” and “Obamacare,” stating that the two laws are vastly different, and vary based on scope of coverage, communities they apply to, and terms themselves. That being said, we can still draw many parallels between the two. Those of us who fail to look at the Bay State as a prototype for post-PPACA America are missing an opportunity to gaze into the future. From early successes, to a gradual bloating of the program… from red-tape, to recent moves to address the actual cost of care… the Commonwealth of Massachusetts is certainly a crystal ball. Join us as we dissect The Phia Group’s home state, and attempt to predict the nation’s future.