Justice Anthony Kennedy, who long served as the swing vote on important healthcare-related decisions, retired from the United States Supreme Court on July 31, 2018. The press and pundits alike reacted to Kennedy’s retirement announcement with dire forecasts that the Court’s healthcare jurisprudence would veer to the right. In fact, Justice Kennedy’s record of healthcare decisions varied considerably across a wide range of topics and, therefore, characterizing it fairly is challenging. On one hand, Justice Kennedy joined the Court’s four-justice conservative block on key healthcare issues ranging from the constitutionality of the Patient Protection and Accountable Care Act’s (ACA) individual mandate and contraceptive coverage provisions to the rights of severely-injured patients to sue generic drug manufacturers. In contrast, Justice Kennedy voted to uphold the ACA’s tax subsidies and often served as a moderate swing vote in cases concerning access to abortion.
Healthcare Reform Decisions
In a narrow five-to-four 2012 decision, NFIB v. Sebelius, the Supreme Court upheld the constitutionality of the ACA’s individual mandate, which required individuals to purchase basic health insurance or pay a penalty. Justice Kennedy surprised veteran court watchers in that case by asserting that the individual mandate ought to be stuck down as an invalid exercise of Congress’s power to regulate interstate commerce. In NIFB, Kennedy joined the Court’s three most conservative justices in a dissent that condemned Chief Justice Robert’s majority opinion as “a vast judicial overreaching.” In the same case, Justice Kennedy also joined a separate, seven-justice NFIB majority, which held the ACA’s mandatory Medicaid expansion provision unconstitutionally coercive.
Two years later, the Supreme Court ruled on the constitutionality of the ACA’s contraceptive coverage mandate. In Burwell v. Hobby Lobby Stores, Justice Kennedy provided the conservative wing of the court the crucial swing vote in the 5-4 decision holding unconstitutional the law’s contraceptive coverage mandate on the ground that it ran afoul a corporate employer’s “sincerely held religious beliefs” in violation of the First Amendment. Justice Ginsburg vigorously dissented, arguing that “the court . . . has ventured into a minefield” where its breathless expansion of corporate religious freedom “invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to faith.” Justice Ginsburg asked: “where is the stopping point?”
The Court’s very next term, however, Justice Kennedy reversed course. In King v. Burwell, the issue was whether the ACA permitted the government to provide tax subsidies to low- and middle-income Americans to purchase health insurance on a federal insurance exchange. The Court resolved the issue in the affirmative in a 6-3 opinion written by Chief Justice Roberts and joined by Justice Kennedy. King was an extraordinarily important American healthcare reform decision. As the majority opinion acknowledged, had the Court struck down the ACA’s subsidy to low- and middle-income citizens to allow the acquisition of health insurance coverage, the ACA’s carefully crafted legislative design would have been undermined and the federal and state insurance markets destabilized, “likely creat[ing] the very ‘death spirals’ that Congress designed the Act to avoid.”
In between its opinions in NFIB and Hobby Lobby, the Supreme Court decided Mutual Pharmaceutical Company v. Bartlett. In Bartlett, the Court decided by a 5-4 margin that state law tort claims pertaining to generic pharmaceutical design defects are preempted by federal law. Viable state law design defect theories generally include claims that a drug is unreasonably dangerous or includes an inadequate warning. As a result of her ingestion of the drug sulindac, a nonsteroidal anti-inflammatory, Karen Bartlett developed toxic epidermal necrolysis and was “severely disfigured, has physical disabilities, and is nearly blind.” Justice Kennedy voted with the slim Bartlett majority holding that patients cannot sue a generic drug manufacturer for drug-related design defects under state law—even when those patients, like Karen Bartlett, experience horrific injuries as a result of their ingestion of the generic drug manufacturer’s product.
Justice Kennedy’s retirement evoked the loudest siren warnings with regard to the future of the Supreme Court’s abortion-related jurisprudence. Typical of this cacophony of alarm is a National Public Radio prediction that Kennedy’s retirement would “[set] the stage for what is likely to become a battle over abortion rights unlike any in a generation.” This reaction sprang from the widely-held view that Justice Kennedy applied a moderate approach sensitive to the Court’s nearly fifty years of precedent upholding a woman’s right to make personal decisions to control her health and autonomy.
In fact, Justice Kennedy did provide the deciding vote in two key Supreme Court abortion cases: Planned Parenthood v. Casey, a 1992 opinion which created an “undue burden” standard to regulate abortion, and, more recently, Whole Woman’s Health v. Hellerstedt, in which Kennedy and the court’s four liberal justices held unconstitutional a Texas statute that placed increased burdens on abortion providers.
That stated, Justice Kennedy also voted to undercut abortion rights in cases upholding the federal Partial-Birth Abortion Ban Act in Gonzalez v. Carhart and affirming Minnesota’s mandatory parental notification requirement in Hodgson v. Minnesota. Moreover, as The Atlantic reporter Mary Ziegler observed earlier this summer, Justice Kennedy only voted to strike down abortion restrictions twice in his three decades on the bench and opined “more than once that women often regretted abortions.” Most recently, Justice Kennedy joined the Court’s conservative block in a 5-4 ruling declaring unconstitutional on First Amendment freedom of religion grounds a California law requiring religiously-oriented crisis pregnancy centers (CPCs) to provide women information regarding publicly-funded abortion and contraception.
In sum, while Justice Kennedy provided a deciding vote to secure the general Roe v. Wade framework securing a woman’s right to choose to terminate a pregnancy on at least two occasions during his 30-year tenure on the high Court, he often joined the anti-abortion wing of the Court in systematically eroding that right.