Federal health care rulings highlight shopping in court

Illustration of a judge wearing a stethoscope

Illustration: Sarah Grillo/Axios

A handful of conservative justices, especially in the South, are wielding enormous influence on health care policy in the Biden era.

Because matter: Thanks in part to former President Trump’s record of judicial appointments, conservatives ended up with a fast track of friendly judges handing down sweeping decisions.

The big picture: Advocacy groups coordinating large, politically charged cases almost always try to bring those cases before a judge they “think is conducive to the outcome they’re trying to achieve,” said Michele Goodwin, a law professor at the University of California, Irvine .

  • In this “court shopping” practice, “litigators could seek out a judge who has a history of affiliation with the movement they are a part of,” Goodwin added.
  • Courtship is not done exclusively by conservatives.
  • “This was increasingly common during the Trump administration,” said Paul Nolette, professor of political science at Marquette University. “The Democrats used that to their advantage, and now the shoe is on the other side.”

Zoom in: US District Judge Matthew Kacsmaryk in the North Texas District Court ruled in April that the Food and Drug Administration should not approve the widely used abortion pill mifepristone and attempted to reverse that decision, a step no court had ever before taken earlier.

  • The Supreme Court eventually blocked that decision, but Kacsmaryk, a Trump appointee, has also become a point of reference in cases challenging a variety of Biden’s policies. Last year he ruled that the federal Title X program, which provided free and confidential contraception to anyone, regardless of age, was unconstitutional.
  • Kacsmaryk’s family and friends described him as a staunch anti-abortion advocate for The Washington Post. He also contributed to the conservative Federalist Society and served as president of the group’s Fort Worth chapter.
  • Kacsmaryk is the only judge in the District Court’s Amarillo division, so conservatives know what they’re getting when they show up there.

United States District Judge Reed O’Connor a contributor to the Federalist Society and Bush-nominated district judge in North Texas is often a reference judge for Republicans targeting democratic policies.

  • In 2018, he declared the Affordable Care Act unconstitutional, a ruling the Supreme Court later reversed in 2021.
  • The ACA returned to its desk this year when it struck down the law’s preventive health coverage, which requires employers and insurers to fully cover cancer screenings, HIV prevention, behavioral counseling and other services. . New Orleans-based U.S. Court of Appeals for the 5th Circuit suspended sentence during review the case.

US District Judge Terry Doughty a Trump appointee in the West Louisiana District Court has heard more multistate challenges against Biden’s policies than any other federal judge, according to an analysis by Bloomberg Law.

  • Doughty was one of several judges in 2021 who terminated a COVID vaccine mandate for health care workers at federally funded facilities in multiple states, suggesting shots weren’t helpful.
  • The following year, it canceled another vaccination mandate for staff and volunteers in the federal Head Start program in 24 states.

The intrigue: An appeal of a judgment rendered in any of the above courts would take place in the staunchly conservative 5th Circuit Federal Court of Appeals, and from there to the 6-3 conservative-majority Supreme Court.

  • Conservatives are often able to score unusually sweeping victories in the district courts and defend them on friendly ground to the hilt.

Do not forget: The Democrat-appointed judges blocked Trump-era rules, such as the so-called “Muslim Ban,” a measure to cut food stamp benefits for the unemployed and a measure that rolls back waterway protections.

  • Some of these rulings were eventually overturned by the Supreme Court, which then had a 5-4 conservative majority.

Between the lines: In 2018, under the Trump administration, the Justice Department warned that court shopping is intrinsically tied to nationwide enforcement, arguing that it could “do lasting damage to public trust in the rule of law.”

  • The Supreme Court has never ruled on the constitutionality of nationwide injunctions, but has previously warned lower courts to be wary of issuing nationwide injunctions that could negatively impact the rule of law.
  • “If you can get a favorable judge, then not only are you more likely to win on the merits, but within a week or two of potentially filing the lawsuit, you can get a preliminary injunction terminating your entire policy indefinitely,” he said Nolette.

What are we looking at: The leading pharmaceutical industry lobbying organization on Wednesday filed a lawsuit in West Texas District Court challenging the Biden administration’s law aimed at lowering drug prices, arguing it is unconstitutional on several grounds.

  • A judge has yet to be named in the case.

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