Kavanaugh will be a fair-minded judge who is likely to vote on the side of the law

Kavanaugh will be a fair-minded judge who is likely to vote on the side of the law

The Affordable Care Act requires all marketplace plans to cover treatment for pre-existing medical conditions. Not only that, no insurance plan can reject you, charge you more, or refuse to pay for essential health benefits for any condition you had before your coverage started.

These rules extend to Medicaid and the Children’s Health Insurance Program, and are an extremely popular piece of ObamaCare. In fact, according to a recent Kaiser Family Foundation Tracking Poll, more than 70 percent of Americans want pre-existing conditions covered and don’t want to have to pay more for this coverage.  

I agree with my patients and most Americans, that their pre-existing condition coverage

should be protected. Government subsidies should continue to play a major role in ensuring that this happens.

The numbers of those with chronic illnesses of some kind are quite large. According to Health and Human Services, up to 130 million Americans under the age of 65 have pre-existing conditions.  So it’s no wonder that the pre-existing condition statute of the ACA is so popular. It’s also no surprise that so many are worried about a current lawsuit being brought in Texas by 20 Republican-controlled states; it contends that because the individual mandate tax has been removed, the entire ACA law is unconstitutional and therefore null and void. The U.S. Justice Department has indicated that it won’t back the ACA in this claim, which worries people even more.

Enter, stage-center, Judge Brett Kavanaugh, who is being grilled in Senate confirmation hearings as a nominee for the U.S. Supreme Court. After he put the Roe v. Wade question to rest — calling it "an important precedent of the Supreme Court that has been reaffirmed many times" — the attention of his opponents turned to ObamaCare. What would Kavanaugh do if the Texas lawsuit reached the Supreme Court?

There even has been speculation by many opponents of his confirmation that, because of his dissent in the 2011 appeal to his U.S. Court of Appeals District Circuit Court (he felt the court had no jurisdiction to rule on a tax that hadn’t yet been collected), this somehow means he would rule the law to be unconstitutional without the individual mandate.

In fact, what it actually demonstrates is Kavanaugh’s judicial restraint.

In a book review for the Harvard Law Review in 2016, he provided a much clearer idea of who he is and how he thinks. He believes in defending the integrity of individual statutes of a law, which in this case means he is likely to look at the language of the pre-existing condition statute — if the Texas case ever reached the Supreme Court — and decide that its integrity is not reliant on the individual mandate.

During his confirmation hearings, Kavanaugh declined to say whether he would uphold ObamaCare’s pre-existing condition protections. Although this was another example of his judicial restraint (like most recent Court nominees, he won’t opine on hypothetical cases that could come before him as a justice), it is being misinterpreted by his opponents as indicating he would vote to dismantle the law.

ObamaCare has many positive aspects. As a practicing physician, I applaud its pre-existing condition protection, much as I support the Medicaid expansion, the team approach of Accountable Care Organizations, as well as the expansion of Federally Qualified Health Centers providing health care to millions of otherwise underserved patients.

However, I did not support its individual mandate because I felt — and still feel — it is unjust to force a patient (and not an insurer, doctor or hospital) to buy insurance that doesn’t guarantee you the care it is promising.

Judges and doctors are both held to a high moral standard, as well we should be. We shouldn’t be prejudged on possible treatments or rulings but, rather, on our records. I applaud the nomination to the Supreme Court of Judge Kavanaugh, a fair-minded judge who is likely to vote on the side of the law, not necessarily on the side of the party that nominated him.

Marc Siegel, M.D., is a professor of medicine and medical director of Doctor Radio at NYU Langone Health. He is a Fox News medical correspondent.