In early February, President Donald Trump nominated ultra-conservative Neil Gorsuch to fill the Supreme Court of the United States (SCOTUS) seat left vacant by the death of Justice Antonin Scalia last year, and his choice sparked much debate.
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Many in the healthcare realm believe his appointment will have a huge affect on both doctors and the industry going forward.
Peter Angood, MD, and CEO and president of the American Association for Physician Leaders, says that while Gorsuch will clearly bring a strongly conservative approach to SCOTUS, he is a highly intelligent and articulate judge who has a demonstrated track-record of tackling complex and contentious issues.
“For healthcare and the influence of SCOTUS, this appointment may bring deeper levels of debate on issues that are still very much sensitive in our society—abortion rights, right-to-die, assisted suicide, validity of living wills and even the current controversy surrounding the methods for administering the death penalty,” he says.
Pediatrician Joel D. Selanikio, MD, assistant professor at Georgetown University, says that since Gorsuch hasn’t ruled on abortion-related cases in the past, it’s really impossible to guess how he’d rule on these cases moving forward.
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“And even if he was skeptical of the constitutional basis to an abortion right, since he’s replacing Scalia (another conservative), I don’t see how that would affect the balance, so I’m doubtful Roe vs. Wade would/could be overturned,” he says in an email. “One thing he has weighed in on is the Hobby Lobby case where he strongly supported the right of a corporation to express its religious beliefs by not providing contraception on employee health plans. With the current replace/repair/rewrite of Obamacare, all this is up in the air, and I think a lot of conservatives—and not just religious ones—support his position.”
Paul Johnson, co-founder and CEO of Redirect Health, says the SCOTUS will play a big role in decisions that will emerge from repeal and replace efforts, which will impact doctors, hospitals, employers, insurance companies and the insured.
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“Those issues will include antitrust issues involving doctors and hospitals, the amount of funds available by Medicare and Medicaid (House v. Burwell), and funds necessary to pay doctors and hospitals,” he says. “Further, we’re likely to see cases involving private employers’ abilities to go around insurance companies with self-insurance rules available under ERISA.”
The impact on PCPs
Angood notes that physicians are by nature highly altruistic and patient-centered but often cautious, standards-driven decision-makers with clinical care delivery.
“Physicians are also risk-averse, and so with a predominantly conservative appointee, the altruistic drive to improve compassionate patient care with decisions around abortion and end-of-life decisions will become stifled to some degree,” he says. “Nobody wants to become engaged in example legal cases unnecessarily.”
Additionally, he notes, for those patients in their child-bearing ages, physicians will likely develop a degree of caution in their advice or suggestions on what is optimal for the patient, their family and a potential future child.
Morton Tavel, MD, clinical professor emeritus of medicine for Indiana University School of Medicine, knows that Gorsuch is on the record as being an opponent of physician aid in dying, but says he has no business entering into a subject about which he has little knowledge.
Not everyone thinks that the nominee will have great impact on healthcare going forward.
Bruce Ruben, MD, medical director of Encompass HealthCare and Wound Medicine, says the overall impact of the Supreme Court at large or individually has little impact on healthcare and its ability to challenge any healthcare law.
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“At the present time, most of healthcare is managed by third parties. They deliver and pay practitioners in these third-party contracts such that the Supreme Court would adjudicate issues on these contracts based on law,” he says. “The impact of the current nominee would likely be minimal, as the Supreme Court historically has to enforce these contracts and the unambiguous intent of the contract language.”
Angood notes that the medical community is watching closely what happens with Gorsuch and the Trump administration’s dealings with healthcare overall.
A fast-paced full repeal of the ACA that negatively impacts millions of people will not be tolerated politically by either party, he says, and certainly not at state legislature levels without a considered and effectively deliberated set of replacement amendments that balance the needs of the population with the fiscal responsibility of government.
“As a result, the adjustments to the ACA will be slowed up and will occur over several months,” he says. “The net result will become a stronger ACA that will have its original flaws repaired and ultimately provide good coverage for the population with affordable outcomes for individuals as well as the government.”