Analysis | A quick guide to Ketanji Brown Jackson’s health-related rulings

Biden’s Supreme Court pick has expertise on drug sentencing but a slim record on other health issues

Ketanji Brown Jackson’s nomination to the Supreme Court sparked a round of unsurprising statements, despite her relatively limited record on health issues. 

The Health 202, along with the multiple experts we talked with, have been scouring her past to see what it may mean for future health-care rulings. 

• The gist: Jackson hasn’t done a ton of rulings or work in the health-care space. That means it’s difficult to predict her judicial thinking on a wide array of issues.

The biggest clue: She was nominated by a Democratic president — one who has publicly committed to appointing judges that “respect foundational precedents like Roe [v. Wade].” She’s likely to vote with the more liberal justices on hot-button issues, like abortion, affirmative action, LGBTQ rights and gun rights, our colleagues note. 

• “People are making the assumption that because President Biden nominated her, and because progressive organizations like NARAL and Planned Parenthood support her, they are probably taking that as a better proxy than the handful of actual data points we have,” Mary Ziegler, a professor at Florida State University College of Law specializing in the history of abortion law, told The Health 202.

NARAL, an abortion rights group:

March for Life, an annual rally protesting abortion:

Jackson has a range of experience. She clerked for Justice Stephen G. Breyer. She worked in private practice, served on the U.S. Sentencing Commission and was a U.S. District Court judge before confirmed last year to the influential U.S. Court of Appeals for the D.C. Circuit. And she’d be the first justice since Thurgood Marshall with significant experience as a criminal defense attorney, a credential her supporters praise. 

Let’s run through what else we’ve found.

On reproductive rights: During Jackson’s clerkship, Breyer authored a 2000 decision striking down a Nebraska law banning “partial-birth abortion,” SCOTUSblog’s Amy Howe notes. 

• As a law firm associate, Jackson co-authored a 2001 amicus brief in support of a Massachusetts law creating a “buffer zone” around people as they approach abortion clinics.
• And as a district court judge, Jackson ruled in 2018 against the Trump administration’s early termination of some federal grants under the Teen Pregnancy Prevention Program. Experts, such as Ziegler, point out that the ruling wasn’t focused on the substance of the grants, but rather on administrative law, like how the federal health department went about making the changes. 

On drug sentencing: She has deep expertise here. She spent four years on the bipartisan U.S. Sentencing Commission and helped rewrite guidelines to reduce recommended penalties for drug-related offenses, our colleagues Ann E. Marimow and Aaron C. Davis report. (Read their deep dive on how Jackson saw the impact of a harsh drug sentence firsthand.)

On other health issues: She oversaw a wonkier case, ruling in favor of Massachusetts hospitals in a challenge to how the Department of Health and Human Services calculated Medicare disproportionate share hospital payments, Katie Keith and Andrew Twinamatsiko, of the Health Policy and the Law Initiative at Georgetown Law’s O’Neill Institute, told us.

Last summer, she was part of a three-judge panel that allowed the Centers for Disease Control and Prevention’s pandemic-related eviction moratorium to continue.

So, can we predict her health care rulings? “There’s not a lot to go on here, in part because she’s just very consistent at applying current law,” Keith said. “It’s one of the reasons she has the respect and support that she has.”

Her impact on the direction of the Supreme Court is likely to be minimal — at least for now. That’s because of the high court’s 6-to-3 conservative supermajority. 

• Breyer, who Jackson would replace, was known for his willingness to search for compromise among the court’s ideological divisions. (Remember the 2012 Obamacare ruling?)
• “President Biden described Jackson as a ‘consensus-builder’ when he introduced her at Friday’s White House event,” our colleague Robert Barnes writes. “But the court’s right flank is moving fast and not particularly looking for compromise.”

U.S. to send additional humanitarian aid to Ukraine

The U.S. Agency for International Development and Department of State will send nearly $54 million in humanitarian aid to support Ukraine, as a host of other countries vowed similar help, The Post’s Hannah Knowles reports.

Announced yesterday, the additional aid will be used to support the country’s health-care system, safe drinking water and hygiene supplies, as well as the distribution of thermal blankets for those displaced during the harsh winter. The United States has provided almost $405 million in humanitarian aid since the conflict began in 2014, according to the White House.

Oxygen supply nearing “a very dangerous point”: The announcement of more aid comes amid a Sunday warning from top officials at the World Health Organization that a majority of Ukraine’s hospitals could exhaust their oxygen reserves for patients, including those hospitalized with covid-19, within the next 24 hours as Russia’s invasion disrupts transportation and deliveries across the country.

Tedros Adhanom Ghebreyesus, director-general of the World Health Organization: 

On tap today: Key Senate vote on abortion rights bill

The Senate is expected to vote this evening on whether to begin debate on legislation to guarantee abortion access. The measure is sure to fail in the narrowly divided Senate, but it’s a key messaging moment for Democrats.

About the legislation: The Women’s Health Protection Act is aimed at codifying abortion access nationwide and protecting physicians’ ability to perform the procedure. The legislation is a major priority for abortion rights groups who fear the Supreme Court could undermine Roe v. Wade’s nearly half-century-old protections and allow Mississippi to ban abortions after 15 weeks. 

But its prospects are dim. The legislation passed the Democrat-controlled House in September, but would need to rack up at least 10 GOP votes to advance in the Senate. That almost certainly won’t happen.

• Forty-eight Senators — 46 Democrats and two Independents — have signed onto the legislation. Among the two Democrats who didn’t were Sens. Joe Manchin III (W.Va.) and Bob Casey (Pa.). However, Casey said he would vote “yes” to allow debate on the act today.
• One Republican to watch: Sen. Susan Collins (Maine) indicated she’d vote “no” on the bill back in September, telling the Los Angeles Times that it goes beyond codifying Roe v. Wade by including measures related to health care professionals.

White House prescriptions

Biden gears up to address a pessimistic nation

Biden’s approval rating will be at a new low when he delivers his first State of the Union address Tuesday to a nation discontent with his handling of the economy and the state of the pandemic, according to a Washington Post-ABC News poll, our colleagues Dan Balz, Scott Clement and Emily Guskin report. 

While Democrats still lead by a narrow margin on key issues like education, Biden’s rating among voters paints a grim picture for Democrats as the country prepares for the midterm elections this November.

• Among respondents, 37 percent approve of Biden’s work in the White House, while 55 percent say they disapprove.
• On covid-19: Ratings on Biden’s handling of the coronavirus pandemic have steadily slid downward since the summer, with 44 percent currently approving and 50 percent disapproving his administration’s response to the virus.
• Seventy-five percent of Americans rate the economy negatively despite a reignited job market, while Americans are split on whether Biden is to blame for high inflation rates driving up the price of gasoline and groceries.

• Out this morning: Moderna faces another patent challenge over its coronavirus vaccine, as small biotechnology companies Arbutus Biopharma and Genevant Sciences filed a lawsuit today alleging Moderna hijacked its technology, our colleagues Yasmeen Abutaleb and Christopher Rowland report.
• Pandemic origins: The New York Times reports on a pair of studies that point to a large market that sold live animals in Wuhan, China, as the origin of the coronavirus pandemic. The studies haven’t yet been published in a scientific journal.
• Nearly half of the 500 million at-home coronavirus tests the Biden administration made available to the public for free remain unclaimed as cases across the country continue to decline, the Associated Press reports.
• Capitol Hill is lifting its mask mandate ahead of Tuesday’s State of the Union address — a move which comes after federal regulators eased their guidelines last week, Congress’ Office of the Attending Physician announced Sunday.
• Roughly 70 percent of Americans live in communities where the CDC eased mask recommendations on Friday, including for children in schools.

More on the new metrics from the CDC:

• Biden will deliver his first State of the Union address.
• The Senate Finance Committee will consider advancing three of Biden’s health-related nominees.
• Supreme Court justices will hear arguments in Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita Inc., a case that will consider whether the insurer’s reimbursement for outpatient dialysis discriminates against those with end-stage renal disease and violates federal law. (h/t SCOTUSblog)
• A House Education and Labor subcommittee will discuss improving retirement security and access to mental health benefits.

• Members of a House Energy and Commerce subcommittee are meeting to hear about “lessons from the frontline” and covid-19’s impact on health care.
• The House Ways and Means Committee will convene to discuss substance use and suicide risk and the U.S. health-care system.
• A House subcommittee on the coronavirus crisis is holding a hearing to learn about how the pandemic has affected families and child care workers — which follows the release of a new study that estimates at least 5.2 million children worldwide have lost a caregiver to covid-19.

Thanks for reading! See y’all tomorrow.