Friday, December 28, 2012
- Barbara Evans, Why the Common Rule is Hard to Amend, SSRN
- Ann Marie Marciarille, Let Fifty Flowers Bloom: Health Care Federalism after National Federation of Independent Business V. Sebelius, SSRN/UMKC L.Rev.
- Tim Jost, Religious Freedom and Women’s Health — The Litigation on Contraception, NEJM
- Elizabeth Sepper, Taking Conscience Seriously, SSRN/Va L Rev
Thursday, December 27, 2012
From SCOTUSblog, for those following Hobby Lobby's pursuit of the ACA's requirement that insurers cover contraceptives without requiring copayments:
Supreme Court Justice Sonia Sotomayor refused on Wednesday afternoon to block enforcement of the new federal health care law’s mandate that profit-making companies begin providing free birth-control drugs and methods for their women workers, beginning next week. In a four-page opinion, Sotomayor ruled that an Oklahoma City family and its religion-oriented businesses did not qualify for a Court order against the mandate while its court challenge goes forward.
This marked the first time that the Supreme Court has been drawn into a nationwide controversy over the contraceptives mandate. More than forty lawsuits have been filed against that requirement by non-profit religious schools, colleges, and hospitals, and by religion-oriented, profit-making companies. Justice Sotomayor, noting that the lower courts that have ruled so far on pleas for emergency court orders have reached mixed results, concluded that the Hobby Lobby family’s right to an injunction could not meet the rigorous standard that it be “indisputably clear.” (The Hobby Lobby challenge was discussed in this post.)
The kind of remedy the Hobby Lobby and its owners had sought — an injunction pending appeal — can only be issued if it is necessary to protect the Supreme Court’s authority to rule ultimately on the constitutional challenge, or if the challengers’ right to such a remedy is clear without a doubt, Justice Sotomayor noted. She stressed that she was not ruling on whether the constitutional challenge ultimately would succeed, and noted that the Court had not previously ruled on whether constitutional or other legal protection for religious rights is available for closely held, for-profit corporations and their controlling shareholder when they object as an expression of their faith to mandatory employee benefits.
Hobby Lobby, an arts and crafts retail chain, and a related chain of Christian bookstores, Mardel, Inc., have argued that they will face heavy fines, perhaps reaching $1.3 million for each day they fail to obey the contraceptives mandate. Sotomayor noted that claim, but ruled that it was not sufficient to satisfy the requirements for an injunction. Even without such an order, the Justice wrote, the challengers may continue with their legal claims in the lower courts and seek Supreme Court review later, if they wish.
A federal judge in Oklahoma and the Tenth Circuit Court based in Denver had previously refused the challengers’ requests to bar enforcement of the mandate.
Wednesday, December 26, 2012
Andrew Solomon, Far From the Tree: Parents, Children, and the Search for Identity (Simon & Schuster 2012). An amazing tour de force about horizontal identities, disability, and the uncertain benefits of medicalization. (I was lucky to receive this as a Christmas present from my husband, and can't put it down!)
Monday, December 24, 2012
A decision by the Indiana Supreme Court reminds us that the Affordable Care Act provides important help even to those who will remain uninsured. Uninsured patients had challenged the practice of hospitals charging their list prices rather than the discounted rates that they bill insured patients. Invoking principles of contract law, the plaintiffs argued that when hospitals do not specify their charges up front, courts must fill in the contract with reasonable price terms, and it would be unreasonable for patients to be charged the list price. The court rejected the claim, concluding that a contract between hospital and patient is sufficiently definite as to price terms even when the contract simply states that the patient "guarantees payment of the account."
Fortunately for uninsured persons, the impact of this decision is limited to past hospital charges. Under the Affordable Care Act, hospitals must offer their uninsured patients discounts similar to those negotiated with insurers.