HealthLawProf Blog

Editor: Katharine Van Tassel
Creighton University School of Law

Friday, June 14, 2013

Beyond Medicaid--How the Affordable Care Act Will Change Mental Health Treatment--and some helpful Apps for further research

This is a helpful article from a mental health perspective about how the Affordable Care Act will change mental health treatment. 

Given the volume of material health lawyers need to review about not just law directly but also health policyFor anyone who has not yet entered the world of content aggregation, I'm also recommending Zite, a free app that will create a personalized "magazine" consisting of any specific website you visit on a regular basis and also sites within a content area that help you get the news you are looking for without having to visit dozens of individual sites.  Another similar app is Feedly and less serious (more fun) is Stumbleupon which is similar to the experience of browsing in a library.


June 14, 2013 in Affordable Care Act, Coverage, Medicaid, Mental Health | Permalink | Comments (0) | TrackBack (0)

Thursday, June 13, 2013

Tax credit litigation on the move

For those of you who thought we could forget about ongoing ACA litigation, here's a little update: the issue of premium assistance through tax credits for insurance purchased in federal exchanges is alive and well.  The plaintiffs in the recently filed Halbig v. Sebelius claim that the ACA does not permit tax credits in federally run exchanges (opponents state that this is merely a statutory oversight, as I wrote in September.)  A nice summary of the ongoing litigation on this issue was published yesterday on California Health Line

These challenges seem to reveal the angst that the ACA is producing as the January 1, 2014 deadline creeps nearer.  They also seem to reveal the upside-down federalism occuring in the states that have rejected the state-based exchanges.  Those states have exercised their sovereign prerogative, but they are also inviting more federal power into the state, which aggrandizes federal power.  Though I don't think these cases have a strong chance of success, if the plaintiffs are successful, undoubtedly we'll see more testing of the fence by states and private litigants.


June 13, 2013 in Affordable Care Act, Constitutional, Health Care Reform, PPACA, Spending, States | Permalink | Comments (0) | TrackBack (0)

Breaking News - Supreme Court Rules Human Genes May Not Be Patented

According to a news release by the NYT:

Human genes may not be patented, the Supreme Court ruled on Thursday. The case concerned patents held by Myriad Genetics, a Utah company, on genes that correlate with increased risk of hereditary breast and ovarian cancer. The central question for the justices in the case was whether isolated genes are “products of nature” that may not be patented or “human-made inventions” eligible for patent protection. For more, see here.


June 13, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 12, 2013

Guest Blogger Professor Jessie Hill - Regulating Reasons:The ACLU Challenges Arizona’s Ban on Sex- and Race-Selective Abortion (Part I)

Hill_jessie_photoIn my earlier post on the ACLU lawsuit challenging the Arizona state law that criminalizes performing an abortion for race-selection or sex-selection, I discussed the plaintiffs’ choice to pursue an equality claim, rather than a privacy claim.  

There is also second, related issue I wanted to discuss: the plaintiffs’ standing to pursue this claim. The plaintiffs are the Maricopa County Branch of the National Association for the Advancement of Colored People (NAACP) and the National Asian Pacific American Women’s Forum (NAPAWF). Because the theory of the case, as I described in my prior post, is that the law stigmatizes and stereotypes the reproductive choices of black and Asian women based on their race and ethnicity, it makes sense that this challenge would be brought by groups that promote the interests of those racial and ethnic groups.

But what is the plaintiffs’ injury-in-fact? It seems that the stigma itself is the only possible injury that can be claimed, but this is a highly uncertain basis for standing.  It is often (though not consistently) considered to lack the concreteness and particularity that must characterize injury-in-fact under the Court’s increasingly strict standing jurisprudence.  

It is important, moreover, to note a couple of things. First, the law imposes its prohibitions and penalties only on physicians, not on women seeking race- or sex-selective abortions. Thus, though physicians are subject to the act’s penalties, they are not among the plaintiffs, and so they are not asserting third-party standing on behalf of their patients.  Second, the plaintiffs obviously do not indicate any desire to engage in race- or sex-selective practices, and the complaint specifically asserts that the NAPAWF opposes sex-selection bans but also advocates and educates around the issue of sex-selection abortion. Thus, it is clear that no one challenging the law actually seeks to engage in the conduct that is being prohibited. (For obvious reasons, such an individual would not be the most desirable plaintiff.) Nor can the plaintiffs make any argument that their injury-in-fact is that they are being chilled from making certain reproductive choices by the threat of criminal penalties, since they are not subject to such penalties under the law (and in fact are specifically exempted from criminal prosecution). 

Essentially, the injury that the plaintiffs are asserting, therefore, is purely an expressive one—that the law expresses a negative stereotype about Asian and black women. Of course, they may also be claiming that their reproductive choices are more likely to be questioned by their physicians—a point that would support the disparate impact required in order to make out an Equal Protection claim. But this harm, too, is probably too speculative to work for standing purposes.   

One might claim that the real injury is that the law prohibits women from choosing abortion for whatever reason they believe is appropriate—that it infringes on their reproductive autonomy in the most basic sense. But again, this is a claim that sounds in the right to privacy, not the right to equal protection. The law on its face regulates reasons for all women, not just minority women.  

In conclusion, though this is an important and worthy challenge to the law, I suspect it will be an uphill battle.

- Jessie Hill




June 12, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, June 10, 2013

In Reversal, Obama to End Effort to Restrict Morning-After Pill

The New York Times reports that

[t]he Obama administration has decided to stop trying to block over-the-counter availability of the most popular morning-after contraceptive pill for all women and girls, a move fraught with political repercussions for President Obama.

The reversal by the government means that anyone, no matter how young, will soon be able to walk into a drugstore and buy the pill, Plan B One-Step, without a prescription.

The Justice Department had been fighting to prevent that outcome, but said late Monday afternoon that it would drop its appeal of a judge’s order to make the drug more widely available. In a letter to Judge Edward R. Korman of the United States District Court for the Eastern District of New York, the administration said it would comply with his demands that the Food and Drug Administration be allowed to certify the drug for nonprescription use.


June 10, 2013 | Permalink | Comments (0) | TrackBack (0)

Looking Ahead to the Supreme Court's Remaining Health Law Related Cases

 Although it's probably true that with some imagination every Supreme Court decision could be related back to some aspect of Health Law, today's Post (which, yes, was supposed to be up Friday) is intended to highlight the as yet unreleased Supreme Court decisions of particular interest to Health Law.  We don't know exactly which cases will be announced but Scotus believes this will
happen on Thursday June 13th--and they will be "live-blogging" starting "shortly before" 10 AM EST in anticipation of the announcements-- but we do know which ones are left.

Below is an email I sent out today to both our Health Law Certificate Students here at Texas Tech School of Law and to the students enrolled in my new class Constitutional Issues in Health Law.  As a side note, I would certainly be interested in hearing from anyone who is/has taught this particular class.  My model for it is the one taught by Mary Anne Bobinski when she was at the University of Houston Law Center

Here, in relevant part, is what I sent out:

" Unlike last year where everyone was a health care lawyer and had something to say about National Federation of Independent Business v. Sebelius (the Affordable Care Act decision) (me included), the cases yet to be decided are not all waving the banner "Health Law"--but are likely to have significant impact in the practice of health law.    There are so many sources of information about these cases and what they mean that it would almost be impossible to give a complete list. 

Each decision will be posted almost immediately to the Supreme Court's website--and what I recommend is that you read it yourself--and then compare it to the press coverage!  CNN will long remember this episode and Jon Stewart's take on it!

Also, it is never possible to avoid the "spin" that anyone describing an issue inevitably puts on it.  I've included information when  an organization or media outlet has created clarifying material but at this point.  Here's an NPR Overview and one from Fox News.

 Here are the cases (with parentheticals from Scotus): 

Association for Molecular Pathology v. Myriad Genetics Inc.("whether human genes are patentable")

Agency for International development v. Alliance for Open


("Whether the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of

2003, 22 U.S.C. § 7631(f), which requires an organization to have a policy explicitly

opposing prostitution and sex trafficking in order to receive federal funding to provide HIV

and AIDS programs overseas, violates the First Amendment. (Kagan, J., recused.)")

  Mutual Pharmaceutical Co. V. Bartlett 

("Whether the First Circuit Court of Appeals erred when it created a circuit split and held – in

clear conflict with this Court’s decisions in PLIVA v. Mensing, Riegel v. Medtronic, and

Cipollone v. Liggett Group – that federal law does not preempt state law design-defect

claims targeting generic pharmaceutical products because the conceded conflict between

such claims and the federal laws governing generic pharmaceutical design allegedly can be

avoided if the makers of generic pharmaceuticals simply stop making their products.")

 The press is most interested in Hollingsworth v. Perry “gay marriage” and  Fisher v. University of Texas (“affirmativeaction” )cases—and we should be interested too.  In Hollingsworth because it is possible (although not certain) that the court will add to our understanding of the Constitutionality of statutes (like the one in Texas) which only allow a married couple consisting of a man and a woman to enter into a binding contract with a surrogate mother.  It may also change the ability of physicians in states to refuse to treat patients on the basis of sexual orientation, gender identity or any other factor not currently required by Federal Law or a previous decision of the Supreme Court.  LAMBDA Legal has put together an infographic for those wanting to get up to speed quickly. 

And in Fisher because it may well affect medical school admissions even though it is a case about undergraduates.


There are also some cases involving important employment law  issues—which are often the biggest part of a health lawyer’s case load.

You may not want to be poised at your computer 10 AM Thursday EST to hear what decisions the court is releasing—but you will certainly want to read them for yourself when they are available online.



June 10, 2013 in Constitutional, Genetics, Pharma, States, Unconstitutional | Permalink | Comments (0) | TrackBack (0)