Friday, June 21, 2013
I am just back from Austin where I was privileged to attend the "launch" meeting of the Scholars in Residence Program, one of five fellowship programs funded by the Robert Wood Johnson Foundation in order to enhance and promote public health law. This press release put out by the Network for Public Health Law gives more detail on the scholars (I'm proud to say I'm one of them) and our projects. They are:
Jennifer S. Bard, Alvin R. Allison Professor of Law and Director of the Health Law Program and JD/MD program at Texas Tech University School of Law, will explore the interface between property rights and public health needs relating to nuisance and disease-spreading insects such as bed bugs and mosquitos. She will work with the City of Lubbock, Texas.
Alex Capron, University Professor at the University of Southern California and the Scott H. Bice Chair in Healthcare Law, Policy and Ethics at the Gould School of Law, will examine federal rules on human subjects research relating to the surveillance of pathogens and viruses. He will work with the Los Angeles County Department of Public Health.
Mary Crossley, Professor of Law and former Dean at the University of Pittsburgh School of Law, will identify innovative ways in which California health officials can use their legal authority to address the growing burden of chronic diseases through interventions targeting risk behaviors and social and economic factors that impact health. She will work with the San Francisco Department of Public Health.
Sharona Hoffman, Edgar A. Hahn Professor of Law and Professor of Bioethics at Case Western Reserve University, as well as Co-Director of the Law School’s Law-Medicine Center, will develop enforcement guidance for regulation of in-home care agencies in order to improve compliance and protect the well-being of the vulnerable individuals served by these agencies. She will work with the Oregon Health Authority in Portland.
Browne Lewis, Leon & Gloria Plevin Professor of Law and Director of the Center for Health Law & Policy at Cleveland-Marshall College of Law, will focus on current state and federal preemption issues regarding local government regulation of the labeling, marketing and sale of small cigars. She will work with both the Cleveland Department of Public Health and the Shaker Heights Department of Public Health.
Polly J. Price, Professor at Law at Emory University School of Law, will address the coordination of public health agencies in providing long-term tuberculosis therapy among migrants along the U.S. border with Mexico. She will work with public health agencies in El Paso, Texas and Las Cruces, New Mexico.
The meeting gave the six scholars, their supervisors from health departments all over the country, project leader Professor Fran Miller, RWJ liason and senior program officer Angela K. Mcgowan and consultant Nancy Kaufman and the team from the Network for Public Health Law, Judy Schector and Jackie Rose (Sara Rohde stayed behind to keep things running) a chance to meet and learn about the exciting projects and plans.
If anyone is not yet familiar with the Network for Public Health Law or their work, take a minute right now to join (its free). This is how it describes itself: "The Network for Public Health Law provides insightful legal assistance, helpful resources and opportunities to build connections for local, tribal, state and federal officials; public health practitioners; attorneys; policy-makers; and advocate." And indeed the assistance it provides is remarkable--it has put together a group of experts available to answer, free of charge, public health law questions.
The Network is linked with an impressive array of other RWJ funded public health law programs specifically:
- The National Policy & Legal Analysis Network to Prevent Childhood Obesity (NPLAN), a project of ChangeLab Solutions, provides leaders in the childhood obesity prevention field with educational resources and technical assistance on legal issues related to policies to improve nutrition and physical activity.
- The Northwest Center for Public Health Practice (NWCPHP) promotes excellence in public health by linking academia and the practice community, including developing training materials for public health law professionals.
- The Public Health Law Association (PHLA), a non-profit membership organization, serves as a vibrant and active community of public health law practitioners and stakeholders and provides opportunities for all members to learn and share ideas, best practices and research on public health law.
- Public Health Law Research (PHLR) builds the evidence for and increases the use of effective regulatory, legal and policy solutions to protect and improve population health and the public health system.
- Tobacco Control Legal Consortium, America’s tobacco control legal network, provides technical assistance to support public health professionals, attorneys and advocates as they develop, implement, interpret and defend tobacco control policies.
In addition to the Scholars in Residence, RWJ has already launched the the Visiting Attorney Fellows Program
There is also an active, and free of charge, students network designed to support law students interested in public health.
In the fall, a program directed by Charity Scott, Catherine C. Henson Professor of Law and center director, and
Stacie Kershner (J.D. ’08), associate director at The Georgia State College of Law's Center for Law, Health and Society will start accepting applications for "an intensive summer institute, work on course development, and create and direct
externships, clinics and other experiential-learning opportunities in public
health law. Experienced faculty mentors will guide these efforts, which will be
supplemented with connections to resources and organizations focused on public
health law in the practice setting."
Anyone with an interest in using the law to protect the public's health should be closely following the RWJ Foundation's innovative programing.
Guest Blogger Professor Jessie Hill - Agency for International Development v. Alliance for Open Society: Brief Thoughts and Implications
Yesterday, the Supreme Court decided AID v. Alliance of Open Society Int’l, holding that it violated the First Amendment for the government to require organizations to have an explicit policy opposing prostitution in order to receive funding under the Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003. The opinion was 6-2, with Justices Scalia and Thomas dissenting; Justice Kagan did not participate.
The opinion strikes me as a relatively straightforward application of the unconstitutional conditions doctrine, as much as that doctrine can ever be straightforward. Following the line of cases including Rust v. Sullivan, Regan v. Taxation with Representation, and FCC v. League of Women Voters, the Court restated the principle that the government, in executing a spending program, can place viewpoint-based speech restrictions on the program in which its own funds are being used, but it cannot restrict the grantee’s activity outside the program. In the words of Chief Justice Roberts’s opinion for the majority, the government can impose “conditions that define the limits of the government spending program—those that specify the activities Congress wants to subsidize,” such as anti-prostitution advocacy and other advocacy of safe-sex practices, but it cannot impose “conditions that seek to leverage funding to regulate speech outside the contours of the program itself” – i.e., the speech activities and advocacy of organizations that is conducted on those organization’s own time and dime.
Though the principle may be straightforward, application is difficult. How do we distinguish between program-defining conditions and conditions that restrict speech outside the program? And how far is the majority willing to go with this view? As Justice Scalia’s dissent demonstrates, the anti-prostitution policy requirement could simply be seen as “nothing more than a means of selecting suitable agents to implement the Government’s chosen strategy to eradicate HIV/AIDS.” After all, if the government cannot limit its speech “agents” in this way, then is it also required to allow the Free Love Society to carry its message of abstinence, so long as the organization expresses its own, opposing, views of abstinence separately with its own funds? The majority’s opinion is insufficiently precise in response to this concern.
Now, a few brief observations about the opinion’s implications for other cases. First, I was surprised that neither the majority nor the dissent explicitly referred to the term “government speech.” The notion that the government has the right to control its own message is clearly implicated here, and the use of the “government speech doctrine” by lower courts to justify all sorts of viewpoint-discriminatory government actions has been widespread. Though the concept of government speech lurks in the AID opinions, the term does not, and I wonder whether anything is to be made of this.
Second, I wonder what effect this case will have on state efforts to de-fund Planned Parenthood. Many states have passed or are considering laws that prohibit any entity that provides abortions services, or is affiliated with an abortion provider, from receiving family planning funds. Some such rules have been successfully challenged as preempted by Medicaid’s requirement that patients have a free choice of providers for medical services (42 U.S.C. § 1396a(a)(23)).But when only state funds are at issue, as in a recent Texas case (Planned Parenthood v. Suehs), Planned Parenthood can still argue that the denial of funds based on its affiliation with an abortion provider is an unconstitutional condition.
Assuming that Planned Parenthood has a constitutional right either to perform abortions or affiliate with an abortion provider, does AID help it make the case that such funding restrictions unconstitutionally require them to waive such rights in return for funding? If, as in Texas, the program is set up such that Planned Parenthood cannot remain “Planned Parenthood” (indeed, it cannot even keep that name if it wants to receive funds under the Texas Program), then it seems to fall right within AID’s holding. The Texas rule, in excluding Planned Parenthood entirely based on its constitutionally protected activity, regulates the grantee and not just the program. If Planned Parenthood cannot receive funds in one entity and perform abortions even in a physically, legally, and financially separate entity, then the law “does not afford a means for the recipient [i.e., Planned Parenthood] to express its beliefs” or engage in its desired, protected activity, and it is therefore unconstitutional.
Of course, the doctrinal lines are hazy enough here that we can’t say anything for sure. Whether AID has implications for Planned Parenthood remains to be seen.
The Supreme Court decided Agency for International Development v. Alliance for Open Society International yesterday, a lower-profile case about unconstitutional conditions placed on federal funding. My initial reaction is that the opinion can be read in at least two ways. On the surface, this decision reads like the long line of First Amendment unconstitutional conditions cases such as Rust v. Sullivan and Legal Services Corp. v. Velazquez. Chief Justice Roberts' majority opinion held that the "Leadership Act" could offer federal funding to eradicate HIV/AIDS throughout the world, and that funding can express discouragement of prostitution by refusing to allow the funds to be used for the promotion of prostitution, but the Court held that the conditions on the funds cannot go so far as to require the organizations using the federal funds to explicitly oppose prostitution. (Fund recipients had expressed the fear that taking an overt stance against prostitution would harm their public health efforts by scaring those in the sex trade away from their doors.) The majority's opinion is a non-controversial read of that line of cases and even attempts to make sense of the somewhat inconsistent application of the doctrine by describing the difference between "conditions that define the limits of the government spending program" and "conditions that seek to leverage funding to regulate speech outside of the contours of the program itself." I don't necessarily buy this distinction. After all, conditions by necessity define the contours of a program - unless they are nongermane, which seems to underly the Chief Justice's leveraging concept but was never explicitly stated. But, it is one way to describe the differing outcomes in this line of cases that is worth considering.
But then I come to a second possible take: this case reiterates the Roberts Court's willingness to rein in congressional exercises of the spending power. On the heels of NFIB v. Sebelius, the spending aspect of this case is notable, given that this is the second case in two years to express disapproval of conditions on federal spending. Unlike NFIB, which created a novel coercion doctrine without contours, this decision tread familiar ground in its conclusion that conditions on spending cannot violate First Amendment rights. However, even during oral arguments, there were shadows of the ACA controversy from last term. And, although NFIB was not cited in the opinion, both the majority and the dissent (authored by Justice Scalia) contained familiar language about leveraging, coercion, and offers that can't be refused. It is unclear why Justices Scalia and Thomas would uphold this condition on federal funding when they so readily and forcefully rejected the Medicaid expansion last year. The simplest answer is probably that these justices have long rejected the unconstitutional conditions doctrine. (Another possibility is that the dissenting justices agree with the policy of rejecting prostitution (see Justice Scalia's bizarre "free love" comparison) but disagreed with the policy of universal health coverage.)
While the spending power is still robust, I am not sanguine about the conversation the Court is trying to have with Congress about the Spending Clause. It will be interesting to see how the Court furthers this project in the same-sex marriage cases that are sure to be handed down next week. If the cases turn on the doctrine of federalism, then read in combination, the Roberts Court may be continuing its adventures in the Federalism Revolution, once thought done and gone, and now revived through the spending power.