Tuesday, July 23, 2013
Numerous outlets, including the Washington Post, have reported that nearly one-third of the 32 Pioneer ACO's under the Affordable Care Act have left the program. Almost half of th program participants have failed to produce any cost-savings. Most of those that have left have switched to the Medicare Shared Savings Program, which does not carry the down-side financial risk that the Pioneer ACO program carries. One of the major reasons for leaving the program cited by those dropping out is that physician groups aren't accustomed to dealing with financial risk of this nature.
In the late 1990s, I practiced health care law in Seattle, Washington. Among the folks I represented were physician-led organizations who had contracted with commercial insurers to accept downside financial risk for the cost of the care they rendered. Invariably, when the accounting at the end of the contract term was done, the physician-led organization was told that it had incurred a loss, and owed money back to the insurers. This tended to result in the four stages of litigation: Disbelief, denial, blame, and filing a lawsuit, followed by the four stages of settlement: Discovery, failed negotiation, mediation, and payment of substantial attorneys' fees. Ultimately, most physician-led organizations stopped accepting contracts with down-side risk, and insurers came up with different methods of controlling costs and ensuring quality of care, with varying degrees of success. Clearly, there is more to facilitating the delivery of cost-effective, good-quality care, than merely putting all of the financial risk of the care on the providers.
When the Pioneer ACOs were first proposed, I wondered why anybody thought that the outcome of this experiment would be different than the mostly failed full-risk contracts that had been the rage in the late 1990's. While the early ACO numbers indicate that some progress has been made (2/3 of the providers are remaining in the program, and almost 60% have produced some cost-savings), this early outcomes data should give us a reason to re-examine our assumptions about what it takes to change the way we deliver health care in the United States. Clearly, it's not all about financial incentives.
Monday, July 22, 2013
Elaine Gibson & Jocelyn Downie, Consent Requirements for Pelvic Examinations Performed for Training Purposes, 184 CMAJ 1159 (2012).
Sandeep K. Narang, John David Melville, Christopher S. Greeley, James D. Anderst, Shannon L. Carpenter, Betty Spivack, A Daubert Analysis of Abusive Head Trauma/Shaken Baby Syndrome — Part II: An Examination of the Differential Diagnosis, SSRN.
Saturday, July 20, 2013
Organ allocation always involves contestable values. New technologies of regenerative medicine will raise similar concerns. Slate's Michael Bennett offers the following, interesting set of dilemmas at the intersection of cutting edge health care and finance:
Our society at large resembles . . . the arrangement of classes defining the experience of contemporary air travel. Will you be able to afford an economy class liver? Perhaps a business class model? Will organ markets reproduce the qualitative differences we’ve come to accept with commercial air classifications? Should organ performance track organ price? . . . If you’re underwater on your liver mortgage, it’s safe to assume you’ll be hard-pressed to walk away.
As Deven Desai has argued, in a world of person-machine merger, "Simply saying you signed this contract, and we can do what we like is an error." Neither organs nor their financing should be "subprime" in the world Bennett describes.
Thursday, July 18, 2013
Michael Simkovic(Seton Hall) & Frank McIntyre(Rutgers Business School), The Economic Value of a Law Degree (PowerPoint):
Legal academics and journalists have marshaled statistics purporting to show that enrolling in law school is irrational. We investigate the economic value of a law degree and find the opposite: given current tuition levels, the median and even 25th percentile annual earnings premiums justify enrollment. For most law school graduates, the net present value of a law degree typically exceeds its cost by hundreds of thousands of dollars.
We improve upon previous studies by tracking lifetime earnings of a large sample of law degree holders. Previous studies focused on starting salaries, generic professional degree holders, or the subset of law degree holders who practice law. We also include unemployment and disability risk rather than assume continuous full time employment.
After controlling for observable ability sorting, we find that a law degree is associated with a 60 percent median increase in monthly earnings and 50 percent increase in median hourly wages. The mean annual earnings premium of a law degree is approximately $53,300 in 2012 dollars. The law degree earnings premium is cyclical and recent years are within historic norms.
We estimate the mean pre-tax lifetime value of a law degree as approximately $1,000,000.
- Michael Simkovic (Seton Hall), The Economic Value of a Law Degree (Part 1 of About 5)
- ABA Journal, What’s the Value of a Law Degree? $1M in a Lifetime, Report Says
- Business Insider, Study: A Law Degree Is Actually an Amazingly Good Investment
- Inside Higher Ed, The Upside of Law School
- Dan Filler (Drexel), What Is a JD Worth? Study Suggests Lifetime Value of $1 Million, on Average
- Brian Leiter (Chicago), "The Economic Value of a Law Degree"
- Kyle McEntee (Law School Transparency), New Study on Economic Value of Law Degree
- Elie Mystal (Above the Law), Another Garbage Study Offering Misleading Statistics on the Value of a Law Degree
- Frank Pasquale (Maryland), "Fundamentally Changing the Conversation about the Economic Value of Legal Education"
Hat Tip to my friend Paul Caron over at TaxProf Blog.
Wednesday, July 17, 2013
Many readers of this blog may know well my dear friends and colleagues, Peggy Battin and Brooke Hopkins. Over the past nearly-five years, they have dealt with Brooke's biking accident which left him essentially unable to move below his shoulders. This Sunday's New York Times magazine will feature a story by Robin Marantz Henig about Peggy and Brooke: how they have thought about dying, autonomy, and living with disability. They are both truly remarkable, and the story is worth reading, again and again, for this alone--as well as for the bioethics thinking it reflects.
A subtheme of their lives is home care. Some of these issues that they and others face are financial--our failure to pay for long term care through traditional insurance, the incentives that favor institutioinalization over living at home, the characterization of expenses such as modifying a shower as not medical, and the sheer expense of equipment such as wheelchairs. But some are regulatory: what type of wheelchair will be covered, what kinds of licensing requirements apply to home aides, and perhaps most troubling what activities can result in decisions to terminate the home health services that are available. Too often, we insist that people must only use devices such as wheelchairs within the home, or that people must only stay within the home except for medical appointments, in order to continue to qualify for home health services.
I fully recognize that all of these issues are contested ones. However, I hope that those reading the story will appreciate the amazing lives that Brooke and Peggy live and the importance of Brooke's being able to live at home for them both, as well as their enormous skill in negotiating the troubling realities of home care today.
Tuesday, July 16, 2013
Last week, I mentioned that I had just finished reading Prof. Andrew Koppelman's book "The Tough-Luck Constitution," and said that it was a little outside of my usual summer reading lists. Then I thought about it, and realized that despite my best efforts to avoid health-care-related summer reading in favor of lighter fare, every summer I wind up reading at least one or two health-related books that don't involve bodice-ripping and swooning, but are not quite as heavy as a casebook or treatise. So here are a few of the books that I have read over the past several years that I think belong on any health law wonk's summer reading list. They also make great supplements for health law classes:
The Truth About the Drug Companies - Dr. Marcia Angell
The Great Influenza - John Barry
How We Do Harm - Dr. Otis Brawley
The Spirit Catches You and You Fall Down - Anne Fadiman
Flu - Gina Kolata
Unaccountable - Dr. Marty Makary
Medicine & Culture - Lynn Payer
The Healing of America - T.R. Reid
A Taste of My Own Medicine - Dr. Edward E. Rosenbaum
Hospital - Julie Salomon
God's Hotel - Dr. Victoria Sweet
I have avoided some very worthy, but more academic reads, such as Paul Starr's seminal "The Social Transformation of American Medicine," but of course, if you can concentrate while sipping that Corona at the beach or on your boat, go for it. And no, I get no kickbacks, incentives, or pens with names on them from any of these authors in exchange for my listing.
Sunday, July 14, 2013
Substance abuse treatment is an important health care need. The Fair Housing Act (FHA), the Americans with Disabilities Act (ADA), and the Rehabilitation Act (for entities receiving federal funding), all protect people recovering from substance abuse against discrimination based on disability. Yet it remains difficult for treatment facilities to find appropriate locations in which to offer their services. Neighborhoods fear reduced property values, risks of violence, and other community disturbances and often voice these fears loudly in zoning board hearings. Elected public officials find these protests difficult to ignore. Although some NIMBY concerns are well founded, others are rooted in stereotypes or unfounded beliefs about the nature of substance abuse or the services provided by treatment facilities. Oxford Houses, a nationwide program of treatment facilities, has litigated recent NIMBY cases in a number of jurisdictions, with some success. (e.g., Oxford House, Inc. v. City of Baton Rouge, 2013 U.S. Dist. LEXIS 38002 (M.D. La. March 18)).
Nonetheless, it remains difficult for many facilities to obtain success in court when they are denied permits at the local level. A recent decision of the federal district court involving a facility in Detroit is illustrative. Get Back Up v. City of Detroit, 2013 U.S. Dist. LEXIS 91816 (E.D. Mich. July 1), involved a treatment program that had purchased a school located in an area zoned as a general business district. This zoning classification also permits some residential uses “by right” and some “conditional” uses. “By right” uses include hospitals and nursing homes; “conditional uses include fraternity houses, multiple family dwellings, rooming houses, pre-release adjustment centers, and substance-abuse service facilities. The court granted summary judgment to the City on claims that the ordinance discriminated on its face, that it differentially impacted people with disabilities, and that the City had failed to make reasonable accommodations. The court’s view was that this did not discriminate on its face merely by singling out treatment facilities; instead, it drew neutral lines among materially different types of institutions, treating substance abuse facilities like rooming houses and unlike nursing homes or hospitals. The physical infirmity of nursing home residents, in the judgment of the court, made a material difference between these institutions and substance abuse treatment facilities.
Most disturbing about the court’s decision is that it credits the City’s claims that residents from the facility had harassed people in a neighboring residential area and were responsible for increases in robberies in the area, without subjecting this evidence to the assessment of credibility it would have received in the case had gone to trial. If this decision stands, Get Back Up will presumably need to find new facilities in which to operate, losing its investment in the school that it had purchased.
As Nelson Mandela's life may be nearing its end, his family may face difficult decisions about the use or withdrawal of artificial ventilation and other life-sustaining treatments. The New York Times reported on Friday how uncertainties in South African end-of-life law and political considerations may complicate the decision making process.
Unfortunately, as we've seen over and over in the United States, a factor that might make things especially difficult is the potential for disagreements among Mandela's family members. Many of the most important--and troubling--cases in the United States came to court when family members staked out different positions on a patient's end-of-life care. In the Schiavo case, for example, Terri Schiavo's husband believed she would not want to receive artificial nutrition and hydration while her parents believed she would.
According to the Times, Mandela's family "has shown itself to be fractious about decisions regarding inheritance, his eventual burial location and his legacy." Unfortunately, even when legislators have enacted good end-of-life statutes, family disagreements can preclude a dignified process for making life-sustaining treatment decisions for incapacitated patients.
Saturday, July 13, 2013
The Clinic’s primary mission is to provide an excellent experiential learning opportunity for our students, while also providing legal services to low-income individuals involved in health-related litigation (e.g., denial of benefits, guardianship proceedings). Duties will include classroom teaching; supervision of second- and third-year law students as they represent clients and participate in community projects; and community outreach and administrative responsibilities relating to the Health Law Clinic.
Qualifications include admission to practice in Pennsylvania or willingness to seek admission to the Pennsylvania bar; experience in the field of health law (with a preference for experience representing individuals in benefits and guardianship proceedings); and the ability to work effectively with students, clients, and other constituents. The School has a strong preference for candidates with experience in clinical pedagogy or other law school teaching experience.
To apply: Please submit a letter of interest, resume, and a list of references to Professor Mary Crossley, Chair, Clinical Appointments Committee, University of Pittsburgh School of Law at firstname.lastname@example.org. The University of Pittsburgh is an Affirmative Action/Equal Opportunity Employer and values equality of opportunity, human dignity and diversity. The deadline for applications is September 3, 2013.
Wednesday, July 10, 2013
Hello all – I am back from my teaching adventures in Italy, followed by a bit of a vacation, and am ready to resume regular blogging. I hope everybody is having a great summer, it is good to be back in the saddle again in Spokane.
Just finished reading Prof. Andrew Koppelman’s new book “The Tough Luck Constitution and the Assault on Health Care Reform.” Professor Koppelman nicely lays out the libertarian roots of the argument against the constitutionality of the Affordable Care Act’s individual mandate, explains how the Supreme Court’s conservatives came to embrace the argument, and puts forth his belief that this view of limited government power has nothing to do with the Constitution, but everything to do with contemporary politics. I particularly like his christening of the libertarian position on these issues as “tough luck” philosophy; if you fall on hard times, too bad for you, and the federal government is powerless to help you. He also aptly points out that virtually nobody actually follows this philosophy in their own life or in politics, but it fits well with the mythology of the rugged American individual, pulling himself up by his own bootstraps.
The book is written for non-experts, although having some legal background would be helpful in understanding the broader themes (he notes that other efforts by the Supreme Court to limit congressional power have been ill-advised and short-lived; such as its striking down of anti-lynching laws and child-labor laws in the pre-New-Deal era). It is short, and although I know it is not exactly summer beach reading, it is well worth your time if you have any desire to understand the constitutional arguments about the Affordable Care Act.
Monday, July 8, 2013
In yesterday's New York Times, Ross Douthat joined the chorus that criticizes employer-sponsored health care insurance. According to Douthat, this "unsustainable relic" is a "burden on businesses, a source of perverse incentives for the health care market and an obstacle to more efficient, affordable and universal coverage."
In fact, the United States is not unusual in the extent to which it relies on companies to fund health care coverage. Indeed, employers in France, Germany and Japan shoulder a higher percentage of their countries' national health spending than do U.S. employers. Government-run systems must find sources of funding for their programs, and employers are an obvious place to look.
To be sure, there are problems with employer-sponsored coverage, but the Affordable Care Act (ACA) takes care of a very important one. Employer-sponsored coverage has promoted "job lock" in the United States. Many would-be entrepreneurs have been reluctant to start their own companies because they would lose their employer-sponsored coverage and have to pay for insurance out of their own pocket. For people with pre-existing medical conditions, insurance might not be available. Under ACA, the new entrepreneur will be able to find an affordable health care plan on an insurance exchange.
The abandonment of employer-sponsored coverage would reduce the burden on businesses only if health care costs overall were lower under the replacement system. Many health care policy experts observe that costs are lower in government-run systems overseas because the governments can exercise greater negotiating leverage with doctors and hospitals than can insurance companies in the United States. In short, the high cost of U.S. health care and its burden on business seems to be not so much a problem of relying on employers rather than individuals to purchase coverage but a problem of relying on private insurers rather than government to operate the system.
Sunday, July 7, 2013
Nursing Home Asks Supreme Court to Review State's Enforcement of Arbitration of Wrongful Death Claims
In early 2013, a nursing home operator filed a writ of certiorari asking the U.S. Supreme Court to determine whether state courts can refuse to enforce an arbitration agreement signed by the now deceased resident in a wrongful death action brought by the resident's survivors under the Federal Arbitration Act (FAA). In its petition, SSC Odin Operating Co. asserted that there is a conflict among the highest state courts over whether wrongful death plaintiffs are bound by arbitration agreements signed by their decedents.
In the case involving Odin Operating Company, the Illinois Supreme Court refused to enforce an arbitration agreement between a nursing home and a deceased resident that allegedly required arbitration of wrongful death claims asserted by the resident's heirs, personal representative and estate administrator. The Illinois Court explained that the wrongful death claim was not an "asset" of the estate that could have been encumbered by the decedent, the derivative nature of the claim did not require arbitration and basic contract principles barred the enforcement of the arbitration agreement against the administrator.
The Kentucky Supreme Court  also held that wrongful death plaintiffs cannot be compelled to arbitrate claims. According to the Kentucky Court, under Kentucky law, wrongful death claims are not derivative, but accrue separately to the beneficiaries and are meant to compensate them for their loss. Courts in four other states, Missouri, Utah, Ohio, and Washington, have ruled similarly.
In contrast, the Texas Supreme Court held that the FAA preempts a state rule of law treating arbitration agreements signed by decedents differently than other types of contracts signed by decedents. The Court held that contracts signed by decedents generally are enforceable against their estates. To hold otherwise would create an anomaly as the estate would be bound by a contract in which the decedent completely disposed of the claim, but would then not be bound by an agreement that changed the forum in which the claim would be resolved.
The Florida Supreme Court recently used similar reasoning to declare an arbitration agreement enforceable against wrongful death plaintiffs. The Court found that a survivors' right to recover damages under the state's wrongful death act is predicated on the decedent's right to recover in a personal injury action. As a result, survivors cannot recover in actions where the decedent previously won damages or settled an action based on the same injuries that caused his or her death, or signed a document releasing the tortfeasor from liability.
 SSC Odin Operating Co. v. Carter, U.S., No. 12-1015, petition for review filed 2/15/13.
 Carter v. SSC Odin Operating Co., Ill., No. 113204, 9/20/12.
 Ping v. Beverly Enterprises Inc., 376 S.W.3d 581 (Ky. 2012).
 Mary Anne Pazanowski, Nursing Home Asks Supreme Court to Review States' Treatment of Wrongful Death Claims, 22 HLR 341(2013), available at http://healthlawrc.bna.com/hlrc/4237/split_display.adp?fedfid=29858437&vname=hlrnotallissues&fcn=5&wsn=491410000&fn=29858437&split=0.
 In re Labatt Food Service LP, 279 S.W.3d 640 (Tex.2009).
 Laizure v. Avante at Leesburg Inc., Fla., No. SC10-2132, 2/14/13.
Saturday, July 6, 2013
Glen Weyl and Eric Posner have proposed an agency to license financial Innovation, to be modeled on the Food & Drug Administration:
We propose that when firms invent new financial products, they be forbidden to sell them until they receive approval from a government agency designed along the lines of the FDA, which screens pharmaceutical innovations. The agency would approve financial products if they satisfy a test for social utility that focuses on whether the product will likely be used more often for insurance than for gambling. Other factors may be addressed if the answer is ambiguous.
In health care regulation, the government's goals are relatively clear: raise quality, cut costs, and increase access. These goals are often in tension, but they provide guidance for policymakers. Weyl and Posner note three similarities between finance and drug regulation:
1) Expertise is key to good decisionmaking.
2) There is delayed and uncertain feedback on the wisdom of decisionmaking.
3) Decisions have high stakes.
This is a very interesting paper overall. However, I'd say the fundamental discontinuity is that while finance orders capital allocation for an entire society, health is merely one of many sectors ordered by finance. That means ethical and social considerations should be far greater in the finance sector than in health. Presently, nothing seems to be further from the case.
Wednesday, July 3, 2013
The Affordable Care Act has largely weathered its challenges in court, but its political vulnerability continues to result in erosion of the Act's provisions.
The provisions for long-term care were abandoned two years ago, many state legislatures and governors are balking at the Medicaid expansion, and now the Obama administration has delayed implementation of the employer mandate to offer health care coverage.
To be sure, glitches are to be expected with major legislation such as the Affordable Care Act. Many states were slow to adopt the original Medicaid program, and it took a decade to take food stamps nationwide. In the end, we may see an Affordable Care Act whose key provisions remain intact.
Still, the history of health care reform efforts give reason for concern. Health care rights have been unstable in the United States to the extent that they adopt different approaches for rich and poor. Thus, while Medicare has provided a reliable guarantee of coverage because it covers all seniors, Medicaid has not provided adequate access to health care because it relies on the willingness of wealthier Americans to fund a program that does not benefit them.
The Affordable Care Act looks much more like Medicaid than Medicare. Prosperous Americans will continue to receive private health care coverage from their employers, while low-income Americans will have to rely on Medicaid or on federal subsidies to purchase private coverage. Over time, it is not clear how willing wealthier people will be to maintain funding at adequate levels for Medicaid or the subsidies.
Tuesday, July 2, 2013
Teaching the regulation of human subject research gives me the ability to demonstrate, just about every class period, how blurry the line can be between what is legal and what is ethical. What individuals must do as a matter of law and what they cannot do as a matter of law are very different from what they should do. I tell my students that outside the assessment of legal risk, "should" is a business decision, a science decision, an ethics decision, a public relations decision or some combination of all four--and it's one other people (clients) are going to make for themselves.
A tip of the hat Fran Miller who clued me in to some very recent events that provide a perfect example of the relationship between law, ethics and science in human subject research. Many will have read the New York Times article about a letter sent by the Office of Research Protection (OHRP) to the lead researcher University of Alabama at Birmingham (UAB) criticizing a study they had run in 23 major medical centers involving infants requiring oxygen support in the neonatal intensive care unit (NICU). Called the SUPPORT Study (and please follow the links--the complexities here are beyond a blog post), it was intended to find out the safe, but effective, limits for providing a premature infant supplemental oxygen. Too little oxygen, of course, affects breathing but too much oxygen, we have known for a long time, causes blindness. The babies were randomized to receive different levels of oxygen and the results measured.
Whether or not the study should have ever been approved is a matter of debate-the fact that many of the babies involved had worse results than they would have under standard of care and even the fact that one of the babies involved does not, in and of itself, mean that the study was illegal or unethical. Here's the explanation by the researchers themselves. This is the Government version.
The issue under dispute is not the study itself--it's the consent process. Soon after the letter became public and OHRP began the process of assessing wehther there should be sanctions, what in theory is OHRP's sister institution, the NIH which provided funding for the study, criticized the warning and supported the SUPPORT study (these puns are invevitable). And soon afterwards OHRP backed down--agreeing to hold a public hearing.
What's so interesting about this dispute for lawyers is cogently explained by Lois Shepherd, the Peter A. Wallenborn, Jr. and Dolly F. Wallenborn Professor of Biomedical Ethics, Professor of Public Health Sciences, and Professor of Law at the University of Virginia in her analysis posted at the Hasting's Center Bioethics Forum Blog. She points out that the ethicists and scientists supporting UAB don't necessarily disgree that the parents lacked complete information about the risks. That the law, in other words, wasn't complied with. But, they argue, the importance of the study outweighed a flawed consent process--and moreover, in a letter published by the New England Journal of Medicine they challenge OHRP's ability to, in essence, substitue it's judgment of whether disclosure was sufficient for that of the IRB giving initial approval.
That's a big deal. 45 CFR 46.116 specifies that consent for human subject research funded by the federal government must include (among other things--read the whole thing yourself) that "a description of any reasonably foreseeable risks or discomforts to the subject”; and “a disclosure of appropriate alternative procedures or courses of treatment, if any, that might be advantageous to the subject.” According to OHRP and those who support it, UAB's experiment did not meet that standard because, among other things, it did not disclose to the parents that there was a risk of death.
But who decides whether or not the information was sufficient?
As a lawyer, I would say that the fact that Congress, in its infinite wisdom, set up a system in which OHRP has the power to review the decisions of individual IRB's answers this question immediately. Of course OHRP can substitute its judgment for that of the individual IRBS approving this study-that's what it's there for.
But in the real world, things are not so clear and it's always possible for Congress to change the balance of power. In my view that would be a huge mistake--it's hard to imagine what else has to happen in order to prove the point that when it comes to protecting human research subjects science cannot reglate itself. There must be outside oversight that reflects the view of the electorate at large--the general population of human subjects--rather that of those whose primary goal is to advance science.
Is it possible to have a system where the needs of the many outweigh those of the few? Where in the face of great benefit to all future premature infants it is acceptable to give some premature infants less than the standard of care? Sure--it's possible. But it's not how, so far, the United States has chosen to regulate human subject research.
The traditional rule in wrongful death cases is that a plaintiff cannot recover unless survival was more likely than not. This means that a healthcare practitioner who causes the death of a patient through a negligent act escapes liability when the patient had a less than 51% chance of survival before the negligent act. On the other hand, a patient who proves that he or she had a greater than 51% chance of survival will recover for the negligent act that causes death.
In May of 2013, the Supreme Court of Minnesota, in Dickhoff v. Green, followed a short line of cases recognizing as actionable a patients increased risk of dying resulting from her doctor’s negligent failure to secure timely diagnosis and treatment of cancer. In Dickoff, a physician failed to diagnose a lump on a baby as cancer for over a year. The baby was then diagnosed by another physician as having a rare and aggressive cancer. The baby subsequently underwent a tumor-removal surgery, chemotherapy and radiotherapy, but remained dangerously ill. A timely referral would have given the baby, at a minimum, a 60% chance of survival. The delay in diagnosis decreased this chance 40%. Thus, the plaintiff made out a prima facie case for a 20% reduction in her chances to stay alive.
Following other state courts, the Minnesota Supreme Court ruled that this reduction constitutes actionable damage in and of itself holding that a resident can successfully sue her doctor for an increased risk of the underlying illness’s recurrence and a decreased life expectancy as stand-alone damage. The only limitation that the Court placed on this cause of action is that the plaintiff's increased risk and decreased life expectancy must be substantial.
 Dickhoff v. Green, — N.W.2d —, 2013 WL 2363550 (Minn. 2013).
 See e.g., Hesrkovitz v. Group Health Cooperative of Puget Sound, 99 Wash. 2d 609, 664 P. 2d 474 (1983); DeBurkarte v. Louvare, 393 N.W.2d 131(Iowa 1986); Roberts v. Ohio Permanente Medical Group, Inc., 76 Ohio St. 3d 483, 668 N.E2d 480 (1996); Jorgenson v. Vener, 616 N.W.2d 366 (S.D. 2000).
Saturday, June 29, 2013
Guest Blogger Professor Jessie Hill: Supreme Court grants cert in Cline v. Oklahoma Coalition for Reproductive Justice
For the past nine years, I have been litigating (together with attorneys from Planned Parenthood) the constitutionality of an Ohio law that requires physicians prescribing the abortion-inducing drug mifepristone (RU-486, which was approved by the FDA in 2000 and can be used safely to terminate pregnancy until at least 9 weeks of pregancy) to follow a particular, outdated protocol. On Thursday, the Supreme Court granted certiorari in an Oklahoma case raising almost identical issues. Because of some uncertainty about the meaning and scope of the state law, however, the Supreme Court took the unusual step of certifying two questions to the Oklahoma Supreme Court and suspending all proceedings (including, presumably briefing), until the Oklahoma court responds. This raises the possibility that the Court might end up dismissing the case, or that it won’t get argued this Term. But the case raises important, novel, and fascinating issues that most likely will ultimately be aired before the Court.
The Oklahoma law prohibits the “off-label” use of any “abortion-inducing drug.” There are several problems with this. First, insofar as it appears to require that RU-486 be prescribed in accordance with the protocol outlined in the FDA labeling, that protocol is severely out-of-date. It was the protocol used during clinical trials in the 1990s, and virtually no physician uses it today (unless state law requires it). Notably, the FDA labeling protocol specifies that women take three times more of the drug mifepristone than they actually need to take under the current, evidence-based protocol. It also requires women to return for additional visits to the clinic, which they otherwise do not need to make. (In the Oklahoma case, there is also some question whether the law also completely prohibits the use of misoprostol, which is used in conjunction with mifepristone to complete the abortion, and methotrexate, which is often used to terminate ectopic pregnancies).
Assuming the law’s doesn’t outlaw use of misoprostol and methotrexate but does require women to follow the outdated RU-486 protocol (an issue that the Oklahoma Supreme Court will clarify), the problems are that the off-label prohibition makes the drug more expensive, increases side effects, requires additional visits to the clinic, and makes takes the medication abortion option off the table for women between 7 and 9 weeks of pregnancy, for whom it would be safe and effective. But is it unconstitutional? I believe there are strong arguments that these factors, certainly in combination, could constitute an “undue burden” under Planned Parenthood v. Casey. In addition, there is a strong argument that, by forcing some women to have a surgical abortion when a safe, medical option is available, the law impinges on women’s fundamental right to bodily integrity. Finally, the Constitution requires a health exception, allowing the drug to be used for some women for whom it is safer than surgical abortion (such as women with anatomical anomalies or obesity). Time will tell whether the Supreme Court agrees.
Friday, June 28, 2013
The Tenth Circuit issued yesterday a divided and quite lengthy opinion in Hobby Lobby Stores Inc. v. Sebelius. The court has held that Hobby Lobby has rights under the Religious Freedom Restoration Act, despite being a corporation, that are likely to protect the entity from compliance with the ACA's contraceptive coverage requirements. The case is remanded to the district court for additional findings as to whether the Hobby Lobby stores should be exempted from the ACA's statutory requirements, consistent with the Tenth Circuit's interpretation of RFRA. For more summary and analysis, see Lyle Denniston at SCOTUSblog. The slow march to the Supreme Court continues.
Wednesday, June 26, 2013
The Court's decision striking down section 3 of DOMA in United States v. Windsor was unsurprising, yet still a relief to many. Section 3 defined marriage for federal statutory purposes to mean only marriage between one man and one woman. Based on the late March oral arguments in Windsor, as well as Justice Kennedy's majority opinions in Lawrence v. Texas and Romer v. Evans, the common wisdom was that federalism would be the prevailing reasoning because the states historically have governed family law matters, including marital status. One of Justice Kennedy's projects has been revitalization of the Court's enforcement of federalism to protect the states, especially as a method to protect individual liberties (see, e.g., Bond v. United States).
And so it was. Justice Kennedy provided both structural and substantive reasons for striking down section 3 of DOMA. From a structural perspective, Justice Kennedy's majority emphasized traditional state dominion over marriage, writing: "By history and tradition, the definition and regulation of marriage ... has been treated as being within the realm of the separate States." Though the opinion walked right up to the federalism line, it stopped short of holding that DOMA exceeded congressional authority or violated the Tenth Amendment. Instead, the majority moved forward on substance and held that the federal government cannot take away the marriage right and its attendant societal status once conferred by the states. To do so was a violation of gay couples' liberty and dignity. The Court also hinted at an equal protection analysis, condemning Section 3 as creating second class marriages in states that recognize same-sex unions. The majority applied only rational basis review, rather than heightened scrutiny, holding that DOMA was motivated by anti-gay animus and served no legitimate governmental purpose.
Neither the federalism, nor the equal protection, nor the due process analysis was either complete or clear cut, and each opens more questions than it closes. For example, Justice Kennedy views the experiment of the states to protect individual liberty, and here, it happens that twelve states do protect liberty, more than the federal government. But, this view of federalism's aspirational work does not address the 37 or so states that do not protect the liberty interests of their gay citizens from state discrimination let alone the federal government's limited view of gay rights. And, this reversion to assessing traditional state law domains does not advance modern conceptions of federalism that acknowledge most state law is ineffibly intertwined with federal law by virtue of statutory interconnectedness, conditional spending, or other cooperative federalism mechanisms. Instead, Justice Kennedy seemed to be reaching back to the dual sovereign model of doctrinal federalism.
Fortunately, this regressive model of federalism does not seem to hinder the work that Windsor is likely to do with regard to DOMA's far-reaching effects on healthcare. For example, marital status influences not only access to affordable private health insurance (which is usually easier and cheaper through marriage), but also qualification for the Federal Employees Health Benefits Program as well as Social Security, the gateway for Medicare at age 65. Section 3 also affected Medicaid enrollment and spend-down requirements for the elderly entering nursing homes. The Medicaid/DOMA issue was presented to the Court in a petition for certiorari that the Court has not granted or denied yet. Back in October, I highlighted the First Circuit's decision in Massachusetts v. Department of Health and Human Services, which was mentioned in passing by Justice Kennedy as a case that would suffer vacatur if the Court dismissed for lack of standing. It seems fair to read approval of the First Circuit's decision into Kennedy's cite, which makes me think the Court will not grant the petition.
In addition to public and private health insurance issues, some healthcare delivery issues are likely to be resolved by Windsor as well. For example, many stories have detailed how hospitals have turned away same-sex partners under the guise of HIPAA privacy. Other tales have highlighted how substituted decision-making at the end of life can devolve to estranged family members when same-sex partnerships are not recognized as giving the gay spouse decisional authority that would ordinarily be given without a second thought to a heterosexual spouse. Doctors' offices have refused to recognize same-sex spouses as parents of children who need medical attention. And, care for infants of same-sex couples may become easier now that the Family Medical Leave Act will apply to same-sex marriages. It seems that the federal recognition of gay marriage that will flow from Windsor will be beneficial in many healthcare situtations, even in states that do not recognize same-sex marriage. Federal agencies have much work to do interpreting the word marriage in the coming days, but it seems that these decisions will facilitate a more functional approach to families' experiences in the healthcare system.
Tuesday, June 25, 2013
Once again, we have a judicial ruling that undermines efforts to encourage fathers to take responsibility for their children. The Supreme Court today sided with adoptive parents over a man who wants to raise his biological daughter.
To be sure, the man had relinquished his parental rights when the birth mother was pregnant, and he had not provided any financial assistance during the pregnancy or the first four months of his daughter's life. But he did object to the adoption when he was notified about it and asked that he be able to raise his daughter. If we want fathers to take responsibility for their children, we should not interfere with their reasonable efforts to assert their paternal roles.
Today's case unfortunately follows in the footsteps of other Supreme Court precedents which give mothers greater rights than fathers. For example, in 1983 case (Lehr v. Robertson), Court held that biological mothers always are entitled to notice about adoption proceedings, while biological fathers may forfeit their rights to notice if they do not take enough steps to assert their paternity.
When we have a serious problem with absent dads, we should do all we can to foster relationships between children and their fathers.
[The case, Adoptive Couple v. Baby Girl, involved interpretation of Native American law, with the interpretation driven by the Court's inadequate concern for fathers.]