Wednesday, July 16, 2014
David H. Kaye, 'Open to Dispute': CODIS STR Loci as Private Medical Information, Forensic Mag. (2014).
Rita Barnett-Rose, Informed Consent, Psychotropic Medications, and a Prescribing Physician’s Duty to Disclose Safer Alternative Treatments, 16 DePaul J. Health Care L. 67 (2014).
William A. Woodruff, Evidence of Lies and Rules of Evidence: The Admissibility of fMRI-Based Expert Opinion on Witness Truthfulness, N. Carolina J. of L. & Tech. (Forthcoming).
AALS Section on Law, Medicine & Health Care
Works-in-Progress for New Law School Teachers
AALS Annual Meeting, Washington, DC
Saturday, January 3, 2015
The AALS Section on Law, Medicine and Health Care is pleased to announce a Call for Papers for a special Works-in-Progress for New Law School Teachers Program. The Section will run the Program from 5:15 to 6:30 p.m. on Saturday, January 3, at the AALS 2015 Annual Meeting in Washington, DC.
This program will bring together junior and senior health law scholars for a lively discussion of the junior scholar's’ works-in-progress. Junior health law scholars will submit papers that they expect to submit in the spring 2015 law review submission cycle. After they briefly present their papers in a concurrent roundtable setting, senior scholars will provide oral comments and critiques. This new program presents an opportunity for the audience to hear cutting edge health law scholarship by recent members of the academy.
We will limit our selection to two or three papers.
Thursday, July 10, 2014
Riding in to work this morning, I heard an NPR story on raw milk, and it struck me once again that public health may be a victim of its own success.
I understand the appeal of knowing where your food is coming from. I remember how excited my nieces were to get ice cream at a local dairy and visit the cows that we assumed provided the milk for our treat. (They may not have.) But while most Americans could benefit from a better understanding of where of food comes from (including understanding it does not come in packages), there are reasons to be leery about returning to a day before pasteurization.
A 1943 article in the British Medical Journal estimates there were 65,000 deaths attributable to tuberculosis from raw milk in England and Wales between 1912 and 1937. This total does not include deaths from other causes associated with drinking raw milk. While there have been only two reported deaths from raw milk in the United States from 1998-2011, the Centers for Disease Control and Prevention reports that thousands have become ill as a result of drinking raw milk. Children, the elderly, pregnant women, and people with weakened immune systems are more susceptible to illness from raw milk.
Because in 2014 in the United States we infrequently see children die from infectious disease, it is easier to make a decision that risks infectious disease. In earlier generations, most people knew someone – a family member or a friend – who had been injured or died from infectious disease. Reports of polio would leave public swimming pools empty in the summer heat. Worldwide diarrhea still kills 760,000 children under the age of 5 each year, and measles remains one of the leading causes of death among young children. In the United States, access to antibiotics and vaccines have thankfully made such experiences a rarity. But as our collective memory of what those public health successes have achieved dims, we may ignore what public health has to tell us about our current risks.
HealthLawProf Blog extends a big welcome to our guest blogger for the month of July, Professor Leslie W. Wolf:
Leslie E. Wolf is Professor of Law at Georgia State University’s College of Law and Director of the College’s Center for Law, Health & Society. She has taught courses on medical liability, human subjects research, public health law, HIV/AIDS and the law, and bioethics. Professor Wolf came to GSU from the University of California, San Francisco, where she taught medical ethics and research ethics and also served on several research oversight committees. She has been both a Greenwall Fellow and a Greenwall Faculty Scholar.
Professor Wolf conducts research in a variety of areas in health and public health law and ethics, with a particular focus on research ethics. She has received funding for her research from the National Institutes of Health, the Agency for Healthcare Research and Quality, and the Greenwall Foundation. This research includes projects on conflicts of interests, research with stored biological materials, Certificates of Confidentiality, IRB web guidance, and HIV-related laws and policies. She also has served on the Centers for Disease Control and Prevention’s Ethics Subcommittee to the Advisory Committee to the Director (2008-2012), as a peer reviewer for federal research programs, and has been an invited presenter to various government agencies
Wednesday, July 9, 2014
State reluctance to fund Medicaid programs adequately is an endemic problem for recipients, especially those who are dual eligibles or who rely on Medicaid for services to enable them to continue to live in the community. Yet despite the ACA’s laudable goals of expanding Medicaid and coordinating Medicaid services in the interests of improved care, states continue to constrain their Medicaid programs either directly by specifying the choice of providers or indirectly by discouraging provider participation by low reimbursement rates. Several recent challenges to the impact of these cost control efforts on assisted living services for people with disabilities are worth following.
First, Idaho providers of supported living services brought suit in 2009 challenging the Idaho legislature’s failure to appropriate sufficient funds. The state’s rate-setting study had recommended a substantial increase in funds, but the legislature did not approve the increase. The district court granted summary judgment to the providers and the 9th Circuit affirmed in a very brief opinion in April 2014. The district court’s reasoning, upheld by the 9th Circuit, was that the Medicaid Act requires state rates to be “‘consistent with efficiency, economy, and quality of care and … sufficient to enlist enough providers’ to meet the need for care and services in the geographic area. 42 U.S.C. § 1396a(a)(30).” Exceptional Child Center v. Armstrong , 2014 WL 1328379 (April 14, unpublished). Purely budgetary reasons such as those cited by Idaho do not suffice to meet this standard. Last week, Idaho appealed the 9th Circuit decision to the Supreme Court.
Second, independent living centers in Southern California have brought suit challenging California’s method for enrolling dual eligibles into managed care programs. Such efforts, touted as improving care coordination, come under criticisms that they are instead merely methods of cost control that will result in the loss of essential services. The plaintiffs are Communities Actively Living Independent & Free, the Westside Center for Independent Living, and Southern California Rehabilitation Services, Inc.; they seek to enjoin what they contend is California’s confusing notice to dual eligible about their impending reenrollment and how to opt out of it. Westside Center for Independent Living vs. California Department of Health Care Services, Cal. Civil No. 34-2014-080001884 (filed July 2, 2014).
I’ll post updates, if and when available.
Monday, July 7, 2014
I write this post with more than a little trepidation; I’m as unhappy as anyone about what the Court made of the Religious Freedom Restoration Act last week. Nonetheless, given the current state of play, I’ve tried to see whether there are any ways to try to limit the damage.
This Supreme Court term has featured a striking number of unanimous decisions. What has drawn unanimity in these cases has been the narrow basis on which they were decided. Commentators have praised Justice Roberts for his political skills in bringing the Court together—demonstrating that at least one branch of government remains functional and shoring up claims to judicial legitimacy. Other observers note, however, that the unanimity is only skin deep—and point to the cases in which the Court divided 5-4 as symptomatic. So suppose we perform a thought experiment on one of the most divisive decisions of this term, Hobby Lobby. How could the decision have been narrowed? How should it have been narrowed? Such an examination is invited by Justice Alito’s statement that the Court’s holding is “very specific.” It is also invited by Justice Kennedy’s concurrence, which opens with the assertion that the Court’s opinion “does not have the breadth and sweep ascribed to it by the respectful and powerful dissent. Finally and disturbingly, it is also invited by the observation that the Court has quite quickly, in the case involving Wheaton College, opened wide one of the apparently narrow doors.
Wednesday, July 2, 2014
Recruitment for Public Health Law faculty at University of South Florida Department of Health Policy & Management
University of South Florida – College of Public Health
Department of Health Policy & Management
Assistant/Associate Professor #18604
The Department of Health Policy and Management at the University of South Florida is recruiting for two faculty positions. We welcome applicants from a broad range of interests in health policy and management.
The University of South Florida is a metropolitan institution located in Tampa, Florida. USF offers comprehensive programs in public health, medicine, pharmacy, nursing, allied health sciences, business, engineering, arts and sciences, education, social work, and creative arts. USF offers unique opportunities for collaboration and research with institutions in Latin America and the Caribbean. The Tampa Bay area is a dynamic and growing metropolitan area of over two million residents that offers a wide range of cultural, artistic, athletic, and recreational activities, excellent public schools, close proximity to Gulf of Mexico beaches and an affordable cost of living.
Daniel Patrick Moynihan famously said, “Everyone is entitled to his own opinion, but not to his own facts.” When it comes to federal law, however, some people with religious beliefs may indeed be entitled to their own facts. The U.S. Supreme Court’s interpretation of the Religious Freedom Restoration Act (RFRA) in Burwell v. Hobby Lobby Stores, Inc. certainly leaves this impression. By allowing the corporations and their owners to determine what counts as a substantial burden on their “exercise of religion,” the five Justices in the majority appear to have removed that question from judicial review. This has serious implications for future claims that RFRA excuses corporations from complying with neutral and generally applicable federal laws.
Having decided that corporations can exercise the beliefs of their owners (or considering corporations and owners as one and the same – see Part 1 of this blog), and having assumed that the government has a compelling interest in women’s health and equality, Justice Alito’s opinion for the majority addressed whether HHS regulations (including all FDA approved contraceptives and services among the required preventive services that must be covered without cost-sharing) substantially burdened the corporations’ or owners’ exercise of religion under RFRA.
Tuesday, July 1, 2014
Call for Papers: Unbefriended Elderly: Making Medical Treatment Decisions for Patients without Surrogates
AALS Joint Program
Section on Aging and the Law ● Section on Law, Medicine, and Health Care
2015 AALS Annual Meeting in Washington, D.C.
January 3, 2015 from 3:30 to 5:15 p.m.
The AALS Section on Aging and the Law and the AALS Section on Law, Medicine, and Health Care are sponsoring a joint program at the January 2015 Annual Meeting. The program will consider many of the issues faced by elders, doctors, and the health care and social services systems when making medical treatment decisions for those incapacitated patients and residents who have no reasonably available legally authorized decision maker.
There are three confirmed panelists for this program:
(1) Ellen Fox, MD, former Chief Officer for Ethics in Health Care, U.S. Department of
(2) Professor Lawrence A. Frolik, University of Pittsburgh School of Law
(3) Erica Wood, JD, Assistant Director, ABA Commission on Law and Aging
Guest Blogger Professor Seema Mohapatra: Facial Recognition Technology, Genetic Diseases, and Privacy
Recently scientists at Oxford University revealed that they have developed a facial-recognition program that uses ordinary family photos to help diagnose rare genetic conditions. The computer software uses facial feature recognition to look for similarities from a bank of publically available computer-based photos of facial structures that have similar genetic conditions, such as Down Syndrome and Angelman Syndrome. The new computer software was developed by Christoffer Nellåker and Andrew Zisserman of the University of Oxford, along with their colleagues. It was designed to assist doctors in making a preliminary diagnosis of rare diseases. Currently, it correctly predicts a genetic disorder on average 93 percent of the time.
The concept of using facial feature recognition to diagnose diseases is not new, as many rare disorders do not have an accompanying genetic test, and specialists rely on analysis of facial features to help in diagnosis. However, doctors with the requisite skill set for such diagnoses are scarce, and thus, until this point, many families have had to wait years for their child’s prognosis.
One of the big cost-saving developments of the ACA is the proliferation of narrow networks among health plans. Narrow network plans may seem to save the patient money through lower premiums, but there are hidden costs to narrow networks for patients in the form of out-of-network charges.
A narrow network is the phenomenon when health plans contract selectively with a limited range of providers who agree to substantially discount prices in exchange for being part of the network. Narrow networks are nothing new—the HMO revolution in the 1990s (and its subsequent backlash) achieved cost-savings in part through narrow networks. The ACA did not invent the narrow network, but it has accelerated the trend because of the transformation of the nongroup and small group insurance market through the exchanges and the ACA’s limits on health plans’ ability to engage in underwriting or to narrow benefits to keep premiums down. Thus, one of the remaining strategies for health plans to keep their prices in check is to offer narrow networks of providers.
Narrow networks, though historically unpopular with patients, are hailed as effective cost-control measures. To the extent that individuals purchasing on the exchanges have the ability to choose between lower premiums and narrower networks or higher premiums and broader networks, perhaps a more efficient sorting of preferences will emerge. There are a couple problems with these assumptions: (1) many patients shopping on the exchange cannot tell they are getting a narrow network from the plan description; and (2) cost-conscious patients that choose the narrow network plans to save money on premiums may find themselves at risk for higher out-of-pocket costs because of the narrow network.
Guest Blogger Professor Seema Mohapatra: Genetic Testing of College and Professional Athletes-Legal? Required?
Isaiah Austin’s basketball career is over, after he was diagnosed with Marfan Syndrome, an inherited disorder that affects about one in five thousand people. Austin, the former Baylor basketball center, underwent genetic testing “in preparation for the NBA draft” and was diagnosed with the connective tissue disease. Tall, thin, and with the longest wingspan of any NBA prospect, Austin fits the profile of a person with Marfan syndrome, but arguably many professional basketball players have the look of an individual with Marfan. Although sad that Austin will not be able to fulfill his dream of playing in the NBA, he is indeed lucky he did not end up like Flo Hyman, the U.S. Olympic volleyball player who did not know she had Marfan syndrome and died on the sidelines of a match. Vigorous exercise can increase the chances that individuals with Marfan may suffer from an aortic aneurysm rupture, which is often fatal.
Austin underwent the genetic testing during the NBA Draft Combine, which is an invitation-only event which takes place before the NBA Draft. At the Draft Combine, in addition to medical testing, players are physically measured, interviewed by teams, and perform various drills and show off their skills in front of potential coaches and scouts. The three top draft picks declined their invitation to the NBA Draft Combine this year, but most players who are invited accept the chance to dazzle their would-be teams. Perhaps because he had a detached retina and is partially blind, Austin was hoping that a clean bill of genetic health may increase his chances of being drafted. If Austin had refused the genetic testing, would teams have been hesistant to draft him?The NBA would likely not be allowed under Genetic Information Nondiscrimination Act (“GINA”) to require genetic testing. Some may recall that pre-GINA, Chicago Bulls player Eddy Curry was asked by the Bulls to take a genetic test for Hypertrophic Cardiomyopathy, a heart condition that Curry was suspected of having. Hypertrophic Cardiomyopathy can be fatal, especially with intense exercise. Curry refused the testing, citing privacy concerns, even with the Bulls trying to entice him by offering an annuity of $400,000 per year for fifty years if he took and failed the genetic test. Curry was picked up by the Knicks, who did not insist on such genetic testing, and had medical clearances that allowed him to continue playing. Had the situation come to a head, though, it is likely that the Bulls’ request would be improper under GINA today (GINA was not in place during the Curry incident).
Guest Blogger Professor Wendy Mariner: Hobby Lobby – Part 1: Five Supreme Court Justices Write Corporate Fiction
As everyone now knows, the U.S. Supreme Court decided for the first time on June 30, 2014, that for-profit corporations can claim a religious exemption from federal laws that conflict with the personal religious beliefs of people who own the corporation. The majority opinion, by Justice Alito (joined by Roberts, Scalia, Thomas, and Kennedy), says “Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But, it is the majority, not Congress, that writes fiction here.
First, the text of RFRA (the Religious Freedom Restoration Act) does not define “person” at all. All RFRA says is: “Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person – (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” (Italics mine.) The majority ignores the “legal fiction” that a corporation is separate from its owners and adopts its own fiction that corporations can “exercise” the religion of their owners. The majority’s reasoning is highly literal and abstract. It goes as follows:
- RFRA does not define “person.”
- The federal Dictionary Act offers definitions for use in federal laws that do not specify their own definitions; and its definition of person includes “corporations, associations, firms, partnerships, and joint stock companies, as well as individuals.”
- Since a nonprofit incorporated religion can bring RFRA claims (Gonzales v. O Centro Espírita), and individuals who own for-profit proprietorships can bring individual Free Exercise claims (Braunfeld v. Brown; but they lost), for-profit corporations should be able to do the same thing.
- There is no relevant difference between for-profit and nonprofit corporations.
- Therefore, closely held, for-profit corporations can “exercise” their owners’ religion.
Guest Blogger Associate Dean and Professor Alicia Ouellette- Sterilization in the California Prisons and the Medicaid Rules: Under and Over Protecting Women
A report issued last week by the California State Auditor confirms that unlawful sterilizations of women are not a historical relic. Eleane Howle found that at least 39 of the 144 bilateral tubal ligations performed during an 8 year period on inmates in California’s women’s prisons were done without lawful consent, and in all but one of the 144 cases, prison medical staff failed to obtain necessary committee approvals required by state regulations. The audit also noted that the actual number of illegal procedures might be higher than reported as auditors found seven cases at one hospital for which health records were lost. The audit was conducted following publication of a story by the Center for Investigative Reporting, which reported that California doctors had sterilized 148 women without their consent and in violation of law, and had put significant pressure on inmates to agree tubal ligation.
The audit adds another unfortunate chapter to this country’s troubled history with illegal sterilization of vulnerable women. Historically, low income women, women with disabilities, and women from minority racial and ethnic groups have all been disproportionately subject to involuntary sterilization. In the California prisons, the auditor found that more than half of the women who were sterilized were minorities: Fifty of the women were white; 53 were Latino; 35 were black; and six women classified as “other.” Most of the women tested at less than a high school level of reading proficiency, and about one-third tested below the sixth-grade level.
How to best protect women, especially those who are vulnerable because of class, race, disability, or other status, remains a perpetual problem. In response to the California prison scandals, the California Senate unanimously passed a bill that would forbid sterilization of inmates for purposes of birth control. The bill is awaiting action in the Assembly.
Undoubtedly, the Supreme Court has been too solicitous of corporate rights in recent years. And without doubt, reproductive rights are under siege from many state legislatures and federal judges. But these concerns do not justify the dramatic characterizations of yesterday’s Hobby Lobby decision.
According to Emily’s List, the Court’s decision to “restrict women’s health care” is a “devastating setback.” According to the Democratic Legislative Campaign Committee, “millions of women must have their bosses’ permission to access birth control.” And according to Planned Parenthood of Indiana and Kentucky, “countless women, already struggling to make ends meet, will not have the benefit of the family planning coverage provided to all others under the Affordable Care Act.”
In fact, the Court's decision need not result in limits on women’s access to contraception. To be sure, the Court agreed with Hobby Lobby (and Conestoga Wood) that they should not have to pay for methods of birth control that violate their religious beliefs (morning after pills and IUDs in this case). But the Court also observed that the federal government could use other approaches to guarantee access for women to contraception.
Indeed, wrote the Court, the government can employ the same accommodation for companies such as Hobby Lobby that it employs for religiously-affiliated, non-profit institutions such as universities. Under that accommodation, the organization’s insurer provides a separate plan for contraceptive coverage and does not bill the organization or the employee. In other words, the female employees receive full coverage without imposing a burden on the employer’s religious practice.
There are plenty of reasons to criticize the erosion of reproductive rights in the United States. And it is possible that the narrow holding of Hobby Lobby will be expanded in the future. But the decision itself does not entail a compromise of reproductive health.
Wednesday, June 25, 2014
Ellen A. Waldman, Bioethics Mediation at the End of Life: Opportunities and Limitations, 15 Cardozo J. of Conflict Resol. 449 (2014).
George P. Smith, Applying Bioethics in the 21st Century: Principlism or Situationism, 30 J. of Contemp. Health L. & Pol'y 37 (2013).
Deirdre M. Smith, Dangerous Diagnoses, Risky Assumptions, and the Failed Experiment of 'Sexually Violent Predator' Commitment, Okla. L. Rev. (forthcoming).
Richard L. Kaplan, Desperate Retirees: The Perplexing Challenge of Covering Retirement Health Care Costs in a YOYO World, 20 Conn. Ins. L. J. 433 (2014).
The U.S. Department of Health and Human Services’ Administration for Community Living (ACL) is proud to announce the release of a new online learning tool: Building Respect for LGBT Older Adults. The tool is designed to increase awareness of the issues faced by lesbian, gay, bisexual, and transgender (LGBT) individuals living in long term care (LTC) facilities.
After completion of the online training, program participants will be prepared to:
- Increase visibility of the issues facing LGBT individuals in LTC facilities.
- Provide easy access to information on serving LGBT individuals in LTC facilities.
- Encourage LTC facilities to provide opportunities for staff to take the online training.
- Change the way individuals and facilities approach older LGBT adults.
The Building Respect for LGBT Older Adults tool was developed in collaboration with the HHS Office of Public Affairs, the Centers for Medicare & Medicaid Services, and the ACL-funded National LGBT Resource Center, with input from aging and LGBT advocates.Read more.
Additional LGBT Resources for the Aging Services Network
Since 2010, the ACL Administration on Aging has funded Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders (SAGE) to develop and operate the National Resource Center on LGBT Aging (NRC), the country's first and only technical assistance resource center aimed at improving the quality of services and supports offered to LGBT older adults. This resources clearinghouse website was recently revamped and includes great local and national resources, as well as a new database of all the organizations that have received one of NRC’s trainings. Also, the NRC’s most popular guide, A Practical Guide to Creating Welcome Agencies is now available in Spanish titled Servicios Inclusivos Para Personas Mayores LGBT. Request a copy today!
Also, read the Presidential Proclamation -- Lesbian, Gay, Bisexual, and Transgender Pride Month, 2014.
Tuesday, June 24, 2014
An excellent post by my colleague Ross Silverman, cross-posted from Bill of Health
By: Ross D. Silverman, JD, MPH (Twitter: @phlu)
Fairbanks School of Public Health and McKinney School of Law, Indiana University, Indianapolis.
This has been a big year for outbreaks of Vaccine-Preventable Illnesses (VPIs) in the United States. While we are only halfway through 2014, there have been more measles cases this year than we have seen since before 2000, when the Federal government officially declared the United States “measles free” (in other words: there are no more domestically-generated measles cases; all of our outbreaks are imported). We’ve also seen large mumps and whooping cough outbreaks. You can follow all the disease outbreak action, both here and worldwide, via the Council on Foreign Relations’ very cool interactive map.
States use their police power authority under the Constitution to try to minimize our risk of exposure to VPIs. First, every state requires that children demonstrate proof of immunization against many VPIs as a condition of entry into schools, preschools and day cares. States also permit exemptions to these laws – every state allows a child who may be medically susceptible to injury from vaccines to receive an exemption (with proper documentation of vulnerability), and most states allow parents to apply for an exemption based on either religious or broader philosophical grounds. A combination of factors, including: a nearly two decade trend of increasing numbers of families obtaining exemptions and clustering in particular communities (or avoiding vaccine requirements by taking advantage of law loopholes, such as if a state’s vaccine law does not cover private schools); waning effectiveness of vaccination protections over time (as has been seen with whooping cough); increased international travel facilitating ready reimportation of VPIs from abroad; and many more immunocompromised individuals living in our communities; have slightly weakened our overall protection against VPI outbreaks.
Monday, June 23, 2014
Guest Blogger Associate Dean and Professor Alicia Ouellette with Coauthor Meredith Dedopoulos, 3L at Albany Law School- The World Cup and Health: If You Can’t Stand the Heat, Don’t Play in Manaus
More than a week into the 2014 World Cup, a Brazilian judge has issued an order requiring FIFA to give players water breaks to protect their health. Yet the judge’s ruling is unlikely to alleviate any of the health risks of playing in the scorching conditions of Brazil because in order for water breaks to be mandatory, the temperature must meet FIFA’s benchmark of 90 degrees Fahrenheit. Since most of the games have been played in conditions just below this threshold, the players remain unprotected from heat-related conditions that threaten their health and their participation in the rest of the tournament.
The heat and humidity in the Amazon city of Manaus, which will host four group stage games, have been particularly brutal. Italian midfielder Claudio Marchisio described what it was like during the match between England and Italy: “At times it felt like having hallucinations due to the heat.” The conditions were not unexpected. Located in the Amazon jungle and accessible only by boat or plane, Manaus averages temperatures between 75 and 87 degrees Fahrenheit, with a similar percent humidity. From the time it was announced as the host city for this match in December 2013, press coverage, especially in England, focused on the oppressive tropical climate and concerns about how the players would adapt.
The tropical conditions of Manaus pose serious health risks, not just for players but for spectators as well. Heat and humidity—and their effect on perspiration—can cause dehydration, decreased muscle and nerve functioning, and increased fatigue. In extreme cases, heat exhaustion can lead to heat stroke, which can result in death. Former Brazilian player Mirandha warned England’s players that it would be “difficult to breathe” there. To prepare for these conditions, in the weeks leading up to kick-off, the England team trained in the warm climates of Portugal and Miami, wearing extra layers during practice to simulate what it would feel like in Manaus. Both the England and the Italian teams exercised in heat-acclimatization chambers. All of these efforts were designed to ready the players and their bodies for the climate that awaited in Manaus, which England coach Roy Hodgson admitted every team had wanted to avoid before the draw.
Sunday, June 22, 2014
Since the likelihood is that many readers of this blog will be asked to comment about whatever opinion the Supreme Court issues this week, here’s a quick refresher. The Hobby Lobby and Conestoga Wood Specialty cases are challenges to the Affordable Care Act's requirement that employers who choose to offer health insurance to their employees must provide policies that include ten essential benefits-including contraception. The U.S. Supreme Court has heard oral arguments and read the briefs—it’s likely that whatever opinion is issued will reflect at least some of the arguments presented to the Court.
This case is about the Affordable Care Act’s requirement that employers who offer their employees health insurance must offer policies that provide ten essential benefits, including contraception. Hobby Lobby and Conestoga Wood are privately held, for-profit companies whose owners have sincerely held religious objections to providing four specific kinds of contraception. They believe these contraceptives terminate rather than prevent pregnancy. Many religious organizations and companies have gotten exemptions to these requirements, but this case considers whether private, for-profit companies should qualify as well.
The cases raise (at least) three major issues:
1.Does the Religious Freedom Restoration Act apply to corporations even though it uses the word “person?” (Can companies have religious beliefs?)
2. Is providing insurance that covers birth control a “substantial burden?” on these two company’s' religious beliefs?
3. Does the government have a compelling reason for requiring companies that provide insurance to offer policies that cover all the forms of contraception specified in the ACA?
It is likely that this decision will address (I almost said clarify, but who knows?) the limits of a law passed by Congress in 1993 to over-rule an earlier Supreme Court Decision, Employment Division v. Smith, holding that so long as a law passed by the federal government “applied to everyone” everyone was required to follow it even if it interfered with their sincerely held religious beliefs. In that case, Native American employees of a drug rehabilitation clinic challenged their firing for the use of Peyote as unconstitutional since using the drug was part of their sincerely held religious belief. At that time the Supreme Court held that so long as a law applied to everyone, everyone had to follow it even if it infringed on some people’s beliefs.
Until now, there has never been a case where a “company” had religious beliefs. There are legal advantages to doing business as a company rather than as an individual or a partnership. The main one is that the owners aren’t personally responsible for the company’s debts or actions. If the company goes bankrupt, the owner’s personal assets aren’t at stake. If the company gets sued, the owner won’t have to pay the judgment.
A few reminders about how ACA works—no company in the United States has to provide health insurance to its employees. If it chooses not to, the employees would be eligible to buy subsidized health insurance through the exchanges. Because it employees more than 50 people, Hobby Lobby would have to pay the government $2000 per employee to cover the cost of the subsidized insurance-this called the Employer Shared Responsibility Provision. These payments are postponed until 2015, i.e. they haven’t happened yet, but this how the Kaiser Foundation says they will work.
Kaiser estimates that this is at least half of what it would cost employers to provide health insurance meeting the minimum ACA standards. This led Justice Sotomayor to suggest that during the oral argument that Hobby Lobby simply drop all health insurance coverage. What the affordable care act did was set standards for insurance just like there are standards for food and drug products. The effect is there are no “junk” plans. Every health insurance plan has to cover 10 essential benefits including vaccinations, annual exams, contraception and pregnancy costs. So the rule isn’t on the companies that buy insurance, it’s on the insurance available to buy. It’s the same as not being able to buy a car without seatbelts.
Unlike the Affordable Care Act decision that once decided effectively resolved a dispute and faded away, it is likely that whatever the result the decision here will be the basis of considerable analysis and is likely to be an important addition to the body of precedent interpreting the First Amendment’s Free Exercise clause.
The new law, a short one and worth reading in full, the Religious Freedom Restoration Act, essentially reverses Employment Division v. Smith by stating that even if a law applies to everyone, if it substantially burdens anyone’s sincerely held religious beliefs the government has to show a compelling reason for the law and has to show that the law is the least restrictive way of achieving the law’s goals.
Until now, there has never been a case where a “company” had religious beliefs. There are legal advantages to doing business as a company rather than as an individual or a partnership. The main one is that the individual’s owners aren’t personally responsible for the company’s debts or actions. If the company goes bankrupt, the owner’s personal assets aren’t at stake. If the company gets sued, the owner won’t have to pay the judgment.
At this point, there isn't much more to do but wait. It's hard to break the speculating habit since many of have spent the past three years spinning scenarios.
For example, it’s unclear how far a decision that a private company could be exempt from federal laws that go against its religious beliefs would go. For example, a company with a religious belief that women shouldn’t work outside the home might claim that it would not have to follow laws prohibiting sex-discrimination.
Within the health insurance field it’s also unclear how far a company could pick and choose—for example, could a company decline to cover immunizations or blood transfusions.
It seems likely that a company could choose to cover contraception for married employees but not unmarried employees. Stay tuned, we will probably know more tomorrow—or at least by June 30th.