Monday, June 10, 2013
Looking Ahead to the Supreme Court's Remaining Health Law Related Cases
Although it's probably true that with some imagination every Supreme Court decision could be related back to some aspect of Health Law, today's Post (which, yes, was supposed to be up Friday) is intended to highlight the as yet unreleased Supreme Court decisions of particular interest to Health Law. We don't know exactly which cases will be announced but Scotus believes this will
happen on Thursday June 13th--and they will be "live-blogging" starting "shortly before" 10 AM EST in anticipation of the announcements-- but we do know which ones are left.
Below is an email I sent out today to both our Health Law Certificate Students here at Texas Tech School of Law and to the students enrolled in my new class Constitutional Issues in Health Law. As a side note, I would certainly be interested in hearing from anyone who is/has taught this particular class. My model for it is the one taught by Mary Anne Bobinski when she was at the University of Houston Law Center.
Here, in relevant part, is what I sent out:
" Unlike last year where everyone was a health care lawyer and had something to say about National Federation of Independent Business v. Sebelius (the Affordable Care Act decision) (me included), the cases yet to be decided are not all waving the banner "Health Law"--but are likely to have significant impact in the practice of health law. There are so many sources of information about these cases and what they mean that it would almost be impossible to give a complete list.
Each decision will be posted almost immediately to the Supreme Court's website--and what I recommend is that you read it yourself--and then compare it to the press coverage! CNN will long remember this episode and Jon Stewart's take on it!
Also, it is never possible to avoid the "spin" that anyone describing an issue inevitably puts on it. I've included information when an organization or media outlet has created clarifying material but at this point. Here's an NPR Overview and one from Fox News.
Here are the cases (with parentheticals from Scotus):
Association for Molecular Pathology v. Myriad Genetics Inc.("whether human genes are patentable")
Agency for International development v. Alliance for Open
("Whether the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of
2003, 22 U.S.C. § 7631(f), which requires an organization to have a policy explicitly
opposing prostitution and sex trafficking in order to receive federal funding to provide HIV
and AIDS programs overseas, violates the First Amendment. (Kagan, J., recused.)")
Mutual Pharmaceutical Co. V. Bartlett
("Whether the First Circuit Court of Appeals erred when it created a circuit split and held – in
clear conflict with this Court’s decisions in PLIVA v. Mensing, Riegel v. Medtronic, and
Cipollone v. Liggett Group – that federal law does not preempt state law design-defect
claims targeting generic pharmaceutical products because the conceded conflict between
such claims and the federal laws governing generic pharmaceutical design allegedly can be
avoided if the makers of generic pharmaceuticals simply stop making their products.")
The press is most interested in Hollingsworth v. Perry “gay marriage” and Fisher v. University of Texas (“affirmativeaction” )cases—and we should be interested too. In Hollingsworth because it is possible (although not certain) that the court will add to our understanding of the Constitutionality of statutes (like the one in Texas) which only allow a married couple consisting of a man and a woman to enter into a binding contract with a surrogate mother. It may also change the ability of physicians in states to refuse to treat patients on the basis of sexual orientation, gender identity or any other factor not currently required by Federal Law or a previous decision of the Supreme Court. LAMBDA Legal has put together an infographic for those wanting to get up to speed quickly.
And in Fisher because it may well affect medical school admissions even though it is a case about undergraduates.
There are also some cases involving important employment law issues—which are often the biggest part of a health lawyer’s case load.
You may not want to be poised at your computer 10 AM Thursday EST to hear what decisions the court is releasing—but you will certainly want to read them for yourself when they are available online.