Articles Posted in Health Law

Why Chief Justice Roberts Dared Not Overturn President Obama’s Healthcare Plan

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Justia columnist and former counsel to the president John Dean comments on Chief Judge John Roberts’s role in the Supreme Court ruling upholding Obamacare. Dean anticipated that Roberts would vote, as he did, to uphold the healthcare statute, and Dean notes some other learned commentators who had also anticipated Roberts’s stance. A major factor in Dean’s prediction as to where Roberts would come down was Robert’s own testimony in the confirmation hearings that led him to join the Court. Describing himself in those hearings as an “umpire,” Roberts made clear that he would apply pre-existing, well-grounded legal rules, and not create new ones out of whole cloth. To show how Roberts did just that, Dean sums up the various Commerce Clause precedents that were relevant in the Obamacare case, and explains how Roberts dutifully followed them.

What’s Wrong With “Doping” to Get A’s In High School?

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Justia columnist and Cornell law professor Sherry Colb comments on the recent phenomenon of high school students’ using stimulants such as Adderall and Ritalin to attempt to improve their academic performance, often getting the stimulants by faking Attention Deficit Hyperactivity Disorder (ADHD). Colb notes that for those who do not have ADHD, the drugs act as a stimulant, allowing the user to better concentrate and focus. Colb compares and contrasts the issues raised by steroids scandals in professional sports to illustrate what, exactly, is wrong with this kind of use of Adderall and Ritalin. Among other points, Colb expresses concern that students’ use of such drugs will become the “new normal”—which is especially worrisome as the drugs carry side effects and serious risks. She also suggests that we, as a society, reconsider the competitive model of high school studying, and instead focus on students’ learning about subjects that interest and inspire them individually.

Obamacare and the Misguided Criticism of “Liberal Law Professors” Who Defend It

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Justia columnist and U.C. Davis law professor Vikram Amar takes issue with Stanford law professor Michael McConnell’s critique of the arguments of liberal law professors who defend the constitutionality of Obamacare. In a recent Wall Street Journal Op-Ed, McConnell took aim at such professors. In particular, McConnell argued that liberal law professors have failed to make “actual legal arguments, based on text, history, structure and precedent” to support Obamacare. Moreover, McConnell claimed that liberal law professors’ definition of judicial activism is one-sided—a charge that they only believe to be true when it applies to the conservative Justices. Amar counters McConnell’s arguments on both of these points, providing a very specific description of the constitutional-law basis for their view that Obamacare is constitutional.

Iowa Passes an “Ag-gag” Law: The Power and Limits of Free Speech

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Justia columnist and Cornell law professor Sherry Colb comments on “ag-gag” laws, which prohibit people from gaining entry into, or employment in, an agricultural production facility, including an animal agriculture facility, under false pretenses. Colb notes that Iowa recently passed such a law, and that North Dakota, Montana, and Kansas also have such laws. Colb argues that the laws are aimed at concealing the true facts about how animals are treated in such facilities, because of the fear that if consumers knew the truth of the cruelty that is perpetrated there, they might change their eating habits. Supporters of that view see those who enter these facilities knowing they will convey information about them to the outside world as undercover reporters and whistleblowers, while the animal industries see them merely as trespassers. Colb details ways in which consumers are misled or misinformed about animal agriculture, suggesting that there is a need for undercover reportage so that the truth can be known. For instance, she explains how milk production entails slaughter, contrary to popular opinion, and not just on factory farms. Colb questions, though, whether consumers really want to know a truth that could complicate their lives with new ethical questions leading to possible dietary changes, and whether if consumers do learn that truth, they will really change their behavior. Colb also examines why humans may not feel empathy for animals, citing the coping strategies that often accompany humans’ acceptance of systematic violence, including violence toward other humans.

The High Court Needn’t Worry About Sliding Downhill: An Evaluation of the “Slippery Slope” Concerns Expressed at the Oral Argument in the Challenge to the Mandate Provision of the Affordable Care Act (Obamacare)

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Justia columnist and U.C., Davis law professor Vikram David Amar focuses in on a particular—and very significant—aspect of the Supreme Court’s recent oral argument regarding the Affordable Care Act, also known as “Obamacare”: Certain Justices seemed concerned that if Obamacare’s “individual mandate”—that is, its placing responsibility on individuals to purchase health insurance themselves—were to be upheld, then a slippery slope would follow. In particular, numerous conservative Justices asked, If the feds can require each person to buy health insurance, what can’t they force people to purchase? Amar contends that this “slippery slope” doesn’t really slip—pointing out that a very similar danger has existed in Commerce Clause jurisprudence for 50 years, and that the Court has proven more than able to address it. Thus, the individual mandate, he suggests, makes the slope no more slippery than it has been for quite a while now. Amar also cites the tools the Court has for limiting government powers in settings where mandates are already accepted, and contends that similar tools could be used in the context of Obamacare’s individual mandate.

Severability May Hold the Key to Obamacare’s Future: How Much of the Law Will Survive the Supreme Court’s Review?

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Justia columnist and Cornell law professor Michael Dorf comments on a less often discussed but highly significant issue regarding the Supreme Court’s upcoming decision on Obamacare: If a majority of the Court finds that the minimum coverage provision is unconstitutional, how much of the rest of the law should—and will—also be invalidated by the Court? As Dorf notes, the Court heard from three attorneys who addressed this question, on the third day of oral argument in the case. The plaintiffs in the case contended that none of Obamacare should survive, but Dorf contends to the contrary that, if the minimum coverage provision is struck down, most of Obamacare should still be left standing. Dorf explains the root of the presumption that various parts of a law are severable from each other, and critiques the plaintiffs’ argument that Obamacare should be struck down in its entirety—setting forth three important respects in which he argues that that argument was wrong. One key point Dorf makes is that the statute as issue would work better if the minimum coverage provision were to be left standing, but it would still work if that provision were to be struck down.

The “Other” Case This Term Testing Congress’ Enumerated Powers to Pass a Healthcare Law: Coleman v. Court of Appeals of Maryland and FMLA

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Justia columnist and U.C., Davis law professor Vikram David Amar comments on a Supreme Court case from this Term that involves health care, but does not involve the PPACA (also nicknamed “Obamacare”). The case is Coleman v. Court of Appeals of Maryland, and the Court handed down its decision in that case last week. As Amar explains, in Coleman, the Court, by a 5-4 vote, struck down the provision in the Family and Medical Leave Act (FMLA) that subjects state-level government employers to damage liability if they fail to provide the legally-required unpaid leave to employees for self-care for a serious medical condition. Amar contends that Coleman is noteworthy not only because FMLA is a significant federal statute, but also because the Court’s decision gives us insight regarding the judicial doctrines that govern the scope of federal powers.

Three Key Exchanges in the Obamacare Oral Argument

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Justia columnist and Cornell law professor Michael Dorf comments on three important exchanges among the Supreme Court’s Justices that occurred during the Obamacare oral argument. As Dorf explains, the first exchange tested whether the government could constitutionally require Americans to buy things other than healthcare, such as burial insurance, mobile phones, or American cars. The second exchange involved a hypothetical regarding the government’s power to institute mandatory inoculation. And finally, the third exchange involved the Constitution's limits on “direct taxes.” Having discussed these important exchanges among the Justices, Dorf also describes what he believes to be the basis for the government’s best hope of winning the case.

Children in Peril in New York: Another Infant Dies Due to a Risky Circumcision Practice, and More Needs to Be Done Regarding Child Sex Abuse

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Justia columnist and Cardozo law professor Marci Hamilton comments on two significant threats to New York State’s children. Hamilton begins by noting the recent, tragic death of an infant from herpes. She notes that the infant likely contracted the disease from a mohel who performed “oral suction” on the infant after Orthodox Jewish ritual circumcision. (Oral suction is a controversial practice in the Jewish community, and has fallen out of favor with many. In ancient times, the practice was thought to contribute to hygiene, but as it was learned that it could spread disease, it was mostly abandoned. Those who still practice it typically employ a glass tube to avoid direct contact and disease transmission.) Noting that this is not the first such death to likely be associated with oral suction, Hamilton argues that this risky procedure should be banned, and notes that its religious nature provides no legal defense for those who follow the procedure. She also warns that not only the mohel, but also the parents, could be held responsible for the death, depending on what they knew about the procedure’s risks. In addition, Hamilton covers a second ongoing threat to the well-being of New York’s children: clergy child sex abuse. Hamilton contends that New York ought to follow the example of Philadelphia, when it comes to the reporting of clergy child abuse—for there, District Attorney Lynne Abraham eventually enabled justice to be done due to her grand jury investigation into the cover-up of abuse.

Donor Chains and the Legality of Compensating Kidney Donors: Critically Assessing Our Moral Intuitions

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Justia columnist and Cornell law professor Sherry Colb comments on a recent practice that has made a larger number of compatible kidneys available to those who need them: the “donor chain.” As Colb explains, donor chains allow pairs of people—one person who is willing to donate a kidney, and another who is in need of a kidney (but not immunologically compatible with the intended donor)—to become links in a chain of such pairs, and thus to each receive compatible kidneys. Indeed, through such a chain, willing and compatible donors may be found for each would-be recipient on the chain. There is no question that these chains save lives, but Colb notes that many more lives would be saved if, in addition to allowing donor chains, we also allowed people to sell their kidneys to those who need them. Thus, she considers the rationales for banning kidney sales—while pointing out that people with one kidney typically live as long as those with two. In the end, Colb asks whether it really makes sense for federal law to allow donor chains, but not to allow kidney sales—using a hypothetical where the would-be kidney seller himself needs the money urgently to cover a loved one’s health care needs.

The Right Way to Accommodate Religious Objections to the Contraception Coverage Mandate

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Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on the recent controversy regarding Department of Health and Human Services regulations regarding the extent to which employees of religious organizations must be provided with insurance coverage for contraceptive services, as part of the insurance they obtain through their employment; and on President Obama’s proposed compromise. With Obama’s proposal drawing fire from both sides, Amar and Brownstein describe the framework in which they contend that the issue should be analyzed. Acknowledging both the serious religious liberty interest here and the value to many women of insurance that provides contraceptive access, Amar and Brownstein note that often, acknowledging such an interest also confers a benefit on the religious organization or person. (For instance, a true conscientious objector gains the benefit of not having to go to war, despite his sincerity and despite his not seeking out that benefit.) Here, if a religious institution does not have to cover contraceptive services, it not only vindicates its beliefs, but also saves money. Amar and Brownstein contend that part of the ideal approach to such questions would minimize such secular benefits of religious observance. They also note that another part of the ideal approach would be mitigate or spread the costs of honoring religious liberty, so that they do not fall disproportionately or heavily on an individual or group. Finally, they apply their ideal approach to the controversy over the HHS regulations, suggesting that religious organizations that are exempted from the regulations be asked to provide some kind of alternative to compliance—just as a conscientious objector in wartime would.

Men Who Give It Away: The Potential Perils of Free and Non-Anonymous Sperm Donation

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Justia columnist and Hofstra law professor Joanna Grossman comments on the legal consequences of different forms of free, non-anonymous sperm donation. As she explains, some of these donations are connected to the online Free Sperm Donor Registry. Grossman, relying in part on previous reportage by 20/20, comments on situations such as that of a man who has given away so much sperm that the government has told him to stop its “manufacture,” and men who donate sperm via what is called “natural insemination”—that is, sex. Grossman explains why in-person sperm donation, especially via “natural insemination” raises complex questions about the legal rights and obligations of the sperm donor—with donors potentially liable for child support, and potentially able to seek visitation or even co-parent status. She also notes that in-person sperm donation may be governed by—and may, in some instances, violate—FDA regulations pertaining to the donation of human cells and tissue. Among other legal sources, Grossman covers the original and revised Uniform Parentage Act (UPA) in the column.

A Health Care Law That Everyone in Congress Can Agree Upon

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Justia columnist and Cornell law professor Michael C. Dorf, and Justia guest columnist and Duke law and political science professor Neil S. Siegel comment on an interesting but less often discussed aspect of the controversial 2010 federal health care law. As Dorf and Siegel explain, before the Supreme Court reaches the merits of the case involving the health care law, it must first consider the federal Anti-Injunction Act, which became law in 1867. Dorf and Siegel note that the Anti-Injunction Act requires taxpayers who object to the federal government’s assessment or collection of a tax to first pay up, and only then sue for a refund. With respect to the federal health care law, Dorf and Siegel explain, that would delay even the very beginning of federal litigation until 2015. Yet both the law's fans and its detractors want a decision from the Supreme Court much earlier than that. Some would opt to simply ignore the Anti-Injunction Act, but as Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit commented, “There is no ‘early-bird special’ exception to the Anti-Injunction Act.” Fortunately, Dorf and Siegel offer an ingenious solution to this dilemma that combines a reasonable interpretation of the Anti-Injunction Act with the passage of a new federal stature.

Can Patients and Providers Sue to Enforce the Federal Medicaid Law?

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Justia columnist and Cornell law professor Michael C. Dorf comments on a case in which the Supreme Court heard oral argument last week. As Dorf explains, while the case may seem technical, it will have some very substantive consequences for the judicial enforcement of federal rights. The question the case directly raises is whether private parties (specifically, Medicaid patients and providers) can sue states to demand that they comply with the requirements of the federal Medicaid law. Interestingly, the Obama Administration's view is that they cannot, while the right-leaning U.S. Chamber of Commerce’s view is that they can—even though Democrats traditionally favor court access, and Republicans traditionally are more likely to oppose such access. Dorf explains why the Democrats’ decision to oppose court access here, while favoring it generally, is a high-risk strategy that might backfire, depending on the Court’s resolution of the case.

How Much Is Truly at Stake in the Legal Battle Over Obamacare?

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Justia columnist and Cornell law professor Michael C. Dorf comments on the potential impact of the resolution of the legal battle over the PPACA, also known by its critics as “Obamacare.” Various PPACA cases have caused a split among federal appellate courts, such that Dorf predicts that the Supreme Court will likely grant review this Term in a PPACA case. The case would raise the question of the constitutionality of the “individual mandate,” which requires individual Americans to purchase health insurance or pay a penalty for not doing so. Dorf argues that in the end, the Court’s PPACA decision—like Bush v. Gore before it—will have little effect as a legal precedent, but a very large political effect, as many Americans will likely see the Court’s decision, depending on how it comes out, as either a vindication or a repudiation of President Obama’s policy, and perhaps even the President himself.

Assessing the Reasoning of the Eleventh Circuit Opinion Striking Down Obamacare

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Justia columnist and U.C. Davis law professor Vikram David Amar comments on the recent decision by a divided three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit, striking down Obamacare’s “individual mandate” provision, which requires each person to obtain health insurance coverage or pay a sum of money to the U.S. Treasury. Amar considers and responds to the most important Commerce Clause arguments that the panel majority invoked: (1) the unprecedented nature of the mandate in federal law; (2) the lack of a requirement in the mandate provision that each regulated individual be doing anything that affects the economy; (3) the related problem that if Congress could mandate purchase of healthcare, there would be no stopping point to federal power; and (4) the fact that insurance and healthcare are matters of traditional state concern.

Meet our Columnists

Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois College of Law on the Urbana-Champaign campus. Immediately prior to taking the position at Illinois i... more

Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington University. He teaches tax law and tax policy, and he has taught contract law, law and economics, and... more

Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb teaches courses in constitutional criminal procedure, evidence, and animal rights. She has published a... more

John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973. Before becoming White House counsel at age thirty-one, he was the chief minority counsel to the Judiciar... more

Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He has written hundreds of popular essays, dozens of scholarly articles, and six books on constitutional law... more

Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law.  She is an expert in sex discrimination law. Her most recent book,  more

Marci A. Hamilton

Marci A. Hamilton is one of the country’s leading church-state scholars and the Fox Professor of Practice and Fox Family Pavilion Resident Senior Fellow in the Program for Research on Religion in the... more

Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record in Rasul v. Bush (2004), involving detentions at the Guantánamo Bay Naval Station, and in more

Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School of Law in Seattle, where she also directs the graduate program on Sustainable International Developmen... more

Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at Chapman University, Dale E. Fowler School of Law. Before that, he was University Profe... more

Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately prior to taking the position at Illinois, Wexler was a Professor of Law at Florida State University, whose... more