Analysis and Commentary on Health Law

Justice Department Brief Calls for Invalidation of All of Obamacare Without Justification

NYU law professor Samuel Estreicher comments on the position in the Department of Justice recently took with respect to the Patient Protection and Affordable Care Act (colloquially known as “Obamacare”), declining to defend any part of the Act in court. Estreicher argues that the DOJ’s position lacks justification and explains the weaknesses of the district court’s reasoning striking down the entire Act.

Frenemies at Last?: How Legislative History Could Save Justice Kavanaugh’s Opinion in Azar v. Allina

John Cannan—a research and instructional services librarian at Drexel University Thomas R. Kline School of Law in Philadelphia—discusses a case that will be argued before the US Supreme Court this week and explains how the legislative history of the law at issue in that case could save the lower court’s decision, which was written by then-Judge Brett Kavanaugh. Cannan points out the irony that Justice Kavanaugh, who is vocally opposed to using legislative history in interpreting the meaning of statutes, may find the greatest support for his decision in this case in the legislative history.

Trump’s—and the GOP’s—Hat Trick of Falsehoods About Pre-Existing Conditions

Cornell law professor Michael C. Dorf debunks President Trump’s claim that he has kept his campaign promise to “protect coverage for patients with pre-existing conditions.” Dorf provides three primary reasons that the claim is dishonest: the administration’s position in a pending lawsuit; the GOP’s proposed alternative, which does not require insurance companies to offer policies that actually cover pre-existing conditions, and the claim that Democratic support of Medicare for All is “radical socialism.”

“Deadly Deliveries”: USA Today Report Sheds Disturbing Light on Shocking Rates of Maternal Mortality in the United States

SMU Dedman School of Law professor Joanna L. Grossman discusses the findings of a recent USA Today investigation that reveals that maternal mortality rates in the United States are rising, even as they fall globally. Grossman explains that some states, such as California, have put substantial resources into investigating the causes of maternal mortality and implementing changes to address it, while other states, such as Texas, are adhering to ideologically driven policies that endanger infant and maternal health.

Sex, Lies, and Trump’s Rollback of the Contraceptive Mandate

SMU Dedman School of Law professor Joanna L. Grossman comments on the recent change in policy announced by the Trump administration rolling back the Affordable Care Act’s contraceptive mandate, allowing employers with religious or moral objections to exempt themselves. Grossman describes the history of access to contraception in the United States and the measures Trump has taken that have the purpose or effect of restricting access to contraception.

Can Texas Require Separate Insurance Coverage For Abortion?

Cornell University law professor Sherry F. Colb considers a recently passed Texas law that will require people who want insurance coverage for non-emergency abortions to buy an additional, separate policy from their regular health insurance policy. Colb explains that proponents of the law argue that individuals should not have to fund practices with which they fundamentally disagree, but she points out that many taxpayers provide funding for government activities with which they fundamentally disagree and this situation is arguably no different from those.

The Children Be Damned . . .

Marci A. Hamilton, a Fox Distinguished Scholar in the Fox Leadership Program at the University of Pennsylvania, describes the numerous child-endangering bills that are being proposed in various states across the nation. Hamilton argues that we as a society need to create a culture that works for the best interest of all children.

An Ethical Analysis of the American Health Care Act

Charles E. Binkley, MD, FACS, co-chair of the Ethics Committee at Kaiser Permanente Medical Center in San Francisco, and attorney David Kemp conduct an ethical analysis of the American Health Care Act (AHCA), the proposed replacement for the Affordable Care Act, using the principles of impartiality and justice. Within this framework, Binkley and Kemp identify three values around which health care coverage should be prioritized, and they conclude that the AHCA fails to meet the ethical standards for government-supported health care.

California’s Defeated Condom Initiative and the First Amendment

Cornell University professor Sherry F. Colb discusses California’s Proposition 60, a ballot initiative that recently failed in that state that would have required male actors in pornographic movies to wear condoms during performances. Colb considers both a First Amendment challenge to the ballot initiative, as well as a possible response to that challenge, and she argues the law would likely pass muster under the First Amendment.

Ensuring Consent with Sexual Advance Directives

Cornell University law professor Sherry F. Colb comments on the idea of a sexual advance directive—a proposed legal device that could provide consent or designate an agent to provide consent in advance of an anticipated persistent period of legal incompetence. Colb explains how a sexual advance directive purports to work, describes some limitations of it, and proposes an alternative solution that addresses those limitations.

Did Federalism Rescue Obamacare?

Cornell University professor Michael Dorf discusses last week’s oral arguments in King v. Burwell, the case in which the U.S. Supreme Court is expected to decide the fate of the Affordable Care Act (Obamacare). Dorf contends that there are three distinct arguments through which the government could successfully defend the law if the Court finds the language of the statute unclear.

The Vaccine for Pollyanna Attitudes Toward Public Health and Religious Beliefs: Religious Exemptions for Vaccinations and Medical Neglect Need to Be Repealed Now and the Federal Government (and the Insurance Industry) Need to Incentivize the States to Do So

Cardozo law professor Marci Hamilton calls upon state legislators to repeal the laws that permit parents to refuse to vaccinate their children to the children’s detriment as well as to the detriment of the public.

How Federalism Cuts Against the Challengers in King v. Burwell: Part Two in a Two-Part Series

U.C. Davis law professor Vikram David Amar continues his discussion on how federalism cuts against the challengers to the Obamacare statute in King v. Burwell. In this second of a two-part series, Amar addresses some counterarguments to his thesis that federalism principles bolster the federal government’s position in that case.

Why the Federalism Teachings from the 2012 Obamacare Case Weaken the Challengers’ Case in King v. Burwell

U.C. Davis Law professor Vikram David Amar explains how the U.S. Supreme Court’s 2012 decision in National Federation of Independent Business v. Sebelius—upholding Obamacare as a proper exercise of Congress’s tax powers and striking down a significant expansion of Medicaid—weakens the case of subsequent challengers to Obamacare in King v. Burwell.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more