Analysis and Commentary on Health Law

Federal Appeals Courts Divide Over Obamacare Subsidies—and Over “Textualism”

Cornell University law professor Michael Dorf discusses two federal appeals courts’ recent diverging decisions over Obamacare subsidies. Dorf contrasts the method of statutory interpretation used by the majority of a panel of the U.S. Court of Appeals for the D.C. Circuit, which struck down the subsidies, with that of the Court of Appeals for the Fourth Circuit, which upheld them.

Burwell v. Hobby Lobby Strikes Again, But Wisconsin Insurance Commissioner Strikes Out

Cardozo Law professor Marci Hamilton comments on a recent statement by the Wisconsin Insurance Commissioner that purportedly applies the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby Stores Inc. to that state’s law. Hamilton critiques the interpretation as misunderstanding the federal Religious Freedom Restoration Act (RFRA) and calls upon state courts not only to correctly understand the scope of the Hobby Lobby decision, but to reject the Hobby Lobby majority’s reasoning when interpreting their own state’s laws.

The Soda Ban or the Portion Cap Rule? Litigation Over the Size of Sugary Drink Containers as an Exercise in Framing

Guest columnist and Touro Law Center professor Rodger Citron comments on the litigation in New York over a rule prohibiting food-service establishments from serving sugary drinks in sizes larger than sixteen ounces. Citron describes the arguments put forth by each side and explains why the critical issue is whether the Board of Health's has the authority to promulgate such a rule.

Scandal at Notre Dame

Justia guest columnist, UNLV law professor, and visiting UC Irvine law professor Leslie Griffin comments on the recent controversy regarding Notre Dame, of which she is an alumna. Professor Griffin comments on Notre Dame’s arguments, which include one relating to the Catholic concept of scandal, and another that postulates that whenever Notre Dame signs the form objecting to contraception, the complaint triggers the provision of free objectionable coverage to Notre Dame’s employees in a manner contrary to its beliefs. Notre Dame also argues that by signing the objection, it facilitates contraception, and, by doing so, it will lead many to think that Notre Dame condones these services, and hence undermines its role, as a Catholic educational institution, to educate others on a matter of religious and moral significance. Griffin offers strong counterarguments, both logical and legal, to Notre Dame’s contentions.

The Dignity of Work Without End: Do Conservatives Really Want People Never to Retire?

Justia columnist, George Washington law professor, and economist Neil Buchanan points out important advantages of the Affordable Care Act (ACA). For instance, the ACA's decoupling of work and health insurance frees workers who had stayed in their positions simply because they needed the health insurance, rather than changing jobs and/or enjoying some leisure or time with family and friends. Buchanan suggests that freedom-loving conservatives ought to applaud that new freedom which the ACA creates. In addition, on a more theoretical level, Buchanan explains how, in his view, the imbroglio over the CBO’s report exposed the arbitrariness of conservative economics.

The Short, Unhappy Life of a Republican Attack Line, and Its Angry Aftermath

Justia columnist, George Washington law professor, and economist Neil Buchanan thoroughly debunks the oft-cited Republican claim that Obamacare will “kill” millions of jobs. Moreover, Buchanan points to some of the important pluses of Obamacare, such as the end of “job lock,” which occurs when a worker is stuck in a job he or she wants to leave, but cannot do so due to the fear of losing his or her health insurance.

Excluding Pregnant Women from the Right to Terminate Life Support

Justia columnist and Cornell law professor Sherry Colb comments on the situation of a pregnant 33-year-old woman in Texas whose family has been unable to have her removed from life support, notwithstanding her wishes and those of her family. The obstacle is a Texas law that prohibits the withdrawal or withholding of life-sustaining treatment from a pregnant patient. Colb contends that while political groups have weighed in—in predictable ways, corresponding to their views regarding abortion—in fact we should analyze the dilemma as in some respects, legally and morally distinct from the situation that confronts us in the abortion context, as she explains.

Obamacare and Participation in Evil

Cornell law professor and Justia columnist Michael Dorf comments on the Supreme Court’s Obamacare/RFRA cases, which he notes present a number of important legal issues, as well as a fundamental question for any liberal democracy: To what extent should people be exempted from laws that they regard as requiring them to participate in evil?

On Brain Death and Civil Rights

Justia columnist and attorney David Kemp discusses the tragic situation of Jahi McMath, the 13-year-old girl who was pronounced brain dead after surgery, and whose family sought to keep her on a ventilator despite that diagnosis. Kemp focuses on the federal civil rights lawsuit recently filed by the family. He argues that it is unlikely to succeed on the merits and that the family would be better advised to seek alternative means of answers and justice for their loss.

The Significance of the New “Pain Capable Abortion” Laws

Justia columnist and Cornell law professor Sherry Colb comments on recent laws enacted by several states banning abortion procedures at 20 weeks post-fertilization (or 22 weeks after a pregnant woman’s last menstrual period or “LMP”), and a similar federal measure passed by the House of Representatives, the “Pain-Capable Unborn Child Protection Act (PCUCPA), which would—in the unlikely event that it passed—yield a national prohibition against abortion at 20 weeks post-fertilization (with various exceptions). Some see such laws as a way to subtly advance a pro-life agenda, but Colb notes that an emphasis on the importance of pain, sentience, and suffering in morality surely should, especially, make us ask why we ignore the terrible suffering of the animals we use for food, when we should, instead, Colb contends—focusing on pain—choose to become vegan.

Sexual Surrogacy: Better Than Prostitution?

Justia columnist and Cornell law professor Sherry Colb compares and contrasts the use of a prostitute with that of a sexual surrogate. One impetus for Colb’s column was the recent determination of France’s National Ethics Committee that sexual surrogacy is unethical because it uses the human body for commercial purposes. In light of that determination, Colb considers the arguments for and against considering sexual surrogacy to be ethically distinct from and superior to, prostitution. In the course of her analysis, Colb also considers two novel ways of thinking about sexual surrogacy: as (1) sexual harassment of the therapist, and as (2) sexual harassment of the patient.

Doctors and Lawyers and Such: A Pediatric Lung Transplant Case Illustrates the Complex Relationship Between the Government and Medical Providers

Justia columnist and attorney David Kemp comments on a recent case in which a child received a much-needed pediatric lung transplant as the result of a federal lawsuit that triggered a policy change. He discusses the policy and the arguments the parents of the child put forth for changing it. He argues that the case illustrates a function relationship among experts, legislators, and judges—but only in ideal circumstances. He critiques the community of medical experts as failing to review and update policies to keep up with the latest scientific knowledge, particularly on such crucial issues like eligibility for donated organs.

Changing Our Attitudes Toward Health Policies

Justia columnist and attorney David Kemp discusses two recent issues that have come up in recent news related to health and health policy. The first issue Kemp discusses is that of breast cancer prevention and treatment, in light of a New York Times op-ed written by actress and director Angelina Jolie. The second issue is the recent and alarming outbreak of bacterial meningitis in New York City, particularly among gay and bisexual men. Kemp compares and contrasts the two issues, arguing that there is no place for moral approbation or judgment in the prevention and treatment of these diseases or any others.

The Need for Discussion of End-of-Life Care Plans

Justia columnist and attorney David Kemp discusses a story that illustrates the need for every individual to clearly express his or her instructions for end-of-life care. He first considers why this particular story captured national audiences and then discusses what people should take away from the story. He argues that everyone should have an advance medical directive or similar document to guide friends and loved ones as to end-of-life wishes.

When Conscience and Duty Conflict: A Health Care Provider’s Moral Dilemma

Justia columnist and attorney David Kemp discusses the moral dilemma presented when a health provider’s duty conflicts with his or her conscience. To illustrate this dilemma, he uses the example of a Jehovah’s Witness physician faced with a patient who needs a life-sustaining blood transfusion. Kemp notes that conflicts between conscience and duty arise in other settings, such as the case of conscientious objectors to military conscription. Kemp concludes that the ideal solution is for the institution and the individual to take steps to prevent these types of conflicts from occurring at all.

A Federal Judge Upholds the Women’s Health Regulations of the Affordable Care Act Against a Free Exercise of Religion Challenge

Justia columnist and Cardozo law professor Marci Hamilton comments on a recent decision from a federal district judge regarding employers’ duties under the Affordable Care Act (ACA). The case arose when the Chairman of a for-profit company, who is Catholic, objected to the ACA’s requirements that his employee health plan must cover contraception and sterilization. Specifically, the Chairman claims, among other things, that his constitutional right to the free exercise of religion has been violated by the requirement. Hamilton, citing several U.S. Supreme Court cases, argues that the Chairman is wrong, and that if his position were to be accepted by the courts, then we would be on a dangerous slippery slope, for even minimal burdens on religious exercise could then lead to important consequences for those who are of other religions, or no religion at all. In addition to addressing these constitutional issues, Hamilton also discusses the issues raised in this area by the Religious Freedom Restoration Act (RFRA).

The States Can Afford to Expand Medicaid, and the Federal Government Can, Too: Governors Would Be Foolish and Cruel to Opt Out of the Affordable Care Act’s Medicaid Expansion

Justia columnist, George Washington law professor, and economist Neil Buchanan argues that, in the wake of the Supreme Court’s Affordable Care Act (ACA) decision, states should not opt out of the ACA’s Medicaid expansion, as they are allowed to do, and as many Republican governors have suggested that they will do. Buchanan argues—providing many specifics—that the states can easily afford the Medicaid expansion, especially as the states are being offered a generous deal by Congress; and that the federal government can afford it too. Overall, Buchanan concludes that the case for states’ opting for the expansion is overwhelmingly strong. In addition to being the right thing to do with respect to health care for states’ poor and near-poor citizens, he contends, choosing the Medicaid expansion proves to be fiscally responsible as well.

The Top 10 Things to Take Away From Last Week’s Supreme Court Obamacare Ruling

Justia columnist and U.C., Davis law professor Vikram David Amar comments on the ten key takeaways from last week’s Obamacare opinion. Some of the lessons Amar suggests that the opinion teaches are not just about the Supreme Court, but, interestingly, also about the media, and about Intrade users. Moreover, when it comes to the Court and its Justices, Amar points out lessons that we might learn about Justice Kennedy and Chief Justice Roberts, respectively, from the opinion. Amar also points out lessons that we might learn from the opinion about Commerce Clause doctrine and doctrines regarding constitutional federalism.

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 Co... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George Washington U... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell University. Colb tea... more

John Dean
John Dean

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

Michael C. Dorf
Michael C. Dorf

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

Marci A. Hamilton
Marci A. Hamilton

Marci A. Hamilton is one of the country’s leading church-state scholars and the Fox Professor of Pra... more

David S. Kemp
David S. Kemp

David S. Kemp is an attorney and managing editor at Justia. He received his B.A. in Psychology from... more

Joseph Margulies
Joseph Margulies

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

Anita Ramasastry
Anita Ramasastry

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

Ronald D. Rotunda
Ronald D. Rotunda

Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, at... more