“Health policy hashed out in Washington is usually discussed in terms of billions of dollars or percentage of market share. But, more often than other areas of policy, it can also lead to a focus on whether it will directly cause unnecessary suffering or even death for individuals.
Pointing to the deeply personal implications of health policy is not unfamiliar. Consider Sarah Palin’s accusation that Obamacare would create “death panels,” or recent debates over FDA approval of Avastin, a cancer drug.
The argument that the government shouldn’t regulate the behavior of a dying patient has sprouted up once again in 2014, and may be setting the stage for a showdown between the states on one side, and the federal government and Congress on the other.
In May, Colorado Gov. John Hickenlooper (D) signed into law a controversial measure that allows terminally ill patients to obtain experimental medications before they’ve been approved by the Food and Drug Administration.
Those who favor the law have a ready-made big government bogeyman in the Food and Drug Administration, as well as some Hollywood glitz in the form of Oscar-winning picture “Dallas Buyers Club,” in which Matthew McConaughey is an AIDS crusader smuggling non-sanctioned medications to patients in the early days of the virus.
They also have a simple and emotionally compelling argument.
“The use of available investigational drugs, biological products, and devices is a decision that should be made by the patient with a terminal disease in consultation with his or her physician, not a decision to be made by the government,” reads the proposed statutory language in the “Right to Try Act” developed by the conservative Goldwater Institute.”
“The latest somersaults and contortions over Obamacare last month spread from courtrooms to the blogosphere, with another round of regulatory “adjustments” not far away. The common principle followed by the health law’s most energetic advocates appears to be the whatever-it-takes motto of the late Oakland Raiders owner Al Davis, “Just win, baby!”
A pair of federal appellate court decisions on July 21 (Halbig v. Burwell and King v Burwell) sent Obamacare backers cycling through at least the first three stages of grief (anger, denial, and bargaining) over the potential loss of tax credit subsidies for states with federal-run health exchanges, along with the likelihood of further unraveling of the health law’s interrelated scheme of coverage mandates and tighter insurance regulation. A 2-1 majority ruling in Halbig delivered the latest blow to the Affordable Care Act, by deciding to vacate a 2012 Internal Revenue Service rule that attempted to authorize such subsidies.
The loudest voices among the flock of pro-ACA court watchers had previously declared such a judicial decision all but “inconceivable.” For example, Henry Aaron of the Brookings Institution termed these legal challenges to Obamacare as absurd, crazy, and wacky in an April 1, 2014 New England Journal of Medicine article. Jonathan Gruber of MIT and a key architect of both Massachusetts-based Romneycare and its cloned twin Obamacare called the tax credit theory behind the cases “screwy,” “nutty,” “stupid,” “unprecedented,” and “desperate” (but that depends on which version of Gruber one chooses to sample).
Tim Jost of the Washington and Lee University School of Law and a frequent blogger on this issue at Health Affairs, continues to be often wrong, but never in doubt—at least until later events require some modest repositioning. In July 2012, he flatly asserted that “these claims are simply false” regarding contentions that final IRS rules to enable premium tax credits through federal exchanges are unauthorized by law. Jost further opined that the only viable challengers with legal standing to contest the IRS rule would be employers failing to offer their employees insurance (or at least affordable or adequate coverage), but that any such challenges would be barred by the Tax Anti-Injunction Act until probably sometime in 2015.”
“Media coverage of the two Supreme Court cases challenging Obamacare’s HHS mandate for employers to provide workers with “free” coverage of abortion-inducing drugs largely focused on Hobby Lobby, the arts and crafts chain founded by the Greens, an evangelical Christian family.
The case of another family-owned business also was heard by the high court, though — that of Conestoga Wood Specialties and the Hahns, Mennonite Christians from East Earl, Pa. The Hahns established their business — the manufacture of custom wood kitchen cabinets and parts — on Christian values and say they’re committed to applying those values in the workplace.
Why did they go to court, represented by the Alliance Defending Freedom? Regulations drawn up by the Department of Health and Human Services to implement the Affordable Care Act, or Obamacare, included the HHS rule mandating that employee insurance plans cover 20 forms of contraception, four of which are considered seen by many to be potentially life-ending.”
“SALEM, Ore. — Oracle Corp. has sued the state of Oregon in a fight over the state’s health insurance exchange, saying government officials are using the technology company’s software despite $23 million in disputed bills.
Oracle’s breach-of-contract lawsuit against Cover Oregon was filed Friday in federal court in Portland. It alleges that state officials repeatedly promised to pay the company but have not done so.
The lawsuit seeks payment of the disputed $23 million plus interest, along with other unspecified damages.
Oregon’s health-insurance enrollment website was never launched to the general public. State officials have blamed Oracle, but the company says the state’s bad management is responsible.
Gov. John Kitzhaber has called for the state to sue Oracle and recover some of the $134 million it has already paid to the Redwood City, California, company.
In June, Oregon issued legal demands for documents that could become evidence in a possible lawsuit against Oracle under the state’s False Claims Act.”
“Fresh Unlimited Inc. won’t have to provide contraceptive coverage for its employees under the Obama administration’s health-care reform law, in what may be the first exemption granted since a June U.S. Supreme Court ruling.
The parent of Freshway Foods today won an appeals court ruling that qualifies it for the same treatment the high court approved in its June 30 Hobby Lobby decision allowing family-run businesses to claim a religious exemption from the requirement to include contraceptives in their health insurance plans.
The suit by Francis and Philip Gilardi, who own Sidney, Ohio-based Freshway, is one of about 50 filed by for-profit businesses over religious objections to the Patient Protection and Affordable Care Act of 2010’s birth-control coverage mandate. The Gilardis are Roman Catholic and said that complying with the U.S. Department of Health and Human Services mandate would require them to violate deeply held religious beliefs.
U.S. District Judge Emmet Sullivan in Washington in March 2013 ruled against the Gilardis, saying that he couldn’t allow a corporation to assert the religious beliefs of individuals. The U.S. Court of Appeals reversed part of Sullivan’s decision, and the ruling was put on hold pending the Supreme Court’s resolution of the Hobby Lobby case.
In addition to carving a hole in the law, the Hobby Lobby ruling marked an expansion of corporate rights, allowing companies, like people, to claim religious freedom under federal law.”
“Religious liberty has long been considered our “first freedom” in America. So why are we spending so much time defending this freedom in court now?
Many celebrated the Supreme Court’s June 30 ruling on Hobby Lobby. But let’s not get ahead of ourselves: Plenty of other challenges are coming for churches, synagogues, mosques and, yes, businesses.
On July 21, President Obama issued an executive order that prohibits federal government contractors from “sexual orientation” and “gender identity” discrimination and forbids “gender identity” discrimination in the employment of federal employees. In a scathing response, the U.S. Conference of Catholic Bishops decried the executive order as “unprecedented and extreme and should be opposed.”
The bishops’ response, authored by Archbishop William Lori of Baltimore and Bishop Richard Malone of Buffalo, asserted that “in the name of forbidding discrimination, this order implements discrimination.” The bishops predicted that “faithful Catholics and many other people of faith will not assent” to the deeply flawed understanding of human sexuality undergirding the order. “As a result, the order will exclude federal contractors precisely on the basis of their religious beliefs,” the bishops said.”
“Two-plus weeks have passed since the D.C. Circuit’s panel decision in Halbig v. Burwell and the Fourth Circuit’s opposite decision in King v. Burwell, a substantially identical case. The King plaintiffs have filed their cert petition; and the government has asked for rehearing en banc in the D.C. Circuit; and the initial agitation has subsided. It’s a fine time to highlight a few lessons that, in my estimation, we have already learned. I offer three sets of observations: today, I’ll focus on the interplay between constitutional and administrative law and on the advocacy network that produced Halbig and its companion cases; tomorrow, I’ll analyze the institutional pathologies and ideological derangements that account for the contretemps.
Constitutional and Other Law. To rehearse the wholly obvious, Halbig is the second frontal legal assault on Obamacare. The first (NFIB v. Sebelius) was directed at its “individual mandate,” and its provision that states refusing to participate in the Act’s Medicaid expansion would forfeit all Medicaid funding. These were high-toned constitutional attacks—the former, on the authority of Congress under the commerce and tax powers; the latter, on its spending authority. I don’t mean to dispute the urgency or righteousness of those lawsuits. They had to be brought, and quickly—even if the only point had been to proclaim that they can’t do this to us, at least not without a fight. Beyond that, NFIB served to demonstrate that constitutional arguments over enumerated powers still cut some ice.
The prevailing response to the Court’s narrow upholding of the mandate as a permissible exercise of the taxing power has been disappointment (or worse). At variance with many of my friends and colleagues, I believe that the Supreme Court’s decision actually produced a positive result on the enumerated powers front. Either way, though, even a full-scale win on the mandate question would have done little beyond turning Obamacare into the no-mandate care system that had been advocated by then-candidate Obama—and which the President has since implemented by waiving and postponing the oh-so-essential mandates for individuals and employers. In operational terms, and even for significant constitutional questions, the individual mandate itself has always been a side show.”
“Last week, the House of Representatives voted to authorize Speaker John Boehner to file a lawsuit challenging President Obama’s failure to fully implement Obamacare. Specifically, the lawsuit will challenge the administration’s delay of the employer mandate—requiring many employers to provide health insurance or pay a fine—that was supposed to go into effect Jan. 1. It’s clear President Obama repeatedly has abused executive power to circumvent Congress and essentially rewrite the law, but this lawsuit still raises a host of questions.”
“Most voters agree with Republicans in Congress that the president does not have the right to change laws without Congress’ approval, but they doubt a House lawsuit will stop him from acting on his own.
The House voted last week to sue President Obama for exceeding his constitutional authority by making changes in the new national health care law after it had been passed by Congress. A new Rasmussen Reports national telephone survey finds that only 22% of Likely U.S. Voters believe the president should be able to change a law passed by Congress if he thinks the change will make the law work better.
Sixty-three percent (63%) think any changes in a law should be approved first by Congress. Fifteen percent (15%) are not sure. (To see survey question wording, click here.)
Forty-five percent (45%) favor the House’s decision to sue the president to stop some of his executive actions on the grounds that they exceed the powers given him by the Constitution. But just as many (44%) oppose the lawsuit. Eleven percent (11%) are undecided.
However, only 30% think it is at least somewhat likely that the lawsuit, even if it is successful, will stop the president from taking executive actions on initiatives he has proposed that Congress refuses to go along with. Fifty-six percent (56%) consider this unlikely. This includes 11% who say the lawsuit is Very Likely to stop the president from acting alone and 21% who say it is Not At All Likely to work.”
“Court decisions can have huge policy implications. Because judges are not policy experts, statistical modelers or economists, and because these are inexact sciences anyway, the policy implications of judicial rulings may not be fully appreciated when they are made.
A good example is the 2012 U.S. Supreme Court ruling that made Medicaid expansion optional for states. It’s hard to imagine that the justices had any idea that their decision would leave 4.8 million low-income people in a coverage gap without insurance in states that chose not to expand, or that 10 million slightly higher-income people would get tax credits to help them buy coverage in those same states. (Not that those things may, or should have, changed the justices’ conclusion.)
Now let’s consider Halbig v. Burwell, a case in which recent appeals court rulings made headlines. Halbig, which raises questions about whether the U.S. government can provide tax credits to people in federal- as well as state-run insurance exchanges, is still churning through the courts.
What if the plaintiffs prevail in Halbig, denying tax credits to moderate-income people in states with federal health insurance exchanges? The map below shows the potential combined effect of the 2012 Supreme Court decision and a plaintiffs’ victory in Halbig. (To be clear, the courts are not considering the earlier Medicaid ruling as part of Halbig, but the combined effect would be real.)”