King v. Burwell: Is the ACA Here to Stay?

By Wendy Parmet

With Chief Justice Roberts’ remarkably strong decision today for the Supreme Court in King v. Burwell millions of Americans can now rest assured:  affordable health insurance is here to stay.  There may not be a constitutional right to health care in the U.S., and thanks to the Court’s 2012 decision regarding the Affordable Care Act’s Medicaid expansion, millions of citizens (not to mention non-citizens) remain uninsured; but the ACA’s promise of providing affordable coverage to millions of low income Americans is now secure.

The question before the Court in Burwell was whether individuals in the 34 states that rely on a federally-operated health insurance exchange, rather than a state-created exchange, are eligible for the federal tax credits. Without those credits, most people could not afford to buy insurance on the exchanges. Nor would they be subject to the ACA’s mandate to have coverage. As the Court recognized, as healthy people fled the exchanges, the insurance markets in states with federally-operated exchanges would experience a death spiral.

Read More

No Jab, No Pay: Australia’s Misguided Approach to Vaccine Refusal

By Wendy Parmet

Australia’s recently announced “no jab, no pay” policy offers a potent reminder of the all-too-common tendency to penalize vulnerable populations for public health problems. Like many other countries, Australia has experienced a worrisome increase in the number of families deciding not to vaccinate their children.  In response, the government of Prime Minister Tony Abbott has announced a program of carrots and sticks. The carrots include increased payments to physicians to incentivize them to urge families to vaccinate their children. The sticks include tightening the religious exemption (Australia does not provide an exemption for personal belief) and the “no jab, no policy” which will deny families whose children aren’t vaccinated certain income-based childcare and family tax benefits.

Governments have long used the denial of public benefits – traditionally public education – to push parents to vaccinate their children.  Studies have shown that laws conditioning attendance in schools and daycares on vaccination can increase vaccination rates, although the particular formulation of the law (especially how difficult it is to receive an exemption) matters.

To be sure, laws that require children to be vaccinated to attend schools or daycare impose heavier burdens on poor families who are more apt to need daycare and are less able to homeschool their children. Still, these laws reach broadly, especially when they apply to private schools. Homeschooling remains relatively rare. Significantly, school-based vaccine laws do not single out low-income families. Read More

Vaccine Mandates: Second Circuit Reaffirms their Constitutionality

By Wendy Parmet

Although the political debate over vaccination rages on, the legal debate is as settled as the science. Last month, in Phillips v. City of New York, the Second Circuit reaffirmed in record time what it and other courts have consistently held: states have the power to mandate that schoolchildren be vaccinated against vaccine-preventable diseases.

The plaintiffs in Phillips included parents of children who had received a religious exemption, but were barred from school during a chicken-pox outbreak, and parents of a child who had been denied a religious exemption. Together they brought just every claim possible against city and state defendants: free exercise, substantive due process, equal protection, and the Ninth Amendment. Last June, District Court Judge William F. Kuntz granted summary judgment for the defendants, relying heavily on an earlier decision of the Second Circuit, Caviezel v. Great Neck Public Schools. Plaintiffs appealed to the Court of Appeals. Read More

Ebola Quarantines: Remembering Less Restrictive Alternatives

By Wendy Parmet

The heartfelt letter issued by Kaci Hickox, the nurse being held in quarantine in a New Jersey hospital, calls into question the surprising decision by Governors Christie and Cuomo to quarantine health care workers returning from West Africa. It also shines a spotlight on the all-important, but largely unexplored, question of how the less restrictive “alternative test” applies to quarantine. In her letter, Hickox describes being treated in a shockingly harsh and unsupported manner, being kept for hours in isolation at Newark International Airport, and then in a tent outside of University Hospital in Newark, given only a granola bar to eat. Even after she tested negative for Ebola, and her purported fever had vanished, she remains confined in the hospital. How, she asks, will returning health care workers be treated when they return from Africa?  “Will they be made to feel like criminals and prisoners?”

Hickox’s question points to the critical flaw in the decision by Governor’s Cuomo and Christie to quarantine asymptomatic health care workers returning from Africa. By using the “big gun” of quarantine, the most restrictive public health law we have, rather than a less restrictive approach, the Governors seek to show an anxious public that they’re being tough on Ebola. No doubt this is a politically popular stance. But, as many public health experts have noted, the Governors’ approach can only impede efforts to convince health care workers to go to Africa, where they are desperately needed if the world is to be freed of Ebola. The quarantines may also discourage US-based health care workers and first responders from caring for those who are stricken stateside. If 21 days of confinement in a hospital is demanded for those who care for patients in Liberia, why won’t the same approach be used here? And if so, who will answer the 911 call?

The dangers posed by the Governors’ draconian approach demonstrate the public health importance of the basic constitutional principles that guide the law of quarantine: while governments have the right, if not the duty, to impose quarantine in appropriate circumstances to protect the public’s health, individuals can only be detained when doing is the least restrictive alternative. Exactly what that means has not been fully explored by the courts, in part because quarantine cases are relatively rare. Most modern cases concern patients with tuberculosis. These cases, including ones from New York and New Jersey (e.g., City of New York v. Doe, 205 A.D.2d 469, 614 N.Y.S.2d 8 (N.Y. App. Div., 1 Dept. 1994); City of Newark v. J.S., 652 A.2d 265 (N.J. Super. Ct. Law Div. 1993)), suggest that detention is permissible, but only upon a showing that the patient has been non-complaint with less restrictive approaches (such as directly observed therapy). Courts have also made clear that prisons are not appropriate placements for patients, and that decisions must be based on the best medical and public health evidence. And although courts have not explored these issues, it seems clear that states must provide care and support for those are unable to care for themselves due to public health orders. People who are quarantined are serving the public. We need to treat them accordingly.

In the face of Ebola, fealty to the least restrictive means principle as well as sound public health policy requires that policymakers proceed with a far more nuanced approach than we have seen from the Governors of New York and New Jersey. Without question, public health controls are appropriate, indeed necessary, in response to this awful disease. In Dallas, health officials required health care workers to sign documents agreeing to self-monitor and avoid public transportation. Because Ebola cannot be spread before someone becomes ill, even the latter may be excessive. But these measures were far less restrictive and more tailored than those now being employed in New Jersey and New York. Indeed, a wide range of measures lie between the neglect the public fears, and the over-reaction that the Governors have instituted. Both public health and the Constitution demand we explore them.

Expelling Immigrants from the Exchanges

By Wendy Parmet

[Cross-posted from HealthLawProf Blog.]

The warning by the Centers for Medicare and Medicaid Services (CMS) last month that up to 115,000 people might lose their health insurance under the Affordable Care Act (ACA) unless they can send proof of their citizenship or immigration status was more than a bit ironic. After spending much of the year and millions of dollars trying to boost participation in the exchanges, CMS is now trying to reduce participation. In so doing, it will likely exclude many young, healthy adults, just the type of people that the exchanges need to succeed

The reason for the exclusion lies with the heated politics of immigration, and our ambivalent approach to providing immigrants with health care. Although the ACA’s critics have lambasted the law on many accounts, when the Act was first debated in Congress no charge – not even death panels! — was made more heatedly or drew more attention than the claim that the Act would cover illegal immigrants. It was that charge, after all, that Representative Joe Wilson referred to when he shouted “You lie!” during the President’s speech to a joint session of Congress.

Obama, however, didn’t lie when he promised that the Act would not cover illegal immigrants. The ACA bars from the exchanges immigrants who are “not lawfully present,” a category that includes the so-called Dreamers, the young immigrants who by virtue of an executive order have a right to live and work in the country. It also requires exchange applicants to provide their Social Security number and, in the case of non-citizens, information about their immigration status, which must be verified by the Department of Homeland Security. These are the requirements that CMS is now enforcing.  Read More

King v. Governor of the State of New Jersey: Applying the First Amendment to Laws Regulating Physician Speech

By Wendy Parmet

[Cross-posted from HealthLawProf Blog.]

Last week’s decision by the U.S. Court of Appeals for the Third Circuit in King v. Governor of the State of New Jersey, provides an insightful addition to the growing body of case law examining the clash between the state’s power to regulate clinical practice andfree speech.

Although the common law of informed consent arguably implicates the First Amendment rights of physicians and other health professionals, the conflict between the state’s power to regulate health care and free speech has become more apparent in recent years as state legislatures have increasingly enacted laws prescribing what physicians and other clinicians can and cannot say. Such laws are especially common with respect to abortion, but state legislatures have also required physicians to provide specific information about breast cancer treatments, or refrain from asking patients about gun ownership.

Not surprisingly, these laws are frequently challenged on First Amendment grounds. Some courts, relying on the Supreme Court’s cursory treatment of a First Amendment claim in Planned Parenthood v. Casey, have held that laws pertaining to what is said in the course of treatment regulate clinical practice rather than speech, and are, therefore, not subject to heightened review under the First Amendment. That was essentially the approach followed by the Ninth Circuit in Pickup v. Brown, which upheld a California law banning sexual orientation change efforts (SOCE) for minors, and the Eleventh Circuit in Wollschlaeger v. Governor of the State of Florida, which upheld a Florida law limiting physicians’ ability to inquire about their patients’ gun ownership.  As a result of these decisions, it became easier for states to regulate the speech of physicians than the speech of commercial purveyors of deadly products.  Read More

McCullen and New York Statewide Coalition: The Erosion of Public Health as a Legal Norm

By Wendy Parmet

At first glance, last Thursday’s decisions by the Supreme Court in McCullen v. Coakley and the New York Court of Appeals in New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Department of Health and Mental Hygiene, have little in common. McCullen, which struck down a Massachusetts law establishing a 35 foot buffer zone around reproductive health clinics, was a First Amendment case that dealt with the always contentious issue of abortion. In contrast, N.Y. Statewide Coalition, which upheld a lower court decision striking down a regulation of the New York City Board of Health barring the sale of large portions of sugary soda, was decided on state administrative law grounds, with the court finding that the Board exceeded its authority.

On closer inspection, however, the two cases share several features in addition to their date of decision. One is the failure to give substantial weight to the state’s interest in protection health. In his opinion for the Court in McCullen, Chief Justice Roberts accepted that the buffer zone law was content neutral and therefore not subject to strict scrutiny. Nevertheless, a unanimous Court held that the Massachusetts law was not narrowly tailored to serve the government interests of protecting public safety and access to health care. In reaching this decision, the Court focused on the “toll” that the buffer zone placed on the abortion opponents who tried to dissuade woman from having abortion, rather than the impact of the lack of such a zone on woman seeking reproductive health care. Equally important, the Court showed no willingness to defer to the state’s contentions that alternative regulatory approaches had proved unsatisfactory. Rather the Court insisted that given “the vital First Amendment interests at stake, it is not enough for Massachusetts simply to say that other approaches have not worked.”

Read More

The Big Gulp Wins: Public Health Loses

By Wendy Parmet

Public health law took another hit this week. In a unanimous decision (starting on p. 22), the Appellate Division of the New York Supreme Court affirmed a trial court’s earlier ruling striking down the New York City Board of Health’s ban on the sale of large sugary drinks.

In an opinion authored by Justice Dianne T. Renwick, the appeals court ruled that the Board of Health had “failed to act within the bounds of its lawfully delegated authority” in promulgating the so-called soda ban. Relying primarily on the Court of Appeals’ decision in Boreali v. Axelrod, the Appellate Division concluded that the soda ban was unlawful because 1) in framing the regulation, the board took into account factors other than public health; 2) the regulation was not an act of interstitial rule making; 3) the regulation concerned an issue that the legislature had considered and had failed to reach a decision; and 4) the regulations did not require expertise in the field of public health.

Although the Appeals Court did not repeat the trial court’s spurious suggestion that the board’s powers were greater when applied to infectious diseases than chronic diseases, it reiterated the erroneous belief in a binary distinction between public health factors and social and economic factors. In the court’s view, the only factors a health department should consider are “health factors,” which seem to exist totally apart from the social and economic environment. Any consideration of social and economic factors, including as the court noted, consideration of behavioral economics, is outside the scope and beyond the expertise of public health.

This dichotomization of public health and “non-health factors” relies on a false understanding of public health expertise. Read More