A Circuit Split on Contraceptives Coverage

Perhaps foreshadowed by the dissent in the 10th Circuit that I wrote about here, the 8th Circuit has now officially launched a circuit split regarding the legal validity of the accommodation that allows modified compliance/objection to the contraceptives coverage mandate.  Unlike the seven other circuits to have considered the question since Hobby Lobby, the 8th Circuit yesterday issued opinions upholding preliminary injunctions in two cases (here and here), thereby preventing the mandate+accommodation from being enforced against the objecting non-profits.

First, the 8th Circuit determined that the accommodation still substantially burdens objectors’ religious beliefs because it imposes significant financial penalties if they refuse to comply with a requirement that they view as violative of those religious beliefs. As I explained previously, I do think the court was right to focus on the monetary consequences of objection, rather than assuming that merely filing the required paperwork for an accommodation does not or cannot actually make objectors complicit in the way they claim it does.

Like SCOTUS in Hobby Lobby, the 8th Circuit then went on to assume that the contraceptives coverage mandate advances a compelling government interest, which is the next step in the analysis under the Religious Freedom Restoration Act once the substantial burden test is met.  So far, so good.  But that’s the end of my agreement.

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I Concur with the Dissent (or, More on Little Sisters)

On September 3, the 10th Circuit declined to rehear en banc several challenges to the contraceptives coverage mandate filed by non-profit organizations, including Little Sisters of the Poor. As SCOTUSBlog explains, these organizations had not themselves asked for en banc review, having already moved on to SCOTUS, but the judges have the option of calling for a vote themselves, which one or more of them must have done.  The vote came down 7-5 in favor of refusal, with the dissenting judges (i.e., those who wanted en banc review) issuing an explanation of their position.  On this issue, I concur with the dissent.  But I still don’t think the objecting non-profits should be off the hook.

When it comes to the contraceptives coverage mandate, non-profits, and now certain for-profits, are accommodated such that they may be relieved of the responsibility to contract, arrange, pay, or refer for contraceptives coverage if they notify the government or their health insurer of their objection to doing so, such that their insurer (or third party administrator of self-insured plans) can provide free contraceptives to their employees, at no cost to and without the involvement of the employer (all further explained here by Greg Lipper).  However, many organizations continue to argue that the accommodation fails to relieve them of complicity in providing contraceptives against their religious beliefs.  They want flat out exemption from the mandate. Read More

Hell Hath No Fury Like An ACA Opponent Scorned

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Flickr Creative Commons/Tabitha Kaylee Hawk

By Gregory M. Lipper

Over the weekend, Ted Cruz again lamented the role played by John Roberts in rejecting the plaintiffs’ arguments in King v. Burwell, the recent attempts to undermine the Affordable Care Act in the Supreme Court. After Chief Justice Roberts wrote the Supreme Court’s 6–3 opinion in the case, the emerging narrative in some conservative circles is that Roberts and his (apparently illegitimate) judicial restraint is to blame. Cruz said that “if [Edith] Jones and [Michael] Luttig had been on the court instead of Souter and Roberts, then the marriage laws in every state would still be on the books and Obamacare would not been law.” Apparently, the same Chief Justice who invalidated a key provision of the Voting Rights Act, went out of his way to reach the First Amendment question in Citizens United, and joined aggressive decisions targeting contraceptive coverage and labor unions is actually a passive Obama apologist who should never have been nominated.

That, I suppose, is one lesson to be learned. Another is that the King lawsuit was so obviously frivolous and nakedly political that even arch-conservative and Affordable Care Act skeptic John Roberts felt constrained to reject it.

Let’s review: in King v. Burwell, the plaintiffs argued that four words in the Affordable Care Act should be read in isolation to prevent the federal government from offering subsidies to those who lived in states that refused to create their own healthcare exchanges. They pressed this argument even though such a reading would have rendered the federal exchanges entirely illusory, stripped millions of Americans of health insurance, and produced the very death spiral the Act was supposed to prevent.

Commentators noted that the plaintiffs’ argument was reminiscent of “an old Amelia Bedelia story” and that it depended on the “Moops doctrine.” And those were the nice reviews. Others described the case as “cynically manufactured,” “mean-spirited,” and a “political challenge … dressed up in legal garb.” The plaintiffs’ counsel didn’t help matters by speaking about the companion case in rather political terms.

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HHS’ Proposed Anti-Discrimination Regulations: Protective But Not Protective Enough

By Elizabeth Guo

Last week, the Department of Health and Human Services (HHS) Office of Civil Rights (OCR) released a proposed rule implementing section 1557 of the Affordable Care Act (ACA). Section 1557 applies the Rehabilitation Act of 1973 to the ACA so that a covered entity cannot discriminate against an individual on the basis of a disability in any health program or activity. The proposed rule clarified how OCR intended to enforce and interpret section 1557’s nondiscrimination provision.

As Timothy Jost and other commentators have noted, the government’s proposed interpretation of section 1557 significantly expands the number of health entities that need to meet the Rehabilitation Act’s nondiscrimination requirements. The regulation proposes to encompass all entities that operate a health program or activity, any part of which receives federal financial assistance. The regulation then broadly interprets “federal financial assistance” to include “subsidies and contracts of insurance.” Thus, an insurer receiving premium tax credits or cost-sharing reduction payments through participating in a health insurance Marketplace would need to ensure that all its health plans meet the Rehabilitation Act’s nondiscrimination requirements, regardless of whether the plans are sold through the Marketplace, outside the Marketplace, or through an employee benefit plan. This broad interpretation means that the Rehabilitation Act’s nondiscrimination provisions will now apply to a number of previously excluded plans.

Expanding the number of plans needing to meet section 1557’s nondiscrimination requirements will provide greater protection to more individuals with disabilities. In the United States, the Rehabilitation Act and the Americans with Disabilities Act (ADA) prohibit discrimination against individuals with disabilities. Both acts protect disabled individuals, but courts have consistently interpreted only the Rehabilitation Act as prohibiting insurers from designing their health plans to discriminate against individuals with disabilities. On the other hand, courts have held that the ADA provides a safe harbor for insurers when designing their benefit plans. Thus, some insurers under the ADA may be able to exclude all drugs treating HIV/AIDS from their formulary or place all drugs treating HIV/AIDS on the highest cost-sharing tier, benefit designs that the Rehabilitation Act would likely prohibit. See also Kelsey Berry’s post on this topic.  Read More

(Final) Reply to Author of Cato Brief in Little Sisters Contraception Case

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Flickr Creative Commons/Charlie Marshall

By Gregory M. Lipper

This is the third and (I promise) final installment in my skirmish with Josh Blackman over a brief that he and Cato Institute filed in support of Little Sisters of the Poor’s quixotic challenge to regulations requiring them to fill out a form to obtain an exemption from providing contraceptive coverage to its employees. If you haven’t read the previous posts, you can do so here (my first post), here (Josh’s response to me), here (my first reply to Josh), and here (Josh’s second response to me). The basic gist is that, contrary to Cato’s brief, (1) HHS had the authority to implement the nonprofit accommodation, and (2) if HHS didn’t have the authority to issue the accommodation, then Hobby Lobby no longer controls whether the original contraceptive coverage requirement satisfies RFRA, because the Court in Hobby Lobby pointed to the HHS accommodation as the basis for concluding that a less-restrictive alternative exists.

Now, on to Josh’s most recent response.

First, Josh suggests that he’s not actually assuming away the basis of Hobby Lobby, because the HHS nonprofit accommodation could still in theory be enacted by Congress; even if HHS lacked the authority to issue the nonprofit accommodation, he says, it would still constitute a less-restrictive means and thus lead to the same result in Hobby Lobby (such that the Supreme Court can dodge the question in Little Sisters).

But that’s not right either. The premise of Hobby Lobby was that the less-restrictive alternative was existing and on the books; the accommodation was one that “HHS has already devised and implemented.” The Court added: “[W]e need not rely on the option of a new, government-funded program in order to conclude that the HHS regulations fail the least-restrictive-means test. HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs.” Justice Kennedy, the decisive vote, added that “the mechanism for [accommodating the plaintiffs] is already in place.” (All emphases added by me.)

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A Reply to the Author of Cato’s Brief in the Little Sisters Contraception Case

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Flickr Creative Commons/WEBN-TV

By Gregory M. Lipper

Josh Blackman has replied to my post criticizing the Cato Institute’s amicus brief (which Josh coauthored) in support of the cert petition in the Little Sisters contraception case. My original post made two arguments: (1) if you take away the nonprofit accommodation, Hobby Lobby no longer supplies a rule of decision, because the presence of the nonprofit accommodation was what led the Court to conclude that RFRA barred the coverage requirement, and (2) if you prevent regulatory agencies from offering reasonable, tailored accommodations to their regulations, the result is bad for religious liberty.

Two brief comment on Josh’s reply.

First, on the question of agency authority to issue religious accommodations, Josh incorrectly suggests that I miss a subtelty in his argument. Josh/Cato say that the Department of Health and Human Services (HHS) has authority to issue religious accommodations, but that it may not decide “which organizations were worthy of the exemption, and which would be burdened by the accommodation.” I address this argument in my original post: the Cato brief assumes that religious accommodations are all-or-nothing, but that is not how the Religious Freedom Restoration Act (RFRA) works. RFRA details when accommodations are available and when they are not (and the Establishment Clause limits accommodations that unduly harm third parties). So an agency (HHS, or otherwise) cannot, as a practical matter, offer accommodations without determining who is eligible for that accommodation and who is not. As I said in my original post, Cato “would force agencies to choose between a bludgeon and no tools at all, even when the agency would need a scalpel to craft religious accommodations consistent with RFRA.”

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Little Sisters: Cato Institute Targets the Affordable Care Act—Yet Again

Flickr Creative Commons/UCI UC Irvine

By Gregory M. Lipper

Fresh off its unsuccessful attempt to gut the Affordable Care Act in King v. Burwell, the Cato Institute is back for more. This time, Cato has filed an amicus brief in support of Supreme Court review in Little Sisters of the Poor Home for the Aged v. Burwell. This is one of the many, many (many) challenges brought under the Religious Freedom Restoration Act (RFRA) by nonprofit organizations to an accommodation, offered by the Department of Health and Human Services (HHS), exempting religious nonprofits from providing contraceptive coverage to their employees. To take advantage of the accommodation, nonprofits need only provide written notice to the government of their objection and the name of their insurance provider or plan administrator. At that point, the government arranges for the nonprofit organization’s insurance company or plan administrator to provide the coverage at no cost to the nonprofit or its employees.

These RFRA challenges to the nonprofit accommodation have been rejected by all seven federal appeals courts to address them. But in this brief backing the challenge by Little Sisters, Cato asks the Supreme Court to dodge the RFRA question entirely, claiming that the case “can be resolved without further engaging in the delicate analysis required by the Religious Freedom Restoration Act.” Instead, Cato makes the following argument: (1) in light of King v. Burwell’s statements about agency deference, HHS had no authority to offer religious accommodations to its own regulations implementing the Affordable Care Act, and (2) without a religious accommodation, the contraceptive coverage requirement is unenforceable against nonprofit organizations with religious objections.

Cato seeks—in the name of religious liberty!—to prevent regulatory agencies from granting accommodations to entities with religious objections to regulations, and then argues that the absence of religious accommodation makes the underlying regulations unenforceable against religious objectors. Cato’s curious argument suffers from two serious flaws.

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The 21st Century Cures Act, HIPAA, Big Data, and Medical Research

By Nicholson Price

The 21st Century Cures Act is a big deal; the House passed it handily, and we’re still waiting to see what the Senate does.  A lot has been written about what it does in terms of changing FDA review processes, and a fair bit about the lovely increase in funding for NIH (see Rachel Sachs’ blog posts here, here, and here).  These are tremendously important.

But another provision in the bill has been getting much less play: the way it changes HIPAA to enable large-scale research, which is also a big deal all by itself. Read More

The US 2020 HIV/AIDS Strategy and the Limits of ACA

By Leslie Francis

On July 30, the White House announced the updated 2020 HIV/AIDS strategy. The admirable vision of the strategy is that “The United States will become a place where new HIV infections are rare, and when they do occur, every person, regardless of age, gender, race/ethnicity, sexual orientation, gender identity, or socio-economic circumstance, will have unfettered access to high quality, life-extending care, free from stigma and discrimination.”

This said, the strategy reflects continuing concerns about the numbers of people who do not know their HIV status, who do not have access to effective treatment, and who do not take advantage of preventive strategies. Demographic groups especially at risk include men having sex with men, African American men and women, Latino men and women, people who inject drugs, youth age 13-24, people in the Southern United States, and transgender women. The strategy emphasizes care coordination, coordination between health care and other social services such as housing, treatment as prevention, and pre-exposure prophylaxis. Notable initiatives since the 2010 HIV/AIDS strategy include interagency efforts to address the intersection of HIV and violence against women, a DOJ and CDC collaboration to publish a comprehensive examination and best practices guide on the intersection between HIV and criminal laws, and demonstration projects funded through the HHS Minority AIDS Initiative Fund. Read More

An ELSI Program for Pain Research: A Call to Action

By Diane Hoffmann, Director, Law & Health Care Program; Professor of Law; University of Maryland School of Law

As someone who has been greatly concerned about and devoted much of my scholarship to legal obstacles to the treatment of pain, I applaud Professor Pustilnik for increasing attention to the role of neuroimaging in our efforts to understand our experience of pain and how the law does or does not adequately take into account such experience. Pustilnik has written eloquently about this issue in several published articles but her efforts to bring together scientists, medical experts, legal academics, and judges (see also here) deserves high praise as a method for illuminating what we know and do not know about pain and the brain and to what extent brain imaging can serve as a diagnostic tool or an external validator of pain experience.

In this post, I discuss how DNA testing serves as a precedent for how to develop responsible uses of new technologies in law, including, potentially, brain imaging for pain detection. The ethical, legal, and social implications (ELSI) of DNA research and testing were integral to developing national protocols and rules about DNA. Brain imaging of pain needs its own ELSI initiative, before zealous adoption outpaces both the technology and the thinking about the right guiding principles and limitations.

The idea of brain images serving as a “pain-o-meter” to prove or disprove pain in legal cases is clearly a premature use of this information and likely an over simplification of the mechanisms of pain expression. However, the potential for an objective diagnostic tool or indicator of the pain experience is something that lawyers representing clients in criminal, personal injury, workers comp or disability cases may find too attractive to resist and attempt to have admitted in the courtroom. This state of affairs brings to mind the ways in which lawyers have attempted to use genetic test results, initially obtained for medical purposes, in litigation.  (Read on for more about ELSI in DNA and several national pain initiatives that could adopt the Human Genome Project and DNA ELSI model).

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