People running on treadmills in a gym.

WHOOP and the IRS: How Tax Avoidance Helps Health

By Bobby Stroup

On December 19, WHOOP announced their flagship product (bearing the same name as the company) is now eligible for FSA and HSA spending. This news means customers might use tax deductions to purchase the “wearable” wellness device. Effectively, courtesy of Uncle Sam, Americans can now save money on trying to be like Michael Phelps and Colleen Quigley.

More than merely a discount on a fitness band, this announcement highlights larger issues within federal policymaking. The article here explores how the complexities of the tax code are intertwined with American health care.

Read More

City with trash in foreground and smokestacks producing smog in background.

The Privatization of Cancer

By Daniel G. Aaron

Cancer is fearsome, unstoppable even. So the story goes. Yes, you can secure some extra time with loved ones, and — if you are lucky —  maybe your cancer is susceptible to drugs or surgery. But for most people, cancer sounds like a death sentence. The proper response is to throw drugs and radiation at it.

Cancer seems so unstoppable that many have started rifling through their cosmetic products and foods to eliminate all possible carcinogens. Despite the fact we have regulatory regimes to ensure our food, makeup, the air, and drinking water are free of carcinogens, people don’t trust them. There is an intuitive sense that products are not well regulated, leaving individuals to moderate their own cancer risk. In fact, the majority of Americans do not hold strong trust in our health agencies like FDA and CDC.

In my forthcoming article, I argue that our cancer regulatory regimes inadequately protect the public. I believe deregulation is one form of the “privatization of cancer.”

Read More

Close up of the Lady of Justice statue

The Privatization of Opioid Litigation

By Dan Aaron

As the opioid litigation continues over the shadow of one of our nation’s most pressing public health crises, some criticism has been levied at private lawyers representing the cities, counties, states, and individuals harmed by the crisis. For example, see the following tweet:

Let’s work out tax and healthcare financing policy county by county, with private lawyers taking a 25% cut every time. Judge Polster seems to like this idea.

The critiques are many, but can be summarized: (1) private lawyers are being enriched; (2) private lawyers are setting opioid policy; (3) private lawyers have misaligned incentives; and (4) private lawyers will not support public health.

Arguably, all these arguments bear some truth. However, do they suggest that the opioid litigation is incorrigibly tainted and tort litigation the improper avenue to address mass torts such as the opioid crisis?

Read More

Another Hole in the Halbig Verdict

Much attention has been paid recently to the contradicting decisions issued on the Halbig and King cases, which challenged the Obamacare subsidies offered to individuals purchasing insurance on federal exchanges. In a piece for Politico MagazineAbbe R. Gluck finds a weakness in the Halbig plaintiffs’ arguments, in their own words. As Gluck writes:

What’s less known, however, is that in the 2012 constitutional case, these same challengers filed briefs describing Obamacare to the court in precisely the way they now say the statute cannot possibly be read. Namely, they assumed that the subsidies were available on the federal exchanges and went so far as to argue that the entire statute could not function as written without the subsidies. That’s a far cry from their argument now that the statute makes crystal clear that Congress intended to deny subsidies on the federal exchanges.

I am not a fan of the “gotcha” flavor that some aspects of this case have taken on, but the challengers’ 2012 statements are relevant as a legal matter because what the government has to prove to win—as a matter of black-letter law under the Chevron doctrine—is that the statute is ambiguous. (Chevron says that federal courts defer to the relevant agency’s reading of the statute when a federal statute is unclear—here, that agency is the IRS.)

The challengers have spent more than a year arguing that no reasonable reader of text could construe the statute in any way other than denying federal subsidies to insurance purchasers on exchanges operated by the federal government. But what about their statements from 2012—statements then echoed by Justices Scalia, Kennedy, Thomas and Alito in their joint dissent to the Supreme Court’s ruling in the constituitional challenge, NFIB v. Sebelius?

You can read more, including the relevant passages from the NFIB v. Sebelius briefs, here.