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Supreme Court (and More) Health Law Cases 2014 Marshall Kapp, J.D., M.P.H. FSU Center for Innovative Collaboration in Medicine and Law.

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Presentation on theme: "Supreme Court (and More) Health Law Cases 2014 Marshall Kapp, J.D., M.P.H. FSU Center for Innovative Collaboration in Medicine and Law."— Presentation transcript:

1 Supreme Court (and More) Health Law Cases 2014 Marshall Kapp, J.D., M.P.H. FSU Center for Innovative Collaboration in Medicine and Law

2 Burwell v. Hobby Lobby Stores Conestoga Wood Specialties Corp. v. Burwell (June 30, 2014) Introduction – Three forms of ownership Govt. Private not-for-profit/community/voluntary – Sectarian or Secular Private for-profit/proprietary (secular) – Public (anyone can buy stock/equity) – Closely-held (usually family) (90% in US)

3 Affordable Care Act (ACA) – Large employer health insurance mandate (Play or pay) – Essential benefits package, including preventive services (defined by IoM to include all 20 contraceptive agents approved by FDA). Hobby Lobby objected to 4 agents. – Non-profit religious organizations can apply for “accommodation” to shift costs to the organization’s insurer

4 First Amendment free exercise of religion: Not the basis for this challenge Challenge based on Religious Freedom Restoration Act of 1993 (RFRA) – Congress’ response to 1990 decision that, even if a law substantially burdened religion, OK if it was not intended to burden religion (was “neutral”), applied without regard to religious beliefs and practices (“generally applicable”), and was rationally related to a legitimate govt interest.

5 RFRA applies when a federal law “substantially” burdens a person’s exercise of religion, even if law is neutral and generally applicable. – Law must further a compelling govt interest using the least restrictive/least intrusive means available.

6 Majority (5-4) – Closely held, for-profit corporation is a “person” under RFRA. Such a “person” can have religious beliefs. – ACA contraceptive requirement substantially burdens a religious belief ($475 M/yr penalty). – Issue about scientific validity of Hobby Lobby’s religious beliefs » Mandate advances a compelling govt interest But there are less restrictive/intrusive means to achieve the same result.

7 Implications For future RFRA challenges to legal requirements on closely-held corporations? – Case-by-case analysis of: Substantial burden on religious exercise Compelling govt interest Least restrictive means to achieve the compelling govt interest

8 For health care? – Congress can repeal or amend RFRA, to make closely-held, for-profit corps non-persons. July 9, Protect Women’s Health From Corporate Interference Act, S Classic “bootstraps” solution – Congress can pay for non-covered contraception itself.

9 – Congress can provide an “accommodation” for closely-held, non-profit corps just like religious non-profits Assuming such accommodation is sufficient for RFRA (But see Wheaton College case) – Individuals can purchase contraceptives personally – Congress can rethink employer-based coverage altogether.

10 Wheaton College v. Burwell, 573 U.S. – (July 3, 2014) Wheaton=private, non-profit religious entity ACA: Religious entity must play (provide essential services, including all FDA-approved forms of contraception) or pay penalty, but – May obtain an exemption by filing religious objection on EBSA Form 700. Filing triggers right of employee to have insurer pay for whatever the employer won’t cover. – Wheaton objected to filing the form and triggering an immoral consequence.

11 Procedural Posture of the case – Wheaton’s challenge to the religious entity accommodation under RFRA is pending in the courts – Wheaton requested a temporary injunction excusing it from filing EBSO Form 700 while its challenge is pending. Irreparable injury Likely to win on the merits No other way to protect rights

12 – Supreme Court granted the temporary injunction – Significance: Not a ruling on the merits of the case (not a permanent injunction) No precedential value for other cases But, hints that court may find the religious entity accommodation invalid (not the least intrusive way for the govt. to accomplish a compelling public interest in light of the substantial burden to religion placed on the employer)

13 f/13a1284_ap6c.pdf f/13a1284_ap6c.pdf

14 McCullen v. Coakley (June 26, 2014) 2000 Mass. statute established 18-ft radius (“bubble zone”) around entrances and driveways of facilities providing abortions. Within the bubble, nobody, without consent, could approach within 6 feet of another person for the purpose of protesting, leafleting, counseling, or education.

15 Challenged on 1 st Amendment freedom of speech grounds Unanimous decision invalidating statute – 5 justices: Statute burdened all speech (content and viewpoint-neutral) without being narrowly tailored to serve a significant govt interest (ensuring public safety). Law went too far, could have served govt interest less intrusively.

16 – Leaves door open to less intrusive means to ensure public safety (e.g., floating bubble zone around women)

17 – 4 justices concurred: Statute was aimed at specific content and viewpoints, therefore could never be permissible, even if less intrusive.

18 Halbig v. Burwell, D.C. Cir., No , July 22, 2014 Challenge to IRS regulation on tax credits (subsidies) for people buying health insurance through exchanges Court invalidated regulation – ACA (statute) created tax credits for people buying insurance on state exchanges. – Regulation authorized tax credits for people buying insurance on state or federal exchanges. – Regulation must be consistent with authorizing statute: Political accountability

19 King v. Burwell, 4 th Cir., No , July 22, 2014 Same issue, opposite result Language of the law is “ambiguous and subject and multiple interpretations” and “We uphold the rule as a permissible exercise of the agency’s discretion.”


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