The Judicial Role in Health Policy

1
The Judicial Role in Health Policy

• Sara Rosenbaum
• Harold and Jane Hirsh Professor of
• Health Law and Policy
• March 2013

2
Learning Objectives

• To broadly understand the structure of the US
  judicial system
• To understand what makes the judicial process so
  controversial

3
Law and Society

• Law codifies social relationships among
  individuals, the marketplace, the government,
  health professionals, and others.
• Creates enforceable rights and duties.
• Judiciary defines and enforces legal
  relationships and can reorder society with major
  political, economic, cultural, and social
  consequences
• Judicial policy can be overturned only by higher
  courts or, if based on statute or common law, by
  legislature.
• Consequently, courts use power sparingly (but not
  always, e.g., Bush v Gore)

3
4
The Judicial Process

• Parallel state and federal judicial systems
• State courts are supreme over state law
• Bush v Gore
• The United States Supreme Court has final say
  over federal law
• Marbury v Madison

5
The Federal Judicial Process

• Federal courts have great constitutional powers
  and great constraints imposed by the
  Constitution, Congress, and themselves
• Subject matter jurisdiction does the law permit
  judicial review?
• Medicare hospital performance measures preclude
  review
• Standing is someone actually injured in a way
  that allows the courts to intervene at all?
• (Employer challenges to the employer
  responsibility provisions of the ACA)
• Does a plaintiff have the right to be in court at
  all or is enforcement solely in governments
  hands?
• Enforcement of the Medicaid equal access law
• Can the court even grant certain types of
  remedies?
• Under ERISA, equitable relief but no damages
• Similar issues arise under the state judicial
  process
• The judiciary as an anti-democratic institution
  for good or bad
• Voting Rights Act case
• Proposition 8

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6
What Makes the Judicial Process So Controversial?

• Outgrowth of war
• Preliminary skirmishes
• Defining battles
• Often the line is not clear a skirmish can be
  the whole battle
• Judicial recourse as a weapon
• Courts often expected to color in the picture
  of ambiguous laws
• Statutory interpretation are premium credits
  available in federal Exchange?
• Legal battles driven by theory of the case,
  which frames facts in order to move toward legal
  outcomes. The theories clash
• ACA individual mandate as
• an effort by Congress to rationalize health care
  spending through ordinary use of regulatory,
  spending, and taxing powers OR
• An unprecedented effort to strip individuals of
  liberty
• ACA Medicaid provisions as
• Ongoing incremental improvement OR
• Unprecedented incursion on state autonomy and a
  coercion of the states

7
Why Was the ACA Battle So Bitter?

• Spillover of political battle into court, with
  judicial intervention as a weapon
• Revamping of multiple social relationships
• Individual versus government individual
  responsibility
• Individual versus government religious freedom
  and contraceptive coverage
• Employers v government employer responsibility
• States v the federal government Medicaid
  expansion and Exchanges
• Markets v government
• Insurance market reforms
• Hospital quality performance bonuses and
  penalties
• Hospital community benefit responsibilities

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8
The Legacy of Decisions

• Often no finality
• The parties keep fighting but on new ground
• Contraceptive mandate
• Availability of premium credits in federal
  Exchanges
• Often no workable remedy
• Courts not good at running systems
• A winner and a loser

9

• Topics from the online participant survey
• We have a judicial civil rights mandate to
  provide interpretation services, but no funding
  is provided. How can the Justice Department or
  the courts help with this problem?
• How does the Judicial Branch hinder our ability
  to deliver quality, comprehensive primary care
  services? What are some historical examples?
• How can the Judicial Branch influence decisions
  prior to cases reaching the Supreme Court?
• What do you see happening with family planning
  and abortion rulings at the State and Federal
  levels?