What Went Wrong With The Supreme Court And The Health Law?

Updated at 11:35 AM, April 6th, 2012

United States Supreme Court building. (IslesPunkFan/Flickr)

United States Supreme Court building. (IslesPunkFan/Flickr)

Last week, the Supreme Court heard arguments regarding, among other topics, the individual mandate provision of Affordable Care Act. There were protests outside the court and extensive media coverage — much of it predicting that the mandate, and possibly the entire law, will be overturned.

On Wednesday, the Health Law, Bioethics & Human Rights Department at Boston University School of Public Health posed the question many of us had been asking ourselves: “The Supreme Court and the Affordable Care Act: What Went Wrong?”

A panel of three legal scholars from the department — George Annas, Wendy Mariner and Leonard Glantz — reflected on last week’s Supreme Court proceedings and explained what they believed the arguments were really addressing.

Below you can listen to the remarks from all three professors as well as the subsequent question and answer session.

Leonard Glantz


  • Individual rights not the issue: “This is not a case about individual rights. The case is about federal power. The case has nothing to do with individual rights at all. And the case has to do with whether or not the federal government has the power to make people buy stuff. That is solely what the case is about.”
  • Federal vs. state power: “The reason why that’s controversial is that we tend to think of the federal government as having all the power. They have like nuclear bombs, the income tax and lots of money. They must have all the power in the world — but they don’t. The federal government has what’s referred to as enumerated powers. If it’s not listed in the Constitution, they don’t have it. What this question is about is whether or not there’s something in the Constitution that says the federal government can make people do this.”

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When You’re Fired For Being Pregnant

We recently posted a couple of stories about how to avoid getting fired when you have cancer.

What about when you’re pregnant?

Here’s Dina Bakst, a lawyer and founder of the organization, A Better Balance: The Work and Family Legal Center (gotta love that) writing for The New York Times today about pregnant women getting pushed out of their jobs.

Here’s the lede:

FEW people realize that getting pregnant can mean losing your job. Imagine a woman who, seven months into her pregnancy, is fired from her position as a cashier because she needed a few extra bathroom breaks. Or imagine another pregnant employee who was fired from her retail job after giving her supervisors a doctor’s note requesting she be allowed to refrain from heavy lifting and climbing ladders during the month and a half before her maternity leave: that’s what happened to Patricia Leahy. In 2008 a federal judge in Brooklyn ruled that her firing was fair because her employers were not obligated to accommodate her needs.

We see this kind of case in our legal clinic all the time. It happens every day to pregnant women in the United States, and it happens thanks to a gap between discrimination laws and disability laws.

I haven’t been pregnant for over six years, but I still remember feeling like a loser working at a large daily newspaper during those last few months before giving birth. Continue reading

Looming Legal Questions Of Payment Reform

If health care payment reform in Massachusetts proceeds as the Patrick administration plans, I predict a great many billable hours for lawyers helping medical providers figure out how to change to comply. In particular, everybody will be boning up on what an “Accountable Care Organization” is (see our initial guide here.)

Dr. Alice Coombs of the Massachusetts Medical Society conveys a sense of the looming legal complexities in the Massachusetts Medical Law Report here, including this barrage of perplexing legal questions:

Providers within an ACO accept responsibility for the overall care of a patient, agreeing to deliver all medically necessary services.
But who determines what is “medically necessary”? Will risk be adjusted for sicker patients, and who will make such adjustments? Will a set global payment influence what is “medically necessary” and thus present a significant risk of denial of medical service (which may lead to liability issues)? Will ACOs be required to carry reserves, as insurance companies do?
Professional liability
Legislative reforms are desperately needed to reduce and eliminate defensive medicine, a costly and widespread practice. This is integral to the entire payment reform and cost control debate. However, no such changes appear to be forthcoming.
In medical malpractice actions, how will the issue of joint and several liability apply to participants in an ACO? Will all members be responsible for the claims against one? In ACOs where hospitals are present, how will the charitable immunity statute apply?

The Mass. Medical Law Report includes some thoughts from lawyers here.