supreme court

RECENT POSTS

AP: Supreme Court Strikes Down Buffer Zone For Abortion Clinics

(Update from the AP: “Attorney General Martha Coakley, whose office argued before the justices to keep the 35-foot zone, did not immediately say whether officials would seek to create a different buffer zone or take some other steps. But she said the ruling appeared to leave open other alternatives and called on lawmakers to act quickly.

“Every day that we don’t change the rules and make it safer for people to get access, people are put at risk,” said Coakley, a Democratic candidate for governor.

Senate President Therese Murray, D-Plymouth, said she expected lawmakers to act before the July 31 end of the legislative session, but would not speculate on what changes might be sought.”)

The AP reports that the U.S. Supreme Court today struck down a 35-foot protest-free zone outside abortion clinics in Massachusetts (read the court’s “slip opinion” here). We’ll update the news and add reactions as they come in, but for now, here’s the Associated Press, with reactions below:

The justices were unanimous in ruling that extending a buffer zone 35 feet from clinic entrances violates the First Amendment rights of protesters.

Chief Justice John Roberts said authorities have less intrusive ways to deal with problems outside the clinics.

While the court was unanimous in the outcome, Roberts joined with the four liberal justices to strike down the buffer zone on narrow grounds. In a separate opinion, Justice Antonin Scalia criticized Roberts’ opinion for carrying forward “this court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents.”

The case began when Boston-area grandmother Eleanor McCullen and other abortion opponents sued over the limits on their activities at Planned Parenthood health centers in Boston, Springfield and Worcester. At the latter two sites, the protesters say they have little chance of reaching patients arriving by car because they must stay 35 feet from the entrance to those buildings’ parking lots.

Planned Parenthood provides health exams for women, cancer screenings, tests for sexually transmitted diseases, birth control and abortions at its clinics.

The organization said that the buffer zone has significantly reduced the harassment of patients and clinic employees. Before the 35-foot zone went into effect in 2007, protesters could stand next to the entrances and force patients to squeeze by, Planned Parenthood said. Continue reading

Mass. Reacts To Supreme Court Ruling Upholding Health Law

WBUR’s Martha Bebinger reports that the U.S. Supreme Court’s 5-4 decision to uphold the Affordable Care Act won’t have much impact in Massachusetts, where many of its provisions are already under way as part of the state’s own health law, signed by then-Gov. Mitt Romney. Still, the political and long-term implications of today’s court ruling are huge. Here are some early reactions:

Prof. Kevin Outterson, co-director of the health law program at Boston University, offers a powerful metaphor to sum up what the court did legally. He says that Obamacare was dancing on a tightrope by arguing that Congress had the power to impose insurance under the “Commerce clause,” and it fell off. But to everyone’s surprise, Chief Justice John Roberts ended up holding a net.

Prof. Outterson says:

“Obamacare was dancing on a high wire, which was the commerce clause, and they fell off — losing that vote 5 to 4 — but we were surprised to find a taxing power net manned by Chief Justice Roberts that saved the entire ACA. The other four conservative justices made it clear as a bell that if they had prevailed on the individual mandate, they would have struck down every word of the ACA.

On the Medicaid issue, a strong majority of 7 Justices said the Medicaid expansion was unconstitutional if HHS threatened states with the loss of existing Medicaid funds for non-compliance. But Roberts, Breyer and Kagan saved Title II by interpreting the statute narrowly to give states a choice: whether they accept the Medicaid expansion or not, all existing funds are safe. I call this the “Red State Veto.”

Continue reading

Bulletin: Individual Mandate Survives As A Tax, 5-4 Ruling Upholds ObamaCare

Chief Justice John Roberts Saves The ACA. Who knew?

Read the full opinion here.

So, the mandate is constitutional. Chief Justice Roberts joins left of court. Medicaid provision is limited but not invalidated, says Scotusblog.

Bottom line: “The entire ACA is upheld, with the exception that the federal government’s power to terminate states’ Medicaid funds is narrowly read,” says Scotusblog. “Roberts saved the ACA.”

Amy Howe blogs: “The money quote from the section on the mandate: Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.”

Howe: “The Court holds that the mandate violates the Commerce Clause, but that doesn’t matter b/c there are five votes for the mandate to be constitutional under the taxing power.

(Thank you Scotusblog!)

More from Kennedy’s dissent, from Scotusblog: “In opening his statement in dissent, Kennedy says: “In our view, the entire Act before us is invalid in its entirety.”

For a laugh between all this serious talk, check out tumblr’s “When Scotus Upheld ObamaCare.”

Amy Howe summarizes the ruling in plain English:

The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.

Howe notes Roberts’ rationale for his opinion here:

From the beginning of the Chief’s opinion: “We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.”

The New York Times front page declares: Victory For Obama

No Supreme Court Obamacare Decision Today, But When It Comes…

Looking for clues on health overhaul from the U.S. Supreme Court

Stand down, everybody. Or at least the several dozen of us who were waiting with bated breath for news on whether the Supreme Court would issue its decision today on the federal health overhaul also known as Obamacare.

But one can never be too prepared, right? The Associated Press has just put out a lovely run-down of several possible permutations of the impending court decision. (I can just imagine the newsroom discussion. Editor: What’s going to happen with the Supreme Court decision? Reporter: Nobody knows. Editor: Well, write something forward-looking anyway.)

It’s worth reading the whole thing, but here are some of the beautifully brief bottom lines:

Q: What if the Supreme Court upholds the law and finds Congress was within its authority to require most people to have health insurance or pay a penalty?

A: That would settle the legal argument, but not the political battle.

Q: On the other hand, what if the court strikes down the entire law?

A: Many people would applaud, polls suggest.

Q: What happens if the court strikes down the individual insurance requirement, but leaves the rest of the Affordable Care Act in place? Continue reading

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

Highlights:

  • 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.”

Continue reading

Opinion: Why Our Genes Should Not Be Patented

Catherine Corman and her father are both BRCA carriers. (Courtesy of Catherine Corman)

Catherine Corman and her father are both BRCA carriers. (Courtesy of Catherine Corman)

By Cathy Corman
Guest Blogger

My father had a radical mastectomy in 1975.

He’d visited a general surgeon to check an eraser-sized lump he’d noticed in his left “breast,” which turned out to be malignant. Researchers in the 1980s pinpointed two kinds of genetic mutations that dramatically increase the odds of developing breast and ovarian cancer. They named these mutations BRCA 1 and 2.

By 1996, Myriad Genetics, a company in Utah, was offering a test that could identify people with BRCA mutations. I strong-armed my father into taking the test and held my breath as we waited for results. We learned that we are both BRCA carriers. For my dad, the result was retrospectively predictive. He had the mutation and developed breast cancer. For me, a healthy 37-year-old mother of young triplets, the implications weren’t so clear. I weighed my options and rolled the dice. By the fall of 1998, I’d had elective surgery to remove my thus-far cancer-free breasts and ovaries.

Along with the rest of the nation, I was on pins and needles last week listening to arguments in front of the Supreme Court about the constitutionality of “Obamacare.” I was also holding my breath, waiting for the decision the justices delivered last week concerning a challenge to Myriad’s monopoly on BRCA DNA and BRCA testing. Researchers, geneticists, and the American Civil Liberties Union asked justices on the Supreme Court to reconsider an appellate court’s ruling that upheld Myriad’s patent of the genetic material. The justices sent the case back to the appellate court and asked it to revisit its decision in light of a related case. This might bring good news or bad for those of us carrying BRCA mutations, but, in any case, the implications of the decision will reach far beyond the small number of us genetically predisposed to reproductive cancers.

Families with histories of any number of inherited diseases — from heart failure to diabetes to mental illness to autoimmune disorders – will increasingly share their DNA with researchers looking for genetic clues. If companies can patent our DNA as Myriad has done, they can, under current law, prevent us from receiving affordable testing and innovative, effective treatments for diseases that have the potential to take our lives. Continue reading

Poll: Americans Believe Justices’ Ideology Will Drive Health Law Decision

Unlike members of Congress, the justices of the U.S. Supreme Court didn’t stand or clap during President Obama’s State of the Union Address Tuesday. This, presumably, is a measure of their objectivity, a visible demonstration of the notion that “justice is blind,” delivered fairly, without “fear or favor.”

Well, apparently the American public doesn’t buy it — at least when it comes to determining the constitutionality of the national health law.

Just two months before the court is to hear the case, nearly 60 percent of the public “expect the justices to depend more on personal ideology than a legal analysis of the individual mandate,” the core of the law that requires most people to buy health insurance, according to a just-released Kaiser Family Foundation health tracking poll. A story on the poll in Kaiser Health News explains:

Just 28 percent of those surveyed believe the justices will base their decision on the mandate without regard to politics and ideology, according to the survey. Continue reading

Why We Need Cameras In The Supreme Court During Health Law Arguments

Should the Supreme Court allow live television coverage during health law proceedings?

CBS News reports that lawmakers and others have requested that cameras be allowed in the U.S. Supreme Court during oral arguments on the constitutionality of President Obama’s health law.

The court this week agreed to hear the case, with oral arguments by March 2012.

In a Nov. 15 letter to Supreme Court Chief Justice John Roberts asking for live television coverage of the proceedings, U.S. Sen. Charles Grassley writes that “the decision in this case has the potential to reach every American,” and will “reverberate throughout the American economy.” Continue reading

Is A 2012 Supreme Court Decision On The Health Law Bad For Romney?

President Obama has always performed well when things are bleak — but things haven’t looked this bleak for a long, long time.

David Brooks, in The New York Times this week, wrote of “settling into the idea that Romney might well be president.” A Gallup poll out yesterday found half of Americans say Obama and Congress are doing a worse job than their predecessors.

But wait, might the national health law save the day for the president by sinking the GOP frontrunner?

Here’s The Wall Street Journal politics blog suggesting that the White House is going all out to evoke Romney’s fraught connection with the health law whenever possible. (This issue, overall, is bad for Romney, who has a love-hate relationship with its central tenet: He supports the individual mandate at the core of the Massachusetts health law, but says the national health law, which is modeled on the state law, should be repealed.)

Here’s the WSJ, citing an example of the administration’s gentle reminder to health-law hating Republicans that Romney supported an earlier version of a similar law: Continue reading

Handicapping The Health Law’s Odds Before The Supreme Court

Will The Supremes Kill The Health Law?

Stuart Taylor, writing for Kaiser Health News, offers an authoritative analysis of what will happen when (and everyone seems to agree it’s only a matter of time) the national health law goes before the U.S. Supreme Court. The bottom line: Taylor put the odds at “about 25 percent to 33 percent” that the centerpiece of the law, the individual health insurance mandate, is overturned. (He says the court is even less likely to toss out the rest of the law).

Here’s how he got there:

For starters, the court’s four Democratic appointees seem almost certain to vote to uphold the law. And Justice Clarence Thomas seems almost certain to vote to strike it down. Still, it’s harder to call the other four Republican appointees, Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Samuel Alito. Each side in the health care litigation has cited one or more opinions written or signed by each of these four justices. But even on the questionable assumption that each is a good bet to vote with Thomas, the odds seem against all four doing so. (For example: 2/3 x 2/3 x 2/3 x 2/3 = 16/81.)

Explaining why he’s betting the high court will uphold the law, Stuart, a contributing editor for National Journal, concludes this way:

And in this case, the justices may turn to an important principle: When the constitutional arguments for and against striking down a major act of Congress seem almost equally strong, say advocates of judicial restraint, the court should defer to the people’s elected representatives — no matter how unpopular they are with the people.

“Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation,” as Judge Sutton concluded, “allowing the people’s political representatives, rather than their judges, to have the primary say over its utility.”