health care

  • August 1, 2013
    Guest Post

    by Reuben Guttman, Director and Head of False Claims Group, Grant & Eisenhofer.

    Over the past several years, we have had the privilege of representing whistleblowers who have successfully pursued False Claims Act cases against some of the largest pharmaceutical manufacturers in the world. Cases against Pfizer, GlaxoSmithKline, Abbott Labs, Amgen, and most recently Wyeth which was acquired by Pfizer, resulted in the companies returning over $7 billion to government healthcare payors.   

    Viewed from the optics of the black letter law, these cases are about whether false or fraudulent statements cause the government to pay for drugs that doctors would not have otherwise prescribed. Yet, in human terms, these cases raise the question of whether corporate marketing goals are influencing medical decisions.           

  • February 8, 2013
    Guest Post

    by Leslie C. Griffin, William S. Boyd Professor of Law, UNLV Boyd School of Law

    The Obama administration recently offered more accommodations to the religious employers who oppose women’s reproductive freedom and seek exemption from the Affordable Care Act’s mandate that employee insurance coverage extend to contraception and sterilization. The employers won two big victories. First, the definition of religious employer was expanded to include not only organizations where everyone shares one faith but also those that employ or provide services to individuals who are not members of the same religious community. Second, the employers will not have to provide the coverage. Instead, the insurance companies will independently contact employees and make separate contraceptive policies available to them at no charge. The insurance companies will cover the costs of this new arrangement and, presumably, pass them on to other consumers.

    The new rules are responsive to repeated and vociferous complaints about the president’s war on religion. As soon as the Secretary of Health and Human Services, Kathleen Sebelius, first announced that religious employers would be expected to provide contraceptive and sterilization coverage at no cost to employees, the nation’s Catholic bishops attacked the president for his unprecedented assault on religious freedom. Those critics ignored the fact that the idea of requiring employers to protect women’s equality by providing insurance was not new or unprecedented. Twenty-six states have similar laws, and the highest courts of New York and California upheld their women’s contraceptive equity statutes against First Amendment claims.

    With the federal act currently under challenge in 45 lawsuits, however, the administration chose to compromise rather than to press the legality of its actions on behalf of women’s equality. The strategy of compromise has been unsuccessful. Even the new accommodations have not satisfied the administration’s critics. The Catholic bishops still believethat the president should compromise even more by extending the exemption to secular, for-profit corporations run by religious individuals. And Kyle Duncan, the general counsel of the Becket Fund for Religious Liberty, which has sponsored much of the litigation against the mandate, stated that the new rules do “nothing to protect the religious freedom of millions of Americans.”

  • July 6, 2012
    Guest Post

    By Glenn Sugameli, Staff Attorney, Defenders of Wildlife's Judging the Environment. (Sugameli founded in 2001 and still heads the environmental community's Judging the Environment project and website on federal judicial nominations and related issues.)


     As the Austin American-Statesman’s editorial board commented in "Greenhouse gas ruling timely, right":

    Overshadowed last week by U.S. Supreme Court rulings on health care and immigration, but just as significant in its own right, was the unanimous decision by a three-judge panel of the U.S. Court of Appeals in Washington, D.C., affirming federal regulations of greenhouse gases. The three judges — one a Ronald Reagan appointee … said the Environmental Protection Agency was "unambiguously correct" to set rules to reduce greenhouse gas emissions, given global warming's potential harm to the public's health.

    The Salt Lake Tribune’s editorial, "Another health case; Appeals court rightly stands by EPA," agreed: "While most of the country was waiting for a court ruling that would affect how many Americans insure their health care, another court was handing down an order that will go a long way to ensure the health of the entire planet."

    This importance of the issues in Coalition for Responsible Regulation v. Environmental Protection Agency is augmented by synergistic factors. These include: (1) the court that decided them; (2) the judges who joined the unsigned per curiam opinion; (3) the high likelihood that their ruling is the final judicial word; (4) the very strong language the judges used; and (5) the decision’s impact in confirming the scientific facts of climate change.

  • June 6, 2012
    Guest Post

    By Rob Weiner, formerly Associate Deputy General in the U.S. Department of Justice is a partner at Arnold & Porter LLP. Many of the points in the following post are reflected in an earlier post for Balkinization calledPolitics by Other Means,” though with a somewhat different focus


    Ambrose Bierce defined “accuse” as, “To affirm another's guilt or unworth; most commonly as a justification of ourselves for having wronged him.” Thus it is that the opponents of the Affordable Care Act, with no hint of irony, accuse those supporting the Act of interjecting politics into the cases before the U.S. Supreme Court for the purpose of intimidating the Justices. But it was those same opponents -- Republican politicians -- who initiated the litigation after Democrats won a partisan battle in the legislative arena and who have overtly framed the lawsuits as part of a grand political strategy.

    The focus of the legislative battle was the Affordable Care Act, adopted on March 23, 2010, with no Republican votes.  As Republican legislators were vowing to repeal the newly enacted bill, the Republican Attorney General of Florida, along with 11 other Republican State Attorneys General and one Democrat, filed suit seven minutes after President Obama signed it into law. Four of the Republican AGs proceeded over the objections of their Democratic governors. A twelfth Republican AG, from Virginia, sued separately.

    Bypassing the federal courthouse only blocks from his office in Tallahassee, the Florida AG brought the suit more than 200 miles away in Pensacola. That jurisdiction had no connection to the case, but it was an enticing forum for the plaintiffs. All three of its federal district court judges are conservatives appointed by Republican presidents. Although the federal rules did not prohibit this forum shopping, it highlighted the partisan coloration of the case.

    A few months later, seven more states joined the suit. Three were represented by their Republican AGs. The other four states, however, had Democratic AGs who believed the litigation to be meritless. The Republican governors of those states therefore filed instead. In January 2011, seven months after the court-ordered deadline for adding new parties, four more Republican AGs and one Republican governor sought to join the litigation. Why the belated “me-too”?  One reason: the November 2010 elections, which changed the leadership of these five States from Democratic to Republican.

  • March 26, 2012

    by Jeremy Leaming

    Regardless of the loads of attention that the Supreme Court oral arguments will continue to draw the remainder of the week, the tone of the justices’ questions and their reaction to answers are unlikely to reveal much about how the challenges to the law will be resolved.

    Talking with ACSblog, constitutional law professor, Garrett Epps said there is no way to predict the outcome because “in a case of this magnitude, the Court reacts to the emotional and political overtones of the issue. And certainly the state challengers and the private challengers have done their best to raise the emotional tone of these arguments.”

    The high court commenced three days of oral argument this morning in the challenges to the Obama administration’s landmark health care reform law, the Patient Protection and Affordable Care Act, or Affordable Care Act (ACA), or Obamacare. Today’s oral argument centered on whether an 1867 law, the Anti-Injunction Act, permits the law to be challenged at this time – a standing issue. Before chatting with ACSblog about the oral arguments, Epps noted that Slate senior editor Dahila Lithwick had recently tweeted, that if the health care law oral arguments “were the Beatles, the Tax Anti Injunction Act would be Ringo.”

    Epps, also legal affairs editor for The American Prospect, stuck to what many experts on the law say is its integral part, the minimum coverage provision. That provision requires many, starting in 2014, to purchase a minimum amount of health care coverage or pay a penalty on their income tax filings. The opponents of the ACA have argued the provision is an “unprecedented” governmental regulation.

    Indeed, as Epps noted, the state and individual challengers of the law have spent lots of time and energy trying to paint the law as a wild overreach by the federal government.