1. 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 2

3. 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)

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 4

5. 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 government’s 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

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 6

7. 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

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 8

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? 9