Supreme Court (and More) Health Law Cases 2014

1. Supreme Court (and More) Health Law Cases 2014 Marshall Kapp, J.D., M.P.H. FSU Center for Innovative Collaboration in Medicine and Law

2. Burwell v. Hobby Lobby StoresConestoga Wood Specialties Corp. v. Burwell (June 30, 2014) • Introduction • Three forms of ownership • Govt. • Private not-for-profit/community/voluntary • Sectarian or Secular • Private for-profit/proprietary (secular) • Public (anyone can buy stock/equity) • Closely-held (usually family) (90% in US)

3. Affordable Care Act (ACA) • Large employer health insurance mandate (Play or pay) • Essential benefits package, including preventive services (defined by IoM to include all 20 contraceptive agents approved by FDA). Hobby Lobby objected to 4 agents. • Non-profit religious organizations can apply for “accommodation” to shift costs to the organization’s insurer

4. First Amendment free exercise of religion: Not the basis for this challenge • Challenge based on Religious Freedom Restoration Act of 1993 (RFRA) • Congress’ response to 1990 decision that, even if a law substantially burdened religion, OK if it was not intended to burden religion (was “neutral”), applied without regard to religious beliefs and practices (“generally applicable”), and was rationally related to a legitimategovt interest.

5. RFRA applies when a federal law “substantially” burdens a person’s exercise of religion, even if law is neutral and generally applicable. • Law must further a compelling govt interest using the least restrictive/least intrusive means available.

6. Majority (5-4) • Closely held, for-profit corporation is a “person” under RFRA. • Such a “person” can have religious beliefs. • ACA contraceptive requirement substantially burdens a religious belief ($475 M/yr penalty). • Issue about scientific validity of Hobby Lobby’s religious beliefs • Mandate advances a compelling govt interest • But there are less restrictive/intrusive means to achieve the same result.

7. Implications • For future RFRA challenges to legal requirements on closely-held corporations? • Case-by-case analysis of: • Substantial burden on religious exercise • Compelling govt interest • Least restrictive means to achieve the compelling govt interest

8. For health care? • Congress can repeal or amend RFRA, to make closely-held, for-profit corps non-persons. • July 9, Protect Women’s Health From Corporate Interference Act, S. 2578 • Classic “bootstraps” solution • Congress can pay for non-covered contraception itself.

9. Congress can provide an “accommodation” for closely-held, non-profit corps just like religious non-profits • Assuming such accommodation is sufficient for RFRA (But see Wheaton College case) • Individuals can purchase contraceptives personally • Congress can rethink employer-based coverage altogether.

10. Wheaton College v. Burwell, 573 U.S. –(July 3, 2014) • Wheaton=private, non-profit religious entity • ACA: Religious entity must play (provide essential services, including all FDA-approved forms of contraception) or pay penalty, but • May obtain an exemption by filing religious objection on EBSA Form 700. Filing triggers right of employee to have insurer pay for whatever the employer won’t cover. • Wheaton objected to filing the form and triggering an immoral consequence.

11. Procedural Posture of the case • Wheaton’s challenge to the religious entity accommodation under RFRA is pending in the courts • Wheaton requested a temporary injunction excusing it from filing EBSO Form 700 while its challenge is pending. • Irreparable injury • Likely to win on the merits • No other way to protect rights

12. Supreme Court granted the temporary injunction • Significance: • Not a ruling on the merits of the case (not a permanent injunction) • No precedential value for other cases • But, hints that court may find the religious entity accommodation invalid (not the least intrusive way for the govt. to accomplish a compelling public interest in light of the substantial burden to religion placed on the employer)

13. http://www.supremecourt.gov/opinions/13pdf/13a1284_ap6c.pdf

14. McCullen v. Coakley(June 26, 2014) • 2000 Mass. statute established 18-ft radius (“bubble zone”) around entrances and driveways of facilities providing abortions. Within the bubble, nobody, without consent, could approach within 6 feet of another person for the purpose of protesting, leafleting, counseling, or education.

15. Challenged on 1st Amendment freedom of speech grounds • Unanimous decision invalidating statute • 5 justices: Statute burdened all speech (content and viewpoint-neutral) without being narrowly tailored to serve a significant govt interest (ensuring public safety). Law went too far, could have served govt interest less intrusively.

16. Leaves door open to less intrusive means to ensure public safety (e.g., floating bubble zone around women)

17. 4 justices concurred: Statute was aimed at specific content and viewpoints, therefore could never be permissible, even if less intrusive.

18. Halbig v. Burwell, D.C. Cir., No. 14-5018, July 22, 2014 • Challenge to IRS regulation on tax credits (subsidies) for people buying health insurance through exchanges • Court invalidated regulation • ACA (statute) created tax credits for people buying insurance on state exchanges. • Regulation authorized tax credits for people buying insurance on state or federal exchanges. • Regulation must be consistent with authorizing statute: Political accountability

19. King v. Burwell, 4th Cir., No. 14-1158, July 22, 2014 • Same issue, opposite result • Language of the law is “ambiguous and subject and multiple interpretations” and “We uphold the rule as a permissible exercise of the agency’s discretion.”