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On King v. Burwell and the survival of the Affordable Care Act (and an unexpected birthday present)

On King v. Burwell and the survival of the Affordable Care Act (and an unexpected birthday present)

5362318849_dd1527d632_zToday is my birthday – and the Supreme Court (or, at least, two-thirds of it) just gave me, most people who follow health policy, and millions of now still-insured Americans a present: King v. Burwell.

There’s a lot to say about this decision, but I want to focus on three things: the strength of the conflicting substantive arguments, the possible internal Court dynamics that resulted in the majority and dissenting opinion, and a guess at some deeper meanings of the case for the future of health care in America.

On the substance, this is a case that really could have gone either way. The idea that the Court should apply the words as written, no matter how silly, has precedent in the Court’s history; so does the idea that the Court should try to interpret laws in ways that make them work as intended. The majority — at the end, Chief Justice John Roberts’s opinion — does recognize this conflict; the dissent, from the more textualist end of the Court, rejects the idea of a tension. The majority has it right in the sense that sometimes the Court applies the words as written, sometimes it requires interpretation, and that both are legitimate responses to cases – both are within the culture of legal interpretation that the Court has included over the last two-and-a-quarter centuries.

I do think the Court could have legitimately gone the other way, though I think it would have been foolish and harmful, to the country and even to the conservatives who will now bemoan this outcome. I am glad they did not. I prefer judges who try, when the law – or more accurately its interpretative culture – will allow them to, to make things work in a sensible way. The dissent’s position would have upended a major government program and harmed millions of people for a technicality – like a ticky-tack penalty or foul call deciding the Super Bowl or the World Cup. The Court could have done that, but it would have been wrong.

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Ethics, Health Policy, In the News, Medicine and Society, Research

Watching your spouse die on a TV reality show: De-identification as a myth, in death and life

Watching your spouse die on a TV reality show: De-identification as a myth, in death and life

Much biomedical research relies on the idea of “de-identification.” The Common Rule, the federal regulation on human subjects research, applies, as a general matter, if the researchers make some kind of intervention with the research subject or if they use “identifiable private information” about the research subject. But the “Private information must be individually identifiable (i.e., the identity of the subject is or may readily be ascertained by the investigator or associated with the information) in order for obtaining the information to constitute research involving human subjects.”

De-identification doesn’t mean that no one will recognize the research subjects’ identity. Federal regulation says the researchers must not be able to ascertain it readily.

If the private information was not collected by the researcher (it comes from someone’s medical record or was collected as part of someone else’s research) and the research subject’s identity is not known to and cannot “readily be ascertained” by the researcher, it doesn’t count. No consent is required, no IRB review is required – it isn’t “human subjects research.”

And why should it be? If no one knows it is you, you cannot be hurt, or so the argument goes.

[Last Friday], the New York Times published an extraordinary article entitled “Dying in the E.R., and on TV Without His Family’s Consent” by Charles Ornstein, a reporter for ProPublica. It recounted how Anita Chanko, a 75-year-old widow, watching an ABC reality television show, “NYMed,” suddenly realized that she was watching her husband’s death in the emergency room. More than a year earlier, the 83-year-old man had been hit by a garbage truck while crossing the street and had died in the NewYork-Presbyterian hospital. The televised version blurred his face, but not the face of the surgeon, the description of the accident, or the sound of her late husband’s voice, asking “Does my wife know I’m here?”

At no time were any of the family told  that Mr. Chanko’s treatment was being filmed or asked their consent to its use on television.

The dead man’s widow and children were traumatized. One of their sons wrote in a complaint “I had to unnecessarily relive my father’s death at your hospital a second time, while knowing that the public at large was able to — and continues to be able to — watch my father’s passing, for the purposes of what can only be described as drive-by voyeuristic ‘entertainment.’ ”

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Ebola, Global Health, In the News, Infectious Disease

Ebola: A look at what happened and what can be done

Ebola: A look at what happened and what can be done

As of September 28, the World Health Organization (WHO) estimates that, so far, more than 7,100 people have been infected with and more than 3,300 have died from the Ebola virus. These estimates of what has happened are almost certainly far too low; the estimates of what will happen are terrifyingly high. The current Ebola epidemic may well become the worst human disaster in this century. And we are not doing enough about it.

Ebola is unlikely to become a major problem in the developed world. But… it seems increasingly likely that hundreds of thousands, and quite possibly millions, of men, women, and children will be struck down by this ghastly plague

What happened?

Researchers will be trying to answer that question for years. This is the 24th known outbreak of Ebola virus disease since it was first recognized in 1976. All of the other outbreaks burned themselves out quickly, after between one and 425 people had been infected. Over nearly 40 years, fewer than 2,500 people are known to have become infected and fewer than 1,500 to have died. The outbreaks were all in Central Africa; they killed people in scattered villages, with few Western connections and fewer Western media on site.

However, the current outbreak started in West Africa, not Central Africa. I suspect this change in location will prove to be the key change, not so much in how it has affected human responses but how it has affected human susceptibility. Yes, the health infrastructures in Guinea, Liberia, and Sierra Leone were very poor (and are now far worse), but they were no worse than those in the Democratic Republic of Congo, South Sudan, or Uganda, the sites of most of the earlier outbreaks. But the lands where this outbreak start are more densely populated and better connected. Instead of burning out in one or two villages, hidden away in dense jungle, the virus spread from village to village, from village to town, and eventually from town to city. When it hit Monrovia, the slum-ridden, million-person capital of Liberia, an explosion was probably inevitable. (It has recently begun to expand in Freetown, the capital of Sierra Leone, as well as Conakry, the capital of Guinea.)

The growth of the epidemic has brought with it the growth of terror and the destruction of already tenuous trust, both in governments and in modern health care. It has also brought death from other, treatable conditions that cannot now be treated in health care systems that Ebola has collapsed. It has brought restricted transportation and supplies and, as a result, in some places, sharply higher food prices. It may eventually bring, in spots, starvation.

Recriminations have already started. Why didn’t the West provide powerful help in March 2014, when the epidemic (already about a year old) began to be noticed? Or why hasn’t Western science, expensively pursuing the latest “me too” drug for common Western conditions, produced a treatment, cure, or vaccine for Ebola? These critiques seem too harsh. No previous epidemic has ever ballooned like this one, even in Central Africa. And the chance of an epidemic outside those traditional regions, let alone in the West, appeared remote.

And while some have pointed fingers at the West, others have focused on the behavior of the affected West African populations. Much has been made of their reluctance to abandon traditional methods of burying their dead, their lack of trust in modern medicine, and even their physical attacks on health care workers. But before blaming the victims for their poor infection control measures, put yourself in their shoes. A five year old – perhaps your five year old – is feverish and vomiting. She is crying and holding her arms out to you for comfort, for help. In West Africa you would not have the chance to telephone for an ambulance, with well-protected professionals to treat the child. Touching her could kill you. But what would it do to you – what would it make of you – to ignore her? As Benjamin Hale wrote in Slate, Ebola is a fantastically cruel disease, turning against us our own compassion, care, and love.

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Health Policy, In the News, Stanford News

Analysis: The Supreme Court upholds the health reform act (really)

Analysis: The Supreme Court upholds the health reform act (really)

Well, that was interesting.

I’m in Berlin, on vacation, but at 4:00 PM [Thursday] turned on a television (to CNN International) to see what the Court would say. The word came down soon – the mandate is unconstitutional. Then, the mandate may be constitutional. Then, the mandate is constitutional. There followed some similar confusion about the Medicaid expansion – the Court held that it was constitutional but might be applied unconstitutionally, then that it was unconstitutional, and then that it was unconstitutional but the unconstitutionality was easily cured.

Even an hour after the case was announced, CNN’s Chief Legal Correspondent, Jeffrey Toobin, got the Medicaid part wrong, stating that the Court held Medicaid expansion unconstitutional without noting that it held the expansion could go ahead, albeit with a smaller stick. While he was talking, I kept waiting for him to apologize for announcing definitively, immediately after the oral argument, that “Obamacare is dead.” I’m still waiting. To see my own (partial) confession of error in a much less confident prediction (as well as a bit of crowing about something I got right), you’ll have to read to the end of this post.

So, first lesson from this decision: the press is really bad at reading Supreme Court decisions. We already knew that, but this was a particularly egregious example, at least on CNN. For future reference, if you are really interested in good and often fast legal analysis, check out SCOTUSblog. That’s where I got my first accurate take on the decision. It also gave me a link that allowed me to download the decision, complete with four separate opinions. You can get that, too, either directly from the Supreme Court’s webpage or, usually, from a link in a SCOTUSblog post on a decision.

But you don’t have to, if you don’t want to. I’ve now read – or at least skimmed – the 193 pages of syllabus plus opinion and am prepared to tell you what they mean, at least as a legal matter. I’m not prepared to guarantee I’m right, but I will promise to be better than CNN’s first hour of coverage – and a lot shorter than the Justices.

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Health Policy, In the News

The Supreme Court on health reform: Summing up

So, what does it all mean?

When?
First, set your alarm clocks for late June. The Court never lets its decisions be known before the official release of the opinions, but it always tries very hard to release opinions during the term they are argued; otherwise it re-argues them (not something it will want to do with this case!). The opinions can be released as soon as they are ready, but the more complex the case and the greater the number of separate opinions (dissents and concurrences), the longer the process takes. It would have hard to get a more complex case than this one and I suspect a lot of Justices will want to put in their own two cents.

There are now 93 days until June 30, which is a Saturday – so 92 days until the last business day in June. That’s not a lot of time for this complicated a case. My best guess is that the opinion comes out on June 29. Second best guess is Monday, July 2. (Sometimes they slip.) And third best is Thursday, June 28. Anytime before the last week of June seems like a real long shot.

How?
Second, now that the public oral arguments are over, the really important arguments in the case start: the arguments among and between Justices. Soon the nine Justices will meet in their conference room, attended by no one else. The most junior Justice, currently Justice Kagan, takes notes and answers the door. They will discuss the case and take a preliminary vote. The senior justice in the majority (the Chief Justice if he is in the majority, I suspect Justice Kennedy if Chief Justice Roberts is not in the majority) then assigns a Justice to try to write a majority opinion. The senior dissenting Justice (probably in this case Roberts, Scalia, or Ginsburg) next assigns a Justice to write a dissent.

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Ask Stanford Med, Health Policy, In the News

Ask Stanford Med: Answers to questions on Supreme Court review of health-care law

Ask Stanford Med: Answers to questions on Supreme Court review of health-care law

Thank you for taking the time to submit questions using the hashtag #AskSUMed or the comment section on Scope. Here are my answers.

Max asks: You mentioned your support of the individual mandate. Is this a legal or personal view – or both?

Both. As a legal matter, I think the Court’s precedents are most easily read as finding this within the Commerce Clause. After all, just a few years ago the Court, with the glowing agreement of Justice Scalia, held that growing marijuana in California, with California materials, for sale and use in California, involved interstate commerce. The idea that this is requiring people to participate in commerce is a little different, so there is no direct precedent, but I think the Court would have to make more new law to find it unconstitutional than to find it constitutional.

On a personal level, I think it is bizarre that more than 15 percent of our fellow Americans do not have health coverage; we are the only halfway rich country with such a record. I would rather try to fix that by a system that gives individuals some choices among privately competing sources of health coverage than by a fully federally controlled system. I think it is ironic that conservatives are arguing to block change that preserves some choice and some competition, when they know that there would be no strong constitutional arguments against a single payer system. The current health care financing system in this country is terrible and heading toward a catastrophic failure. At this point, I think something like the Obama system – or the Romney Massachusetts plan, or Alain Enthoven’s managed competition plan, or the Clinton health plan, or the early 1990s Heritage Foundation plan on which many of these are based – is a better way forward. But I would (reluctantly) take single payer over the present system, especially as that system will look in a few years.

Michelle asks: There has been much discussion about the three days of oral arguments. My question is what happens at the end of those three days? Will the fate of the health-care act be known on Wed., or are we in for weeks/months of uncertainty?

Set your alarm clock for the end of June. The Court tries very hard – and almost always successfully – to decide all the cases it hears arguments on in one term (October to the end of June) during that term. The more complicated the case and the more individual opinions (concurrences and dissents, along with majority opinions) are written, the longer the writing process takes. June 30 is 94 days away – which is quite soon for a case of this complexity and magnitude, let alone one where many justices are likely to want to write opinions, whatever the outcome. June 30 is a Saturday this year. I suspect they’ll shoot for Friday, June 29, but Monday, July 2 wouldn’t shock me.

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Health Policy, In the News

The Supreme Court on health reform: day three

Unlike each of the last two days, today’s argument covered two distinct issues. The morning was devoted to severability: if the Court finds that some of the Act is unconstitutional, what should it do with the rest of it? The Court devoted the afternoon to the Act’s Medicaid expansion, asking whether it was an unconstitutionally coercive use of Congress’s undoubted spending power. Both discussions were messy, but interesting.

Severability
Severability is like washing dishes. It’s boring, it doesn’t get a lot of attention, but from time to time it has to be done. And while there might be agreement on good ways to wash dishes, there is very little agreement on how to “do” severability. As today’s argument showed, there isn’t even much agreement on what would count as a “good” result, whereas dishes, at least, can usually be classed as clean or dirty.

There are two big problems with this area of law: One is that it has inherent difficulties. In many of the cases, the Court takes the view that its goal is to do what Congress would want done if Congress knew that some provisions of an Act were unconstitutional. Should the Court “save” the part that it doesn’t directly find unconstitutional or would Congress, in light of that new Court-made hole in the statute, prefer that none of the statute remain in effect? The problem, of course, is that there is absolutely no way to know what “Congress” would really want.

The second problem is that the Court’s reports contain cases going all different ways on severability issues and only rarely with any useful statements about the reasons for their decisions. Precedent just isn’t much help here – there are too many precedents and they are all over the map.

And, as if the Court didn’t have enough problems with the issue, its difficulties were compounded by some dumb arguments, from parties and judges.

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Health Policy, In the News

The Supreme Court on health reform: day two

Today saw 120 minutes of argument on the constitutionality of the individual mandate part of the Act. I should note that I have taken a public position on this issue and in favor of the individual mandate – I am a signer of the “Brief of 104 Health Law Professors as Amici Curiae in Support of Petitioners (Minimum Coverage Provisions).” That may color my view of today’s argument – or, perhaps more likely, as correlation does not imply causation, some underlying frame of my mind may color both my joining that brief and my view of today’s argument.

Before I talk about that argument, I need to point out the limits of argument. I had the pleasure and privilege of serving as a clerk to Justice Potter Stewart nearly 35 years ago (lower Pleistocene). I strongly suspect that what I observed then is still true today: oral argument is just one step, and not a very important one, in how cases are decided. That process starts with the papers seeking to convince the Court to hear, or not to hear, the case and is followed, more importantly, by the parties’ briefs (joined, in this case, by scores of amicus briefs). In my year at the Court, I would guess that the oral argument changed the result in only one case all term.

The oral argument is a window into a small part of the process, a window that is obscured by silence, by genuine uncertainty, by devil’s advocacy, and, mostly, by the fact that for many justices in many cases, the results are still uncertain.

Later in the week of the argument the Justices hold a conference on the cases they have heard and cast preliminary votes – and then, at least in close cases, the real persuasive work begins. Justices talk to each other, their clerks talk to other clerks, and, most importantly, draft opinions begin to circulate. Some arguments sound good but just don’t write up well. In others, new holes, and new possibilities, show up on paper. Justices bargain for changes in language in return for their concurrence in an opinion. Sometimes, they change sides. It is not unknown for the result to shift in the last couple of days before an opinion is issued and the majority opinion in a five to four case becomes, much to its author’s dismay, a four justice dissent. The oral argument is a window into a small part of the process, a window that is obscured by silence, by genuine uncertainty, by devil’s advocacy, and, mostly, by the fact that for many justices in many cases, the results are still uncertain.

I was asked to blog about the argument and so I have. Oral argument is a very uncertain clue to a case’s outcome, but is the only new clue we get between the briefing and the announcement. I suspect what follows is guilty of putting too much weight on what was said today. Don’t pay (too much) attention to me.

And now, the argument. I wasn’t in the building and didn’t even listen to the audio; I’ve just read the transcript. Based on that, and my previous expectations about the Justices’ positions, I’d say this had to be a disappointing day for the Administration (and other supports of the health reform bill), but not a terribly disappointing one. I came into this week thinking that the Court would probably vote to uphold the individual mandate by a vote of either five to four or seven to two, with a possible loss by a vote of four to five. After today, I have narrowed my expectations down a bit. I think the likeliest results are that the Court will uphold the individual mandate by a vote of six to three, followed by a vote of five to four, followed by a four to five loss.

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Health Policy, In the News

The Supreme Court on health reform: day one

This week the Supreme Court is devoting an impressive six hours of argument, over three days, to the Affordable Care Act. Four different federal Courts of Appeal had reached decisions about various provisions of the Act; the Court asked to hear arguments about four specific issues:

  1. Does the Anti-Injunction Act keep the Court from deciding the constitutionality of the individual mandate until the various penalties imposed by various parts the Act are actually imposed (probably in 2014)?
  2. Is the “individual mandate” within the powers the Constitution confers on the Congress?
  3. Does the Act’s required expansions of State Medicaid programs violate the Constitution? and
  4. If some provisions of the Act are unconstitutional, are those provisions “severable,” allowing the rest of the Act to go into effect, or “inseverable,” forcing the whole legislation to fall?

I will be commenting briefly on the arguments each day. I should note, though, that oral argument is a very uncertain guide to the how the Court, or even its members, will vote. Some justices never say anything at oral argument (Justice Thomas last asked a question more than six years ago), some like to play devil’s advocate, and (more fundamentally) Justices views can evolve as the arguments proceed and as the draft opinions are written, and re-written, and re-written. So, take all predictions of the Court’s ultimate conclusions that are based on oral argument with a teaspoon of salt. (Take all predictions based on other ground with at least as much salt.)

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Health Policy, In the News

Health reform opponents lose in another appellate court

But the government didn’t, exactly, win.

Today the Fourth Circuit Court of Appeals decided appeals of district court decisions from Virginia about the Affordable Care Act (the ACA). It dismissed the decision from the Eastern District of Virginia, Virginia v. Sebelius, that had held the Act unconstitutional. And then it dismissed the decision the from Western District of Virginia, Liberty University v. Geithner, that held the Act constitutional. In both cases, it decided that neither it nor the lower courts had jurisdiction to decide the cases. In the Virginia case, the Commonwealth was the only plaintiff and it challenged only one part of the Act – the individual mandate, which, as the court pointed out, couldn’t apply to it, as it is not an individual. It lacked “standing,” the court held. In the Liberty University case, the plaintiff challenged the penalties the IRS is supposed to use to enforce both the individual mandate and an employer mandate. This, the court held, ran afoul of an 1867 act that prevents courts for hearing cases brought to enjoin the assessment or collection of a tax, the idea being to force the taxpayer to pay the tax and then sue for a refund.

Because the court concluded it didn’t have jurisdiction over the cases, it couldn’t hold the ACA either constitutional or unconstitutional, although, in separate, individual opinions, two of the judges said (in a non-binding form we call “dicta”) that they would hold it constitutional, one as part of the taxing power and the other as part of Congress’s power over interstate commerce.

What does it mean? Same as before – the Supreme Court is going to decide the constitutionality of this health reform, though probably through the cases from other circuits (the 6th circuit upheld the law, the 11th circuit struck it down). Of the nine appellate judges, on three courts, who have reviewed these appeals, 5 (including one Republican appointee) have found the ACA constitutional, 3 (including one Democratic appointee) have found the ACA unconstitutional, and 1 hasn’t opined. But those aren’t the nine judges who count – the nine judges of the Supreme Court are likely to decide this issue sometime in 2012 or 2013.

For more details, see my blog post at the Center for Law and the Biosciences blog.

Hank Greely, JD, is a Stanford law professor and an expert on the legal, ethical, and social issues surrounding health law and the biosciences. He is director of the Center for Law and the Biosciences, and he chairs the steering committee of the Stanford Center for Biomedical Ethics.

Previously: Thoughts on the Eleventh Circuit health-care law ruling and U.S. Appeals Court rules against health-care law

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