But - Florida State University College of Medicine

Supreme Court (and More)
Health Law Cases 2014
Marshall Kapp, J.D., M.P.H.
FSU Center for Innovative
Collaboration in Medicine and Law
Burwell v. Hobby Lobby Stores
Conestoga 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)
• Affordable Care Act (ACA)
– Large employer health insurance mandate (Play or
– 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
• 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 legitimate govt interest.
• RFRA applies when a federal law
“substantially” burdens a person’s exercise of
religion, even if law is neutral and generally
– Law must further a compelling govt interest using
the least restrictive/least intrusive means
• 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.
• 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
• 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
– Congress can provide an “accommodation” for
closely-held, non-profit corps just like religious
• Assuming such accommodation is sufficient for RFRA
(But see Wheaton College case)
– Individuals can purchase contraceptives personally
– Congress can rethink employer-based coverage
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.
• Procedural Posture of the case
– Wheaton’s challenge to the religious entity
accommodation under RFRA is pending in the
– 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
– Supreme Court granted the temporary injunction
– Significance:
• Not a ruling on the merits of the case (not a permanent
• 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
• http://www.supremecourt.gov/opinions/13pd
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.
• 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.
– Leaves door open to less intrusive means to
ensure public safety (e.g., floating bubble zone
around women)
– 4 justices concurred: Statute was aimed at
specific content and viewpoints, therefore could
never be permissible, even if less intrusive.
Halbig v. Burwell, D.C. Cir., No. 145018, 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
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.”
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