ACA's Contraception Mandate May Be Headed for SCOTUS

Three Circuit Court of Appeals have now weighed in on the Affordable Care Act's mandate for coverage of contraception services.  Under the ACA, employers are required to cover a range of birth control methods on their employee health plans. Currently, explicit exemption from the contraception mandate exists for churches and houses of worship. Employees of such places will, however, be able to obtain birth control directly from their insurance companies.

[citizensproject.org]

Yesterday, the 6th Circuit Court of Appeals upheld the new law in Autocam v. Sebelius, Autocam is owned by the Kennedy family, practicing Roman Catholics, who argued this mandate would violate their religious beliefs. The court sent the case back to the district court with orders to dismiss the company's challenge, stating that Autocam lacked standing to challenge the ACA under the Religious Freedom Restoration Act, as it is a company and not an individual. (A somewhat surprising holding in light of Citizens United.)

This case is just one of several dozens across the country challenging the rule mandating contraception coverage since the regulations were announced in 2011.

In late July, the 10th Circuit Court of Appeals in Denver found an arts and crafts chain, Hobby Lobby, may be exempt from the requirement. Taking the opposite approach one week later, the 3rd Circuit held that a Pennsylvania Mennonite cabinet-making company could not be exempt because corporations cannot exercise religious freedom like a person can.

The difference of opinion could mean the Supreme Court is slated to decide the fate of the mandate.

Same-Sex Spousal Dependents for Health Insurance

I'm not naive enough to think that the definition of "spouse" has automatically been changed for everyone this morning.  But I will stand a little taller today knowing that gay married couples and those in same-sex unions will be afforded the same legal and economic protections as straight couples.

This morning, SCOTUS announced two important decisions involving gay rights.  First, it struck down the Defense of Marriage Act (DOMA).  In a 5-4 decision, the majority held section 3 of the 1996 law unconstitutional.  The decision reads:

DOMA violates basic due process and equal protection principles applicable to the federal government. Under DOMA same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways.

(http://www.supremecourt.gov/opinions/12pdf/12-144_8ok0.pdf.) 

For health care law, this means same-sex couples that are either married or in a civil union can, among many others, list their spouses or partners as dependents on their health insurance plans.

The Court also vacated the 9th Circuit's ruling on Proposition 8 and remanded the case to the District Court, effectively striking down California's same-sex marriage ban imposed by voter initiative.

San Francisco City Attorney Dennis Herrera has stated that there will be a 25-day waiting period for the losing side to petition for a rehearing. If the petition is not granted, or filed, by the end of that waiting period, gay marriage will be legal in California and county clerks can begin issuing marriage licenses to same-sex couples immediately.

Now get out there and celebrate!

(For a better understanding of standing, see this helpful article on ScotusBlog.)

Blinding FDA Approval

Final Score:

Generic Drug Industry - 1

Consumer Safety - 0

 In a 5-4 Opinion announced this Monday, the Supreme Court ruled that as long as the brand-name version of a drug receives FDA approval, the generic manufacturers of the same treatment cannot be sued for the drug's design defects in state court.

The ruling overturned a $21 million jury award to Karen Bartlett, a New Hampshire woman who suffered severe burns and lost nearly all of her eyesight after she began taking Mutual Pharmaceutical's generic version of Merck's nonsteroidal anti-inflammatory drug, Clinoril (sulindac), for shoulder pain.

Also released on Monday was a study by Public Citizen which found that current FDA regulations "do not adequately allow for generic drug manufacturers to update their labels if new dangers are revealed once a drug is on the market." The study added that there are at least 52 FDA-approved medications that have "required new warnings for serious or life-threatening risks in the last 5 years." Since generics account for 80% of all prescriptions filled last year, Public Citizen urged the FDA to "allow drug producers to report updated safety information." This reporting would ensure warnings are up to date and also correct a disparity in legal rights for consumers.

So now's the time Congress to re-evaluate the protections given to generic drug manufacturers. And they better do it now, or there will be more Karen Bartletts to come.

Friday Variety: SCOTUS, Gay Blood Donors, and Planned Parenthood

The Federal Government Must Obey the 1st Amendment

US Agency for International Development v. Alliance for Open Society

In a 6-2 decision, the Supreme Court ruled Thursday that it is in violation of the 1st Amendment for the Federal government to mandate humanitarian groups to endorse the government's views opposing prostitution and sex-trafficking in order to receive funding to combat HIV/AIDS overseas.  

The ruling struck down a 2003 law that imposed two conditions on private groups that received billions in Federal aid to fight HIV/AIDS: (1) the money may not be used to promote or advocate the legalization or practice of prostitution and sex trafficking; and (2) Recipients must include a policy explicitly opposing prostitution and sex trafficking. Only the legality of the second was challenged in court.

In the majority opinion, Chief Justice John Roberts cited a 70 year old Supreme Court opinion by Justice Robert Jackson which struck down a law requiring schoolchildren, including Jehovah's Witnesses, to salute the American flag. Roberts repeated:

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by work or act their faith therein."

Roberts was joined by all Justices except Thomas and Scalia, who dissented, and Justice Kagan, who recused herself as she defended the law while US solicitor general.

Gay Blood Donor Ban Opposed by American Medical Association

As ABC News reported, the AMA has condemned the long-standing ban on gay male blood donors as "discriminatory" and "not based on sound science."  AMA officials are recommending that the FDA amend its policy to evaluate gay men on an individual basis, rather than collectively deeming all gay men a "high-risk" category as the current policy reads. 

The original ban, put into place in 1983, was in response to the AIDS epidemic. At that time, no tests existed to check blood donations for HIV.  Now that much more is known about the virus, legitimate tests are in place to check every blood donation for HIV. 

Planned Parenthood: Abortion Laws

Kansas 
Planned Parenthood filed a lawsuit Thursday over a new Kansas law requiring doctors to inform women seeking abortions that they are ending the life of a "whole, separate, unique, living human being," the AP reported. The Overland Park, KS, clinic contends that the law violates doctors' free speech rights, and requires doctors to make "a misleading statement of philosophical and/or religious belief."

Kansas Attorney General Derek Schmidt vows to vigorously defend the Kansas statute.

Delaware
Meanwhile, the Delaware Senate is considering a bill authorizing tighter regulations on abortion clinics. The bill proposal follows a recent citation of a Wilmington Planned Parenthood for unsafe and unsanitary practices that are a "clear and immediate danger to the public." Two former nurses of the same clinic have also come forward, stating that the facilities are unclean and put women at risk of blood-born illnesses and bacterial infections. 

The bill would allow abortion clinic employees, in addition to patients, to file complaints for investigations by the Dept. of Health and Social Services. It would also require abortion clinics to be accredited by a state-approved independent accrediting organization with no conflict of interest.

Friday Variety: Anthem Rate Hikes, Gene Patenting, & Arizona Medicaid Bill

Anthem Blue Cross To Raise Small Business Premiums
California Insurance Commissioner Dave Jones has intensified his campaign against rising health insurance rates by asking officials working with Covered California to bar Anthem Blue Cross from it's state health exchange. Jones stated that Anthem's intends to increase small business health insurance premiums (businesses with 50 or fewer workers) by 11%.  He called this rate hike "unreasonable" and accused the company of overstating its projected medical costs and improperly adding fees related to federal healthcare law.

Under state law, Jones can assess rate hikes and request to exclude them, but he lacks the authority to block Anthem's rate increase from taking effect this month (Terhune, Los Angeles Times, 6/13).

Anthem spokesman Daryl Lang says that Anthem's rate hikes are consistent with the economic reality of rising healthcare costs, and that its exclusion from the exchange would hinder competition.

Nonetheless, Anthem has actually imposed three rate hikes for small businesses over a seven-month period:

• 10.6% rate hike announced in January;
• 10.5% rate hike announced in March; and
• 7.6% rate hike scheduled to take place July 1 (Robertson, Sacramento Business Journal, 6/13)

(Read more: http://www.californiahealthline.org/articles/2013/6/14/jones-wants-anthem-excluded-from-small-business-exchange.aspx#ixzz2WCmqnuKy)

Meanwhile, Jones has praised UnitedHealth Group Inc. for cutting worker premiums for such small businesses.

Covered California will announce final health plans and rates for small businesses this August.

Supreme Court Rules Human Genes May Not Be Patented

The Supreme Court announced a unanimous ruling Thursday that naturally occurring human genes may not be patented. As a result, the costs of of getting gene tests are likely to drop as other companies can now compete with Utah-based Myriad Genetics, against whom the claims in this case were brought.

Synthetically produced genetic material, however, may still receive patent protection.

Arizona "Sweet Victory:" Medicaid Expansion Bill Passed

Thursday afternoon, the Arizona legislature approved a Medicaid expansion bill after a three-day special session.  This approval comes five months after Arizona Gov. Jan Brewer vowed to pass Medicaid expansion in her state. The bill, part of the state budget, must clear a final vote in each chamber before it goes to Brewer for her signature.