Abortion, the travel ban, and other top Supreme Court rulings affecting your practice
Many decisions made by SCOTUS in the 2017–2018 term concern you and your patients. With Justice Kennedy retired, and his often deciding vote in 5-4 decisions, case outcomes for the next term may depend largely on the new face of the court.
It was just a credit card case, but one in which the AMA saw a real risk to regulation of the health insurance markets.
At stake. Technically, Ohio v American Express concerned a claim that American Express (AmEx) violated antitrust laws when it prohibited merchants taking its credit card from “steering” customers to cards with lower fees.13 AmEx maintained that, because credit cards were a special kind of “2-sided” market (connecting merchants on one side and customers on the other), antitrust laws should not be strictly enforced.
The AMA noticed that special rules regarding 2-sided markets might apply to health insurance, and it submitted an amicus brief14 that noted: “dominant health insurance networks … have imposed and could further impose rules or effectively erect barriers that prohibit physicians from referring patients to certain specialists, particularly out-of-network specialists, for innovative and even necessary medical tests.”14 It concluded that the antitrust rule AmEx was suggesting would make it nearly impossible to challenge these unfair provisions in health insurance arrangements.
,Final ruling. The Court, however, accepted the AmEx position, making it very difficult to develop an antitrust case against 2-sided markets. It remains to be seen the degree to which the AMA concern about health insurance markets will be realized.
5. Gay wedding and a bakeshop
At stake. In Masterpiece Cakeshop v Colorado, a cakemaker declined to design a cake for a gay wedding and had been disciplined under Colorado law for discriminating against the couple based on sexual orientation.15
Final ruling. The Court, however, found that the Colorado regulators had, ironically, shown such religious animus in the way they treated the baker that the regulators themselves had discriminated on the basis of religion. As a result, the Court reversed the sanctions against the baker.
This decision was fairly narrow. It does not, for example, stand for the proposition that there may be a general religious exception to antidiscrimination laws. The question of broader religious or free-speech objections to antidiscrimination laws remains for another time.
Amicus brief. It was interesting that the American College of Pediatricians, American Association of Pro-Life Obstetricians and Gynecologists, and others, filed an amicus brief to report with concern the “demands that individual medical professionals must perform, assist with, or facilitate abortions, without regard to the teachings of their own faiths, consciences, and convictions.”16 The brief also noted that “issues in the present case implicate the fundamental rights of health care professionals, and to respectfully urge that the Court should by no means permit any weakening or qualification of well-established protections against compelled speech, and of free exercise” of religion.16
Arbitration. The Court upheld, as it has in most recent terms, another arbitration agreement.1 This case concerned an employment agreement in which employees consented to submit to arbitration rather than file lawsuits and not use class action claims.
Search of cell-phone location. Cell phones, whenever turned on, connect with cell towers that record the phone’s location several times a minute. Cell companies store this information, creating a virtual map of where the owner is at all times. The Federal Bureau of Investigation asked a cell company for location information for several people during a 127-day period in which robberies were committed.2 The Court held that the search was illegal in the absence of a warrant.
Public employee unions. The Court held that agency (fair share) fees, in which public employees who are not union members can be required to pay dues for the bargaining and grievance activities (from which they generally benefit), violate the First Amendment. The majority held that forcing public employees to pay fees to unions requires the employees, through those fees, to engage in political activities with which they disagree.3 This is a form of compelled speech, which the Court found violates the First Amendment. Health care professionals who are public employees in positions that have union representation will probably have the opportunity to opt out of agency agreements.
Internet sales tax. The Court permitted states to charge sales tax on out-of-state Internet purchases.4 In doing so, a state may require out-of-state companies to collect taxes on sales to its residents.
References
- Epic Systems Corp. v Lewis, 584 US 16 285 (2018).
- Carpenter v United States, 585 US 16 402 (2018).
- Janus v State, County, and Municipal Employees, 585 US 16 1466 (2018).
- South Dakota v Wayfair, Inc, 585 US 17 494 (2018).
Clues to the future
During the term that ran from October 2, 2017, through June 27, 2018, the Court issued 72 decisions. An unusually high proportion of cases (26%; 19 cases) were decided on a 5 to 4 vote. Last term, the rate of 5 to 4 decisions was 10%; the 6-year average was 18%. The unanimous decision rate was 39% this term, compared with 59% last term, and 50% on average.
The rate of 5 to 4 cases provides a clue about the Court’s general direction. The number of times each Justice was in the majority in those nineteen 5 to 4 decisions included: Chief Justice Roberts, 17; and Justices Kennedy, 16; Gorsuch, 16; Thomas, 15; and Alito, 15; compared with Justices Ginsburg, 5; Breyer, 4; Sotomayor, 4; and Kagan, 3.
The Court convened on October 1, 2018. At this writing, whether the new term starts with 8 or 9 justices remains a question. President Trump nominated Brett Kavanaugh, JD, to take Justice Kennedy’s place on the Court. His professional qualifications and experience appear to make him qualified for a position on the Court, but as we have seen, there are many other elements that go into confirming a Justice’s nomination.
Justice Anthony Kennedy was the deciding vote in the overwhelming majority of the 5 to 4 decisions in 20 of his 30 years on the Court. The areas in which he had an especially important impact include1:
- Gay rights. Justice Kennedy wrote the opinions (usually 5 to 4 decisions) in a number of groundbreaking gay-rights cases, including decriminalizing homosexual conduct, striking down the Defense of Marriage Act, and finding that the Constitution requires states to recognize gay marriage.
- The death penalty. Justice Kennedy wrote decisions that prohibited states from imposing the death penalty for any crime other than murder, for defendants who were under 18 when they committed the crime, and for defendants with serious developmental disabilities. He expressed reservations about long-term solitary confinement, but did not have a case that allowed him to decide its constitutionality.
- The First Amendment. Early in his service on the Court, he held that the First Amendment protected flag burning as a form of speech. He decided many important freespeech and freedom-of-religion cases that have set a standard for protecting those fundamental freedoms.
- Use of health and social science data. Justice Kennedy was more open to mental health information and cited it more often than most other Justices.
- Abortion rights? Many commentators would add protecting the right to choose to have an abortion to the above list. Justice Kennedy was a central figure in one case that declined to back away from Roe v Wade, and joined a more recent decision that struck down a Texas law that created an undue burden on women seeking abortion. Plus, he also voted to uphold abortion restrictions, such as “partial-birth-abortion laws.” So there is a good argument for including abortion rights on the list, although he did not break new ground.
Justice Kennedy as a person
Outside the courtroom, Justice Kennedy is a person of great warmth and compassion. He is a natural teacher and spends a great deal of time with students. When asked how he would like to be remembered, Justice Kennedy once replied, “Somebody who’s decent, and honest, and fair, and who’s absolutely committed to the proposition that freedom is America’s gift to the rest of the world.” I agree with that assessment.
STEVEN R. SMITH, MS, JD
Reference
- South Dakota v Wayfair, Inc, 585 US (2018)
Next term, the Court is scheduled to hear cases regarding pharmaceutical liability, double jeopardy, sex-offender registration, expert witnesses, Social Security disability benefits, and the Age Discrimination in Employment Act. There will be at least 3 arbitration cases. Health care and reproductive rights will continue to be an important part of the Court’s docket.
Share your thoughts! Send your Letter to the Editor to rbarbieri@mdedge.com. Please include your name and the city and state in which you practice.
