Thursday, July 10, 2014

Supreme Court Health Law Update: Abortion, Contraception & Gay 'Conversion Therapy'

By Professor Brietta Clark

This Supreme Court term has been another important one for health care. The Court was presented with several cases that questioned the scope of the government's power to enact laws regulating health care access or quality, when such laws are viewed as burdening religion or speech. The two cases receiving the most attention -- Burwell v. Hobby Lobby and McCullen v. Coakley -- involved challenges to laws protecting women's access to reproductive health care. But there were two other noteworthy cases -- Pickup v. Brown and Welch v. Brown -- which involved challenges to a law that bans a discredited health care practice that is harmful to the mental and physical health of sexual minorities.

Health law scholars and advocates have been watching these cases closely because of the growing number of examples of free speech or religious freedom claims being used to defeat, avoid or invalidate important health protections. For those who envision a robust regulatory role for government in protecting and promoting health -- especially for groups that have historically been the targets of health care discrimination -- this term brought some good news and some bad news.


In Hobby Lobby...there was no discussion about whether the law actually served a compelling interest. The majority failed to acknowledge that the exclusion of woman-specific health benefits has been a longstanding and pervasive form of gender discrimination in health care and employment -- discrimination that laws like Title VII of the Civil Rights Act, the Pregnancy Discrimination Act, and most recently the Patient Protection and Affordable Care Act were enacted to eliminate. Nor did the majority discuss the serious health harms that would result if employers could deny women access to contraception that is medically-indicated, especially given the fact that most people still depend on employer-based insurance to afford care. Similarly, in McCullenthere was almost no discussion of the importance of trying to proactively protect the privacy and health of patients seeking care at a medical facility, or why buffer zones may be the only effective way to achieve this goal. This absence is particularly striking in light of the Court's focus on this very concern in a 2000 Supreme Court opinion, Hill v. Colorado, that upheld a similar law. Both opinions gave short shrift to the health interests at stake and they limited the government's regulatory power to ensure women's access to medically necessary care.

Read the entire piece on Professor Clark's Health Care Justice Blog.

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