6 Supreme Court decisions that affected ObGyns in 2015

You might ask, why do I need to know what the Supreme Court does, it will not affect me! Well, we all know that is not exactly true. We chose these 6 cases because of their importance to ObGyns. In a number of them, the American Medical Association (AMA) or specific specialty board filed amicus curiae briefs, which suggested that the profession felt these were especially critical cases. (An amicus brief is a “friend of the Court” brief filed not by one of the affected parties, but by an organization or person with an interest or special expertise in the case.) You can find additional analysis of the 2015 term of the Supreme Court at the website of the National Register (http://www.nationalregister.org/pub/the-national-registerreport-pub/the-register-report-fall-2015/the-aca-survives-and-same-sex-marriage-thrives-the-2014-2015-supreme-court/).

1. Affordable Care Act upheld
King v Burwell was likely the Court’s most important case for physicians and their patients during the 2015 term.
At stake. The question was whether or not people who use the federal Affordable Care Act (ACA) Exchange could receive the same subsidy as those who use the state established Exchanges.¹
Final ruling. The Court said “yes,” they could receive the same subsidy, ruling in favor of King.

Key points of the case
The ACA provides for state Exchanges (an electronic marketplace in which people can compare and purchase health insurance policies), but most states did not establish Exchanges. As a result, in many states the federal Exchange became the default. Because the ACA subsidies (which help many people afford mandated insurance coverage) are processed through exchanges, the question of whether those who used the federal Exchange received the subsidy was enormously important. Subsidies for millions of individuals depended on it.

The language of the ACA provides that the insurance subsidy is available only if the person(s) enroll in “an Exchange established by the State” (emphasis added).¹ This case was about what “Exchange established by the State” means. A 6-justice majority held that the best interpretation of the statute was that it permitted subsidies through the federal Exchange. This was a difficult decision because, as the majority noted, the ACA is sloppily written. Nonetheless, the Court had to do its best to read the language in the context of the whole statute. Six justices held that the statute meant that the subsidies would cover people who signed up through federal as well as state Exchanges.

The dissenting justices essentially took the position that the language of the statute is clear. Among other things, the dissent said, it means that the words “established by the state” have no meaning at all in the statute, and it is unclear why Congress did not say “Exchange” instead of “Exchange established by the state.”

The results of the case were that the subsidies granted through the federal Exchange will continue. It will not expand the subsidies. Had the decision gone the other way, there would have been a real challenge to the future of the ACA. For that reason a number of medical and health care organizations filed amicus briefs with the Court in this case.

2. State licensing boards and antitrust
At stake. Antitrust laws prohibit combinations and conspiracies in restraint of trade. Competitors cannot come together to seek to set prices, divide the market, or prevent new competitors from entering the market. Since the 1940s, however, the Supreme Court has recognized a “state action” exception to the antitrust laws. The question before the Court this term was whether or not a state licensing board is included in the state-action immunity.²

The AMA and others filed an amicus brief in this case, noting threat to the public health if the Court disrupted state medical boards’ regulation of professional licensing and unauthorized practice.

Final ruling. The Court rejected this argument. It held that, where a state board is “controlled by active market participants” (as most state professional boards are), antitrust immunity is not automatic. For the immunity to protect boards, 2 conditions must exist, the Court held:

1. The state must have articulated a clear policy to allow the regulation that is an anticompetitive conduct (eg, licensing)

2. The state must have provided active supervision of the anticompetitive conduct. This requires that the state appoint someone or some group to approve policies of the board.

The first of these requirements often would be met by the statute setting up the board. The Court focused some attention on the second requirement. It concluded that “the adequacy of supervision otherwise will depend on all the circumstances of a case.”²

Key points of the case
In most states, this decision will require some kind of restructuring so that the professional boards are not the final decision makers but, in effect, only make recommendations to a “supervisor.” The Court gave short shrift to the AMA’s concerns that the decision might make it more difficult to attract really good professionals to the boards. The possibility of personal liability probably can be dealt with, but it deserves attention. The problems with litigation and antitrust claims, and reviews of decisions of a board (potentially by nonprofessionals) hardly can be a plus in attracting the right professionals to the boards.