3Qs: Justice cites School of Law professor in health-​​care ruling

Thursday’s Supreme Court ruling, which upheld the indi­vidual man­date clause of the Pres­i­dent Obama’s Afford­able Care Act, included a cita­tion by Jus­tice Ruth Bader Gins­burg of an amicus brief co-​​authored by Wendy Parmet, the asso­ciate dean for aca­d­emic affairs and a George J. and Kath­leen Waters Matthews Dis­tin­guished Uni­ver­sity Pro­fessor of Law in the School of Law. Parmet has served as the counsel of record for a group of Mass­a­chu­setts health-​​care advo­cates who have argued that the state’s health-​​care reforms cannot reach their full poten­tial without fed­eral assistance.

An amicus brief filed by Wendy Parmet, an associate dean in the School of Law, was cited to demonstrate that statewide reforms cannot fully solve health-care issues because of the market’s interstate nature. Photo by Mary Knox Merrill.

What is the purpose of an amicus brief, and what was the intention of the one you filed with the court?

Usually an amicus — or “friend of the court” — brief is an opportunity to provide arguments and points of view that the litigants themselves don’t have the opportunity to make. When you’re representing the parties in a case of this import and complexity, you have to make hard decisions about what you can argue and what you can’t. One of the things an amicus brief can do is open doors and expand on arguments that the parties may not have the space for.

In our brief, we brought the Massachusetts perspective. We said Massachusetts already has a mandate but that even though our mandate is very successful, this is an interstate issue and that federal government really needs to play a role. Even with our mandate, our state is not able to achieve full coverage and realize full cost control because of out-of-staters who obtain health care here. We are not able to put up a wall on our borders and keep out-of-staters from getting uncompensated health care here, so we have to deal with their costs.

We have a lot of commuters, tourists and others who come from all over New England — all over the country — for our hospitals. And many of our hospitals on the borders serve communities that go across state lines. The overall theory that by ensuring everyone in the state and paying less by reducing the cost of uncompensated care doesn’t work as well as it should because our hospitals and providers don’t just serve Massachusetts. States cannot go it alone — it’s an interstate issue.

What are your thoughts on the component of the ruling that states cannot be compelled to expand Medicaid overage to those people in poverty or near poverty?

I think it’s tremendous that this decision means the ACA can move forward. But the court’s decision on Medicaid was surprising, troubling and shocking.

It was surprising because not a single lower court had found merit in the states’ Medicaid claim, and it’s troubling because it casts a doubt about how many of the 16 million people who were going to receive insurance through Medicaid will now do that. The fear is that some of the states that challenged Medicaid — states that have very skimpy Medicaid programs and have very high rates of people without insurance — may choose not to do it on principle, even though the federal government is going to pay for most of the program’s expansion.

The irony and the tragedy is that the poorest of the poor among us — the least well off — are the ones who may not benefit from this act. It will mean people will continue going to emergency rooms with conditions that were preventable or easily treatable early, but are now far worse off than they otherwise would have been.

What legal questions does Thursday’s ruling raise?

It’s very hard to understand the rationale for why states can opt out of a federally-mandated program and how it fits into other instances in which the federal government gives money to the states, whether in special education or the environment or No Child Left Behind. It’s very common for the federal government to provide funds and then expect the states to carry out a program — it really is the way the federal government has operated for the past 75 years.

It is very disturbing because it will invite people who don’t like our special education rules or civil rights laws or environmental regulations to challenge those programs in court.

1 comment

  1. My first com­ment is if the Mass­a­chu­setts man­date is suc­cessful why are you having prob­lems of others coming to your state to sponge off your health care pro­gram? Maybe it was never suc­cessful. My par­ents came from Europe (Nether­lands) as well as Indonesia and their socialist style while with great inten­tions never is healthy from any point on issues that people THINK are prob­lems on the Social scale. This is their opinion before they passed away. They could tell you sto­ries why this doesn’t work that would make your hair stand up. Don’t try to fix some­thing that is not broken but just needs a few reforms. You are too agres­sive as politi­cians or edu­ca­tors rather than a Person who hap­pens to have a degree. The degree or job doesn’t make you, you make the job. Now to your second point, there will never be enough money to put everyone on a health­care man­dated pro­gram what is your hurry to get people on this? Do you not have enough friends in your life that you have to force friend­ships to be like you. I am talking like this because I am a Behavioral/​Developmental Psy­chol­o­gist and there is a deeper meaning to your mom/​dad/​environment growing up that Freud would have said you are over­com­pen­sating for. So I am just saying if you sup­port this man­date is is really for the people who still might not get full cov­erage or are your mental state of mind trying to make up psy­cho­log­ical dis­tressing ele­ments missing in you? Could lib­eral have a mental con­di­tion where they can’t leave well enough alone or try to be big brother/​sister? These are psy­cho­log­ical points to your article that maybe should be fixed before one goes off and ruins an entire nation of good people.

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