The Coming Health Care Apocalypse

Over on Substack,* Nobel laureate Paul Krugman takes a hard look at the impact of the Big Bad Budget Bill that's taking shape in the Senate this week on health insurance. The impact will be worse than grim.

After a quick review of what Obamacare did and didn't accomplish, Krugman writes:

[I]t led to a large decline in the number of Americans without health insurance. It also led to a large reduction in anxiety among Americans with preexisting conditions, who no longer had to fear being denied coverage or being trapped in jobs with health benefits for fear of losing coverage.

Essentially all these gains are about to be wiped out.

Apocalyptic sounds about right. Here's a graphic representation of the impact:

If we look at the Medicaid-eligible population (i.e., mostly those who are too young for Medicare), it looks like this:

Krugman's conclusion: 

Basically, we’re talking about undoing all the progress America has made in expanding health insurance. And as I said, many independent analysts believe it could be substantially worse.

Remember, this isn’t happening to save money: If Republicans cared about the deficit, they could forego those tax cuts. It isn’t happening by popular demand: the Big Beautiful Bill is extremely unpopular already, and will become even more unpopular once people see its effects.

So why is this happening? Krugman's take on the situation is hard to resist:

It’s happening because our government has been taken over by fanatics who believe that, one way or another, they can escape the electoral consequences of making millions of Americans’ lives much, much worse. 

 ___________________________

* You can follow Krugman for free on Substack or, for a small monthly fee, you can get extended commentary. Either way, it's a good deal.

Trump Administration v. Rule of Law Redux

Trump's Department of Justice sued all 14 trial judges who serve in the District of Maryland. DOJ contests a standing order issued by the Chief Judge of the district that instructs to clerk of the court to enter a two-day temporary restraining order whenever someone files a petition for habeas corpus in a deportation case. The purpose of the TRO is to preserve the district court's jurisdiction to allow for an orderly review of the merits of the petition -- i.e., to prevent the administration from whisking the deportee out of the country and mooting the habeas petition. It's a perfectly ordinary protective order under the All Writs Act, which has been part of the law of the land since the Judiciary Act of 1789.

Professor Austin Sarat (Amherst College) is all over this one, arguing that the DOJ effort in this case shows yet again the disdain this administration has for the rule of law. It's a brief op-ed in Slate and worth the four minutes it takes to read.

As I wrote on Wednesday, respect for the rule of law -- particularly the law of the Constitution -- is exactly what our officials swear to uphold when they take their oath of office. And the Trump lawyers, among and above all others, should know better. 

None of this bodes well for future health-law cases, which depend upon a fair reading of constitutional and statutory precedents, not the current DOJ's strong suit.

The Supreme Court's "Disastrous Decision"

HealthLawBlog tracks decisions of the U.S. Supreme Court that have some bearing on the cost, quality, access, and equitable distribution of health care goods and services. This includes a pretty vast number of federal statutes and related regulations, as well decisions in other areas of law that may eventually affect health care (First Amendment (speech and religion), Fifth & Fourteenth Amendments (due process & equal protection), administrative procedure, antitrust, insurance law, etc. A brief but illustrative listing is here.).

Immigration law isn't one of the areas I've tracked, despite the absolutely awful situation of immigrants who are not lawfully present when it comes to their access to any care other than emergency health care. But the Court's decision this week -- in which it green-lighted the deportation of immigrants to countries with which the immigrant has no connection (read: countries with the absolute worst prisons and human-rights records) without a scintilla of due process -- deserves mention. 

The opinions consist of an exceedingly brief unsigned order apparently on behalf the five or six conservative justices and a 19-page dissenting opinion by Justice Sotomayor that was joined by Justices Kagan and Jackson. What follows are a few quotations from the dissent followed by commentary by Prof. Steve Vladeck (his Substack column is well worth following) and a piece by Boston Globe senior opinion writer Kimberly Atkins Stohr):

1. Sotomayor, J.:
   In matters of life and death, it is best to proceed with caution. In this case, the Government took the opposite approach. It wrongfully deported one plaintiff to Guatemala, even though an Immigration Judge found he was likely to face torture there. Then, in clear violation of a court order,
   it deported six more to South Sudan, a nation the State Department considers too unsafe for all but its most critical personnel. An attentive District Court’s timely intervention only narrowly prevented a third set of unlawful removals to Libya.
   
   Rather than allowing our lower court colleagues to manage this high-stakes litigation with the care and attention it plainly requires, this Court now intervenes to grant the Government emergency relief from an order it has repeatedly defied. I cannot join so gross an abuse of the Court’s equitable discretion. . . . 
   
    It is axiomatic, moreover, that when Congress enacts a statutory entitlement, basic procedural due process protections attach. Mathews v. Eldridge, 424 U. S. 319, 332 (1976). Congress expressly provided noncitizens with the right not to be removed to a country where they are likely to be tortured or killed. See 8 U. S. C. §1231 note. As this Court has explained, the “‘right to be heard before being condemned to suffer grievous loss of any kind . . . is a principle basic to our society.’” Mathews, 424 U. S., at 333 (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U. S. 123, 168 (1951) (Frankfurter, J., concurring)). Being deprived of the right not to be deported to a country likely to torture or kill you plainly counts. Thus, plaintiffs have a right to be heard. . . .

There is no evidence in this case that the Government ever did determine that the countries it designated (Libya, El Salvador, and South Sudan) “w[ould] not torture” the plaintiffs. Application for Stay of Injunction 29. Plaintiffs merely seek access to notice and process, so that, in the event the Executive makes a determination in their case, they learn about it in time to seek an immigration judge’s review. The Fifth Amendment unambiguously guarantees that right. . . . 

The Due Process Clause represents “the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 646 (1952) (Jackson, J., concurring). By rewarding lawlessness, the Court once again undermines that foundational principle. Apparently, the Court finds the idea that thousands will suffer violence in farflung locales more palatable than the remote possibility that a District Court exceeded its remedial powers when it ordered the Government to provide notice and process to which the plaintiffs are constitutionally and statutorily entitled. That use of discretion is as incomprehensible as it is inexcusable. Respectfully, but regretfully, I dissent. 

1. Vladeck:
   As long-time readers of this newsletter know, I’m not prone to hyperbole. But the title of this piece refers to today’s ruling as “disastrous.” In my view, that’s true for two reasons:
   
   First, it is going to have massive effects. Keep in mind that, in a pair of similarly unexplained grants of emergency relief to the Trump administration last month, the Court cleared the way for the government to treat as many as one million migrants as removable who weren’t previously (including those with “temporary protected status” and those covered by a humanitarian parole program started by the Biden administration. Those folks can now not only be placed in removal proceedings, but even if they can’t be removed to their countries of origin, they can apparently be removed to other countries without additional process—at least until and unless something changes.
   
   Second, and even more importantly, here is one of the most stark examples to date of the Trump administration overtly defying rulings by a federal district judge. Indeed, it did so twice in this case. For the Court to not only grant emergency relief in this case, but to offer nary a word of explanation either in criticism of the government’s behavior, or in defense of why it granted relief notwithstanding that behavior, is to invite—if not affirmatively enable—comparable defiance of future district court orders by the government. I would’ve thought that this was a message that this Supreme Court would be ill-inclined to send, even (if not especially) implicitly. But it’s impossible to imagine that the Trump administration will view it any other way.
   
   
2. Stohr:
   [T]he Supreme Court’s majority has essentially washed its hands of its role in upholding the rule of law, the foundational principle that laws are meant to be followed by everyone, the government included, if we are to have a just society.

I don’t know how this court comes back from such an astonishing abrogation of its role at the top of a separate, coequal branch of government tasked with, among other things, being a check against tyranny from the executive branch. If last year’s ruling granting Trump broad immunity for illegal acts committed during his presidency was the shot, this week’s order was the bitter chaser.

For all the litigants (present and future) whose legal arguments depend upon the Court's interpretation of the Due Process and Equal Protection Clauses of the Constitution, hold onto your seats. If this case is any indication, it's going to be a bumpy ride. 

SCOTUS Upholds Tennessee's Prohibition Against Transgender Treatments for Minors

This morning the Court handed down its decision in United States v. Skrmetti, No. 23-477 by a vote of 6-3 along entirely predictable political lines. Justice Roberts wrote the majority opinion, in which the Court held that the lower appellate court correctly applied the rational basis standard of review, rather than heightened judicial scrutiny of the Tennessee law. 

The Chief Justice described rational-basis review this way: "Under this standard, we will uphold a statutory classification so long as there is 'any reasonably conceivable state of facts that could provide a rational basis for the classification.'” He concluded that the Tennessee law "clearly meets this standard." Indeed, you can count on the fingers of one hand the number of Supreme Court cases in which the government's action failed the rational-basis test.

So the real battle in this case was over the correct standard of judicial review, an issue that is often -- as it was here -- dispositive, even if -- as it was here -- it was hotly contested. How wide and deep was the disagreement? Here's the lineup of opinions:

1. ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined, and in which ALITO, J., joined as to Parts I and II–B. 
2. THOMAS, J., filed a concurring opinion.
3. BARRETT, J., filed a concurring opinion, in which THOMAS, J., joined.
4. ALITO, J., filed an opinion concurring in part and concurring in the judgment. 
5. SOTOMAYOR, J., filed a dissenting opinion, in which JACKSON, J., joined in full, and in which KAGAN, J., joined as to Parts I–IV. 
6. KAGAN, J., filed a dissenting opinion. 

Not quite a record,* but that's a lot of back-and-forth over the dividing line between rational-basis review and intermediate scrutiny: sex. If Tennessee's transgender treatment ban descriminates on the basis of sex, it should be subjected to heightened review. That's the issue underlying the Court's choice of judicial-review standard. I will leave it to you to review the debate that's spread across 118 pages. I'll add just a few notes from the opinions:

"An estimated 1.6 million Americans over the age of 13 identify as transgender, meaning that their gender identity does not align with their biological sex. See 1 App. 257–259; 2 id., at 827. Some transgender individuals suffer from gender dysphoria, a medical condition characterized by persistent, clinically significant distress resulting from an incongruence between gender identity and biological sex. Left untreated, gender dysphoria may result in severe physical and psychological harms." (Majority opinion) Including suicidal ideation. But, hey, the Tennessee legislature knows what's best for these minors.

"The United States asserted that “the medical community and the nation’s leading hospitals overwhelmingly agree” with the Government’s position that the treatments outlawed by SB1 can be medically necessary. Brief for United States 35; see also Brief for Respondents in Support of Petitioner 5 (asserting that “[e]very major medical association in the United States” supports this position). The implication of these arguments is that courts should defer to so-called expert consensus. . . . [T]here are particularly good reasons to question the expert class here, as recent revelations suggest that leading voices in this area have relied on questionable evidence, and have allowed ideology to influence their medical guidance." (Thomas, J., concurring). Justice Thomas offered three additional reasons to reject the expert opinion of "every major medical association in the United States," but this one is based upon Justice Thomas's medical opinion.

Justices Barrett and Alito hang their hats on their rejection of transgender as a "suspect class," the necessary predicate for heightened judicial review. Both compare the same characteristics of transgender persons as a class to the characteristics of approved suspect classes: sex, race, and national origin. Justice Both accept the assertion that transgender individuals face discrimination, which is one of the defining characteristics of a "suspect class." But Justice Barrett quite explicitly and Justice Alito more implicitly conclude it's not the right kind of discrimination. Private discrimination doesn't count; it has to be de jure discrimination. I'm not enough of a student of constitutional law to know whether this qualification is something new, but neither justice cites a case holding that only de jure discrimination counts in the determination of a "suspect class."

Justice Sotomayor cuts to the heart of the matter:

To give meaning to our Constitution’s bedrock equal protection guarantee, this Court has long subjected to heightened judicial scrutiny any law that treats people differently based on sex. See United States v. Virginia, 518 U. S. 515, 533 (1996). If a State seeks to differentiate on that basis, it must show that the sex classification “serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” Ibid. (internal quotation marks omitted). Such review (known as intermediate scrutiny) allows courts to ascertain whether the State has a sound, evidence-based reason to distinguish on the basis of sex or whether it does so in reliance on impermissible stereotypes about the sexes. Today, the Court considers a Tennessee law that categorically prohibits doctors from prescribing certain medications to adolescents if (and only if) they will help a patient “identify with, or live as, a purported identity inconsistent with the minor’s sex.” Tenn. Code Ann. §68–33– 103(a)(1)(A) (2023). In addition to discriminating against transgender adolescents, who by definition “identify with” an identity “inconsistent” with their sex, that law conditions the availability of medications on a patient’s sex. Male (but not female) adolescents can receive medicines that help them look like boys, and female (but not male) adolescents can receive medicines that help them look like girls.

Tennessee’s law expressly classifies on the basis of sex and transgender status, so the Constitution and settled precedent require the Court to subject it to intermediate scrutiny. The majority contorts logic and precedent to say otherwise, inexplicably declaring it must uphold Tennessee’s categorical ban on lifesaving medical treatment so long as “‘any reasonably conceivable state of facts’” might justify it. Ante, at 21. Thus, the majority subjects a law that plainly discriminates on the basis of sex to mere rational-basis review. By retreating from meaningful judicial review exactly where it matters most, the Court abandons

transgender children and their families to political whims.

In sadness, I dissent.

Health law issues at the Supreme Court

There's a handful of cases before SCOTUS that have been argued and, with only a couple of weeks left in the Term, are still awaiting decision. At the bottom of this post, I've listed health law cases that will be argued during the 2025 Term.

1. Ker:r v. Planned Parenthood South Atlantic, No. 23-1275: Whether the Medicaid Act's any-qualified-provider provision unambiguously confers a private right upon a Medicaid beneficiary to choose a specific provider. Argued: April 2, 2025.
2. United States v. Skrmetti, No. 23-477: Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow "a minor to identify with, or live as, a purported identity inconsistent with the minor's sex" or to treat "purported discomfort or distress from a discordance between the minor's sex and asserted identity," violates the equal protection clause of the 14th Amendment. Argued: Dec. 4, 2024.

• There's an FDA case on the list of cases awaiting decision, but the issue is a technical, federal procedure one: Whether a manufacturer may file a petition for review in a circuit (other than the D.C. Circuit) where it neither resides nor has its principal place of business, if the petition is joined by a seller of the manufacturer's products that is located within that circuit. FDA v. R.J. Reynolds Vapor Co., No. 23-1187.

The Court has granted review in 19 cases to be heard in the next Term, of which XX have a health law angle:

1. Chiles v. Salazar, No. 24-539: In this conversion-therapy case, the issue is whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the free speech clause of the First Amendment. At least 20 states have similar laws. Review granted: March 10, 2025.
2. First Choice Women's Resource v. Platkin, No. 24-781: (From SCOTUSBlog:) "Whether a group of crisis pregnancy centers – faith-based nonprofits that hold themselves out as healthcare clinics and often provide material support to pregnant women, but try to persuade them not to have an abortion – can go to federal court to challenge the constitutionality of a subpoena from a state attorney general, or whether they must instead pursue those claims in state court. . . . This case arose from an investigation by the state’s Division of Consumer Affairs into whether First Choice Women’s Resource Centers was misleading donors and potential clients – by, for example, omitting information about its mission on its client-facing websites and by indicating that ultrasounds are 'generally required' before a medication abortion, although they are not." Review granted: June 16, 2025. 

New VA Rules Allow Denials of Treatment Based on Political Party Affiliation, Marital Status

It sounds like a headline from The Onion, but it appears to be real. As reported by the Latin Times and others (cited below), "The VA, which serves over 9 million veterans across more than 170 hospitals and 1,000 clinics, revised its internal bylaws to strip longstanding protections against discrimination based on political party, marital status, sexual orientation and national origin."

I'm looking for copies of the old policy and the new one, which reportedly eliminated certain protections against discrimination in treatment. Meanwhile, you can get the gist of the changes in these early reports:

• VA Doctors Can Refuse to Treat Dems After Trump Order, Daily Beast, June 16, 11:14 AM EDT
• New VA policy sparks outrage as doctors may refuse treatment to Democrats and unmarried veterans alike, Economic Times (India, English version), June 15, 2025 10:41 PM (-5 GMT)
• ‘Extremely disturbing and unethical’: new rules allow VA doctors to refuse to treat Democrats, unmarried veterans, The Guardian, Jun 16 2025 06.00 EDT
• Trump's 'disturbing' order lets veteran doctors deny care to Democrats or unmarried veterans, Irish Star, 11:53 ET, 16 Jun 2025
• Unhinged Trump Order Lets VA Doctors Refuse to Treat Democratic Vets; Doctors can also refuse treatment to unmarried veterans, The New Republic, June 16, 2025/12:40 p.m. ET

From The New Republic:

The new rule changes apply to professionals across disciplines, including doctors, certified nurse practitioners, psychologists, dentists, chiropractors, optometrists, podiatrists, licensed clinical social workers, and speech therapists.

Dr. Arthur Caplan, founding head of the division of medical ethics at New York University’s Grossman School of Medicine, told The Guardian that the VA’s new rules were “extremely disturbing and unethical.”

“It seems on its face an effort to exert political control over the VA medical staff,” Caplan said. “What we typically tell people in healthcare is: ‘You keep your politics at home and take care of your patients.’

“Those views aren’t relevant to caring for patients. So why would we put anyone at risk of losing care that way?” Caplan added.

The VA's explanation is no explanation at all: 

VA press secretary Peter Kasperowicz told The Guardian that the changes were just a “formality” made in order to comply with Trump’s executive order “defending women from gender ideology extremism and restoring biological truth to the federal government.” 

"Four Ways Trump’s ‘One Big Beautiful Bill’ Would Undermine Access to Obamacare"

The nonpartisan Kasier Family Foundation (KFF) News service highlights some of the changes that won House approval and await consideration in the Senate. Presumably convinced that Obamacare won't get repealed anytime soon (after 60+ attempts to do so have failed), the GOP intends to kill it with a thousand cuts. Here are four:

1. Tax Credits Are Jeopardized by Enrollment Hassles

The House-passed bill, which runs more than 1,000 pages, would create paperwork requirements that could delay access to tax credits for some enrollees, potentially raising the cost of their insurance.

More than 90% of ACA enrollees receive tax credits to defray monthly premiums for their coverage. There are two key provisions for them to watch.

One would end automatic reenrollment for most ACA policyholders each year. More than 10 million people were automatically reenrolled in their coverage for the 2025 plan year, with their eligibility for tax credits confirmed via a system that allows ACA marketplaces to check government or other data sources.

The House bill would instead require every new or returning policyholder each year to provide information on income, household size, immigration status, and other factors, starting in 2028. If they don’t, they won’t get a premium tax credit, which could put the price of coverage out of reach.

“Everyone who wants to either purchase or renew a marketplace plan will have to come with a shoebox filled with documents, scan in and upload them or mail them in, and sit and wait while someone reviews and confirms them,” said Sabrina Corlette, a research professor and co-director of the Center on Health Insurance Reforms at Georgetown University.

She and other policy experts fear that many consumers will become uninsured because they don’t understand the requirements or find them burdensome. If too many young and healthy people, for example, decide it’s not worth the hassle, that could leave more older and sicker people for ACA insurers to cover — potentially raising premiums for everyone.

But supporters of the House bill say the current approach needs changing because it is vulnerable to waste, fraud, and abuse.

“This would ensure that enrollees need to return to the exchange to update their information and obtain an updated eligibility determination for a subsidy — best protecting the public against excess subsidies paid to insurers that can never be recovered,” the conservative Paragon Institute wrote in an April letter to top Department of Health and Human Services officials. 

 2. Having a Baby? Getting Married? Expect Coverage Delays

Today, people who experience life changes — losing a job, getting married or divorced, or having a baby, for instance — are considered provisionally eligible for tax credits to reduce their premiums if they sign up or change their ACA plans. That means they would be eligible to receive these subsidies for at least 90 days while their applications are checked against government data or other sources, or marketplaces follow up with requests for additional information.

The House bill would end that, requiring documentation before receiving tax credits. That could create particular hardship for new parents, who can’t confirm that babies are eligible for premium subsidies until they receive Social Security numbers weeks after they’re born.

Policy experts following the debate “did not expect the end to provisional eligibility,” Corlette said. “I don’t know what the reaction in the Senate will be, as I’m not sure everyone understands the full implications of these provisions because they are so new.”

It can take up to six weeks for the Social Security Administration to process a number for a newborn, and an additional two weeks for parents to get the card, according to a white paper that analyzed provisions of the House bill and was co-authored by Jason Levitis, a senior fellow at the Urban Institute, and Christen Linke Young, a visiting fellow with Brookings’ Center on Health Policy.

Without a Social Security number, any application to add a newborn to an ACA policy would automatically generate a hold on premium tax credits for that family, they wrote — increasing their out-of-pocket costs, at least temporarily.

“It puts consumers on the hook for any delays the marketplace is taking,” while the Centers for Medicare & Medicaid Services, which administers the ACA marketplaces, “is cutting staff and adding a lot more paperwork to burden the staff they have,” Levitis said.

Provisions in the House bill that would require ACA enrollees to provide information each year that they reenroll — or when seeking to add or change a policy due to a life circumstance — would increase the number of people without health insurance by 700,000 in 2034, according to the latest CBO estimate.

3. Less Time To Sign Up

The House bill would turn into law a Trump proposal to shorten the ACA open enrollment period. The start date would continue to be Nov. 1. But the window would be shortened by about a month, with an end date of Dec. 15. This affects people in states that use the federal marketplace as well as the 19 states and the District of Columbia that run their own, most of which offer open enrollment into at least mid-January.

Also, as soon as the end of this year, a special enrollment period the Biden administration created would be done away with. It allowed people with lower incomes — those who earn up to 1.5 times the 2024 federal poverty level, or about $38,730 for a family of three — to sign up anytime during the year.

Critics, including the Paragon Institute, argue that this enrollment opening led to fraud, partly blaming it for a steep increase last year in instances of insurance agents seeking commissions by enrolling or switching consumers into plans without their consent, or fudging their incomes to qualify them for tax credits so large they paid no monthly premiums at all.

But supporters — including some states that run their own ACA exchange — say there are other ways to address fraud.

“We anticipate that much of the improper activity can be prevented by security and integrity upgrades to the federal marketplace, which we understand the Centers for Medicare and Medicaid Services (CMS) is implementing,” the National Association of Insurance Commissioners wrote in a May 29 letter to congressional leaders. 

4. Premiums and Out-of-Pocket Costs Will Likely Increase 

The reason? Enhanced tax credits created during the pandemic expire at the end of the year. The House bill doesn’t extend them. Those more generous payments are credited with helping double ACA enrollment since 2020.

The CBO estimates that extending the subsidies would cost $335 billion over 10 years. The House bill instead funds an extension of Trump’s tax cuts, which largely benefit wealthier families.

If the enhanced credits are allowed to expire, not only would premium subsidies be smaller for many people, but there would also be an abrupt eligibility cutoff — an income cliff — for households above four times the federal poverty rate, or about $103,280 for a family of three for this plan year.

Taking into account the smaller subsidies and the cliff, KFF estimates a national average premium increase of 75% for enrollees if the enhanced subsidies expire. The CBO expects that about 4.2 million more people will be uninsured in 2034 as a result.

KFF continues: "Additional, potentiallu devastating, changes also would come from regulations the Trump administration proposed in March and the potential expiration of larger premium subsidies put in place during the covid-19 pandemic.

"Millions of people might drop or lose coverage by 2034 as a result, according to the nonpartisan Congressional Budget Office.

"Combined, the moves by Trump and his allies could “devastate access” to ACA plans, said Katie Keith, director of the Center for Health Policy and the Law at the O’Neill Institute, a health policy research group at Georgetown University. 

"Live Free. Kids Die?"

That's the title of a blog post from The Boston Globe. Here's the entry:

Live free, kids die? The rate of childhood firearm fatalities in New Hampshire has doubled since a 2010 Supreme Court ruling in McDonald v. Chicago expanded the Second Amendment right to keep firearms in the home, according to a new JAMA Pediatrics study released this week. That gives the Granite State, which has among the most permissive gun laws in the nation, the distinction of also having the country’s highest-rising firearm child mortality rate since the ruling. “It’s a really important study that shows … that permissive firearm laws are associated with greater pediatric firearm death,” Kelly Drane, research director at the Giffords Law Center, told the Globe’s Amanda Gokee. “It shows the benefit of states taking action to protect children.” A reminder to everyone, including the justices and Health and Human Services Secretary Robert F Kenney [sic], Jr.: Guns are the top killer of children in America, and remain a public health crisis crying out for attention.

That last sentence is exactly what I and many others have been saying for years. The availability of guns has led to thousands upon thousands of premature deaths, just as surely as killer microbes, car accidents, and lousy genetic luck, and public health responses -- sometimes with difficulty -- have met the challenge. The difference is there's nothing in the U.S. Constitution that embraces these causes of injury and death, but there is the Second Amendment's statement that "the right of the people to keep and bear Arms, shall not be infringed." There are sensible ways to read this provision.* When will the states, Congress, and the Justices of the U.S. Supreme Court come to their senses? 

__________

* See, e.g., Blocher & Ruben, Originalism-by-Analogy and Second Amendment Adjudication," Yale L.J. (2023-24) {https://www.yalelawjournal.org/article/originalism-by-analogy-and-second-amendment-adjudication}; Ruben, "Law of the Gun: Unrepresentative Cases and Distorted Doctrine," Iowa L. Rev (2021) {https://ilr.law.uiowa.edu/sites/ilr.law.uiowa.edu/files/2023-02/A4_Ruben.pdf}. 

 

New Article on Regulation of Abortion and Federal/State Divide

My colleagues, Profs. Joanna Grossman and Nathan Cortez, have published an important article: "Who Regulates Abortion Now?," 110 Iowa L. Rev. 1579 (2025). Their article dispels the notion -- promulgated by the Supreme Court in its Dobbs decision and widely accepted -- that abortion regulation has been returned to the states. Not so fast, they argue, in light of the Food & Drug Administration's regulatory control of the means by which a substantial majority of abortions are now obtained: abortion drugs such as mifepristone.

The authors argue, quite convincingly, that federal regulation of abortion medications plays a substantial role in the day-to-day reality of abortion medicine and that federal law has been superior to state law in this regard:

We argue that most patients want medicine to be evidence-based (applying the best scientific and medical knowledge available at the time), ethical (adhering to the ethical standards adopted by professional societies), consistent (encouraging similar care for similarly-situated patients), and individualized (accounting for each patient’s specific needs, preferences, and circumstances). Our laws and regulations should prioritize, not frustrate, these values. We then show that federal regulation has been superior at encouraging these values, while state regulation in abortion-restrictive states undermines these values, resulting in medical care that is less evidence-based, less ethical, less consistent, and less individualized in service of “winning” deeply-contested moral and ideological debates.

The entire article is indispensable reading for anyone who wants to understand not only the ongoing abortion debate, but much more:

Just as before Dobbs, federal authorities continue to determine which drugs can be prescribed while state authorities help define the permissible scope of medical practice. However, since Dobbs, several states have tried to ban the use of a medication approved as safe and effective by federal regulators. What should we do when concurrent oversight over “medicine” by state and federal authorities clashes in this way?

In the long term, these disputes are about more than just preemption; they are about how we regulate medicine in a world of telehealth, remote prescribing, and health care delivery models that increasingly blur the line between medical practice (regulated by states) and medical products (regulated at the federal level). These disputes also speak to ongoing battles over the permissibility of gender-affirming care, the regulation of laboratory-developed tests (“LDTs”), and other evolutions in medicine. Thus, the question “Who regulates abortion now?” is also a question of “Who regulates medicine now?” 

LGBTQ+ in the Supreme Court: Today's Order

Much will be made in the press of today's brief, unsigned order (to which Justices Sotomayo, Kagan, and Jackson dissented without opinion). The case involved Pres. Trump's Jan. 27 Executive Order 14183 with the Orwellian title, "Prioritizing Military Excellence and Readiness." 

Seven transgender serivce personnel challenged the EO in federal district court. Lead plaintiff is Commander Emily Shilling, a veteran Navy combat pilot who served in two wars and is now a Navy test pilot. The trial judge issued an preliminary injunction against enforcement of the EO until there could be a deision on the merits of the challengers' claims, and the Ninth Circuit Court of Appeals declined to stay the lower court's order. (Click here.) Today's Supreme Court order granted that stay:

This is not your usual procedural order to preserve the status quo pendente lite:

1. By lifting the lower court's injunction, the Court has allowed the DOD to proceed with its purge of transgender service members. 
2. That purge began on Feb. 26 and can now resume:
   
   "On Feb. 26, the Department of Defense issued that ban, which generally disqualifies anyone who either has gender dysphoria or has undergone medical interventions to treat gender dysphoria from serving in the military. The department explained that 'the medical, surgical, and mental health constraints on individuals who have a current diagnosis or history of, or exhibit symptoms with, gender dysphoria are incompatible with the high mental and physical standards necessary for military service.'" (SCOTUSBlog, May 6)
   
   
3. It is a little unclear exactly what standard the Court is using these days to decide on stay motions on its emergency docket. Ordinarily a major factor is whether the party seeking relief is likely to prevail on the merits of the underlying litigation. If this order is based upon such a weighing of probabilities, it's bad news for the challengers.

Why cover this development in HealthLawBlog? Because also pending on the Court's calendar is United States v. Skrmetti, No. 23-477, in which this is the issue: Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow "a minor to identify with, or live as, a purported identity inconsistent with the minor's sex" or to treat "purported discomfort or distress from a discordance between the minor's sex and asserted identity," violates the equal protection clause of the 14th Amendment. Oral argument was held on Dec. 4, after which it was reported that the Court appears ready to uphold Tennessee's ban. 

Krugman: MAGA's War on Science

My last final exam is finally ready for prime time (Mon., May 5, at 1:30: Legislation and Regulation, a required 1L course; I wish my students good luck on the exam).

Grading will begin Tuesday morning.

So this is a perfect time to blog a little something, which I haven't done since February. After my grades are in, I will be on sabbatical for a year, followed by retirement on May 31, 2026. This year I'll be finishing a student treatise on health law regulation and compliance (state and federal), public health law, bioethics, and medical malpractice. Not sure whether blogging fits into that task, at least until September when my draft is due to the publisher.

If it hadn't been for an eye-catching email from Paul Krugman this morning, I probably wouldn't be blogging this afternoon, but his thoughts are compelling for anyone who cares about scientific research in general or medical research in particular. I republishing his email below in the hope that he won't find out won't mind, because his email starts with this: "Forwarded this email? Subscribe here for more." In lieu of literally forwarding his email to you (impossible to do), I'm forwarding in the best way available to me. But definitely subscribe. In my perennially overstuffed Inbox, his messages are among the handful that I genuinely look forward to reading.

So much for the prelude. Now comes Krugman, unvarnished.

Many of us have long noted the growing hostility of the G.O.P. to science. But my experience was that many people viewed those raising the alarm — like Chris Mooney, who wrote a 2005 book titled The Republican War on Science — as over the top scaremongers.

But at this point, can we acknowledge that MAGA is indeed waging war on science? Not just “woke” stuff, but science in general.

Nature tells us that National Science Foundation funds have been frozen, and that even if some money eventually flows again, funding will be heavily politicized:

Staff members at the US National Science Foundation (NSF) were told on 30 April to “stop awarding all funding actions until further notice,” according to an email seen by Nature.

The policy prevents the NSF, one of the world’s biggest supporters of basic research, from awarding new research grants and from supplying allotted funds for existing grants, such as those that receive yearly increments of money. The email does not provide a reason for the freeze and says that it will last “until further notice”.

Earlier this week, NSF leadership also introduced a new policy directing staff members to screen grant proposals for “topics or activities that may not be in alignment with agency priorities”. Proposals judged not “in alignment” must be returned to the applicants by NSF employees. The policy has not been made public but was described in documents seen by Nature.

In effect, NSF, if it supports research at all, will only support research that tells MAGA what it wants to hear. Add in RFK Jr.’s savage cuts at the National Institutes of Health, budget cuts at the National Oceanic and Atmospheric Administration and the Trump administration’s attacks on research universities, and we’re looking at a near-collapse of U.S. science. I don’t mean a hypothetical collapse a few years down the road, but the destruction of large parts of the American scientific enterprise — the envy of the world just a few months ago — this year.

Why should those who aren’t scientists care? In the 21st century, science isn’t some esoteric intellectual affair. It’s the foundation of social and economic progress. And no, we can’t expect the private sector to fill the gap left by loss of government support. Basic research is a public good: it generates real benefits, but those benefits can’t be monetized because everyone can make use of the knowledge gained. So government support is the only way to sustain science. And that support is being rapidly ended.

But why do our new rulers want to destroy science in America? Sadly, the answer is obvious: Science has a tendency to tell you things you may not want to hear. Medical research may tell you that vaccines work and don’t cause autism. Energy research may tell wind power works and doesn’t massacre birds.

And one thing we know about MAGA types is that they are determined to hold on to their prejudices. If science conflicts with those prejudices, they don’t want to know, and they don’t want anyone else to know either. So they really want to destroy science.

Again, this isn’t hyperbole, and it’s not about the long run. American science is being gutted as you read this.

I Really Didn't Plan to Post Anything Until My Next Sabbatical, But It's Time to Get Real (Part II)

The new administration is systematically undoing years and decades of support for the sorts of health- and medicine-related web posts and publications, as I described  in yesterday's blog post. A few concrete examples to illustrate the author's claims:

-- ABC News: Multiple Health Agency Websites On HIV, Contraception Taken Down To Comply With Executive Orders (KFF News, 2/3/2025):

Government agency webpages about HIV, LGBTQ+ people and multiple other public health topics were down as of Friday evening due to President Donald Trump's executive orders aimed at gender ideology and diversity, equity and inclusion. Some of the terms being flagged for removal include pregnant people, chestfeeding, diversity, DEI and references to vaccines, health and gender equity, according to officials at the Centers for Disease Control and Prevention who spoke to ABC News on the condition of anonymity. Entire databases have also been temporarily removed. (Wang, Portnoy, Haslett, Brownstein and Benadjaoud, 1/31)

-- One day after the inauguration, OMB instructed staff at agencies inside the Department of Health and Human Services to stop all external communications. The affected agencies included the Food and Drug Administration, the Centers for Disease Control and Prevention and the National Institutes of Health. As reported by the Washington Post, "The pause on communications includes scientific reports issued by the CDC, known as the Morbidity and Mortality Weekly Report (MMWR); advisories sent out to clinicians on CDC’s health alert network about public health incidents; data updates to the CDC website; and public health data releases from the National Center for Health Statistics, which tracks myriad health trends, including drug overdose deaths."

I Really Didn't Plan to Post Anything Until My Next Sabbatical, But It's Time to Get Real (Part I)

A niece of a retired law-school colleague is a Clinical Professor of Emergency Medicine at UCLA Medical School. She reposted a message from a colleague that deserves to be heard far and wide. Please read carefully:

Shared from a colleague (Sunny Smith):

For those who may not be a physician or aren’t in physician communities - yes, it’s true, it’s actually true.  

The United States government has required our leading health agencies to remove basic information on guidelines and best practices used every day for medical care and public health.   For treatment and prevention.   Every day clinical care.  

This has to be one of the most surreal (and terrifying) times in modern history. 

They have taken down information on antibiotics, antivirals, sexually transmitted infections, contraception, vaccines, and gender related issues.  

Physicians are outraged and alarmed.   

Physicians are banding together to obtain and share the information they need to treat patients.     They are literally saying “i have the guidelines for this, does anyone have guidelines for that”.  

Emergency physicians. Pediatricians.  OB Gyns.  Primary care.  

Real physicians.  Real conversations.  

This is not a dress rehearsal.  

We won't keep quiet and many are screaming from the rooftops.  

If you are not alarmed, you should be.  

11 days into this administration and by 5pm Friday our nation's health organizations have been forced to take down crucial health information. 

This is “Defending women from gender ideology” ?!?!?!!!!!!!! 

Let’s be very very very clear - this is NOT defending women.  

Do not be gaslit for one second that any of this is to protect women.   

That is the absolute antithesis of what this does to women.  And the whole population. 

This Executive Order alongside DEI EOs and blaming DEI for plane crashes. 

DO. NOT. BELIEVE. THESE. LIES.  

DEI did not cause plane crashes. 

Helping physicians treat infections or prevent pregnancies is not bad. 

The shock and awe and overwhelm and division and othering and inciting fear is intentional. 

Please speak up.  Anywhere and everywhere.   The compound effect of real people talking to other real people matters.  

You are not powerless.  They just want you to think you are.  Who wins when you think that? 

They can not paralyze over 300 milllion people.   

The way out of learned helplessness is to take small actions over and over again.  To take control anywhere within your own locus of control.   

And - Even if you were on the fence before or voted for him or are in a red state - PLEASE - consider having a tiny bit more opennness to start to question what is happening right now.  Look at data.  (May we all become increasingly aware of and question our own internalized bias, implicit or explicit bias, assumptions, racism, misogyny).

If you trust your LIFE to physicians, during any truly imminently life-threatening emergency for you or your loved ones, please listen when we say this is NOT okay.

Edited to add (after a physician colleague shared this immediately)  ->  Feel free to share.

In Part II I will provide some links to the Executive Orders and missing web pages. 

Rural Health Care and the Tenuous Connection to Urban Tertiary Care Centers

Today's on-line post (possibly free, at least for awhile) from the New England Journal of Medicine is by a physician in the Northern Navajo Medical Center, Shiprock, NM, an unincorporated community on the Navajo reservation in San Juan County, New Mexico, population 7,718 people. It's located in what we city-folk call "the middle of nowhere," and that's a problem. Actually, it's the problem if you live in Shiprock and have a complex kidney-stone problem that requires specialty care in a tertiary-care hospital. That was Ms. C's situation. 

Two options were a facility 7 hours away that was booked nearly a year out and another that was 4 hours away and booked 6 months out. But a familiar sequence of events saved the day for Ms. C:

I emailed a urologist in Boston who’d volunteered at my hospital years earlier. He called a colleague in California, who recommended a former trainee in Tucson. The Tucson team recognized the complexity of Ms. C.’s medical case and her geography. They admitted her and removed her right stone, monitoring for complications before releasing her. They had her come back, when she was ready, for the left.

Calling a friend who knows a friend who knows a friend is not unique to rural settings. I regularly receive pleas from friends around the country whose relative needs a specialist's care and do I know someone who knows someone who can call in a favor and secure an appointment in San Antonio, Austin, Fort Worth, Dallas, etc. 

Physician shortages in lots of urban settings lead to long waits for an appointment, but the problem is orders of magnitudes worse in rural areas, including Texas. Here's some sobering homework reading:

• Rural Health Information Hub
• Texas Rural Health Association
• Texas Department of Agriculture, State Office of Rural Health
• Texas Health and Human Services Rural Health Clinics
• Texas Hospital Association: Rural Issues
• The Texas Tribune: Rural Texas health

Latest Report on National Health-Related Spending in 2023

From Health Affairs on-line today:

In an ahead-of-print article published [Dec. 18], Anne B. Martin and colleagues at the Centers for Medicare and Medicaid Services (CMS) released their 2023 health care spending report.

Key takeaways from the report include:

• Health care spending in the US continues to climb, with private insurance and Medicare leading the charge.
• The insured share of the population reached a high of 92.5% in 2023.
• Medicaid spending growth slowed as pandemic-related funding waned.
• State and local governments accounted for a larger share of health spending, while federal contributions declined.

And some tidbits from the article's Abstract:

• Health care spending in the US reached $4.9 trillion and increased 7.5 percent in 2023 [compared to our overall rate of inflation of 4.1%], growing from a rate of 4.6 percent in 2022. 
• In 2023, the insured share of the population reached 92.5 percent, as enrollment in private health insurance increased at a strong rate for the second year in a row, and both private health insurance and Medicare spending grew faster than in 2022. 
• For Medicaid, spending and enrollment growth slowed as the COVID-19 public health emergency ended. 
• The health sector’s share of the economy in 2023 was 17.6 percent, which was similar to its share of 17.4 percent in 2022 but lower than in 2020 [19.7%] and 2021 [18.3%], during the height of the COVID-19 pandemic. 
• State and local governments accounted for a higher share of spending in 2023 than in 2022, while the federal government share was lower as COVID-19-related funding declined and federal Medicaid spending growth slowed. 

Bird Flu: It May Be Worse Than We Suspect

The Kaiser Family Foundation (KFF) just published a report on the bird flu with a pretty scary title: "How America Lost Control of the Bird Flu, Setting the Stage for Another Pandemic." What?!?

A few salient quotes:

• "Nearly a year into the first outbreak of the bird flu among cattle, the virus shows no sign of slowing. The U.S. government failed to eliminate the virus on dairy farms when it was confined to a handful of states, by quickly identifying infected cows and taking measures to keep their infections from spreading. Now at least 875 herds across 16 states have tested positive."
• "Experts say they have lost faith in the government’s ability to contain the outbreak. 'We are in a terrible situation and going into a worse situation,' said Angela Rasmussen, a virologist at the University of Saskatchewan in Canada. 'I don’t know if the bird flu will become a pandemic, but if it does, we are screwed.'"
• "To understand how the bird flu got out of hand, KFF Health News interviewed nearly 70 government officials, farmers and farmworkers, and researchers with expertise in virology, pandemics, veterinary medicine, and more. . . . Together with emails obtained from local health departments through public records requests, this investigation revealed key problems, including deference to the farm industry, eroded public health budgets, neglect for the safety of agriculture workers, and the sluggish pace of federal interventions."
• "Far more bird flu damage is inevitable, but the extent of it will be left to the Trump administration and Mother Nature." No comment.
• "[T]the outbreak poses the threat of a pandemic. More than 60 people in the U.S. have been infected, mainly by cows or poultry, but cases could skyrocket if the virus evolves to spread efficiently from person to person. And the recent news of a person critically ill in Louisiana with the bird flu shows that the virus can be dangerous. . . . Just a few mutations could allow the bird flu to spread between people. Because viruses mutate within human and animal bodies, each infection is like a pull of a slot machine lever.
• “Even if there’s only a 5% chance of a bird flu pandemic happening, we’re talking about a pandemic that probably looks like 2020 or worse,” said Tom Peacock, a bird flu researcher at the Pirbright Institute in the United Kingdom, referring to covid. “The U.S. knows the risk but hasn’t done anything to slow this down,” he added.

SCOTUS Adds Medicaid Exclusion of Planned Parenthood to its Docket

Add another case to my SCOTUS "roundup" (Dec. 1).

SCOTUSBlog notes that the Supreme Court has granted review of the 4th Circuit Court of Appeals's decision in Kerr v. Planned Parenthood, which involves "a dispute over whether a South Carolina woman can bring a lawsuit challenging that state’s decision to end Planned Parenthood’s participation in its Medicaid program. . . ." Amy Howe, Court adds Medicaid lawsuit to docket, SCOTUSblog (Dec. 18, 2024, 12:57 PM). It's a safe bet that the required four votes to grant the petition for review came from the 6-member conservative group of Justices, so this is an ominous development for Planned Parenthood (and the women who depend upon PP for a variety of healthcare needs). The note continues:

Under federal law, Medicaid funds cannot generally be used to provide abortions. But Planned Parenthood provides other medical services to women, including gynecological and contraceptive care but also screenings for cancer, high blood pressure, and cholesterol.

At two clinics in Charleston and Columbia, Planned Parenthood has tried to make it easier to lower-income patients, many of whom are covered by Medicaid, to use its services – by, for example, offering same-day appointments and extended clinic hours. One of those Medicaid patients is Julie Edwards, who suffers from diabetes. She went to Planned Parenthood for birth control but says she wants to return to receive other care in the future.

In 2018, South Carolina Governor Henry McMaster ordered the state’s Department of Health and Human Services to bar abortion clinics from participating in the Medicaid program. McMaster explained that the “payment of taxpayer funds to abortion clinics, for any purpose, results in the subsidy of abortion and the denial of the right to life.”

Edwards and Planned Parenthood went to federal court in South Carolina. They argued that McMaster’s order violated a provision of the Medicaid Act that allows any patient who is eligible for Medicaid to seek health care from any “qualified” provider.

A federal appeals court agreed with Edwards and Planned Parenthood and blocked the state from excluding Planned Parenthood from its Medicaid program. That decision prompted the state – represented by the conservative Alliance Defending Freedom – to come to the Supreme Court this summer, asking the justices to decide whether Edwards and Planned Parenthood have a legal right to sue to enforce the Medicaid Act.

The state told the justices that five federal courts of appeals “have wrongly subjected states to private lawsuits Congress never intended.” Moreover, it added, with 70 million Americans receiving Medicaid benefits and tens of thousands of health-care providers participating in the program, the question at the center of the case is “of great national importance.”

But Planned Parenthood and Edwards countered that the question does not come up very often these days. And most of the cases in which it did arise, they continued, “were efforts by states to target Planned Parenthood in ways courts have recognized are unwarranted and politically motivated.” But in any event, they concluded, as all three judges on the court of appeals agreed in this case, the Medicaid law is “clear and unambiguous in conferring a privately enforceable right.”

The justices considered the state’s petition at nine consecutive conferences before finally granting review on Wednesday. The case will likely be slated for argument in either March or April, with a decision to follow by summer.

A number of states have removed Planned Parenthood from their Medicaid programs, including Texas. Beyond that, the Texas Attorney General has sued PP for$1.8 billion in an attempt to bankrupt the organization. Details are here.