Recently in Perry v. Schwarzenegger, District Court Judge Vaughn Walker issued a momentous decision when he found that California's ban on same-sex marriage (Proposition 8) violated the Due Process and Equal Protection Clauses of the U.S. Constitution. Much of the media's attention has focused on the unprecedented nature of the holding, the implications for other states that ban same-sex marriage, and what this civil rights victory means for gay men and lesbians.

I want to highlight an important potential benefit of same-sex marriage that has not been getting much media attention, but that intersects with another major civil rights struggle we witnessed over this past year: improving health care access and outcomes.

Bans on same-sex marriage can negatively impact the health of gay men and lesbians in three ways: they leave more people uninsured and thus unable to access care; they stigmatize gay men and lesbians, encouraging discrimination and compounding other social and legal barriers to health; and they create harmful mental and physical health effects. Thus, marriage equality plays an important role in improving health care access and outcomes.

Continue reading "What Same-Sex Marriage Means for the Health of Gay Men and Lesbians" »

This summer, the Blue Cross Blue Shield (BCBS) of Massachusetts Foundation produced a report about the impact of health reform in Massachusetts since its implementation in 2006. One of the findings was boldly announced in the headline of Bureau of National Affairs article, Massachusetts Health Law Has Erased Racial Disparity in Coverage, Report Says. This is relevant for the rest of us because federal health care reform hopes to expand health coverage based in large part on the Massachusetts model of requiring everyone to purchase insurance through a centralized insurance exchange. We also know that lack of insurance coverage is a barrier to health care access and contributes to worse health outcomes for many racial minorities, which is why universal coverage has been an important goal for many civil rights and health advocates.

While celebrating this good news, however, we should not overlook the bad: despite equality in coverage in Massachusetts, racial and ethnic disparities in access persist. This is not a new or shocking finding - countless studies have documented disparities in access and health outcomes in the U.S., even after controlling for insurance coverage. Here are just a few recent examples:

Continue reading "Will Expanding Insurance Coverage Eliminate Health Disparities?" »

The first part of 2010 has brought a flurry activity on the abortion front. Anti-abortion activists are fighting hard to get laws passed that are designed to discourage abortion by creating additional obstacles for the women seeking abortion and new liability for the physicians performing abortions. This fight is being played out in federal courts -- patients' advocates and providers are immediately challenging these laws as unconsitutional. Last week, two federal district courts granted temporary injunctions blocking abortion laws in Nebraska and Oklahoma, respectively. This is a promising sign for patients and providers because in order to get the injunction they had to convince the court that they would likely be succesful on the merits of their claim and that the law presented an imminent threat of irreparable harm by jeopardizing women's access to important reproductive health services. Full hearings will probably occur early next year.

Continue reading "Reproductive Health Update: Courts Temporarily Enjoin Abortion Laws" »

On Monday, in Golden Gate Restaurant Association v. San Francisco, the U.S. Supreme Court denied review of a legal challenge to San Francisco's universal health care program (the "Healthy San Francisco Plan"). In 2006, the City and County of San Francisco created a local health care plan designed to improve health care access for low and moderate income residents. An important source of funding for the plan came from the employer spending requirements - commonly termed "pay or play" provisions. Basically, this provision requires certain employers to spend a minimum amount on health care for their employees. They can do this directly (for example, by setting up a traditional employee-based health plan, establishing an on-site clinic, or reimbursing employees for certain health care expenditures) or they can satisfy this requirement indirectly by paying into a city-based health plan which their employees can join.

The Golden Gate Restaurant Association challenged this employer spending requirement by claiming that it was preempted by the federal Employee Retirement Income Security Act of 1974 ("ERISA"). This case represents the latest in a long line of legal challenges by employers using ERISA as a shield against state and local regulation designed to improve health care access for consumers. The practical impact of the Supreme Court's denial of review is good because it preserves the Healthy San Francisco plan for now. Unfortunately, the case highlights the legal uncertainty facing states and local governments that want to craft local solutions to their health care crises. This uncertainty is unacceptable given the long history of ERISA being used to frustrate state and local reform efforts and the fact that this kind of local reform will probably still be needed even after federal health reform is implemented.

Continue reading "What the "Healthy San Francisco" Case Means for Local Health Reform" »

In a recent post titled "California May Get Jump on Feds with Prior Approval of Health Insurance Rates," Frederick Pilot discusses legislation approved by the California state Assembly last week that would require prior approval of insurance premiums for managed care service plans and traditional indemnity insurance policies. For more information on health insurance reform, go to the Health Insurance Crisis Blog.

A recent New York Times article describes a growing trend among states to restrict access to abortion. These restrictions are coming in various forms: some are outright bans on abortion after a certain time, some ban insurance coverage for abortions in the new health insurance exchanges, and some try to discourage abortion through the use of ultrasound and the interrogation of women about their reasons for seeking an abortion. In an earlier posting, I have explained why mandatory ultrasound laws are unconstitutional and unethical, and I will continue to look at other laws to examine their legality and impact on health care for women. For a comprehensive overview on state laws regulating abortion, you can visit the Guttmacher Institute website at http://www.guttmacher.org/sections/abortion.php. The Guttmacher Institute is an organization dedicated to advancing sexual and reproductive health through research, policy analysis, and public education. It monitors these state developments and provides regular updates.

There is a growing trend among states to try to make abortions more difficult to access, and a law passed in Oklahoma provides the latest example of this trend. In April, Oklahoma passed a law that requires women seeking an abortion to undergo an ultrasound, and during the ultrasound, the woman must be shown a fetal image and hear a verbal description of fetal characteristics, such as heartbeat and size. The hope is that if women view a sonogram and hear details about the embryo or fetus they will change their minds and decide to preserve the pregnancy.

Supporters of these "mandatory ultrasound" laws try to justify them on "informed consent" grounds - they claim that this is necessary to ensure that women have all the information they need to make an informed choice about abortion. However, a closer look at the Oklahoma law reveals a much more insidious purpose and strategy to undermine informed consent and interfere with women's reproductive choice. The law is an unethical invasion into the physician-patient relationship and an unconstitutional burden on a woman's reproductive rights.

Continue reading "Oklahoma Imposes Unethical and Unconstitutional Barriers for Women Seeking Abortion" »

Kaiser Permanente has been prominently featured as a model of success that should guide our future health care reform efforts by a number of sources, including the Economist, the Los Angeles Times, and the NBC Nightly News. Yet each time these stories appear, people come to me confused because of the bad experiences they've had with Kaiser, heard about from others, or read about in the paper. Indeed, in the last five years, Kaiser has been the target of law suits, regulatory action by the California Department of Managed Health Care, and numerous media stories about the way it mishandled its kidney transplant program, endangering lives and causing deaths. A few years ago Kaiser hospital got into trouble for dumping homeless patients in Los Angeles. And currently, Kaiser is one of the plans being sued for discriminating against children with autism by denying them medically necessary care that it provides for other kinds of patients. Even a very cursory internet search yields a number of websites whose purpose seems to be to expose bad faith denials and poor quality of care by Kaiser by offering patient testimonials and compiling examples of lawsuits.

Many people can't believe that this Kaiser would be considered a model for reform, so why is there such a disconnect between the people who see this Kaiser and those who paint a picture of a "successful" Kaiser that should be emulated?

Continue reading "A Tale of Two Kaisers" »

Since federal health reform was enacted, a number of law suits have been filed to prevent its implementation and lawmakers in 39 states have introduced bills opposing it. The piece of reform generating the most attention is the individual mandate to purchase health insurance. Attacks have come from across the political spectrum: On the right, people fear that government is getting too big and exercising too much control over personal decisions; on the left, people fear that the mandate will transfer more wealth and power to private insurance companies that prioritize profits over health. Although this political fight was supposedly decided once President Obama signed the law, these concerns are animating recent legal challenges as well.

Challengers claim that Congress does not have the authority to mandate these kinds of decisions, and that if Congress is allowed to do this, it will set a dangerous precedent that gives the federal government unfettered authority to regulate every aspect of our lives. While the mandate does raise an important question about the scope of the government's power to do something unprecedented - to require individuals to purchase a service from a private entity - concerns by challengers are overblown. The key to understanding why this mandate will likely be found constitutional, and why it does not set a precedent that gives the federal government limitless power, lies in the unique nature of health care and our highly regulated and government subsidized health care delivery system.

Continue reading "The Constitutionality of the Individual Mandate" »

The new health reform law, the Patient Protection and Affordable Care Act, is under attack from many fronts. A number of states filed suit almost immediately, challenging several aspects of the new Act. The most recent legal challenge has come from four individuals and the Thomas More Law Center (a nonprofit Christian legal organization). In April, they filed a motion in a federal district court in Michigan to preliminarily enjoin the part of Act that would require individuals to purchase health care coverage or be assessed a tax penalty. Their main claim is that the individual mandate is unconstitutional because the federal government does not have the authority to create such a mandate. While these suits raise a novel and interesting legal question about the ability of the federal government to require citizens to purchase goods or services from a private entity, this latest challenge will probably be rejected for other reasons.

Continue reading "Can Government Fend Off Constitutional Challenges to Health Reform For Now?" »