Archive for the 'Health Care' Category

SCOTUS Allows Wisconsin Fetal Protection Law to Continue

The line between the rights of an unborn fetus and the rights of the woman pregnant with that fetus is one of the most contentious legal issues in modern society. While it generally comes up in the context of a women’s right to choose to have an abortion, the same battle is fought on other fronts as well. In Wisconsin, one such situation dealt with the state’s ability to step in and take physical custody of a pregnant woman-force her to stay in a secure medical facility or prison-where she uses alcohol or drugs while pregnant.

Just a few months back, a Wisconsin District Court ruled that a 1997 law giving the state this power was unconstitutionally vague. This led to the case being appealed to the Supreme Court of the United States. Last week, the Supreme Court issued an order removing the Wisconsin District Court’s stay on the law-at least until the Supreme Court rules on the “fetal protection” law one way or another.

At this point, there is no final say on what will happen to Wisconsin’s law. However, to get a better idea of what the future of this law means for you let’s look at the law itself, the facts behind this case, and the ruling of the district court from a few months ago.

fetal protection lawThe “Fetal Protection” Law and It’s History

Back in 1997, the Wisconsin Supreme Court made a ruling limiting the breadth of the Wisconsin Children’s Code-the code of laws allowing Wisconsin’s Department of Children and Families and other social services to take protective action in the interests of abused or neglected children. They determined that code did not give Wisconsin services jurisdiction over an adult pregnant woman just by reason that she is expecting.

But that same year they passed Wisconsin Act 292. The Act allowed juvenile courts and protective services to exert jurisdiction over an unborn fetus as if they were a child in need of protective services where the “expectant mother’s habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, [poses] a substantial risk” of harm to the unborn child. So, Wisconsin Services can hold pregnant women in custody if there is probable cause to believe she is within the jurisdiction granted by this act and there is reason to believe the mother is or has refused alcohol or drug services offered to her or isn’t making a good faith effort to participate in such services. The state can also appoint a guardian ad litem for the fetus-basically somebody who’s job is to advocate for the best interests of the unborn fetus.

On its face, this law seems innocuous. Abusing alcohol or drugs can have a serious effect on the health of a child when it is born. The ability of the state to step in and make women seek medical help in ceasing their alcohol or drug abuse could certainly prevent damage to a fetus that would ultimately affect the child for their entire life. However, but the Act was worded so vaguely that it opened the door for Wisconsin to potentially trample on women’s rights.

Ms. Tamara Loertcher’s Case

The case brought before the district court dealt with one Ms. Tamara Loertcher. She became pregnant in 2014 after long believing herself incapable of becoming pregnant. She was using methamphetamine and marijuana prior to becoming pregnant allegedly to self-medicate serious depression. Stating that she still did not believe she was truly pregnant, she went to the hospital three months later to confirm the results of her at-home test. The hospital’s tests revealed both pregnancy and drug use. She checked into a rehab clinic the same day.

Once at the rehab clinic, staff at the clinic reported Ms. Loertcher to child protective services for her drug use. This led to a case against her which culminated in her being unrepresented at regarding her being taken into custody. With no one there supporting her interests, she lost the hearing and was required to stay at a secure medical facility. She refused, was held in contempt, and thrown in jail with no medical services for 30 days. 18 days after being put in jail, she was released. She has since ceased all drug use and given birth to a completely healthy baby boy.

Ultimately, Ms. Loertscher stated that she felt that her worst mistake was going to the hospital in the first place. This is the fear of laws like Wisconsin’s, that they serve to deter the women who most need medical services from seeking help. However, this was not the reason the law was struck down.

The District Court’s Vagueness Ruling

In their ruling from the end of April of this year, it was the vagueness of the statute that led to the district court ruling it unconstitutional.  A statute is unconstitutionally vague where it doesn’t give the public fair notice as to the exact boundaries of the law. It’s only fair that the public know when they are and when they aren’t violating the law. To pass muster, a law needs to give at least some guidelines for how it is enforced. This act was subjected to a high level of vagueness scrutiny due to the constitutional rights implicated by the acts potential to lead to either physical restraint or forced medical care.

When looking at the text of the statute, the found that many of its terms failed to rise to this simple standard. The act applies where there is habitual lack of self control when it comes to drug or alcohol use. However, how much is habitual? Daily? Multiple times a week? Multiple times a month? Experts in the case couldn’t really nail down what was habitual use, never mind that habitual use is likely different depending on what is being used.

Similarly, the act applies to severe lack of self-control when it comes to drugs or alcohol but provides no line whatsoever as to what is severe. Further, due to wording of “habitual lack of self-control,” the act could be applied to any woman who once had an alcohol or drug habit-even if she no longer uses any substance-because habitual deals with both past and present behavior.

The court raised one more rather odd concern. How would the act deal with a pregnant woman who simply didn’t believe that using drugs or alcohol would affect her fetus? This wouldn’t be a case of lack of self-control but rather a matter of misinformation.

The list of overly vague terms and unclarified ambiguities in the act went on: risk is included but how much risk is “substantial?” When will a child be seriously affected by drug or alcohol use? Studies tend to agree that such behavior can affect a pregnancy but the amount necessary to harm a fetus varies from study to study. The experts in the case certainly couldn’t present a scientific consensus as to any of these questions. Thus, the district court ruled the act unconstitutional for vagueness and issued an injunction preventing application of the law-the injunction the Supreme Court just lifted.

fetal protection lawThe Future of the Act

The Supreme Court’s ruling only lets Wisconsin’s act continue functioning for now, it doesn’t necessarily mean that the Supreme Court will ultimately rule that the act is constitutional. It may tilt the odds in that direction. However, it is not the last nail in the coffin.

These sort of laws, allowing the government control over a pregnant woman because of her pregnancy, are certainly problematic. Abortion laws have long struggled in establishing the proper balance in the push and pull between a woman’s right to bodily autonomy and the rights of a developing fetus. Should a fetus be treated as having rights superseding that of the mother? When should a fetus be considered to have rights at all? With a law like Wisconsin’s, it seems like it allows the state to invade the rights of a pregnant woman almost immediately.

Drug and alcohol use during pregnancy is certainly not something to be encouraged. However, how far are we willing to allow the government to step on a woman’s rights to achieve this end? There is likely a middle ground here where the proper legal standard should be, however we continue to struggle to find the right way to deal with these issues. When the Supreme Court fully addresses this case, it will be the first time new appointee Justice Gorsuch will weigh in on such an issue since he joined the Court. We’ll have to wait and see what the Court’s eventual ruling will mean for Wisconsin’s law and women’s rights in general.

Martin Shkreli Goes on Trial

The man who charged America $750 for Daraprim, an anti-AIDS pill, is going to trial.  However, Martin Shkreli is not on trial for raising the pills by 5,000%, but for defrauding shareholders. Shkreli is accused of using money from one hedge fund to pay deficits in a previous hedge fund. Between 2009 and 2014, Shkreli allegedly began a fund, took bad stock bets, started another fund, used the money from fund #2 to pay fund #1, and repeated the process numerous times before his rise to infamy turned the spotlight on him. Federal agents arrested Shkreli on December 19, 2015 for security fraud.

Shrekli is Not the First Pharma Executive to Face Trial, and Won’t Be the Last

Shkreli is not the first pharmaceutical executive to go on trial, although he is the most famous and hated one. Barry Cadden avoided charges of second-degree murder, but was found guilty of multiple fraud, conspiracy, and racketeering charges. Cadden allowed his business, New England Compound Company, to use expired ingredients and falsified logs to mislead regulators. As a result, people nation-wide were given tainted injections for back injuries. The tainted injections lead to an outbreak of fungal meningitis that affected more than 700 people. The scandal ultimately resulted in the deaths of 76 of those ill. Cadden has been sentenced to 9 years in prison.

shkreliShareholder’s Profits Above All Else Is Not a Sustainable Business Strategy

Shkreli often justified his decision to raise the price of Daraprim to such high marks by claiming that he was acting in the best interests of his shareholders. That claim sounds absurd in light of his upcoming trial, but it does raise a critical philosophy in our legal system: business executives have an absolute duty to act in the best interests of their shareholders, but owe nothing to the public at large. This ranking of interests is evident in Shkreli’s prosecution: raising prices to absurd levels has not resulted in any legal consequences for Shkreli, but blowing off his shareholders likely will. Even Cadden, who is being prosecuted for harming the public, is not liable for the deaths of consumers, but for lying to the government about the effects of his product.

Shkreli might believe that what he is doing is beneficial to his company, but these interests seem to be short-term gains only. The negative media attention and Congressional investigations were not expenses that Turing Pharmaceuticals, Shkreli’s former employer, wanted. Cadden lead NECC into Chapter 11 bankruptcy. In the long run, this kind of moral less pursuit of the company’s profit above all other considerations would appear to have dire effects on the long-term viability of the company itself. Companies should consider, not just the potential for short-term profits, but the long-term consequences as well. It might be considered smart business to take over an industry that people’s very lives depend on and then maximize that dependency for as much profit as possible. But then Americans shouldn’t be so shocked and outraged when men like Shkreli and Cadden abuse that system.

Being Transgender is Covered by ADA, PA Court Decides

When we think of disabilities, being transgender-hopefully-is not something that comes to mind. This is for a simple reason, gender identity is state of being rather than a disorder. However, out in Pennsylvania, Judge Joseph Leeson was recently saddled with the unenviable position of parsing how gender identity should be handled under the Americans With Disabilities (ADA)—the act which provides federal protection against discrimination based on a disability.

This ruling is the first of its type and had some serious hurdles to overcome to include gender identity as a disability under the ADA. When the ADA was first passed gender identity was specifically excluded from being classified as a disability. It wasn’t in particularly good company, other specific exclusions include kleptomania, pyromania, and pedophilia. The unfortunate truth is that the exclusion was a bit of a product of the times when the ADA was passed. At the time, congress specifically railed against the inclusion of so-called “immoral” medical conditions. Thus, gender identity was unfairly lumped in to ADA exceptions. However, the exception remains as part of the law. Truthfully, despite it’s unfortunate conception, being transgender is not a disorder or disability in and of itself. Including it under the ADA seems out of place for that reason. However, like most things in law, the question before Judge Leeson was one of definition. In order to understand the Judge’s ruling, ultimately including gender dysphoria as a disability, let’s look at how a disability is defined and the ruling itself.

What is a Disability Under The ADA?

In 2008, the ADA updated their definitions of what exactly constitutes a disability.  The ADA now defines disability as a person who has one of three things: a physical or mental impairment which substantially limits one or more major life activities, a history or record of such an impairment, or is perceived by others as having such an impairment.  The changes also broadened the interpretation of “substantially limits” to require less, forbad the consideration of mitigating measures that could be taken in the analysis of a disability, expanded the definition of “major life activities,” and provided a non-exhaustive list of such activities which included caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.

transgenderUnderstanding Judge Leeson’s Ruling

So does gender identity constitute a disability? Absolutely not. However, Judge Leeson’s ruling recognized a clear distinction between gender identity and gender dysphoria-the distress created by the differences between a transgender person’s gender and the gender they were assigned at birth. Let’s take a look at the facts of the case to figure out how he got there.

The case involves one Kate Lynn Blatt suing Cabela’s Retail, her former employer, for firing her based on her diagnosed gender dysphoria. Ms. Blatt was not allowed to dress and act as woman while working for Cabela’s. This became a point of contention between her and her employer. Under the ADA, an employer is required to provide reasonable accommodations to a disabled employee. However, Cabela’s refused to let Ms. Blatt dress as a woman and allegedly eventually fired her over it. This led to Ms. Blatt’s ADA retaliation claim. A retaliation claim requires her to show that she engaged in protected activity under the ADA and that adverse employment action was taken against her based on this action.

The ruling in question was on a motion to dismiss the case entirely. Thus, Judge Leeson needed only to find that the facts and law were sufficient to show that Ms. Blatt had a plausible claim under the ADA. The facts were there, Blatt had diagnosed gender dysphoria and it is at least plausible she was fired over her desire to dress as a woman-a very reasonable accommodation to require. The question came down to whether gender dysphoria was a disability under the ADA.

The ADA specifically excludes gender identity. However, Blatt argued that her gender dysphoria substantially limited major life activities for her including how she interacted with other and social and occupational functioning. Ms. Blatt further argued that the outright exclusion of gender identity from the ADA was either not meant to be interpreted as a blanket ban on any element of gender identity or the existence of such a ban violated her equal protection rights.

Judge Leeson agreed to a certain extent. Where the constitutionality of a law is called into question, judges are advised to look for an interpretation of the statute that reads in a constitutional manner. The Judge found this middle ground-the distinction between gender identity and gender dysphoria-a condition clearly associated in the medical community with stress and other disabling impairments. He determined that if the exclusion of gender identity disorders in the ADA excludes gender dysphoria it would undermine the statute itself. Instead, he chose to construe the exclusion of gender identity very narrowly and preserve the intent of the statute.

In a motion to dismiss, this was enough. If gender dysphoria can be a disability then Blatt had given enough facts to get past this initial threshold.

What Does This Ruling Mean?

Gender identity disorders, as opposed to gender identity itself, has had an unfortunate position in the ADA since the law was first passed. This ruling is a huge step for the transgender community. These protections are something that have been unfairly placed out of reach for decades.

However, it is important to recognize what this ruling is and what this ruling is not. First and foremost, it is a ruling on a motion to dismiss. While the analysis of the law from this judge will not change as the lawsuit progresses, a big victory for the LGBT community, this ruling may well be appealed and the lower standard of these type of motions mean that Ms. Blatt is far from a guaranteed victory. Also important to keep in mind, Judge Leeseon’s analysis allows the ruling to bypass a larger issue. By reinterpreting the law in a way that avoids potential constitutional issues, Leeson made it unnecessary to decide whether the exclusion for gender identity disorders violates Blatt’s equal protection rights. This ruling is a big step, but it must be recognized as a step and not a leap. The full implications of this ruling, and whether it will stand up in the long term, still remain to be seen.

20-Week Abortion Ban From Tennessee Means Big Changes for Pregnant Women

The governor of Tennessee recently signed a bill into law, effective July 1, which further regulates abortion in the state. Under this newly enacted measure, called the “Tennessee Infants Protection Act,” doctors are subject to criminal liability if they perform an abortion on a viable fetus and fail to show it was necessary to prevent the death or substantial and irreversible harm to the pregnant woman’s major bodily functions. A doctor may face license suspension and imprisonment for failing to comply with the act.

What Constitutes a “Viable” Fetus?

Under the act, once a fetus is viable, abortion is prohibited. “Viable” is defined as the stage of fetal development when an unborn child is able to survive outside the womb, with or without medical intervention. In Tennessee, there is a “rebuttable presumption” of viability at the gestational age of 24 weeks. (Gestational age is calculated from the first day of a pregnant woman’s last menstrual period.)

Though the act is often termed the “20-week abortion ban,” proponents of the act argue it merely requires doctors to assess fetal viability at the 20-week point in gestational age, if there is no medical emergency warranting a physician to immediately induce or perform an abortion. A physician’s good faith medical judgment that the fetus is not viable is an affirmative defense under the act.

What Medical Conditions Fall Under the Act?

If a physician determines the fetus is viable, the other affirmative defense is the abortion was necessary to save the pregnant woman’s life or prevent “serious risk of substantial and irreversible impairment of a major bodily function.” There are certain medical conditions which can complicate pregnancy and potentially cause death or “substantial and irreversible impairment of a major bodily function.” Examples include, but are not limited to, pre-eclampsia, diabetes, and multiple sclerosis. However, any condition relating to a pregnant woman’s mental health, regardless of the reason, does not fall within the purview of the act. In addition, the act does not include cases in which a woman’s own conduct results in substantial bodily harm or her death.

abortion banThe Impact of the Act on Pregnant Women in Tennessee

Among the potential obstacles for pregnant women in Tennessee are the narrow exceptions provided for an abortion to be permitted under the act. The prevention of death or substantial harm to a woman’s health are the only exceptions. Circumstances of rape or sexual abuse which can result in pregnancy are not exceptions under the act. This is particularly problematic if a woman does not know she got pregnant as a result of the abuse until later in her pregnancy. Additionally, what if the ultrasound routinely performed at 20 weeks reveals a serious abnormality with the fetus? Due to the narrow exceptions under the act, a pregnant woman receiving such news would automatically be prevented from making the right, albeit difficult, decisions for her and her family.

Further, if the woman’s physician determines an abortion is necessary to save her life or prevent substantial harm to her health, this conclusion is not enough. Under the act, a second physician, who is not professionally related to the first physician, must make the same determination and certify it in writing. This requirement can delay a woman’s ability to receive the necessary medical treatment for a potentially life threatening condition. As long as her condition is not an emergency (the need for an abortion is not immediate), she must get the second opinion. In addition, access to the second physician might be problematic. Per the act, the two physicians cannot be professionally connected, which means the pregnant woman, already in a fragile state, might need to travel in order to receive the second opinion. In the meantime, during such delays, family members—partners, spouses, young children—who depend on the pregnant woman will be negatively affected. Also, as mentioned above, the act does not allow conditions relating to mental health to come under the exception. However, such conditions can still have a detrimental impact on a pregnant woman and her loved ones.

Regardless of where one stands in this debate, the act will undoubtedly impact pregnant women in Tennessee who seek an abortion for various reasons. Proponents of the act question how a doctor or pregnant woman could proceed with a late term abortion, especially when it is proven the fetus could thrive as a human being outside the womb. On the other hand, the act’s opponents argue it infringes on a woman’s constitutional right to decide what is right for her and her body, as well as impedes her ability to do what is best for her family and work with her doctors regarding her health and well-being.

FMLA: Your Rights May Have Been Expanded by the 6th Circuit

Just a few days back, the 6th Circuit Appeals Court made a ruling in the case of Marshall v. Rawling Co. which has the potential to substantially expand your rights under the Family and Medical Leave Act (FMLA).  They did this by expanding the situations in which a company can be liable for taking adverse action against you after you assert your FMLA rights.

The 6th Circuit did this by accepting cat’s paw liability in FMLA claims. Cat’s paw liability refers to a situation where one party uses another to accomplish their purpose. This has the potential to give you a case against an employer for FMLA violations where one previously didn’t exist. I’ve discussed the FMLA, and how to protect your rights under it, in a previous article. So, with that in mind, we’ll focus here on what the FMLA is and how this ruling changes your rights under this act.

What is the FMLA?

The FMLA requires employers to offer their employees at least 12 weeks of unpaid leave every year to take care of a family member. However, like all things in law, it’s not quite so simple as this.  The FMLA doesn’t apply to every employer, every employee, or even every illness. In fact, it only applies to employers with more than 50 employees at a single location. If it applies, then the employer must extend the protections of the FMLA to all their workers who are employed within 75 miles of the place they have 50 or more workers.

FMLAEven if an employer has enough employees to be held to the requirements of the FMLA, an employee has to fulfill certain conditions before the employer must allow them FMLA leave.  Only employees who have worked for at least a year and at least about 25 hours per week for the last year qualify for the leave. What’s more, employees in the top 10% of pay within the 75-mile radius the employer covers are exempted from required coverage under the FMLA. There are also a few other exceptions to the Act such as elected officials.

As you might expect from a statute, the term serious illness is not left up to common sense interpretation. Instead, it is specifically defined as “an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.”  This means that you can’t get leave for check-ups and other routine medical care or for illnesses that come and go quickly like a common chest cold.

Where an employer takes action against an employee because they exercise their rights under the FMLA that can give rise to a retaliation claim against the employer. The Act also allows for employees to sue an employer for interfering with any of their rights under the FMLA in a type of lawsuit aptly named an interference suit.

The Facts of the Marshall Case

Gloria Marshall, an employee of Rawling, suffers from depression, anxiety, and post-traumatic stress disorder.  But to find the time to receive treatment for these mental-health problems, Ms. Marshall took time off from work using FMLA leave.  When Ms. Marshall returned, she had a backlog of work due to her unexpected leave leaving her with unfinished projects when she left.  These combined with the new work assigned to her to leave her overwhelmed.  She requested help with this work and, while Rawling says she received that help, she says they refused.  Other employees in similar positions also testified that basically every employee had a backlog to some extent due to the amount of work assigned to each employee.  While Ms. Marshall eventually cleared this backlog, the Vice President of the company-Jeff Bradshaw-made it clear in emails that he was worried about another backlog arising.

Ms. Marshall was subsequently demoted after Mr. Bradshaw recommended a demotion to her division head Laura Plumley.  This demotion was apparently unrelated to the FMLA leave.  Ms. Marshall continued to take occasional FMLA leave, but apparently excelled in her new position.  Despite this, Bradshaw apparently severely criticized her performance and singled her out at work in embarrassing ways.  At a meeting, Bradshaw made it clear he was disappointed in how often she had taken FMLA leave.  Ms. Marshall eventually reported Mr. Bradshaw’s treatment of her, although she delayed out of fear of being fired. The allegations were reported to the company’s owner George Rawlings, who decided that she was making false reports to cover poor performance and fired her.  Ms. Marshall sued, saying that her firing was retaliation for her FMLA leave.

What Does the Marshall Ruling Mean For Your Rights?

This is where the cat’s paw theory of liability comes into play, and where the 6th Circuit Appeals Court’s decision comes into play. For instance, there have been cases where a company is liable for discriminatory firing where a biased subordinate uses an official decision maker as a sort of a dupe in enacting their own scheme of by asserting their own influence on that decision maker.

The idea behind cat’s paw liability is that the organizational chart of a company doesn’t necessarily reflect the true decision making process.  As in the example above, a decision maker will often rely on the recommendations of others lower on the totem pole or unrelated to the decision-as Ms. Plumley did with Jeff Bradshaw’s recommendation when she demoted Ms. Marshall.  Basically, this decision means that if somebody who doesn’t make the final decision as to your employment status mistreats you based on your FMLA rights you may still have a lawsuit despite the fact that they aren’t the ones taking adverse employment action against you.

The 6th Circuit Appeals Court is not the law over the entirety of the U.S.  However, the decision has the potential to very persuasive in other Circuits and is the law in the states of Michigan, Ohio, Tennessee, and Kentucky.  The case is even more persuasive as many other Circuits have consistently applied cat’s paw liability in other employment contexts such as Title VII discrimination cases.  The exact impact of the case is yet to be seen.  However, there is no question that your FMLA rights just got stronger.