Archive for the 'Health Care' Category

Alabama Abortion Law Ruled Too Restrictive to be Constitutional

Defining the constitutional outer limits of abortion law has been one of the hardest fought battles in the history of law. To be frank it is a battle that continues to be fought throughout the nation. As the makeup of the Supreme Court shifts, it is one of the topics that is most keenly considered in selecting Justices. This is in large part due to the sheer number of laws on the issue coming out of or being considered by legislatures in the many states. This has been especially true in the last decade or so as states have taken increasingly hostile stances towards the practice-of the slightly over a thousand abortion restrictions made into law around 300 of them have come between 2010 and 2016.

Alabama has had a healthy share of these restrictions over time. In fact, it’s one of the most restrictive states in the country. As of now, Alabama laws require a woman to receive state-directed counseling and wait 48 hours before receiving an abortion, some means of abortion common elsewhere are restricted, public funding and health care for abortion is allowed only in cases of rape, incest, or when a woman’s life is in danger, a woman must undergo and ultrasound and be asked if she wants to see it before receiving an abortion, also abortions may only be performed up to 22 weeks after the woman’s last menstrual period. Also, if you’re a minor, you need to receive parental consent before you can receive an abortion.

Up until recently, the rules for minors didn’t end there. As part of their parental consent rule, Alabama includes a judicial bypass clause. This is required for such a restriction to be constitutional and basically means that a minor whose parents won’t consent can turn to the courts to rule that she is or isn’t mature enough to decide for herself whether she should get an abortion or whether an abortion is in her best interests as a minor. Alabama, however, went a little further to complicate this process for minors. In 2014, Alabama added an additional provision to the law–unique to Alabama–which added a sort of mini-trial to the proceedings. The new law added two extra hoops for these minors, and they were some serious hoops. First, a judge can appoint a guardian ad litem for the fetus–essentially a party whose job was to advocate for the fetus (sort of like a fetus lawyer) in all proceedings regarding a judicial bypass. Second, it required the local district attorney to be involved in the proceedings and allowed them to bring witnesses to the hearing to question the girl’s maturity. This basically meant that a girl’s friends, family, therapist, preacher–basically anybody connected to her–could be called as a character witness to one of her most vulnerable times.

alabama_abortion_lawFortunately, last week a federal judge struck down these additional provisions as unconstitutional. To understand why, let’s look at the case, the logic behind the act itself, and the constitutional law governing the type of abortion restrictions that a state can impose.

The Reasoning Behind the Ruling

The state’s argument behind the law was that it was designed to create a confidential and meaningful inquiry into a minor’s maturity when seeking an abortion without parental consent. However the ACLU, on the other side, said that the law did anything but. They argued that the teens seeking judicial bypass were subject to much less confidentiality than before under the law. The DA could call witnesses including anybody from a girl’s teacher to their boyfriend to the parents which refused to consent in the first place.

Ultimately, the actual legality of the law depended on whether the law was overly burdensome to the minors seeking an abortion. Under Roe v. Wade, a woman has a constitutional right to receive abortions. However, this is far from an absolute right under the current law. Just looking at the laundry list of restrictions on the practice in Alabama it’s obvious that there are some restrictions that can pass constitutional muster. The legal analysis for determining whether a restriction on access to abortion is constitutional was determined in 1992 in Planned Parenthood v. Casey. The Supreme Court held that a regulation is not constitutional when it creates a “substantial obstacle” to a woman receiving an abortion. This is not the most helpful of standards on its face, leaving a lot of room for interpretation. Fortunately, we’ve had some more clarification when it comes to parental consent rules.

To be acceptable, a parental consent law must include a judicial bypass which is effective, confidential, and expeditious. Useful, private and quick. Alabama’s law made their bypass none of these things. The judge in this case specifically noted that the many witnesses called ruined any potential chance of anonymity. The proceedings and appeals from the DA also made the hearings much longer than reasonable.

Under Supreme Court rulings, a judicial bypass must only consider whether a minor is mature and whether the abortion is in her best interest. Under Alabama’s act, the interests of the state, the parents, and even the fetus would have to be considered as well. This by itself would have been enough for the court to find Alabama’s law unconstitutional.

Tragic Circumstances Part of the Ruling

The law saw some seriously horrifying uses which certainly contributed to the judge’s ruling. The judge in this case noted one case in her ruling itself. Be warned before reading on that the circumstances of this case are incredibly disturbing. In the case cited by the judge, a 12-year-old girl was raped by a male relative-resulting in a pregnancy. The girl did not know her father and the rape occurred under the watch of her mother. In seeking judicial bypass to receive an abortion, she faced the full force of the DA’s office in opposing her access to the abortion. This led to an enormous amount of legal opposition to her motion that substantially delayed the proceedings. While the initial trial court granted her bypass, the DA even appealed this decision. While the minor ultimately won this appeal, the court noted how obstructive and intrusive this process was in reaching their decision.

There’s no doubt that the application and use of the law, acting as an enormous roadblock to vulnerable minors in terrible circumstances, was partially behind the ruling of the court and rightfully so. Abortion law is something that is highly vulnerable to change in the upcoming years, a more conservative Supreme Court could lead to limitations on a woman’s reproductive rights. However, as it stands, laws like Alabama’s are clearly unconstitutional. In fact, no court has ever found an adversarial process added to a judicial bypass constitutional. The judge here did the right thing, both under the law and in acting in the best interests of children in terrible circumstances.

Medical Marijuana Use by Off-Duty Employees with Disabilities are Now Protected in Massachusetts

As marijuana has become legalized in more and more areas and manners, more and more rulings have come out saying that this still doesn’t mean an employer can’t fire you for using marijuana. We’ve talked at length about this phenomenon and what it means for you in the past-in fact we’ve dealt with the overruled lower court’s approach to this very same case. The trend in rulings, allowing employers to punish medically prescribe, legalized, behavior done when not at duty for work is a bit of an odd trend. You can imagine the uproar if courts took a similar approach to off-duty drinking of alcohol which doesn’t impact on-duty performance-never mind off-duty use of a prescribed medication.

However, just this last week the Massachusetts Supreme Court has taken a huge step as far as protecting Massachusetts employees based on medical marijuana use. They ruled it was handicap discrimination to fire a woman for using medical marijuana to combat low appetite resulting from Crohn’s disease. Let’s take a look at the facts in this legal first and what exactly the ruling means for the rights of Massachusetts employees and in a broader context.

medical marijuanaThe Firing of Ms. Barbuto

The case deals with one Ms. Cristina Barbuto, a women suffering from Crohn’s disease-an incurable ailment affecting the lining of the digestive tract . Crohn’s causes extreme intestinal discomfort, weight loss, fatigue, and other painful symptoms. As a result of her Crohn’s, Ms. Barbuto had serious appetite issues-losing dangerous levels of weight. She was eventually prescribed medical marijuana for her appetite and was able to once again reach a healthy weight.

Ms. Barbuto was offered a job with a company called Advantage Sales Marketing (ASM). The caveat to this job offer was that she needed to get and pass a drug test. Ms. Barbuto told them she was a legally prescribed medical marijuana patient and that the test would come back positive. She explained the details of her Crohn’s and also told them that her marijuana use was not daily, nor would she use it before or at work. Her typical use was low doses in the evening to improve her appetite before dinner.

The person from ASM told Ms. Barbuto that her marijuana use was unlikely to be an issue but that she would check and follow-up. After follow-up, the same person from ASM confirmed it wouldn’t be an issue.

Ms. Barbuto reported to her first day of work, worked a day without incident, then was contacted by HR and fired her for failing her drug test. When she mentioned she was legally prescribed the medical marijuana she was told that ASM “follow[s] federal law, not state law.” She then sued ASM for handicap discrimination.

The Ruling of the Court

Under Massachusetts law, and in general, it is illegal to fire or refuse to hire a handicapped person because of that handicap so long as they can perform the essential functions of the job in question if the employer makes reasonable accommodations for their handicap. A reasonable accommodation is basically any accommodation that does not cause undue hardship to the employer-usually by being extraordinarily expensive or difficult to accomplish. Once somebody establishes that they have a valid handicap it’s on the employer to prove that accommodations would be unduly difficult.

Under Massachusetts law, Crohn’s disease is explicitly included as a dehabilitating medical condition qualifying one for medical marijuana use. Thus, the Massachusetts Supreme Court felt it was pretty clear that Ms. Barbuto had a valid handicap.

ASM argued that a reasonable accommodation can’t exist because marijuana use of any type is a federal crime. This is a stance that has been successful in a number of states including California and Colorado. However, the Massachusetts Supreme Court felt that even if their drug policy forbids marijuana, ASM had to at least help the handicapped employee find an equally effective medical alternative. This process is a mandatory part of making reasonable accommodations for a Massachusetts employer. Where no equally effective alternative exists, the employer has to prove that the use of the forbidden medication-in this case marijuana-would cause them undue hardship before they can ban the medicine without committing handicap discrimination.

ASM’s argument essentially boiled down to saying federally illegal means the accommodation must be unreasonable and they don’t need to find alternatives. This most recent ruling reversed lower rulings and said no on both counts. The act legalizing medical marijuana in Massachusetts specifically says that patients can’t be denied any right or privilege due to the nature of their medicine. While the act doesn’t require accommodation of using marijuana on the job, partially because federal law specifically punishes businesses which allow drug use during work hours, this wasn’t an issue here as all use was done off-duty.  What’s more, the Court here ruled that the existence of a restriction on on-duty use implicitly allowed for off-duty use.

The Rulings Impact and the Larger Context

The Massachusetts Supreme Court has reversed the lower court and provided protection for off-duty use by employees legally prescribed medical marijuana. However, it’s important to note how specific the ruling is. Any use on-duty is clearly not protected and it is even arguable that if an employer offers to help find alternative medication they are still free to ban medical marijuana outright. Recreational marijuana use is obviously still completely unprotected, legalized or not and off-duty or not.

The ruling bucks the trend towards non-protection, but Massachusetts isn’t the first state to take steps towards protecting medical marijuana use by employees. Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, and Nevada all protect such use to at least some degree-requiring employers to accommodate use. As marijuana legalization continues to spread at the state level-the Massachusetts Supreme Court noted in their ruling that almost 90% of states have legalized medical marijuana at this point-this tension will continue to grow. If marijuana becomes as commonly legalized as alcohol, questions will certainly start to arise over whether an employer would be able to regulate an employee’s off-duty drinking. The law around marijuana is frankly incredibly unstable as long as it remains federally illegal. For now, the laws will have to keep evolving as a patchwork of inconsistent state law.

Tennessee Inmates Given Reduced Jail Time If They Get Birth Control

If you were convicted of a drug crime, would you choose between jail time and the ability to have children? This might seem a faux choice, but this is the choice that repetitive criminal defendants in White County, Tennessee face. On May 15, 2017, Judge Sam Benningfield signed an order allowing inmates to receive 30 days credit towards jail time if they would agree to undergo a birth control procedure. Women could “volunteer” for a free Nexplanon implant while men can “volunteer” for a free Vasectomy, a procedure which surgically prevents men from releasing sperm.

Judge Benningfield justifies the option by saying: “I hope to encourage them to take personal responsibility and give them a chance, when they do get out, to not to be burdened with children. This gives them a chance to get on their feet and make something of themselves.” District Attorneys and the ACLU have voiced their objections to what they see as an immoral and potentially illegal choice.

The Dark Past of Compulsive Birth Control

Judge Benninfield is not the first judge to suggest that inmates might be subjected to birth control. In 1927, the Supreme Court legalized compulsory sterilization of the unfit; particularly people deemed “intellectually unfit,” i.e. the mentally ill and those considered retarded. The Buck case opened the door for eugenics and forced sterilization in the United States. Before Buck, only California permitted forced sterilization. Afterwards, many states began legalizing sterilization on prisoners. The practice lost support after Nazi Germany revealed where this line of thinking ended. Subsequently, in 1942, the Supreme Court ruled that a law requiring forced sterilization violated the 14th amendment because it excluded white-collar crimes. However, the original 1927 case which permits legal sterilization was not officially overturned and thus remains “good law” today.

Tennessee’s law is more merciful than the original sterilization laws of the 1920’s and 1930’s. Defendants have a choice of staying in jail for another month or getting out early if they agree to a birth control procedure, a far cry from the forced sterilization which occurred last century. The rationale is also different; where the eugenics of the 20th century believed that crime was in the genes, Judge Benninfield believes birth control would allow defendants to build a stable life without the burden of children that impulsive sex might create.

tennesseeThe Option of Sterilization is Still Outside the Bounds of the Constitution

Despite these differences though, Judge Benninfield’s practices should not be legal. First, why are drug crimes singled out? The 1942 Skinner case struck down a law for an Equal Protections violation because it excluded white-collar crimes. The same logic could be applied here; why are drug crime defendants given this preferential option when sex criminals are not? Although Judge Benninfield’s logic is not based on eugenics and genes like the sterilization proponents of last century, the Judge’s logic seems rooted in assumptions about drug crime defendants. Benninfield’s experience in the courtroom might lend itself to the conclusion that drug users will have babies they cannot take care of, but it is hardly an established fact that an entire county can base public policy on.

Second, the state should not promoting a “choice” where a citizen can lose a fundamental right. A choice implies free will, but if the defendants face jail time, free will is probably already removed from the equation. After Griswold and Roe vs. Wade, privacy and reproduction were established as fundamental rights. Citizens cannot be forced to choose between additional jail time and losing a fundamental right. Even if Judge Benninfield doesn’t believe there is any coercion here, the mere perception of state coercion ought to be enough to shut this program down. This is not to say that a defendant who is older and does understand the consequences of

Third, it is not a judge’s responsibility to instill personal responsibility in a defendant. Judges are not life coaches. Judges are supposed to apply the law to a case and then determine whether the law is being complied with. Everything else is potentially legislating and should be left to the actual legislatures. Even if it were part of a judge’s role to promote personal responsibility, offering state sanctioned birth control is not a form of personal responsibility. Personal responsibility, in part, means accepting the consequences of your actions. Shrinking jail time or not having a child after unprotected sex is skirting personal responsibility, not promotion of personal responsibility.

Why Are the Guys Given More Severe Birth Control?

There is also an equal protection issue based on sex. While women are given Nexplanon, men undergo a Vasectomy. For those not well-versed in birth control procedures, Nexplanon is a type of hormone inserted in a woman’s arm that creates a wall around the woman’s eggs, preventing sperm from entering the egg. Nexplanon is good for about four years, when the effects expire.

Vasectomy, on the other hand, is a surgical procedure where a vessel near a man’s testicle is surgically cut, thereby preventing the man from releasing sperm when he has an erection. Vasectomy is considered permanent birth control, although there are some procedures which can reverse it. An appeal court should ask, why are women given a temporary form of birth control while the men are subject to a more permanent one? There is no reasonable justification why one sex is given a more permanent form of birth control when the crimes are all similar.  Although the differences between male and female bodies might demand different types of birth control, one sex should not be subjected to a more permanent form then the other sex.

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.