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Full-Text Articles in Law
With Liberty And Access For Some: The Aca's Disconnect For Women's Health, Nicole Huberfeld
With Liberty And Access For Some: The Aca's Disconnect For Women's Health, Nicole Huberfeld
Law Faculty Scholarly Articles
This Article will scrutinize the separation of abortion from other aspects of women's health through the vehicle of the Patient Protection and Affordable Care Act (ACA). Part I will examine briefly why the fragmented nature of American healthcare has facilitated the separation of abortion from women's health, despite the fact that abortion is a medically necessary procedure for many women. To that end, this Part will explore the disjointed history of access to medicine juxtaposed against the strangely non-woman-centric nature of the fundamental rights at play in reproductive health. Part II will provide an overview of the ACA to explain …
Does The Individual Mandate Coerce?, Raphael Boleslavsky, Sergio J. Campos
Does The Individual Mandate Coerce?, Raphael Boleslavsky, Sergio J. Campos
Articles
The Patient Protection and Affordable Care Act includes an individual mandate that penalizes individuals who do not purchase health insurance. Critics of the individual mandate, including a majority of justices on the Supreme Court, contend that Congress cannot use its Commerce Clause power to coerce individuals to buy a product. Supporters concede that the mandate coerces but argue that it is otherwise permissible under the Commerce Clause. This article questions whether the individual mandate coerces. It uses a simple economic model to show that, under certain conditions, the individual mandate induces insurers to sell health insurance at a price each …
Plunging Into Endless Difficulties: Medicaid And Coercion In National Federation Of Independent Business V. Sebelius, Nicole Huberfeld, Elizabeth Weeks Leonard, Kevin Outterson
Plunging Into Endless Difficulties: Medicaid And Coercion In National Federation Of Independent Business V. Sebelius, Nicole Huberfeld, Elizabeth Weeks Leonard, Kevin Outterson
Law Faculty Scholarly Articles
Until the 2011 Term, no Supreme Court decision since the New Deal had struck down an act of Congress as exceeding the federal spending power. The question of unconstitutionally coercive conditions was also novel. Indeed, no federal court had ever found any legislation to be an unconstitutionally coercive exercise of the spending power until the Court decided National Federation of Independent Business v. Sebelius (NFIB) on June 28, 2012. This Article proceeds as follows: Part I discusses the Affordable Care Act's Medicaid expansion in the context of the history and purpose of the Medicaid Act, paying particular attention to facts …
Where There Is A Right, There Must Be A Remedy (Even In Medicaid), Nicole Huberfeld
Where There Is A Right, There Must Be A Remedy (Even In Medicaid), Nicole Huberfeld
Law Faculty Scholarly Articles
This Article will explore the power struggle that Medicaid invites and its potential elevation due to the pressures that will follow the Patient Protection and Affordable Care Act’s (ACA) expansion. Part I of this Article will describe the three phases of private enforcement litigation and how they have affected Medicaid reimbursement rates. This Part also will highlight the deceptive stability that has taken root in the lower federal courts by describing the recent state attempts to end private enforcement actions. The first Part will conclude by briefly considering the nature of the federalism arguments that states are making. Part II …
The Contraception Mandate, Caroline Mala Corbin
The Contraception Mandate, Caroline Mala Corbin
Articles
Under the new health care regime, health insurance plans must cover contraception. While religious employers are exempt from this requirement, religiously affiliated employers are not. Several have sued, claiming that the "contraception mandate" violates the Free Exercise Clause, the Free Speech Clause, and the Religious Freedom Restoration Act. This Essay explains why the contraception mandate violates none of them.
The Individual Mandate's Due Process Legality: A Kantian Explanation, And Why It Matters, Peter Brandon Bayer
The Individual Mandate's Due Process Legality: A Kantian Explanation, And Why It Matters, Peter Brandon Bayer
Scholarly Works
In National Federation of Independent Business v. Sebelius, one of the most controversial decisions of this young century, an intensely divided Supreme Court upheld the Patient Protection and Affordable Care Act's most provocative feature-the Individual Mandate-under Congress's taxing power. In so doing, the Court rejected what appeared to be the Individual Mandate's more applicable constitutional premise-Congress's authority to regulate interstate commerce. Yet, neither the Constitution's Taxing Clause nor its Commerce Clause provide the ultimate answer as to whether Congress may regulate the multi-billion dollar healthcare market by compelling unwilling persons to buy private health insurance. The final determination of the …
An Optimist's Take On The Decline Of Small-Employer Health Insurance, Allison K. Hoffman
An Optimist's Take On The Decline Of Small-Employer Health Insurance, Allison K. Hoffman
All Faculty Scholarship
In their Article, Saving Small-Employer Health Insurance, Amy Monahan and Dan Schwarcz contend that the Patient Protection and Affordable Care Act (“ACA”) could be the death of small-group health insurance by incentivizing many small employers not to offer coverage. While their prediction that the ACA, after implemented, will destabilize the small-group insurance market may prove true, I argue why their prescription that it should be saved is flawed and why we may be better off without small group insurance.