Health Care – Page 7 – Marquette University Law School Faculty Blog

Vaccination Uproar

Post author:Judith G. McMullen
Post published:February 6, 2015
Post category:Family Law Health Care Public

During the past month, the American public has been bombarded with news reports about a continuing measles epidemic, as well as an extensive debate about whether measles vaccinations should be required to stop this epidemic and prevent future ones from developing.

In fact, all states require vaccinations against many contagious diseases, including measles. But there are exceptions, and the exceptions are broader in some states than others. Only a handful of states limit exceptions to medical necessity – for example, a child whose immune system is compromised by chemotherapy should not receive immunizations. Most states allow religious exemptions, so parents who are, for example, Christian Scientists need not vaccinate their children in contravention of their religious beliefs. However, about a third of the states, including Wisconsin, also allow much broader exemptions based on “conscience” or “philosophical reasons.” These broader exemption categories often can be invoked with little or no effort on a parent’s part, such as by checking a box on a form and signing it, and thus have the potential to erode the requirement if enough people choose not to vaccinate.

Supreme Court Roundup Part Three: Harris v. Quinn

Post author:Edward A. Fallone
Post published:November 15, 2014
Post category:Constitutional Interpretation Constitutional Law First Amendment Health Care Labor & Employment Law Public

On October 30, I participated in a presentation entitled “Supreme Court Roundup” with Ilya Shapiro of the Cato Institute. The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society. We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby and Harris v. Quinn. It was a spirited discussion, in which Mr. Shapiro and I presented opposing views, but I want to thank Mr. Shapiro for taking the time to visit the Law School and for sharing his perspective with the students.

This is the third and final blog post on the presentation. Readers can find the first post here, and the second post here. What follows are my prepared remarks on Harris v. Quinn, and also a brief conclusion regarding the three cases. Readers interested in Mr. Shapiro’s position on the case can refer to the amicus brief that he filed on behalf of the Cato Institute.

The case of Harris v. Quinn involved an Illinois law that made home health aides state employees under the Illinois Public Labor Relations Act. As a result of this law, these workers became joint employees of both the private individual who receives the services of the home-health worker and the State of Illinois. The Service Employees International Union (SEIU) represents home health aides under a contract with the State of Illinois and collects mandatory dues from both union and non-union workers, which are called “agency fees.” Persons who have a negative view of organized labor object to agency fees because they compel people to pay money to an organization to which they do not belong. Persons who have a positive view of organized labor support agency fees because they prevent non-union employees from “free riding,” which occurs when non-union employees receive the benefits of union-negotiated employment contracts without contributing to the cost of negotiating them.

Under existing precedent, a government employer who collects agency fees from non-union members does not violate their First Amendment rights because when the government acts as an employer it has a compelling interest in avoiding conflicting demands for wages and employment conditions from competing groups of employees. Abood v. Detroit Board of Education (1977). The plaintiffs in the Harris case wanted to use their lawsuit to overturn the Abood decision, thereby allowing any government employees who are not union members to work for the government without paying agency fees to a public employee union.

Supreme Court Roundup Part Two: Burwell v. Hobby Lobby Stores, Inc.

Post author:Edward A. Fallone
Post published:November 6, 2014
Post category:Business Regulation Constitutional Law Corporate Law First Amendment Health Care Public Religion & Law U.S. Supreme Court

On October 30, I participated in a presentation entitled “Supreme Court Roundup” with Ilya Shapiro of the Cato Institute. The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society. We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby and Harris v. Quinn. It was a spirited discussion, in which Mr. Shapiro and I presented opposing views, but I want to thank Mr. Shapiro for taking the time to visit the Law School and sharing his perspective with the students.

This is the second of three blog posts on the presentation. Readers can find the first post here. What follows are my prepared remarks on Burwell v. Hobby Lobby. Readers interested in Mr. Shapiro’s position on the case can refer to the amicus brief that he filed on behalf of the Cato Institute.

The legal issue in Burwell v. Hobby Lobby Stores can be described simply. Under the provisions of the Affordable Care Act, the Department of Health and Human Services requires employers to provide health insurance plans making contraception available to their female employees at no cost. In the NFIB v. Sebelius decision in 2012, the Supreme Court upheld Congress’ power to pass the Affordable Care Act as an exercise of its taxing power. But even if Congress has the power to pass the law, can a for profit corporation nonetheless avoid following the law by arguing that the contraception provisions burden the corporation’s free exercise of religion in violation of the Religious Freedom Restoration Act (RFRA)?

The rights of the individual shareholders that own the corporation were not at issue. The law does not act on the individuals, and does not require these human beings to do anything. The only legal requirement imposed by the law is imposed on the corporate entity.

So what did Congress intend to do when it passed RFRA in 1993? As I will explain, the Hobby Lobby case presents two opposing views as to what Congress attempted to accomplish by passing that law. The dissent by Justice Ginsburg argues that the intent of RFRA was to create a statutory remedy for burdens on religious expression that adopted the standard for evaluating First Amendment violations prior to the 1990 Employment Division v. Smith case. The majority opinion by Justice Alito argues that by passing RFRA Congress created a statutory remedy that protected more “persons” than the pre-Smith caselaw protected and that granted them greater protections than the pre-Smith caselaw granted.