Ruth Bader Ginsburg on Health Care
Supreme Court Justice (nominated by Pres. Clinton 1993)
ObamaCare is not a tax because it raises no revenue
[On an anti-ObamaCare case ], on the 1st day of oral arguments on March 26, 2012, the Supreme Court heard arguments on the Tax Anti-Injunction Act (AIA). The states argued that the AIA didn't apply because the mandate penalty wasn't a tax, and the AIA
applied to TAXES, not penalties. The federal lawyers argued that the AIA didn't apply in these cases because the mandate penalty wasn't a tax for purposes of the AIA but that is was a tax for Constitutionality purposes.
Ginsburg said: "The AIA
does not apply to penalties that are designed to induce compliance with the law, rather than to raise revenue. And this is not a revenue-raising measure because, if it's successful, nobody will pay the penalty, and there will be no revenue to raise."
For Ginsburg a "revenue-raising measure" was a tax. She said, "This is not a revenue-raising measure." This was precisely the argument we had made in the lower courts about why the government couldn't use the words "tax" & "penalty" interchangeably.
Source: Last Line of Defense, by Ken Cuccinelli, p.126-127
, Feb 12, 2013
ObamaCare's mandate is constitutional under Commerce Clause
In National Federation of Independent Business v. Kathleen Sebelius (Obama's Secretary of Health and Human Services), the Supreme Court upheld most of ObamaCare, including the individual mandate, which requires that most Americans buy health insurance or
pay a fee. The court ruled 5-4 that the individual mandate is constitutional under Congress's taxing authority. The Court also upheld the expansion of Medicaid, the government's health insurance program for low-income Americans, but limited the
provision, saying states will not necessarily lose their funding if they choose not to expand the program.
Opinions: Roberts wrote majority opinion; Ginsburg, Sotomayor; Breyer, and Kagan concurred in part (noting that the
Commerce Clause alone justifies ObamaCare's mandate); Scalia, Kennedy & Alito dissented (on grounds that the individual mandate was unconstitutional); Thomas separately dissented (on grounds that the Commerce Clause is interpreted too broadly).
Source: InfoPlease.com on 2012 SCOTUS docket #11-393/398/400
, Jun 28, 2012
Cutting federal Medicaid funds hurts recipients, not states
Justice Ginsburg stated that the remedy of the federal government cutting off all funds is "a very drastic remedy that's going to hurt the people that Medicaid was meant to benefit."
In regards to a Medicaid statute enabling the federal government to sanction states that do not comply with federal rules, by cutting off federal Medicaid funds.
Source: National Senior Citizens Law Center website, "ACS Blog"
, Oct 4, 2011
Waiting to decide on ObamaCare will provide better decision
"The court itself is a reactive institution, we don't decide. We wait until the case goes through the ordinary route. That is something that many people don't understand. We have no agenda on the court. We just react to petitions that are presented to
"We do so much better when we have the views of other federal judges who are certainly no less qualified than we are," she said. "Then we have the range of views before us and we can make a better informed decision."
Source: Julie Moos on Huffington Post, "Ginsburg Expects"
, Feb 13, 2011
Allow states to restrict cigarette ads beyond federal rules
The Supreme Court handed the tobacco industry a major victory over state efforts to restrict tobacco advertising, striking down Massachusetts regulations that would have banned such advertising near playgrounds and schools. Massachusetts had argued that
the rules were necessary to prevent tobacco makers from inducing children to try a highly addictive and hazardous substance. But the court, dividing 5 to 4, agreed with the industry that the state could not adopt restrictions on top of those imposed by
federal law. In addition, the court said, the rules infringed on freedom of speech.
The court’s decision effectively prevents state and local governments from unilaterally adding regulations on cigarette advertising, as many have attempted to do in
recent years. Justice O’Connor wrote-with Rehnquist, Scalia, Kennedy, and Thomas concurring-that federal law “places limits on policy choices available to the States.” The cases are Lorillard v. Reilly, 00-596, and Altadis USA v. Reilly, 00-597.
Source: Charles Lane, Washington Post, p. A1 on 2001 SCOTUS
, Jun 29, 2001
States have authority to protect patient rights.
Justice Ginsburg joined the Court's decision on Rush Prudential HMO v. Moran on Jun 20, 2002:
Petitioner Rush Prudential HMO, Inc. provides medical services for employee welfare benefits plans covered by the Employee Retirement Income Security Act (ERISA), denied respondent Moran's request to have surgery on the ground that the procedure was not medically necessary. Moran made a written demand for an independent medical review of her claim, as guaranteed by Illinois' HMO Act. Rush refused her demand
HELD: Delivered by Souter, joined by Stevens, O'Connor, Ginsburg, BreyerIn 5-4 decision, justices uphold Illinois state law that requires health maintenance organizations to provide for independent review in disputed cases where physician-prescribed treatment is being denied by HMO. Although Congress has yet to enact a patients' bill of rights that would include the right to independent review, 42 states and the District of Columbia currently have medical review laws. Congress has long recognized that HMOs are risk-bearing organizations subject to state regulation.
Finally, allowing States to regulate the insurance aspects of HMOs will not interfere with the desire of Congress for uniform national standards under ERISA.
DISSENT: Dissent by Thomas, joined by Rehnquist, Scalia, KennedyThis Court has repeatedly recognized that ERISA's civil enforcement provision provides the exclusive vehicle for actions asserting a claim for benefits under health plans governed by ERISA, and therefore that state laws that create additional remedies are pre-empted. Such exclusivity of remedies is necessary to further Congress' interest in establishing a uniform federal law of employee benefits so that employers are encouraged to provide benefits to their employees. Independent review provisions could create a disincentive to the formation of employee health benefit plans. This is a judgment that must be made by Congress. I respectfully dissent.
Source: Supreme Court case 02-MORAN argued on Jan 16, 2002
States decide insurance issues, not federal government.
Justice Ginsburg wrote the Court's decision on Empire HealthChoice Assurance v. McVeigh on Jun 15, 2006:
A 5-4 Court decided that federal jurisdiction does not extend to controversies over insurance contracts under the Federal Employees Health Benefits Act. Thus, state courts are the proper venue for contract disputes arising between federal employees and insurance companies, which may result in inconsistent outcomes across states.
Empire Healthchoice Assurance sued the estate of a deceased federal employee who received $157,000 in insurance benefits as the result of an injury. The wife of this federal employee had won $3.2 million in a separate lawsuit; Empire Healthchoice claimed reimbursement because the beneficiary was compensated for the same injury by a third party.
Ginsburg, joined by Roberts, Stevens, Scalia, and ThomasThe Court ruled that under the Federal Employees Health Benefits Act, state courts, not federal courts, are the proper forum for a contracts lawsuit by a plan administrator seeking reimbursement for medical costs. Empire, the Court ruled, had not demonstrated a "significant conflict between an identifiable federal policy or interest and the operation of state law."
DISSENT: Breyer, joined by Kennedy, Souter, and AlitoThe dissenting opinion asserted that the dispute should have been deliberated at the federal level because, in part, "there is little about this case that is not federal."
ORIGINAL HOLDING: SotomayorJudge Sotomayor, then on the Second Circuit prior to her Supreme Court nomination, found no federal jurisdiction because Empire failed to show that New York state law "significantly conflicts" with federal interests. The Supreme Court affirmed Sotomayor's decision.
Source: Supreme Court case 06-MCVEIGH argued on Apr 25, 2006
Congress did not intend disparate result on generic drugs.
Justice Ginsburg joined the concurrence on PLIVA v. MENSING on Jun 23, 2011:
Plaintiffs were prescribed a brand name drug for which pharmacists substituted a generic drug, which the FDA had approved under the process federal law authorized for generics. Plaintiffs were diagnosed with a disorder linked to the extended use of the drug. They filed state tort law claims against the manufacturers of the generics, alleging failures to label their products with a warning of known risks. The generics carried the same warnings as the brand name and, the manufacturers argued, since federal regulations required the generics to have the same warnings as the brand name, compliance with a state law requiring different warnings was impossible.
HELD: Delivered by Thomas; joined by Roberts, Scalia, Kennedy & AlitoGeneric manufacturers were forbidden to change unilaterally the label warning of the drug. Plaintiffs argued that the manufacturers could have complied with both state and federal law by following the process federal regulations set out of proposing
stronger warnings to the FDA (which they did not), after which the FDA might have decided to negotiate a label change with the brand name manufacturer that the generic manufacturers would have been required to adopt. The Court found that
was not enough to comply with state law requiring a stronger warning. Federal and state laws conflict when it is impossible to do what both laws require. It was impossible for the generic manufacturers to comply with both laws. Since federal law preempts conflicting state law, the manufacturers may not be sued on these state law claims.
- state law required a stronger warning
- federal law prohibited a stronger warning, and
- requesting the FDA to authorize a stronger warning
DISSENT: Sotomayor dissents; joined by Ginsburg, Breyer & KaganCongress could not have intended the result that brand name drug consumers may sue manufacturers for failure to warn, while the much larger class of generic drug consumers may not.
Source: Supreme Court case 11-PLIVA argued on Mar 30, 2011
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