New York State Supreme Court’s Justice Milton A. Tingling’s decision last night in New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dpeartment of Health and Mental Hygiene, to enjoin New York City’s controversial ban on the sale of large sugary beverages should not have been surprising. As Scott Burris has noted here, “the public health side has been getting killed wherever law is made.” Defeats for new public health regulations, especially new regulations that impinge against powerful economic interests, are becoming the norm.
Still, there were some surprising and troubling, from a public health perspective, notes in Justice Tingling’s opinion, which relied heavily on Boreali v. Axelrod, a 1987 opinion by the New York Court of Appeals striking down a ban on indoor smoking, to find that the Department lacked authority to issue the regulation.
According to Justice Tingling, Boreali required the court to consider four factors including whether the regulation was based on matters beyond its stated purpose, and whether the regulation was “created on a clean slate thereby creating its own comprehensive set of rules without the benefit of legislative guidance.” In looking to whether the ban on sugary sodas was based on factors other than its stated purpose, Justice Tingle noted among other things that the Department had cited the “enormous toll” that obesity places on the “economic health” of New Yorkers. To Justice Tingle any regard for the economic consequences of obesity demonstrated that the Department based its regulation “on economic and political concerns” outside the scope of its authority. Thus the very fact that the Department considered the economic consequences of the issue it addressed, a consideration that many scholars would claim is a critical component of sound regulatory policy, helped to doom the ban on large sodas. Would the Court, one wonders, have been more approving of the regulation if the Department had failed to show that obesity had significant economic consequences? Somehow I suspect not.
I was amused but not surprised to read that in announcing her support for expanding Arizona’s Medicaid program, Governor Jan Brewer pointed to the fact that without the expansion, only non-citizens with incomes under the poverty level would be eligible for insurance under the ACA. What Brewer didn’t say, was that the ACA’s apparent preference for non-citizens results from precisely the type of anti-immigrant laws with which Gov. Brewer is usually associated.
In 1996, shortly after California passed the notorious Proposition 187 which denied state public benefits to undocumented immigrants, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act, better known as the Welfare Reform Act. Among other things, this law imposes a 5 year waiting period before most legal permanent residents can enroll in the federal Medicaid program. The law also barred many other immigrants who are lawfully residing within the U.S. from Medicaid altogether.
The ACA did not repeal the provisions in the Welfare Reform Act limiting immigrants’ access to Medicaid. Instead, Congress sought to provide coverage to lawfully residing immigrants by permitting those with incomes under 100% of the Federal Poverty Level to receive subsidies to purchase insurance on the exchanges. Those subsidies were not necessary for citizens with such low incomes because Congress assumed that they would be brought into the Medicaid program.
The Supreme Court’s decision last week to grant cert in AID v. Alliance for Open Society International, demonstrates anew the importance of First Amendment jurisprudence to public health protection. In recent years, it has sometimes seemed as if the First Amendment has become the most significant legal obstacle to effective public health protection through law. In cases such as Lorillard Tobacco, Thompson v. Western States Medical Center (the compounding pharmacy case), and Sorrell v. IMS Health, Inc., the Supreme Court has found that First Amendment protections for commercial speech trump public health protection, a view that the D.C. Circuit seemed to endorse when it ruled last summer in R.J. Reynolds that the graphic warning labels required by the Tobacco Control Act violated the First Amendment Rights of cigarette companies.
Yet sometimes the First Amendment helps to advance the cause of public health, particularly by limiting the reach of laws that are designed to restrict an open and informed approach to sexual and reproductive. US AIDS offers one such example. In that case, plaintiff NGOs challenged a provision in the federal Leadership Act, 22 U.S.C. § 7631(f), that required them to adopt a policy explicitly opposing prostitution in order to receive federal funds available to fight HIV/AIDs, tuberculosis, and malaria. The plaintiffs argued that the Act constituted an unconstitutional condition and violated their First Amendment rights by compelling them to adopt the government’s viewpoint regarding prostitution. The Second Circuit, in an opinion by Judge Parker, concluded that the plaintiffs were likely to prevail on the merits and granted them a preliminary injunction.
Now the Supreme Court will reconsider the issue. Public health advocates are likely to weigh in and argue for the widest possible protection for their own advocacy. In doing so, they might want to keep in mind the threat that the First Amendment poses for public health in other contexts, especially in commercial speech cases. And they will certainly want to think about how they can convince courts to value public health when deciding First Amendment cases. Figuring out how to do that — how to develop a First Amendment jurisprudence that is respectful of public health – just may be the most pressing challenge facing public health lawyers today.
After the November election, President Obama’s executive order implementing parts of the so-called “Dream Act” was widely credited with shoring up his support within the Latino community. Less often noted was his Administration’s decision to exclude the “Dreamers” from the benefits afforded by the Affordable Care Act.
Last August, the Center for Medicare Services (CMS) issued an interim final regulation stating that individuals who benefitted from the President’s program, more formally known as “Deferred Action for Childhood Arrivals” or DACA, would not be considered “lawfully present” for purposes of eligibility to health benefits established by the Affordable Care Act, including the Pre-Existing Condition Insurance Plan and the subsidies and credits that will be available in 2014 to purchase insurance through the health insurance exchanges. Pre-Existing Condition Insurance Plan Program, 77 Fed. Reg. 52614-01 (Aug. 30, 2012) (to be codified 45 C.F.R. § 152.2), http://www.gpo.gov/fdsys/pkg/FR-2012-08-30/html/2012-21519.htm.
The impact of this little noticed determination is quite significant. Although most of the estimated 1.7 million DACA immigrants are healthy, because of their age (under 30), many lack access to employer-provided health insurance. Moreover, if as expected, employers begin to shift their health insurance programs to the ACA-created exchanges, DACA immigrants may find themselves barred from employer-provided plans, even though under the President’s executive order they have a legal right to work in the United States.
The insurance gap created by CMS’ determination that the DACA immigrants are not “lawfully present” in the U.S., a decision that is inconsistent with the Administration’s conclusion that other deferred action recipients are eligible for benefits established under the ACA, illuminates the critical relationship between immigration policy and health policy. To a surprising degree, the health insurance access problem in the U.S. results from laws that bar immigrants (including many with Green Cards) from many government-supported health insurance programs, including Medicaid. In 2010, over 45 % of non-citizens were uninsured, as compared to less than 14 % of native-born Americans. Approximately 65 % of undocumented immigrants are believed to lack health insurance. The ACA is unlikely to reduce those rates, especially regarding undocumented immigrants. Neither, it is now seems, is DACA.