Obamacare Threatened Again

that ruling. O'Connor's latest decision kicks off a case that could also wind up at the Supreme Court and has financial implications for some one hundred fifty million Americans on employer sponsored health plans. Here's White House Press Secretary Karine Jean Pierre, it's yet another attack on the ability of Americans to make their own healthcare choices. Efforts to undermine us requirement are wrong, and they take us backwards, not forwards.

Joining me, as Lawrence Gostin, Faculty director of the O'Neill Institute for a New National and Global Health Law at Georgetown University, tell us about this decision, what kinds of services it affects. It affects a whole host of highly effective prevention services. These include things like cancer screening, pregnancy care,

they involve HIV medications, datons, hypertension screening. Basically, anything that a patient would go to the hospital for what to their doctor for to prevent disease that has very high cost benefit ratio would be on the chopping block. So this is really serious. Of all of the attempts to dismantle the Affordable Care Act, and basically it's had eight trips to the United States Supreme Court, which is unprecedented,

almost one hundred attempts to repeal it. And now this Wou've got the most important part of the Affordable Care Act, which is prevention. And it's important to mention that prevention is mentioned more than two hundred times in the Affordable Care Act. That's the heart and soul of this law. And here we've got a very conservative judge, known hostile to the AA, who's in the past struck the whole law down, only to be overturned, issuing a nationwide injunction

against preventive care services. So does this potentially affect not just people who get insurance through Obamacare but all Americans with private healthcare coverage. Yes, it includes most people with private health insurance, and that private health insurance. Now, I don't anticipate that insurers will stop covering these, but I do anticipate that many of them, not at all, will

charge a hefty co pay or deductible. And that may not affect the richest people, but we know that for low and working class Americans, they will stay away from their doctor if they have to pay for these prevention services. Was this legal challenge brought on religious grounds, because I don't see what all these preventive care services have to

do with religion. They were brought on two grounds. One was that the United States Preventative Services Task Force was not duly authorized, appointed by the President, ratified by the Senate, and doesn't have enough oversight by the Secretary for the Department of Health and Human Services. And the judge role that the United States Preventative Service, this task Force, which recommends these cost free prevention services, that have violated the

Constitution's appointments clause. And then there was a separate claim saying that pre exposure prophylaxis known as PREP that actually reduces the risk of HIV from sexual transmission by nearly ninety nine percent and from indirection jug used by at least seventy four percent, But that violates religious freedom because somehow they would be complicit in encouraging behaviors like homosexual behavior or drug injunction behavior that they don't agree with, which,

of course is as a horrible slippery slope if applied to all healthcare services. Judge O'Connor's reasoning in other opinions has been ridiculed. I mean, what is he basing this on. Do you think that this has any staying power? I think it's a very weakly reason opinion, And ordinarily I would just say, well, don't worry about it. It'll be

overturned on appeal. But that's far from certain that this will happen, because it's going to a very conservative court of appeal, the Fifth Circuit, and it's also going to the Supreme Court, possibly maybe likely, And both the Fifth Circuit and the Supreme Court has been increasingly sympathetic to religious freedom claims, and they've also been quite aggressive in attempts to clawback public health and safety authorities and the

administrative state. And so while perhaps the appointment's clause would not fare well with the Supreme Court, it could be widened to the non delegation doctrine, where there's considerable support in the Court saying that, you know, Congress didn't delegate sufficient criteria for the task force to make its decisions, But in view, it did because it basically told this task course to use science and the best available evidence.

And after all, what more would the American public or Congress expect to make decisions about which services to provide no cost, but how effective they are and what the evidence is for them. So this seems to me something that I'm worried about for in its appeal. It could be devastating for the Affordable Care Act and for the help of the American population. But I'm not one hundred percent certain that a very conservative judiciary is going to

be sympathetic to the Affordable Care Act. The Supreme Court has grappled with the Affordable Care Act before and refuse to strike it down. Do you think the composition of the current court is so different that is concerned. Yes, the composition of the Court is very different. I mean, you're remember, in the most consequential, the very first attempt to overturn the ACA, it was saved by the Chief Justice.

But the Chief Justice is no longer in the majority of the Court, and there are at least five justices that seem to be emboldened and don't really have the same level of respect for the institution of the Supreme Court as as Chief Justice Roberts has. So they've spent the last term and the current possibly decisions coming up that really dismantle the administrative state, from public health and

safety in COVID rules through to the environment. And so I think we should not take for granted that the ACA is saved and will be saved. And particularly it would be a great tragedy if, of all of the various attempts to dismantle and weaken the Affordable Care Act, if the heart of the Act, which is prevention, were to suffer this kind of blow. And remember, prevention is

really cost effective. It's cheap, it prevents just for example, it's splashed cervical cancer rates by something like seventy five. It's prevented tens of thousands of HIV infections. It's help people survive from high blood pressure and cardiovascular problems, women with cervical cancer or breast cancer. These are really fundamental services that Americans rely on. Wouldn't insurance companies want to keep those services to prevent higher costs down the road.

You would think so, and that's why I think it's very possible that insurance companies will continue to cover for them. But they may very well, many of them is not. Most of them charge large co pays and deductibles, which will persuade particularly poor and working class Americans from seeking

these kinds of cost effective preventive services. You know, being an insurer in the United States today is that as a risky game because people keep changing their insurance and so, yes, it may be that if somebody was going to stay with an insurance company for their whole life, that it would be better to do prevention. But if an insurer pace for prevention and then somebody goes to another insurance company and they benefit, the math doesn't figure for those

insurance companies. Before the ACA, all I can say is that there were many insurers that did not cover these preventive cares, these preventive screenings, and most them charge significant copes and deductibles. We may see a return of that, and you know, it's possible that you know, tomorrow or next week or next month, a woman will go for a PAP snear or breast cancer screening, or a man will go for a prostate cancer screening enough fun that

it's not covered. So what I find a little bit confusing is that, you know, the Republicans were out to get Obamacare right for lack of a better word, and it proved to be so popular across the nation. So why are they still attacking it? I mean, it's it's a really popular program. It is. There is a total disconnect in your question is absolutely well taken. You would think after all of twelve years of the Affordable Care Act, it's almost unfashionable to think that it's still being attacked.

It is widely popular, but there are still you know, deeply conservative pockets of opinion, their minorities, deeply religious opinion again their minorities. But it only takes you know, one person, one business to bring a lawsuit, and it only takes one judged issue a nationwide injunction, and then the rest of it is a lottery. We don't know what the appellate courts are going to do or what the Supreme

Court is going to do. And we've seen in just this last term some real significant inroads into the administrative state. This is not the same Supreme Court that we you know, saw in the heyday of the Roberts Court, where there was a certain balance where there was caring about the institution itself and not straying too far off of its lane. We're not seeing that now, and that's why I think

every American needs to be concerned. The Biden administration has said it's going to appeal this, and I take it a lask for the injunction issued by this judge O'Connor to be stayed. Is the Fifth Circuit likely to grant that? I think it's possible that the Fifth Circuit would grant it.

If it didn't it, I think it would be a huge overreach, because you know, given the fact that you've got a law that's been in place for twelve years, that these services are so widely embraced by the American public, that they're so cost effective, that you would think that until it could be a thorough review of the merits, that they would stay it. So I think it's possible that that will happen. I'm just not convinced about what the Fifth Circule will do when it decides on the merits.

This opinion. Whether it's because of the day it came out in the midst of all the Trump news, but it didn't get that much attention. And I'm wondering if it's because people have become inured to these attacks on Obamacare and they just think, oh, another attack, it'll be fine.

I think that's part of it, you know. But you know, I can tell you that I had an op ed due to run in a very major news outlet, and they told it because like it or not, former President Trump seems to suck all of the air out of the room. That was part of it. I think part of it is just fatigue with the attacks on the Affordable Care Act and just assumption that everything will be all right. But also there was this huge bombshell for American democracy that seemed to have crowded out a lot

of the discussion. We assume it it's going to go up to the Supreme Court. How long will it take? It depends on how long was this circuit takes and whether there's been expedited appeal. I mean, I think it's possible that it could happen within months up to the court, especially if you have at stake something so consequential to the health and safety of the American population. We're not

talking about something trivial. Here we're talking about something that will cost lives, and it could cost a lot of lives. And again, this is from one judge in Texas. We've seen this time and again. How one judge in Texas issues a nationwide injunction. Yeah, that affects us all. Yeah,

it's it's remarkable. I mean, one judge in Texas. Another example is that you know, the CDC issued a mask mandate for airplane travel, and one judge in the middle of Florida issues a nationwide injunction and pull the whole plug on it, and we still haven't had an appeal on it, decision on appeal. So yeah, this, you know, we really shouldn't have a single conservative or liberal judge be making national policy that has such consequence for the

American population. It's just simply wrong. And I think the American public should really recall, recoil in horror at the fact that you know, one conservative lay judge in the middle of the country can take down in the entire edifice of preventive healthcare in America. And we're waiting for a judge in Amarillo, Texas, Matthew Kesmark, to see whether or not he's going to issue a nationwide injunction against the abortion pill and basically overrule what the FDA he

decided decades ago. Absolutely, I'm keeping a closed eye on that. And you've got a you know, an FDA approved medication more than fifty percent of all abortions or through that abortion medication. There's another example of or a single federal judge with the health of American women hang in the balance because of one judge. It just it defies common sense. Yeah, they've gone from forum shopping to judge shopping, looking for specific judges to bring these cases too. Thanks so much, Lawrence.

That's Lawrence Gosten, Faculty director of the O'Neill Institute for National and Global Health Law at Georgetown University. Prepaid call from odd Non. Sayed's case became famous and suspect because of the twenty fourteen podcast serial. Then last September, Sayed walked out of prison to serving twenty three years for

the murder of his former high school girlfriend. It seemed like the case was over in October when prosecutors dropped the charges against him, saying DNA evidence had excluded him. But then last week, the Appellate Court of Maryland reinstated Sayed's conviction. The reason the victim's family hadn't received enough notice of the September hearing where Sayed won his release, said has said, the appeal just increases the suffering for

both families. We definitely understand that Hayes family has suffered so much and they continue to suffer, and I just it's just that we suffered too, and we just hope that the court today just takes notice of that they were a family that suffers. Also joining me is Appellet attorney Stephen Klepper, a principle with Craymon and Graham. Why was Sayed's murder conviction reinstated last week by the Appellate

of Maryland. What happened was that the Appellate Court of Maryland decided that the victim representative, mister Lee, who is the brother of the victim, Hayman Lee, that he received inadequate notice. It was one business day before the hearing, it was a Friday before a Monday hearing, and the infringement on his rights under the Maryland Victim's laws was that he was only able to attend by zoom rather than in person. Because he desired to attend in person

and everyone else was able to attend in person. As I understand it, the judge allowed him to address the court, which the law doesn't expressly give victims the right to speak at these kinds of hearings. So it seems like a technicality, a procedure. He did attend by zoom. So this whole thing is about him not being able to be there in person. Yes, that is actually it. And for so many years we've talked about criminal justice rights as in the Fourth Amendment, and the exclusionary rule is

a technicality. What happened here was that the majority held in great detail that mister Lee did not have the right to address the court. He did not have the right to cross examine any witnesses, He did not have

the right to present or attack any evidence. That was what he was arguing that he, as the victim representative, had that right, and all three judges rejected those arguments for what he said he was entitled to do at the hearing, and instead what the majority held was that, well, he has a right to dignity under the Marilyn Constitution, and that right of dignity was violated by the fact that he had to attend by zoom, when everyone who lived locally or had the means to fly in was

able to attend in person. It's stunning to me because defendants appear for hearings by zoom, don't they They do, they did very much through the pandemic, and the court acknowledges that for the pandemic, many defendants who wanted to attend in person did not have that opportunity when their most precious rights protected by due presses of the law

were at stake. And the court said yes, but the court was open and people were able to attend, And because mister Lee didn't have the required notice, it was an affront to his dignity as the victim representative. So

it is fairly hard to wrap one's mind around. And one of the things I find very interesting here is that what mister Lee was arguing he had a right to do was to have the opportunity to prepare for the hearing, that he could present his best statement that he could, so that he could cross examine any witnesses, so they could put on any evidence of guilt or attack the evidence being put forward of actual innocence. And if that was the claim, which it was, well, then notice,

so short may well have been prejudicial error. Prejudicial error means error that is not harmless. And much of the time what defendants do is they say, well, this right was violated, and the courts say, well, yes, your right

was violated, but it is harmless error. And on the civil side all the time, there are many cases here in Maryland that say, well, yes, there was a right to have a hearing on this motion for summary judgment or motion to dismiss, But even though the court violated that right, you can't identify anything that would have happened differently had the hearing occurred, And so it is harmless error.

And so the court has essentially done in rejecting mister Lee's contentions about what he had the right to do, and yet still reversing means that this is akin to what's called structural error. A structural error means it's impossible to have harmless error. This is structural and that just seems like a very strong ruling to me. So his lawyer says, they're going to challenge the part of the appellate ruling where Lee asked to be able to, as

you mentioned, actively challenge in court. The prosecutor's evidence that the case should be dismissed. But it seems like you're getting into a whole different thing if you start allowing victims to interfere with the actual merits of a case. I'm going to stick to the Maryland Constitution because of the Maryland Constitution does is that it gives the state's attorney the exclusive right to be the prosecutor in the

trial courts, except when the General Assembly says otherwise. And what all three judges did was they look through and said, here are some parts where let's say a victim has a right to be heard, a right to present an impacts team, And they said, not even that is here. And so in this context, it seems quite a stretch to say that there was an affirmative right not merely to attend and to present an impact statement, but to act as a prosecutor when the state's attorney would not.

And they're already are circumstances where the General Assembly has said, yes, we will have the Attorney General be the prosecutor. It will be someone other than the state's attorneyho will prosecute this case. But there has been no provision in this law for anyone to be the one to make arguments

of guilt when the prosecution isn't. And that's a pretty conspicuous omission, because this statutory provision was created for situations in which the state's attorney believes that that the defendant has a right to a new trial or a right to acquittal, and so everyone understood that this would be something that would not be a traditional adversarial proceeding. And so the absence of something that would say this third party has the right to act as prosecutor, that's something

that's just not there in the statue. The court's order to reinstate his conviction and sentence doesn't go into effect for sixty days, so during that time a new hearing will be scheduled. So if you look at this, the only thing that would be different in the new hearing is that young Lee would be given notice to attend in person, would be there in person. But there's a new States attorney in Baltimore. Could he have a different

position on the case. It is possible, and I do not believe that mister Bates, our states attorney, has taken a public position on what his intent is. He previously, in the case of Keith Davis, junior, who had undergone five trials. He dropped those charges rather than doing a sixth trial, which was controversial in some quarters. And so what I don't know is whether he is going to

do essentially the same thing with mister Sayed's case. And I think a lot of us are sitting waiting, watching, and I believe reading the opinion that there would be jurisdiction to hold a new hearing during this sixty day period. And during this sixty day period, what could happen would be, yes, that the vacator would then be redone the same ruling.

But even in that circumstance, mister Bates would then have the ability to decide, well, I'm going to retry rather than dismiss the charges because the Appellate Court of Maryland held that the prior dismissal was a nullity. I mean, there are a lot of times where prosecutors accept plea deals and the victim's family doesn't agree with the plea deal. So if you start allowing victims families to be the prosecutors, that opens up a Pandora's box. Well, from my perspective,

yes it would. And at the same time, we have this constitutional right for victims to be treating, to be treated with dignity. And what the Pellet Court of Maryland held here was that yes, this was a particular affront, and it contained language that this was unique. Normally, the state's attorney has unfettered discretion to enter a Noah pross a dismissal of charges. But under these unique circumstances, it was a nullity. And in so many ways this case

has created unusual legal questions. And what I certainly find frustrating here and that I've written about in Bloomberg Law, is that said keeps losing by one vote margins on matters that weren't really what the state or in this case, the victim were arguing. And so what I would have liked would have been many years ago. Many years ago I've wrote, right after Judge Welch had entered the new trial order, I've wrote an op ed in the Baltimore Sun saying, here are the reasons just to have a

new trial. Don't appeal this, But they appealed it. And if we had had a new trial many years ago, instead of all of these people who very much believes guilty and people very much believes innocent, instead of them having to have that hypothetical argument, you could actually have had a trial in front of a jury, and now

strange things just keep happening. What I would say is that reading the majority opinion, what they very clearly feel is that the state's attorney engaged in behavior that was designed to thwart a pellet refuel and that was very concerning for them, and a pellet courts do not like having their review thwarted. And at the same time, what Judge Berger kept saying at the oral argument and essentially in his opinion is the criminal defendants have rights too.

Due process is there for the criminal defendants. That is what has always been written in the US Constitution and in the State Constitution. And so having this very strange finding here that mister Lee had no right other than to simply be present, and that it harms his substantial rights in a way to render a nullity what happened before because he had to attend by zoom rather than in person. It's just odd and it is very hard for me to imagine any other case that would have

generated such an odd opinion. And for so long I have heard people say, well, you know, as mister sayed, who is trying to exploit that that this case has

received an unusual amount of attention and so wants special treatment. Now, my response to that usually is is that, yes, mister Said's case received an unusual amount of attention, and it resulted in finding evidence that really draws into question the predicate for his conviction, and even the state recognized in the prior appeal that yes, they would have had to prove a different time when Heymn Lee died, a completely

different timeline. And my response in all of this is is that, well, maybe this means that there are more people in prison who are innocent than we want to admit, and that mister Said should not be penalized for the fact that this has drawn so much publicity. Maybe what this should do is is to cause us to say, are there too many barriers for people to prove their innocence, particularly when they are serving a life sentence. Thanks for

being on the Bloomberg Law Show. That's Stephen Klepper of cra and Graham and that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news by listening to our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com, slash Podcasts, slash Law. I'm June Grass. When you're listening to Bloomberg