Although the Court had previously ruled that states could regulate managed-care health companies under their insurance laws, the justices handed the health insurance companies a major victory in Aetna Health, Inc. v. Davila and a companion case, Cigna Corporation v. Calad (2004). In one case, Juan Davila sued Aetna because the company denied his doctor's prescription for arthritis pain and would only pay for a cheaper alternative, Naprosyn. Davila said that several weeks later he developed a severe bleeding ulcer which he attributed to the side effects of Naprosyn. In the second case Ruby Calad, who was covered by Cigna HealthCare of Texas, wanted to spend several days in the hospital following a hysterectomy, a stay that her doctor recommended. Cigna would pay only for one day, and Calad said she developed serious complications, forcing her to return to the hospital. Both sued under the Texas Health Care Liability Act, aimed at protecting patients enrolled in managed-care programs, and although the companies managed to get the cases transferred to federal courts, Davila and Calad won their suits.
In a unanimous decision the Supreme Court, speaking through Justice Thomas, ruled that the federal Employee Retirement Income Security Act (ERISA) pre-empted state law in terms of remedies for perceived wrongs. Unlike the question of rate-setting, which was essentially an insurance regulation and fairly consistent across the country, tort remedies varied from state to state, and one purpose of ERISA was to eliminate a patchwork of regulatory and other liability laws.
Nine other states besides Texas have laws that allow patients to sue their HMOs in state courts for malpractice, and they arose in the absence of a federal patients' bill of rights, which the health insurance industry has successfully fought for years. The remedy under ERISA permits patients to recover only the value of the benefit that was denied, and precludes the larger malpractice awards that state courts have sometimes awarded. In this case the Bush Administration sided with the HMOS, contending that law suits would undermine ERISA and drive up insurance costs. During the 2000 campaign then-candidate Bush lauded the Texas law as a product of his nonpartisan leadership and as a potential model for the country.
Response to the decision was predictable. Democrats and doctors groups attacked it, charging that once again patients had been put in a no-win position regarding their health care choices. Advocates for the insurance industry lauded it as a victory over trial lawyers.
In another case the Court denied the government's appeal in a case involving so-called medical marijuana. Nine states have laws legalizing marijuana for people with physician recommendations or prescriptions, and all told some 35 states have passed legislation recognizing marijuana's medicinal value. In 1996 California voters passed Proposition 215 giving patients the right to seek physician-sanctioned marijuana, and the federal government saw this as a clear conflict with federal law prohibiting the sale or distribution of marijuana. The Justice Department threatened to revoke the licenses of doctors who wrote such prescriptions, and a group of physicians and patients sued to stop the government from either threatening to or actually revoking licenses. In Walters v. Conant, a federal district entered a permanent injunction against the government, and the Court of Appeals for the Ninth Circuit affirmed the injunction in October 2002, declaring that doctors had First Amendment rights to counsel their patients.
The Bush administration asked the Supreme Court to overturn the lower courts, with Solicitor General Olson claiming that the decision "impairs the Executive's authority to enforce the law in an area vital to the public health and safety." Doctors have no special rights, since "the practice of medicine is subject to reasonable licensing and regulation, even where that practice involves speech." Graham Boyd, director of the ACLU's Drug Policy Litigation Project, defended the doctors. "This case concerns the distribution of medical information, not distribution of drugs. Patients are free to follow or ignore the advice, but the advice itself does not authorize or cause distribution."
In arguing against the court accepting the case, attorneys for Dr. Conant said that review was unnecessary. The lower court injunction did not invalidate any federal statute prohibiting the sale of marijuana, nor did the court of appeals decision create any conflict of laws among the circuits. This was a simple speech case, in which the government had tried to infringe on a doctor's right to give medical advice. The justices of the Supreme Court apparently agreed, refusing to grant certiorari and this leaving the lower court injunction in place. (The Court has accepted another medical marijuana case for the forthcoming Term; see below.)
The Justice Department did not fare any better in two other cases. Following passage of the Partial-Birth Abortion Ban Act of 2003, opponents quickly moved to seek federal injunctions against its implementation. At the same time, the Justice Department issued subpoenas to hospitals for records of patients who had undergone the procedure, claiming they needed the records in order to evaluate the necessity of the procedure. Hospitals immediately counter-sued, claiming that giving over the records would invade the privacy of the patients. At least one federal judge agreed with the government, but the resulting publicity was so over-whelmingly negative against the administration that the Justice Department in April 2004 gave up on its efforts to get the records. Suits testing the constitutionality of the latest abortion ban act can now go forward.
On another matter, Attorney General John Ashcroft once again found himself thwarted in his efforts to overturn Oregon's Death with Dignity Act. Oregon voters twice approved physician-assisted suicide in referenda in 1994 and 1997. The resulting law allows doctors to prescribe lethal dosages of medication to patients who are terminally ill, repeatedly make the request, are found not be mentally incompetent and meet other stringent criteria. The doctors themselves may not administer the medication.
After voters approved the law, Ashcroft issued a directive declaring that the prescription of lethal dosages violated the 1970 Controlled Substances Act. The State of Oregon sued the attorney general, and a district court issued a stinging rebuke to Ashcroft, essentially telling him he had no business in this matter. Had Ashcroft paid any attention, he would have known that the U.S. Supreme Court had already weighed in on the matter, and in two 1997 decisions, Washington v. Glucksberg and Quill v. Vacco, ruled that while there was no constitutional right to physician-assisted suicide, states were free to enact such legislation. In almost all of the opinions, justices pointed to the Oregon statute as the right way to make it possible for terminally ill patients to end their pain and suffering.
But Ashcroft persisted, and in Oregon v. Ashcroft (2004), the Court of Appeals for the Ninth Circuit gave the attorney general another dressing down. Ashcroft's "unilateral attempt to regulate general medical practices historically entrusted to state lawmakers," wrote Judge Richard Tallman, "interferes with the democratic debate about physician-assisted suicide and far exceeds the scope of his authority under federal law." The court, Tallman noted, was expressing no opinion on the merits of assisted suicide; the case was simply about who gets to decide, and the attorney general had no such right. As a spokesman for Oregon noted, the decision was "a slam dunk for the state and certainly a tremendous victory for policymakers in every state."