Election years affect health policy in funny ways. There’s always one Black Swan event. This year will be no different. In recent years, we’ve been conditioned to worry about some new law or executive mandate.
This time though, don’t worry about the healthcare laws. Worry about the changing legal interpretations of existing healthcare laws. And don’t watch the politicians. Watch the judges. The courts, both state and federal, are set to play an outsized role in health policy in the coming months. That’s not a good thing.
Since the interpretation of health laws determine its implementation, by reinterpreting existing health laws, the courts effectively enact new health care laws through judicial fiat. Unlike legislative actions on health policy that prove to be unpopular, there’s no voter retribution to be had. Judges are appointed, not elected. And in the case of federal judges, that appointment’s for life.
On the docket are two cases that will have major implications for years to come: Braidwood v. Becerra and Alliance for Hippocratic Medicine v. FDA.
Both cases might appear to be unique. Braidwood v. Becerra challenges the federal government’s ability to negotiate drug prices. Alliance for Hippocratic Medicine v. FDA challenges abortion medication access via telemedicine. But the broader theme is what matters most. How much leeway should we give administrative agencies when they implement healthcare laws?
There’s no easy answer and each side has objectively strong arguments. But the arguments themselves are less important than how they get resolved. In both cases, the final arbitrators won’t be clinically trained physicians or health administrators. It’ll be judges. We never question the validity of this because we just accept it as constitutional gospel.
It’s time we start questioning the ability of judges to properly adjudicate complex health issues. Other similarly complex issues, like immigration and bankruptcy, have their own court system. Judges appointed to those courts have special training and are subject matter experts in those fields of law.
Healthcare has no such court system. There’s an academic program, almost akin to a post-doctorate for lawyers and legal scholars, known as a Master of Laws (LLM) in health law. It provides additional legal training for complex health legal matters. But judges overseeing healthcare cases aren’t required to have it. Nor are judges with an LLM in health law specially assigned to healthcare litigation.
This is concerning when we think about the impact of a single ruling by a judge. With the stroke of a pen, through a stay order, a judge can ban certain forms of access to medical care or restrict insurance coverage for swaths of patient populations. Do we really want someone who has little to no health policy education or specialized health law training to wield such power?
We’ll always have tension between healthcare and law. Health policy is designed to be this way, for better or for worse. When healthcare boils into health policy, there’ll always be litigants involved. And with that, there’ll always be judges. I just hope those judges have specialized training in health law so they make clinically informed rulings.
After all, we require physicians to go through extensive training before they practice medicine. We should require the same for judges adjudicating complex health litigation. We’ve seen what happens when judges make rulings on health policy with little consideration for clinical data or patient care. If a physician behaved in such a way, there’d be swift repercussions.
The legal system isn’t designed to have the same degree of checks and balances for judges. This makes the need for additional, specialized health law training all the more important. Until we require our judges to be knowledgeable on the nuances of health law, we’ll continue to see rulings that are based on equal parts personal moralizations and clinical fundamentals.
It’s this very concoction that produce this year’s Black Swan event.
