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Five More Opinions and Justice Gorsuch Shows an Independent Streak: SCOTUS Today

I’m currently in the wilds of Alaska, learning about the training of sled dogs. Nevertheless, word of the Supreme Court’s five most recent decisions has traveled northward. While none of these decisions is earthshaking, they are not uninteresting or unimportant, especially to those like health care and employee benefits lawyers.

So, let’s start with a health care benefits case, Marietta Memorial Hospital Employee Health Benefit Plan v. Davita, Inc. The Marietta plan is an employer-sponsored group health plan that offers all its participants the same limited coverage for outpatient dialysis. DaVita, a major provider of dialysis services, sued the Marietta plan, arguing that the plan’s limited coverage for outpatient dialysis violated the Medicare Secondary Payer statute. Under the statute, Medicare becomes a “secondary” payor for services that include dialysis when a private plan already covers the same services. 42 U.S.C. §§1395y(b)(1)(C), (2), (4). In order to prevent a plan from avoiding primary-payor obligations for end-stage renal disease treatment, the statute requires that a plan “may not differentiate in the benefits it provides between individuals having end stage renal disease and other individuals covered by such plan on the basis of the existence of end stage renal disease, the need for renal dialysis, or in any other manner.” A plan also “may not take into account that an individual is entitled to or eligible for” Medicare due to end-stage renal disease.

The Sixth Circuit had held that the statute authorized disparate-impact liability and that the limited payments for dialysis treatment had a disparate impact on individuals with end-stage renal disease. Writing for seven Justices (Kagan and Sotomayor, JJ., dissenting), Justice Kavanaugh opined that Section 1395y(b)(1)(C) does not authorize disparate-impact liability, and the Marietta plan’s coverage terms for outpatient dialysis do not violate §1395y(b)(1)(C) because those terms apply uniformly to all. Because the Marietta plan’s terms apply uniformly to individuals with and without end-stage renal disease, the plan does not “differentiate” as the statute would prohibit. Because the Marietta plan provides the same outpatient dialysis benefits to all plan participants, whether or not a participant is entitled to or eligible for Medicare, the plan cannot be said to “take into account” whether its participants are entitled to or eligible for Medicare. Thus, the holding of the Sixth Circuit is reversed.

Justice Kagan, joined by Justice Sotomayor, dissented, arguing that the majority holding that the Marietta plan doesn’t “differentiate” because it draws distinctions only between dialysis and other treatments, not between individuals with end-stage renal disease and individuals without it, makes no sense because almost all end-stage patients use outpatient services. In so doing, she employs a colorful metaphor that likely will be quoted widely: “That a proxy is only 99.5% (not 100%) accurate should make no difference. A tax on yarmulkes remains a tax on Jews, even if friends of other faiths might occasionally don one at a Bar Mitzvah.” Kagan also argues that her view is supported by text. While Justice Sotomayor’s joining this opinion is not unexpected, one notes that what might be unexpected is Justice Breyer’s joining Justice Kavanaugh and the rest of the Court. However, Kavanaugh’s nice distinction is just the sort of thing that Breyer often has shown that he is attracted to.

Carson v. Makin is a case in which a predictable conservative majority led by the Chief Justice held that a Maine program of tuition assistance for parents who live in school districts that neither operate a secondary school of their own nor contract with a particular school in another district violated the First Amendment’s Free Exercise Clause when it denied payment to parents who send their children to a Christian school. Equally predictable is the dissent of the three Court liberals, led in this case by Justice Breyer, who sees the majority as violating the First Amendment’s Establishment Clause.

Under the Maine program, parents designate the secondary school they would like their child to attend, and the school district transmits payments to that school to help defray the costs of tuition. Participating private schools must meet certain accreditation requirements, but they may differ from Maine public schools in various ways. Whatever the permissible differences might be, Maine has limited tuition assistance payments to “nonsectarian” schools.

Reversing the First Circuit, the majority holds that Maine’s “nonsectarian” restriction on otherwise generally available tuition assistance payments going to accredited Christian schools chosen by parents violates the Free Exercise Clause, which protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.” Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 450. The Court rejected a distinction that Maine sought to make to avoid the holdings of two recent Supreme Court cases that blocked state efforts to withhold otherwise available public benefits from religious organizations: Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___, and Espinoza v. Montana Department of Revenue, 591 U.S. ___. Echoing Espinoza and rejecting the dissenters’ “establishment” point of view, the majority reiterated that “[a] State need not subsidize private education” . . . “[b]ut once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

In sum, the division between the Court’s conservatives and liberals persists with respect to aid to religious schools specifically and to reconciling the two religion clauses of the First Amendment more generally. The conservative view continues to prevail.

Switching to criminal law, among the interesting features of Shoop v. Twyford is Justice Gorsuch’s joining the Court’s three liberals in separately dissenting from the opinion of the Chief Justice in which the rest of the conservatives had joined. Mr. Twyford had been convicted by an Ohio jury of capital offenses and was sentenced to death. After his conviction and sentence were affirmed in state court, he sought state habeas relief, which also was denied. Twyford then filed for federal habeas and ultimately moved for an order compelling the state to transport him to a medical facility, which might lead to evidence of neurological defects that could somehow reverse his conviction, though he never explained how. Reversing the decision below, the Court held with regard to the All Writs Act that a transportation order that allows a prisoner to search for new evidence is not “necessary or appropriate in aid of” a federal court’s adjudication of a habeas corpus action when the prisoner has not shown that the desired evidence would be admissible in connection with a particular claim for relief. The dissenters would have dismissed the matter on jurisdictional and procedural grounds without reaching the merits, thus leaving the transportation order in effect.

United States v. Washington is the opinion of a unanimous Court. Justice Breyer invoked the Constitution’s Supremacy Clause to negate Washington State’s enactment of a workers’ compensation law that applied only to certain workers at the otherwise well-known Hanford federal nuclear reactor facility in the state who were engaged in the performance of work, either directly or indirectly, for the United States. In holding that the state law violated the Supremacy Clause, the Court relied upon the fact it facially discriminates against the federal government and its contractors because it does not clearly and unambiguously waive the federal government’s immunity from discriminatory state workers’ compensation laws.

United States v. Taylor is a case in which a participant in an unsuccessful robbery was convicted of violating the Hobbs Act, 18 U. S. C. §1951(a), which makes it a federal crime to commit, attempt to commit, or conspire to commit a robbery with an interstate component. Holding for the defendant, the Court opined that attempted Hobbs Act robbery does not qualify as a “crime of violence” under the statute because no element of the offense requires proof that the defendant used, attempted to use, or threatened to use force. To many, the most interesting thing about the decision is that it was written by Justice Gorsuch and joined by all of the other Justices, save for Justices Thomas and Alito, who dissented. This is yet another case in which one might characterize Justice Gorsuch as channeling his inner Justice Scalia in adopting what is essentially a libertarian view favoring individual rights by refusing to apply a criminal statute in anything but its narrowest literal reading.

The end of the term is not yet in sight, so let’s keep watch.

©2022 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XII, Number 174
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About this Author

Stuart Gerson, Health Care Attorney, Epstein Becker Law Firm
Member of the Firm

STUART M. GERSON is a Member of the Firm in the Litigation and Health Care & Life Sciences practices, in the firm's Washington, DC, and New York offices. Much of Mr. Gerson's practice has been centered on providing representation to clients in the health care industry (including insurers, hospitals, pharmaceutical manufacturers, managed care providers, and private equity funds, among others). He has extensive experience litigating cases involving the cybersecurity of health care information, trade secrets, and other confidential data as well as civil...

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