Category: Analysis

Slowing Chipping Away at Child Marriage in the US

April 20th, 2019 in Analysis, State Legislation

Child marriage is condemned by the international community and the stated goals of the U.S. State Department.  In fact, the State Department’s “U.S Global Strategy to Empower Adolescent Girls” calls marriage before 18 a “human rights abuse.”  However, most states still have laws that allow for the marriage of children under the age of 18.  Eighteen states don’t even have a minimum age that a child can be married.  So far in the US, only two states, New Jersey and Delaware, have banned all child marriages with no exceptions.  Between 2016 and 2018, eleven states have passed laws that limit child marriage but still keep some exceptions, mainly relating to parental consent and 16 or 17-year-olds marrying someone within a few years of their own age.  Ten additional states have introduced bills curtailing child marriage, many of which were sent to study or died at the end of the legislative session in 2018, but with plans to be reintroduced in the next session.

The advocacy organizations leading the charge for new protections for minors are insistent that only a limit of 18 years old with no exceptions is good enough; especially since some of the legal exceptions exacerbate the problem.  For example, requiring only parental consent, especially when only a single parent’s consent is needed for marriage under the age of 18 leaves minors unprotected from marriage due to coercion.  A few states still allow for exceptions when the girl is pregnant, even if she is below the age of consent.  Pregnancy, of course, is one of the situations where girls are most often coerced into marrying men, some of whom are their rapists.

Earlier this month, Ohio joined the ranks of states attempting to fix this problem, if imperfectly.  House Bill 511 was introduced by

Ohio State House
Columbus Ohio
1839

Republican Rep. Laura Lanese and Democratic Rep. John Rogers last year with the intention of updating the former law, which treated boys and girls differently.  Previously, girls could get married at 16 with parental consent, although boys could not get married below the age of 18 without the consent of a juvenile court.

The new law, which was signed by Governor John Kasich just before he left office in January,  creates gender equality by requiring both boys and girls to be 18 in order to get married.  The only exemption allowed is a marriage at 17 if there is no more than a four-year age difference, if a juvenile court consents and requires a 14 day waiting period.  In the processes of determining whether to give consent, the court is instructed to consult with the parent or guardian, and appoint a guardian ad litem.  Additionally, a court must determine if the minor is in the armed forces, employed and self-subsisting or otherwise independent of a parent or guardian, and if the minor is free from force or coercion in the decision to marry.  The couple must also have completed marriage counseling satisfactory to the court.  Additionally, a provision was added that requires official proof of age.

There were strong reasons for the Ohio Legislature to act.  According to the Dayton Daily News, over 4,400 girls aged 17 or younger were married in Ohio between 2000 and 2015.  Of those, 59 were 15 or younger, and three were 14 years old.   Additionally, according to the Ohio Department of Health, there were 302 boys under the age of 17 were married between 2000 and 2015, with the approval of parents or a juvenile court.  A significant driver of the child marriages seems to be when a minor girl gets pregnant by an older man.

These types of marriages have harsh consequences including being 50% more likely to drop out of high school, three times more likely to experience psychiatric disorders, and divorce rates of almost 80%, which can more than double the chance a teen mother ends up in poverty.   Additionally, women who marry as minors lack the ability and resources to remove themselves from a harmful relationship.  For example, most domestic-violence shelters cannot accept minors, minors who leave home are considered runaways, and child-protective services can usually do little in regards to legal marriages. Furthermore, a child is unlikely to have the resources to escape an abusive relationship, pay attorney fees, or even sign any other legally binding document.

In Massachusetts, there is currently no age requirement for marriage, with minors requiring a half page petition, and approval by parents and the courts.  The statistics for child marriages in Massachusetts consist of 1,200 children as young as 14 married from 2000 to 2016.  In the time period from 2005 to 2016, 89% were underage females married to adult men.  In 2018, Democratic Sen. Harriet Chandler and Democratic Rep. Kay Khan introduced bills (S785/H2310) to end all child marriage with no exceptions.  The bill stalled, however, because as Democratic Rep. Khan noted because legislators were not been able to hear from victims who want to talk about their experience.  The bill was refiled at the beginning of the new legislative session that began in January.

Slowly, but surely, states are addressing the evils that come with child marriage.

Amanda Simile will graduate from Boston University School of Law in May 2020.

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Stop the Clock: Implications of Switching Time Zones

April 20th, 2019 in Analysis, Federal Legislation, State Legislation

The holiday season is joyous for many reasons; from family, friends, and food, there is ample joy and merriment to go around. There is one aspect of the season that doesn’t match these factors; especially in New England – darkness. At the outset of winter, on December 21st each year, the sun sets in Boston at 4:11pm. There are many negative effects of darkness setting in before the end of the workday – with increased crime, traffic accidents, and seasonal depression being one of the most paramount. Boston’s sunset is not the earliest in the area, with municipalities in Maine experiencing sunsets earlier than 4pm; but it is the earliest of the major cities, beating out Buffalo, NY despite being further south.

Early sunsets do not become apparent in New England until clocks fall back in line with the change from Daylight Savings Time. Daylight Savings is a federal program instituted during World War II that the country has become accustomed to; the federal legislation only permits states to opt out of the program, but it does not allow states to make the program permanent, which would keep the clocks from falling back an hour. Hawaii and Arizona have opted out of the program – made available through the US Energy Policy Act of 2005, allowing any state that lies entirely within one time zone to opt out.

New England states, primarily Massachusetts and Maine at this point, have been considering a change to the Atlantic Time Zone

The Sacred Cod and House Clock
Massachusetts House Chamber

in order to increase the number of waking hours with sunlight. With a change to Atlantic Time, and subsequent opting out daylight savings, New England would be out of sync with the rest of the Eastern Time Zone from November to March, or the period in which clocks “fall back” in line with daylight savings in the Eastern Time Zone. A transfer to Atlantic Standard Time – which includes Puerto Rico, the Virgin Islands and eastern Canada – would mean jumping an hour ahead of the Eastern time zone from November to February. The time zones would align from March to October.

While the benefits of having an extended amount of light in the evening hours are readily apparent, there are several drawbacks that accompany a change. Early risers in particular, who are likely accustomed to the sun being out while they start their days have reason to complain. School aged children may be leaving to their schools in darkness in the morning, and businesses that transact on financial markets may be put out of sync with the markets they depend on.

If New England were to change to Atlantic time, there would be a two-step process. First, the interested states would have to decide to leave. Second, the states would have to consult the US Department of Transportation, the cabinet agency that regulates time zones. States, municipalities, business interests, and others would have the opportunity to weigh in during both steps.

There could be major issues with “commerce, trade, interstate transportation and broadcasting” if one state moves ahead one hour while its neighboring states remain in the Eastern Time Zone. It seems to be a requirement of widespread support and agreement for any change in this area to take effect. Lawmakers in Maine might support the change – in May 2017, Maine’s Senate passed a bill that would move the state to the Atlantic Time Zone — if approved by residents in a state-wide referendum. Maine conditioned the change, subject to their approval, on Massachusetts and New Hampshire.

Some states seem to have considered the idea and decided against it, with the New Hampshire Senate voting against a bill that would move the state to the Atlantic Time Zone by a 16 to 7 vote; at the same time, the bill passed the house with a voice vote. While there has yet to be an affirmative move, the proponents of the change are enlivened by the action around the issue and are hopeful for the future.

Massachusetts established a commission to study the issue. In a neutral report neither supporting or disavowing the change, the commission stated its findings that "People tend to shop, dine out, and engage in other commercial activities more in after-work daylight,". . . "Year-round DST could also increase the state's (competitiveness) in attracting and retaining a talented workforce by mitigating the negative effects of Massachusetts' dark winters and improving quality-of-life." More daylight could also reduce street crime, on-the-job injuries and traffic fatalities, and boost overall public health, the commission found.

States in the Northeast seem intrigued by the change, but alterations of the particulars of their citizen’s days are deeply personal to their citizens may be a drastic change to take without widespread public support. In Arizona, the effects of their non-adherence to daylights savings time are apparent when the state is out of sync with the rest of the surrounding states – constant clarification of what time is in effect, setting different meeting times, etc. Results on an individual basis are a mixed bag, with businesses that are purely local and that thrive in the daylight being supporters of the longer day due to increased business, and those who constantly run up against timing differences by virtue of dealing with other regions.

It will be interesting to observe if public support for a time zone change increases as people in New England become aware that doing so is a possibility to increase their daylight hours in the depths of winter. In any case, it is clear that the states’ legislatures have identified it as a possible issue.

 

Drew Kohlmeier is a student in the Boston University School of Law Class of 2020 and is a native of Manhattan, KS, graduating with a degree in Biology from Kansas State University in 2016. Drew decided on Boston for law school due to his interest in health care and life sciences, and will be practicing in the emerging companies space focused on the life sciences industry following his graduation from BU.

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The US House Must Start Protecting Undocumented Minors

April 20th, 2019 in Analysis, Federal Legislation, Legislative Oversight

The 2018 midterm election should be considered less of a “blue wave” and more of a call to action made by the people of the United States to their House Representatives. The Trump administration has made many an egregious decision since 2017 and the Democrats of both the House and the Senate have unable to block such decisions due to their minority status. The Democrats must use their majority status in the House to actively combat the Trump administrations treatment of Latin American and other undocumented minors in detention.

Beginning in April 2018, Trump’s “zero tolerance” immigration policy led to the separation of infants from their mother’s arms, children from their father’s reach, and siblings from their brother’s or sister’s hands. Family separation shocked the conscience of the nation and the outcry against the policy’s ramifications drove President Trump to sign an executive order “ending” family separation. Thousands of children remained in detention, separated from their parents, for months after the executive order. In June 2018, a U.S. District Court Judge issued a preliminary injunction against the government, requiring that children be returned to their parents within 30 days. Come late October, the Department of Homeland Security still had hundreds of separated children in its custody. The government’s failure to comply with the injunction filled public discourse with calls to act to free the children. Some of the parents of these children who have been deported to the countries they fled have made the soul-churning decision to leave their children in the United States because returning the children to their country of origin could mean death. Despite the alleged “end” of the family separation policy, 81 children have been separated from their families since President Trump’s executive order.

Another source of turmoil within the United States’ immigration system is the lack of representation for these children. Children, who do not speak English and are as young as 3 years old, are representing themselves against the U.S. government in immigration courts. They are being led to make decisions that are not in their best interest. For example, a 5 year old girl named Helen was told to sign her name on a form that waived away her rights to a Flores bond hearing, which would have guaranteed her a hearing in front of an immigration judge in far less time than she spent at a shelter, separated from her family. While organizations like the American Civil Liberties Union, private firms, and law school institutions are providing legal services to help bring families back together, the number of children essentially being forced to represent themselves is too high.

The psychological toll on the detained children who were reunited with their families is immeasurable. There have been documented cases of young children, unable to understand why their parents suddenly disappeared from their lives, rejecting or distrusting their parents upon reunification. Other children live in fear of being taken again and anxiously cling to their parents. In December 2018, the nation took notice of the deaths of two undocumented children, one a 7 year old girl and the other an 8 year old boy, both from Guatemala, who died from medical complications while in Border Patrol custody.

More and more questions are being raised in Congress about how to address the turmoil of the Trump administration’s immigration landscape. Despite increased attention on this humanitarian crisis at the border, the problem has gotten worse over the past few months.  In fact, Boston University Law Professor Sarah Sherman-Stokes reports that a team of BU Law professors and students spent a week at the border in March.  They used sharpie markers to write parents' contact information on their children in case they were separated.  Despite this, the Trump White House seems to be now moving toward an even harder line toward migrants; complete with a purge of Homeland Security leadership.

At this point, there should be no compromise by Democrats regarding the treatment of undocumented children and their families. Now that Democrats have a deciding vote in the House, they must use that vote, the voice their constituents gave them--and especially their oversight powers--to protect the voiceless and vulnerable children in DHS custody.

This may be finally happening.  On April 17th, Elijah Cummings (D-Md.), chair of the House Oversight Committee, invited the architect of Trump's immigration policy Stephen Miller to appear before the Committee:

"I am offering you an opportunity to make your case to the Committee and the American people about why you -- and presumably President Trump -- believe it is good policy for the Trump Administration to take the actions it has, including intentionally separating immigrant children from their parents at the border to deter them from coming to the United States, transferring asylum seekers to sanctuary cities as a form of illegal retribution against your political adversaries, and firing top Administration officials who refuse orders to violate the law."

Miller is scheduled to appear before the Oversight Committee on May 1.

The safety of children should not be a partisan issue, but if anyone is going to act to ensure the safety of immigrant children, it should be the newly elected House of Representatives. The House should pressure the Senate and President to abide by the United Nation’s guidelines on the humane treatment of migrant children and their families and enforce their implementation. Any derogation leaves room for more horrifying tales of assault, abuse, trauma, and deaths of innocent children who were only trying to avoid such fates in their homelands. The House should also legislate to protect the Flores rights of unaccompanied minors and require that these minors be provided with representation in front of immigration courts.

The international community has condemned President Trump’s treatment of migrants, documented and undocumented, asylum-seeking and non-asylum-seeking, on several occasions, but some of the loudest condemnations fall upon the separation of families and treatment of children. Some governments and organizations have gone so far to call the family separation policy a humanitarian crisis and illegal. Let this moment in our nation’s history not go down as a complete humanitarian failure but as a showing of what the people can do to try and rectify the mistakes made by discriminatory policymaking.

 

Cassandra Castro will graduate from Boston University School of Law in 2020.

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The Future of Supervised Injection Sites in Massachusetts and Beyond

April 20th, 2019 in Analysis, Federal Legislation, State Legislation

With Massachusetts and the country facing a rising opioid overdose epidemic, lawmakers are looking to some controversial measures to curb overdose deaths. One of those measures being considered is supervised injection sites, also called safe injection sites or safe consumption spaces. Safe consumption spaces, of which there are 100 worldwide, are clean spaces where people can legally use pre-obtained drugs with supervision from healthcare professionals who aim to make injections as safe as possible while providing health care, counseling, and referral services to addicts. While safe injection sites have been successfully implemented in Canada, Australia, and Europe over the past 30 years, attempts to create such sites in San Francisco, Seattle, Boston, and more U.S. cities have not yet been successful. Beyond policy arguments as to whether these sites are effective, sites in the United States also face significant legal hurdles under federal law.

According to supporters of safe injection sites around the country and the world, the policy is an effective and relatively low-cost way to prevent overdose deaths and manage harm with no demonstrated consequences of increased drug use or increased crime. Opponents of safe injection sites, including Massachusetts Governor Charlie Baker, have pointed to increased opioid deaths in

The Massachusetts State House
Boston, 1787

recent years in Vancouver, which established its supervised consumption site Insite in 2003, to argue that safe injection sites are not actually effective in preventing overdose deaths. However, those arguments are misleading, as experts have stated that the increase in overdose deaths in Vancouver are due to the influx of fentanyl being added to drugs, and that Insite actually saw a 35% reduction in overdose deaths around the facility in the two years after it opened. While there are also studies questioning the efficacy of safe consumption sites—calling into question whether they have a significant impact on reducing deaths and reaching a significant amount of drug users—even the negative studies generally criticize safe consumption sites as being relatively ineffective as opposed to actively harmful. There are dozens of peer-reviewed scientific studies that have found that safe injection sites actually do significantly benefit those who are addicted to opioids and prevent opioid deaths. Notably, no death has ever been reported in an injection site, and a review of studies concluded that injection sites were associated with less outdoor drug use and did not appear to have any negative impacts on crime or drug use.

Despite the strong evidence backing the societal benefits of implementing and supporting safe injection sites, the policy faces significant legal and political obstacles in the United States. Perhaps the biggest hurdle that advocates of safe injection sites face is the potential legal liability of such sites under federal law and opposition from the Justice Department. The Controlled Substances Act makes it illegal to “knowingly open, lease, rent, use, or maintain any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any controlled substance,” as well as to knowingly manage such a place. The plain language of that law may render implementation of safe injection sites impossible without some change or exception carved out in federal law.

However, advocates of safe injection sites do have a glimmer of hope that, once the first U.S. site is created, it will pass judicial muster through a creative legal argument proposed by law professor and drug policy expert Alex Kreit. In his paper, Kriet argues that a provision in the Controlled Substances Act providing immunity to state and local officials who commit drug crimes while enforcing local laws could protect safe injection sites from a crackdown by the federal government. Kreit has stated that the infrequently cited rule has previously been used in situations where authorities have seized marijuana and then returned it in states where marijuana has been legalized. Under this theory, those involved in safe injection sites would be protected so long as they were acting in accordance with a city ordinance or state law supporting safe injection sites. Other experts have expressed skepticism that such an argument would pass muster, however, with some stating that Kreit’s argument is a “stretch,” and that any path toward legality for safe injection sites lies in convincing the federal government not to target safe injection sites on public health grounds.

If cities and states cannot find a legal workaround protecting those involved with the safe injection sites, advocates likely face an uphill battle in convincing their communities and the Justice Department to accept injection sites. Attempts at establishing sites have not been politically palatable, as demonstrated by efforts in San Francisco and Boston. California Governor Jerry Brown vetoed a bill that would have allowed supervised drug consumption sites in the state and went so far as to describe it as “enabling illegal drug use.” In Massachusetts, in addition to Governor Baker’s opposition to the idea of safe injection sites, the Senate ultimately stripped a provision authorizing safe injection sites from its comprehensive opioid bill this past legislative session, instead replacing the pilot program with a commission to study the feasibility of establishing such sites. In addition to opposition from state Governors and a lack of strong state government support, it seems highly unlikely that the current federal administration would turn a blind eye to safe injection sites on public health grounds. In addition to a statement from the Vermont U.S. Attorney’s Office criticizing the policy and affirming that the United States Attorney would impose ramifications under federal law, there have been multiple other instances indicating the administration’s hostility towards safe injection sites and similar policies. In August, Deputy Attorney General Rod Rosenstein wrote an op-ed in the New York Times opposing safe injection sites and emphasizing the fact that they violate federal law. The Justice Department also “promise[d] [a] crackdown” on supervised injection facilities on an NPR radio show.

While there is scientific and global community support for safe injection sites, their future in the United States is still unclear, especially under the current federal administration. Until there are more assurances that sites could operate without intervention from federal law enforcement, it seems that most cities and states that have been at the forefront of the push for safe injection sites do not have the political will or capital to open the country’s first site and become the guinea pig of the movement. Philadelphia, however, may be the one city willing to go first. In August, Philadelphia Health Commissioner Dr. Thomas Farley said that Rosenstein’s opposition and warnings from the Justice Department would not prevent Philadelphia officials from further exploring the idea. Currently, Philadelphia seems to be going forward with its plan to allow, but not publicly fund, a non-profit site called Safehouse, which could serve as a jumping off point for litigation determining the legality of the sites and potentially creating more certainty for other interested cities and states. As for Massachusetts, it seems unlikely that the Commonwealth will be establishing any safe injection sites in the near future, though the members of the commission created in last session’s opioid bill will no doubt keep a close eye on Philadelphia as its safe injection site plan comes to fruition.

Chloe Aubuchon graduated from the University of Michigan with a B.A. in International Studies and Spanish in 2017 and anticipates graduating from Boston University School of Law in May 2020

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Curbing Medicare Drug Costs

April 17th, 2019 in Analysis, Federal Legislation

Prescription drug spend in the U.S. is the highest in the world. Americans pay up to three times the amount per capita of other countries. This is problematic for our growing aging population since their income becomes limited. While Medicare covers prescription drug costs, there are policy gaps that make it unaffordable. One major barrier to price controls is part D of title XVIII of the Social Security Act, in which explicitly prohibits the federal government “from negotiating directly with pharmaceutical companies to lower drug prices”. President Donald Trump proposed several policies to reduce the cost burden of prescription drugs on consumers through free-market competition approach, focusing mainly on cost transparency and promoting use of biosimilar or generic drugs. The policies are praised as a “small step in the right direction”. Yet, many Americans are dissatisfied since the proposals do not include direct Medicare negotiations with drug manufacturers. Pharmaceuticals argue that price controls would strain their investments in research and development (R&D) of new drugs. After taking a closer look, that is not fully the case. Greater price control measures can be taken, but there must be political will to support it. For now, the President’s policies are a small victory for seniors across America.

Medicare Coverage Today

Prescription drugs are covered under Medicare Part A, B, and C plans, but to a limited capacity. Part A is hospital insurance, part B is traditional medical insurance, and part C (Medicare Advantage) is like a health maintenance organization (HMO) or preferred provider organization (PPO) plan type. Only drugs administered within these respective settings are covered. Because of these limitations, the Medicare Modernization Act of 2003 was enacted, creating Medicare part D drug benefit.

Part D is an “optional” supplemental insurance that can be purchased with any of the other Medicare plans. It, however, is severely flawed. First, Congress did not commit any financing for part D, leaving costs falling on the recipient. Second, and most notoriously, is the “donut hole” coverage gap between initial enrollment and a “catastrophic coverage threshold”. The entry-point coverage limit is currently $3,750. Once this amount is reached, the patient is then responsible for fully paying for their medication until the maximum amount of the out-of-pocket (OOP) costs have been paid, or the annual time period lapsed. The OOP threshold now is $5,100, unaffordable for many seniors that suffer multiple chronic conditions.

Additionally, the plan disincentivizes patients from purchasing brand name drugs by increasing patient coinsurance payments. Provisions of the Affordable Care Act attempted to close this gap by 2020 by limiting patient payments to 25% of the gap. Under the Trump Administration, the Bipartisan Budget Act of 2018 advanced that date to 2019. Another caveat to Part D is that it is not really “optional”. If an individual fails to sign up once qualified and decides to enroll later, they will pay penalty fees for as long as they are on part D, with the exception of a few circumstances, such as having drug coverage from an employer.

The President’s Policies

To mitigate the Medicare drug coverage issues, the Trump Administration released his “blueprint” rules and policies, supplemental to the Bipartisan Budget Act. Provisions that went into effect include:

  • Step therapy” rule within the Medicare Advantage plans- clinicians are to prescribe cheaper drugs and monitor patient progress closely. If the drug is found to be ineffective, then a clinician can prescribe the next expensive drug. Clinicians in the Advantage plan get commission for the drugs they provide. The rationale is to curb physicians from “gaming” for greater profits. This rule is now in effect.
  • Taking harder action, the President recently signed legislation to ban “gag clauses” that prevented pharmacists from disclosing the best drug prices with customers. This is helpful for those who may be in the coverage gap of part D and would have to pay full price of the drug.

Other policies proposed and will likely be revisited for the upcoming session include:

  • Limiting doctor’s offices to charge consumer price index (CPI) of drugs administered in their office.
  • Shifting drugs from part B to D to promote greater market competition among drug makers to lower prices.
  • Allowing drug rebates to go to the consumer rather than the healthcare provider or health plan.
  • Promoting the use of biosimilars and generic biotechnology drugs.
  • Closing loopholes, such as the 180-day exclusivity that allow brand-name drug companies to “game” Food and Drug Administration (FDA) rules in ways that hinder generic competition.
  • Requiring drug manufacturers to disclose list prices in their advertisements.

These policies are a great step towards drug price controls. Yet, many argue that true price controls could only be achieved by allowing Medicare to directly negotiate drug prices. Perhaps that may be the case, as demonstrated by many other rich democracies. Pharmaceuticals, however, dispute this on the grounds that it would limit R&D investments.

In a recent study, Yu et al. evaluated the “top 15 drug companies in 2015” and found that the inflated prices are not justified by the R&D costs. Securities and Exchange Commission (SEC) laws and regulations require all public holding companies to publically disclose their financial statements. Knowing this, I reviewed the 2017 financial report of the largest pharmaceutical company in the world, Pfizer. Their R&D costs were $7.7 billion and accounted for 14.7% of their reported revenue of $52.5 billion. After discounting other expenses, their net income was $21.4 billion, allowing them to maintain 40.6% in profits. These figures are not uncommon. According to the International Trade Association, 15-20% of gross revenues is how much U.S. pharmaceutical companies spend on average on R&D (with the exception of the few that price gouged). In other countries, the R&D investments are much less, but drug costs are also lower.

Given these figures, it is of no surprise that advocates for better price controls are not convinced that R&Ds should be the main reason to maintain the inflated drug costs. Cost-effectiveness analysis (CEAs) may help determine the value of the drug, however it would likely, by default, favor biosimilars and generic drugs. In that case, the promotion of these drugs employed by the Federal government serve as a cost-effectiveness measure to some extent. For drugs that treat severe progressive conditions, such as Alzheimer’s disease or multiple sclerosis, it may be difficult to ascertain a value on new treatments since outcomes are unique to a patient’s condition. Moreover, measures involved in formal CEAs are derived from nationally administered quality/disability-adjusted life-year (Q/D-ALY) surveys of healthy people, thus not capturing the value of the treatment for those who are ill.

The President’s policies may not be perfect, but it is an experiment worth trying. Prior policies that attempted to “assist” our elderly population have failed, leaving those with chronic conditions and limited incomes forgoing treatment due to the high cost. For advocates of government price-fixing, it is important to keep in mind how much will prices be limited to, and it would likely require government to subsidize a portion of R&Ds. It is difficult to imagine that government would be willing to make such an investment if they are barely subsidizing part D costs.

Sarah Zahakos, MPH is working toward a PhD in Health Law, Policy & Management at the Boston University School of Public Health.
AHRQ T32 Research Fellow
Training in Health Services Research for Vulnerable Populations
Grant # 2T32HS022242

 

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https://www.commonwealthfund.org/publications/issue-briefs/2017/oct/paying-prescription-drugs-around-world-why-us-outlier

Trump Administration (2018, May 30). American patients first: The Trump Administration

blueprint to lower drug prices and reduce out-of-pocket costs. Retrieved from https://www.hhs.gov/sites/default/files/AmericanPatientsFirst.pdf

Yu, N.L., Helms, Z., & Bach, P.B. (2017). R&D costs for pharmaceutical companies do

not explain elevated US drug prices. Health Affairs.

doi: 10.1377/hblog20170307.059036

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Massachusetts Regulates Short-Term Rentals

April 17th, 2019 in Analysis, Local Legislation, News, State Legislation

Massachusetts’s Governor Baker signed An Act Regulating and Insuring Short-Term Rentals on December 28, 2018. The act regulates short-term rentals provided through services like Airbnb. The governor rejected an earlier version of the bill, and returned amendments primarily allowing for an exemption for owners who rent out their property for two weeks or less per year, and reducing the amount of information provided publicly about rentals owners.  The bill was motivated by concerns that the rise in short-term rentals drives up housing costs and pushing out long-term residents. The statewide bill comes after both Boston and Cambridge individually passed laws essentially having the same effects. However, the Boston law was challenged by Airbnb, who filed suit in federal court claiming that the regulations are “Orwellian” and violate several laws, including laws that protect online companies from being held liable for the actions of their users. The city of Boston is currently holding off on some of the regulations passed pending the resolution of the court case. Airbnb had not yet said if it will challenge the new Massachusetts law.

The statewide law has two main components: first, that all short-term rentals are taxed by the Commonwealth, and can be additionally taxed by local governments, and second, that all owners of short-term rental properties must register with the state and hold insurance. The registration requirement was a cause of debate. Lawmakers, including Governor Baker, were concerned about violating the privacy of owners by publishing their names and addresses publically. In the amendments to the July bill that Governor Baker rejected, the registration requirement was changed so that only the owner’s neighborhood and street name would be published, not their exact address. The law also dictates eligibility in order to register. To be eligible to be a short-term housing unit, the space must be compliant with housing code, be owner-occupied and be classified for residential use, among other requirements. Another cause of debate was an exemption for occasional renters. Governor Baker originally wanted owners who rent their properties for 150 days or less to be exempt from the regulations. However, in the final version of the bill, the exemption was decreased to 14 days.

Not surprisingly, the hotel industry supports the bill. Paul Sacco, the President and CEO of Massachusetts Lodging Association, said:

“This is a tremendous victory for municipal leaders and the people of Massachusetts who have been waiting for years while Airbnb rentals have exploded, resulting in skyrocketing housing costs and disruptions in local neighborhoods. By adopting a more level playing field between short-term rentals and traditional lodgers, lawmakers made great strides toward a more fair and sensible system.”

Airbnb had a far less enthusiastic response however. In citing concerns about the property owners who use Airbnb to earn extra income, Airbnb said that they would “continue the fight to protect our community and the economic engine of short-term rentals for hosts, guests, and local small businesses”

While Massachusetts is the first state to pass a law, many other cities have passed similar laws in the recent years. In Nashville, the city passed a law in January which focused on taxing short-term rentals that are not owner-occupied in order to fund affordable housing development in the city. The “linkage fee” tax is controversial, with lawmakers questioning if the fees generated are enough to actually impact the lack of low-income housing within the city. Seattle passed a similar tax law in November 2017. The legislation aims to encourage owners who rent out a spare bedroom and discourage investors who buy entire buildings for use as short-term rentals. Finally, New York City passed regulations in July 2018 which requires Airbnb, and other similar companies, to provide information about the properties listed for rental within the city. However, Airbnb sued in federal court claiming that the requirement to provide information to the city violated the company’s fourth amendment right against search and seizure. The law was set to take effect in February 2019, however the Judge granted a preliminary injunction in favor of Airbnb saying, “The city has not cited any decision suggesting that the government appropriation of private business records on such a scale, unsupported by individualized suspicion or any tailored justification, qualifies as a reasonable search and seizure.”

Jessica A. Hartman is a member of the Boston University School of Law Class of 2020.

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Raising the Blinds – Gaining Meaningful Insight into Pharmaceutical Pricing through Legislation

February 7th, 2019 in Analysis, Federal Legislation, Legislation in Court, Lobbying

Rising healthcare costs are a growing concern across the United States; in 2016 U.S. health care spending was $10,348 per person – or 17.9 % of the nation’s Gross Domestic Product (GDP). To counter this alarming rise in healthcare costs, states are addressing one of the largest factors in rising healthcare costs – high drug prices. 

Many factors contribute to the high price of healthcare in our country, some of which are natural to an aging populace due to the baby boom of the 1950’s as the proportion of the population that is 65 and over is projected to experience a large increase in the coming years. An increase in costs is natural with a larger number of consumers – addressing this change is an important, but avoidable, challenge to overcome.

One avoidable factor of increasing healthcare costs is rapidly increasing pharmaceutical prices. Variance in drug prices may be geographic; based on where the drug is sold , or whom the drug is being sold to (pharmacy v. government). Many factors contribute to price differences, but an important factor are Pharmacy Benefit Managers (PBMs) as an intermediate in the market. States have been working to roll back the PBM layer of the market for  the pharmaceutical industry.

Pharmaceutical pricing has long been the target of legislators, but with a lot of talk and a surprising lack of action. Drug pricing is  discussed in both major party’s campaign platforms of the major parties and has been featured prominently in speeches by President Trump, and has featured in initiatives by previous administrations. There has been an uptick of legislation passed in the past decade, at all levels of government, with state action against pharmacy benefit managers and President Trump’s signing the Know the Lowest Price Act and the Patient Right to Know Drug Prices Act.  A common thread in the legislation is increased transparency because a big factor in the high drug prices — and medical care generally—is the lack of information for consumers and purchasers. Since 2015, California, Oregon, Louisiana, Nevada, Vermont, Connecticut, and Maryland imposed reporting requirements on pharmaceutical manufacturers who increase prices over an established threshold in a set time period. For example, California requires reporting when a drug that costs more than $40 and its wholesale acquisition cost (WAC) increases by more than 16% over two calendar years.  The WAC is similar to a “list” price for pharmaceuticals to wholesalers and direct purchasers. The WAC, however, does not include discounts or rebates offered by pharmacy benefit managers.

The new transparency offers insight to price increases; if there are no legitimate reason for the increase other than higher profits due to market control, state officials, drug customers and the public can take action.

The states with transparency statutes have imposed different methodologies with manufacturers reporting to different government officials such as the Department of Health and Human Services, creation of new departments, or to the state’s Attorney General.

Oregon currently requires the most detailed reporting; manufacturers must report to the Department of Consumer and Business Services the following:

  1. Name, price of drug and net increase in price (in %) over previous calendar year
  2. Length of time on market
  3. Factors contributing to price increase
  4. Name(s) of any generic version(s) of the drug
  5. Research & Develop Costs from Public Funds
  6. Direct costs to Manufacturer
  7. Total sales revenue for drug over prev. calendar year
  8. Profit from drug over previous calendar year
  9. Drug's price at release and yearly increases over the past 5 years
  10. 10 highest prices paid for the drug during past year outside of the US
  11. Any other info relevant to price increase
  12. Supporting documentation

In contrast, California’s requirements provide for advance notice of price increases and unearthing the reasoning for the increase. The California law requires manufacturers to report (A) Date of increase, current WAC, and future increase in WAC (in dollar amounts); and (B) The change or improvement, if any, that necessitates the price increase. Purchasers then have notice of any forthcoming price changes and if the increase is warranted.  California also requires a report for new drugs if its price exceed $670—the 2017 Medicare Part D threshold.  California’s reporting scheme has been a model for other states.

Maryland’s approach was more severe, with a provision banning “price gouging” of generic drugs. An “unconscionable price increase” of any “essential off-patent or generic drug” is illegal and  Maryland can levy a fine and take action to reverse the price change. The state did not include any limitation of the law to drugs that have come into or passed through Maryland.

The generic drug lobby, the Association for Accessible Medicines, challenged the law and the Fourth Circuit Court of Appeals struck down the law as an unconstitutional regulation of interstate commerce. Maryland has petitioned the Supreme Court to revisit the case.

The Pharmaceutical Research and Manufacturers (PhRMA), one of the largest pharmaceutical lobbying groups, has sued California alleging the law, like Maryland’s, is unconstitutional. Because California’s law is informational—and does not allow forced price changes—it is likely constitutional. In fact, PhRMA’s initial complaint was dismissed, and subsequently filed an amended complaint on Sept. 18, 2018.

It will be imperative for states seeking to regulate pharmaceutical manufacturers to observe where courts determine the extent of reporting they may require when they go after a manufacturer for increasing the price of their drug. For the time being, it appears that information-gathering may be the easiest available avenue for states seeking to curtail increases in drug prices. Seeking justifications and reasoning for large increases in drug prices may create a barrier for pharmacuetical companies seeking to impose unsubstantiated increases in drugs. Going further towards affirmative control of pricing appears to be off limits to states going as far as Maryland, but more careful structuring of the controls to the specific state may be permissible.

 

Drew Kohlmeier is a student in the Boston University School of Law Class of 2020 and is a native of Manhattan, KS, graduating with a degree in Biology from Kansas State University in 2016. Drew decided on Boston for law school due to his interest in health care and life sciences, and will be practicing in the emerging companies space focused on the life sciences industry following his graduation from BU.

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Automatic Vote Registration is a Necessary Step in the Right Direction to Increase Voter Turnout

February 7th, 2019 in Analysis, State Legislation

In 2016, Donald Trump won the electoral vote, and therefore the presidency, because of fewer than 80,000 people spread over 3 states; about the same population as Scranton, Pennsylvania. While there are many ways to analyze this narrow margin, the most important may be that elections can be decided by a small number of votes. This fact makes it increasingly important that governments ensure every eligible citizen has the ability to conveniently vote. When 80,000 people can decide a national election, any obstacle that inhibits citizens from voting can drastically change who our representatives are. One recent effort in several states is automatic voter registration.  While not the solution to all voting problems, it is a worthwhile first step towards greater voter turnout.

In 2015, Oregon became the first state to adopt automatic voter registration.Since then, 12 more states and the District of Columbia have enacted similar legislation. Most recently, in August of 2018, Massachusetts Governor Charlie Baker signed an automatic registration bill into law. Automatic voter registration laws change the traditional opt-in registration methods into opt-out plans. The Massachusetts law, for instance, requires automatic registration for anyone who completes a transaction with the Department of Motor Vehicles (DMV) or signs up for state healthcare (MassHealth), unless they opt-out of registration . The law will take full effect in January 2020,  in time for the next presidential election.

Because automatic voter registration is a relatively new design model, the research into whether or not it actually increases voter turnout is limited. However, the initial research from the Center for American Politics (CAP) seems positive. According to early numbers, of the 272,000 people in Oregon who were registered through the automatic system, more than 1/3 of them (approximately 98,000 people)voted in the 2016 election . This same data also suggests that Oregon's automatic registration law has created a potential pool of voters who are more representative of the age, income, and ethnicity of the state’s residents. At the very least, there is clear and conclusive evidence to confirm that automatic voter registration will definitely increase the number of people who have the option of voting in the next election. Since 2016, Oregon’s registration rates have quadrupled at state DMV offices. There have been similar results in Vermont where, after only six months of its new system, registration rates rose 62% from the previous year . While the effect remains to be seen in Massachusetts, officials estimate that approximately 680,000 new voters will be registered because of the bill.

Despite these promising results, automatic voter registration has not been without its critics. Opponents are concerned about various issues such as fraud, duplicate registrations, and accidental enfranchisement for undocumented immigrants. Proponents believe that these concerns, however, are largely unfounded. To combat the risk of fraud and duplicate registrations, many states conduct their automatic registration through multiple governmental agencies that can all supply and confirm correct identifying information (such as changed addresses or last names). The Massachusetts law allows registration through two different agencies and also requires the state to link with the Electronic Registration Information Center (ERIC); a third-party nonprofit that will update and report changed voter information to the state. Concerns of accidental registration of undocumented immigrants are most heightened in places such as California, which allows undocumented residents to obtain drivers licenses while also providing automatic registration through the DMV. Election officials in California, however, state that all automatic registrations in California are cross referenced with voter eligibility databases the ensure that this fear cannot come to fruition.

Proponents of automatic voter registration argue that while the potential negative side effects of these laws are negligible, the benefits are huge. Automatic registration is a small, but highly effective, tool to help protect the most vulnerable from having their voting rights infringed upon. One important example of this can be found in the state of Georgia. Georgia has had automatic voter registration through the Department of Driver Services (DDS) since September of 2016. Prior to adopting automatic registration, the state required voter applications to meet extremely strict  “precise match” requirements.  Under these precise match requirements, applications ccould be held or rejected if they did not precisely match the information the state already had on file for that person. Applications were held up for trivial issues such as missing hyphens or a signature that looked slightly different. In 2016, The Secretary of state ended these precise match requirements just as the state began implementing automatic voter registration.

Georgia Capitol
Atlanta, 1889

During the 2018 midterm election Secretary of State Brian Kemp reinstated the practice of requiring precise match’s for voter registration and absentee ballots. This requirement caused widespread rejection of absentee ballots and mailed in voter registration applications-- more than 53,000 ballots and applications because of precise match reasons. While 32% of residents in Georgia are black, approximately 70% of the rejected applications were from black residents. This seemingly suggests that one of the greatest issues with automatic voter registration is simply that it doesn’t do enough on its own to prevent voter suppression.

While automatic registration can effect great change in terms of the number of people who are registered to vote, it is only a beginning, and not an end, to improve the problem of voter suppression and voter turnout. The decision whether or not to vote is almost as personal as the decision of who to vote for. All citizens should have the right to choose whether they want to vote in any particular election. When state laws and policies make it difficult for people to register, the government ends up taking the decision out of the hands of too many Americans. The move towards easier registration is an important one. For a country whose elections are decided by so few votes, it’s imperative that anyone who wants to vote, gets to.

Ashley Zink anticipates graduating from Boston University School of Law with a Juris Doctor in May 2020.

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Can Single-Payer Really Happen?

February 7th, 2019 in Analysis, State Legislation

Healthcare is on the frontlines of legislative debates— the U.S. has the most expensive care and reports the poorest outcomes of all rich democracies (RDs). Several states have proposed legislation to innovate healthcare access and to safeguard against the destruction of the ACA. One “old idea” that recently  gained momentum is single-payer, and for New York (NY), it may become a reality, with its fate resting with the new legislature. To date, only one state has briefly “experimented” with single-payer – Vermont, and it failed due to gross underestimation of its costs. In NY, a landmark study that evaluates the viability of NY’s single-payer bill, known as the New York Health Act (NYHA), conducted by RAND, detailed benefits and setbacks of the proposed legislation, and public reaction was mixed. Despite the not so encouraging findings, lessons can still be learned from this report.

Single-payer, coined as “Medicare for all”, is a health insurance system in which a single public agency organizes healthcare financing, ideally covering all types of essential healthcare services. Delivery of care itself, however, would remain largely private in a single-payer system.

Proposals for single-payer in the U.S. are not new. The earliest version came in 1943 by Senators Robert Wagner (D-New York), James Murray (D-Montana), and Representative John Dingell, Sr. (D-Michigan), known as the Wagner-Murray-Dingell Bill (and subsequently endorsed by President Truman in 1945). The post-World War II bill proposed funding health care through payroll and income taxes. The bill became entangled with the Cold War , was vilified as socialized medicine by its opponents, and was discarded. The idea was revived in the 1950s, when it was nearly impossible for an aging population to get private health insurance. The elderly advocated for subsidized coverage since they are no longer able to afford their care, and hospitals advocated for it to ensure that the healthcare services they provide were paid for. The result: Medicare was enacted in 1965— the first form of single-payer insurance in the U.S.

Single-payer is gaining popularity once again. According to a Reuters poll, 70% of Americans support some form of single-payer coverage. Why? First, with the implementation of the ACA, there was a national momentum for states to expand their healthcare coverage. The health exchange created by the ACA made coverage accessible for many middle-income families and individuals. On the Medicaid side, progressive states elected to expand their eligibility coverage for individuals earning up to 138% of the federal poverty level in exchange for a 50% match in federal subsidies, a benefit many states enjoy. The most appealing provision of all is the mandated coverage of pre-existing conditions. With the all Republican take-over of the federal government in 2016, many Americans worried about what would happen to their coverage. Over the next two years, the ACA underwent congressional budget cuts, but despite efforts by Congress and President Trump,  the ACA has grown in popularity with the general public.

In NY, the concept of single-payer was first introduced in 1992 by Assembly member Richard Gottfried (NY-D). The goal of NYHA is to provide universal insurance coverage with no cost-sharing for New Yorkers, regardless of legal status, and would cover almost all comprehensive services. Bill proponents expect increased access to care and reduced costs by removing high administrative overhead costs and reducing unjustifiably high prescription drug costs. Much like the Wagner-Murray-Dingell Bill, NYHA would be funded through payroll and income taxes. Since 2015, the NYHA has passed the Assembly floor four times. Although 31 state senators co-signed the bill, it has been stopped in the Senate by just one vote. This may now change with the Democrats taking back the Senate majority, although the cost may be a deterrent.

Despite the national and legislative enthusiasm, New Yorkers have been skeptical of single-payer reform. According to a 2018 Mercury Public Affairs poll, only 33% support the bill. Over 60%, however, said they would support increased subsidies to assist low and middle-income families. Why the opposition? The number one reason of 66% polled: taxes would pose a high burden.

The RAND study assessed “near-term” and “long-term” impacts of the bill. Overall, it found that single-payer would be viable, but with big caveats. The system would expand health care access, all while generating an estimated $15 billion in net savings (3.1%) on healthcare costs by 2031. Still, near-term are where the problems lie. From the political side, this would require the federal government to issue a waiver to redirect all federal and state funds to NYHA. Just weeks prior to this report, the Centers for Medicare & Medicaid Services called California’s similar proposal “unworkableand indicated similar waivers would not be approved. On the fiscal side, health care reform comes with a steep price: $139 billion in additional state tax revenue would be needed by 2022, that is 156% more than what is currently being collected. This amount would be amassed through payroll and income tax that would supplant the employer contribution and premiums and out-of-pocket costs. RAND applied a generic tax schedule based on three income brackets. For low-income families, they would be taxed 6.1% of their payroll income and 6.2% for non-payroll income by 2022. For middle-income families, the rates would range from 12.2% to 12.4%, and for high-income, their tax rate would increase up to 18.3% - nearly three times of what they are paying now. Moreover, Medicaid and Essential Plan (i.e. the NY Health Exchange) enrollees would pay more to get healthcare coverage. Assembly member Gottfried praised the study and suggested that they can adjust taxes accordingly so that high income families would pay more in taxes in order to help low and middle-income families afford their care. These tax hikes would exceed the combined costs of what New Yorkers are currently paying in taxes and healthcare benefits—explaining the bill’s unpopularity. Using the RAND report as a guide, it is likely that the state legislature will explore mechanisms to help finance their proposal in the upcoming session.

New York State Capitol
Albany 1899

While single-payer hasn’t had much luck in the U.S., universal care payment methods, including single-payer, have been successful in other RDs. Regardless of each RD’s financing method, there is one consistent feature of success: national political will to implement it. Imagine if the politics of the cold war did not interfere with establishing a national health insurance plan? Would it have been possible to implement a streamlined and efficient plan? If our culture would have capitalized on the Medicare momentum, would we accept a collective sense of community regarding our healthcare? Vermont tried to implement single-payer with little success due to gross budget underestimations and faint national support. The RAND report sheds light on the cost of single-payer and suggests that there needs to be federal political will to support it. Let these findings and other evidence guide lawmakers as the search for a modest solution continues. Perhaps Wagner’s vision may still be a solution.

Sarah Zahakos is working toward a PhD in Health Law, Policy & Management at the Boston University School of Public Health.

AHRQ T32 Research Fellow
Training in Health Services Research for Vulnerable Populations
Grant # 2T32HS022242

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Examining the ERA’s Comeback: the Legal Debate Over a 38th Ratification

February 5th, 2019 in Analysis, Federal Legislation, State Legislation

At a time when the issues of gender and sexual harassment have come to a head, some activists are looking to a decades-old proposed constitutional amendment to secure gender equality. The Equal Rights Amendment (“ERA”), originally proposed by suffragist Alice Paul in 1923, would affirmatively state that no person’s rights under the law may be denied or abridged based on sex. This would raise the level of judicial scrutiny afforded to claims of gender discrimination from the “intermediate” and often uncertain level of scrutiny to the much more arduous level of strict scrutiny. Strict scrutiny would make gender a protected class and grant legal safeguards for gender discrimination claims on par with those of claims of racial discrimination. Despite renewed public support for the ERA, its complicated history and potential future passage raise contentious legal issues.

The ERA was introduced in every Congressional session from 1923 until its eventual passage in 1972. After passage, the landmark legislation went to the states for ratification; needing the ratification of at least 38 states—two thirds of the states—before the congressionally imposed deadline of March 22, 1979. While there was an initial surge in ratification, only 35 states ultimately ratified the ERA. Congress extended the deadline to June 30, 1982, however no other states ratified in that time.

After the deadline passed without the prerequisite ratification, the ERA largely disappeared from the national conversation and lay dormant until its contemporary resurgence. Millions participated in the Women’s Marches in response to President Trump’s election, and the #MeToo movement aimed at ending workplace sexual assault and harassment; both reflect a renewed push for gender equality. In light of those movements, the ERA, too, gained steam.  On March 22, 2017, exactly 45 years after Congress first passed the ERA, Nevada became the 36th state to ratify the amendment. A little over a year later, on March 30, 2018, Illinois followed suit, leaving the ERA needing only one more state to reach the required two-thirds of states. The final necessary ratification may come in the upcoming legislative session beginning in January, as Virginia lawmakers have recently wrapped up VAratifyERA, a 10-day, bipartisan bus tour of Virginia aiming to gather support for the bill across the state.

While activists pursue a 38th ratification, legal scholars debate the legitimacy of a passage of the amendment so far beyond Congress’ deadline. Does Congress have the power to simply extend the deadline again and certify the ERA’s passage if a 38th state passes it, or did the ERA expire in 1982, rendering a 38th ratification moot?

According to a 2018 Congressional Research Service (CRS) report on the ERA and ratification issues, ERA advocates argue that a contemporary ratification is valid given Congress’ broad authority over the constitutional amendment process, including the power to extend or limit the deadline for the ERA. ERA supporters point to Article V of the Constitution—giving Congress broad power to propose amendments “whenever two thirds of both houses shall deem it necessary” and stating that proposed amendments are “valid to all intents and purposes” when ratified by the legislatures of three fourths of states—to argue that Congress may extend ratification deadlines as it sees fit. Notably, Article V does include any specific time limits related to constitutional amendments, while other constitutional rules with time periods are explicitly specified. Proponents of the ERA, including Nevada’s ERA Ratification Organizer, point to the 27th Amendment’s ratification process to support an expanded—if not long—ratification process. The 27th Amendment, the most recent amendment to the Constitution imposing rules on increases or decreases to the salaries of members of Congress, was introduced in 1789, without a deadline, and was not fully ratified until 1992.  ERA supporters argue that Congress can extend deadlines where the time limits appear only in the original proposing clause, not the text of the amendment itself. Finally, the fact that Congress already extended the deadline once suggests that Congress has the power to do so again.

According to the CRS report, opponents argue that despite Congress’ plenary power over the constitutional amendment process, extending the ERA deadline to allow for contemporary ratification would be unconstitutional because of ratifying states’ potential reliance on the time period in their decision to ratify. However, since the deadline was only in the proposing clause and all of the states’ ERA ratifications prior to the first deadline extension raised no constitutional issues, this argument may lack merit.

Significantly, a 38th ratification of the ERA may raise the question of whether states’ rescinding of ratifications of constitutional amendments are valid, as five states—Idaho, Kentucky, Nebraska, South Dakota, and Tennessee—have withdrawn their ratifications. This is not a settled area of law, but ERA proponents argue that such rescissions are not legal, as Article V provides only for ratification procedures, not rescission. The passage of the Fourteenth Amendment in 1868 lends credence to this argument, at it was certified based on the ratification of a two-thirds majority of states including Ohio and New Jersey, despite the fact that they had previously attempted to withdraw ratification. Additionally, the Supreme Court has been reluctant to weigh in on the validity of states’ ratifications of recessions of constitutional amendments. In Coleman v. Miller (1939), the Court regarded the question of the “efficacy of ratifications by state legislatures…” as a political question and did not issue a ruling on the merits. Therefore, it is likely that Congress could certify the ERA in a similar vein to the Fourteenth Amendment—that is, including ratifications from states that have since attempted to withdrawal their ratifications—legally and without intervention from the courts.

While the legal status of a 38th state ratification may be murky, the importance of the ERA today is clear. United States Supreme Court Justice Ruth Bader Ginsburg has supported the ERA, arguing that while recent women’s rights advancements through legislation are positive, it could be repealed without an underlying principle of equality enshrined in the Constitution. For example, a 2012 Wisconsin Act rolled back protections for victims of wage discrimination. Practically, the ERA’s heightened scrutiny on gender discrimination cases would go a long way in preventing rollbacks of laws protecting gender equality as well as preventing the implementation of laws that actively discriminate based on gender. For example, the ERA would likely have prevented the rollback of the Wisconsin wage equality law. Experts also argue that a heightened level of scrutiny for gender discrimination claims likely would have changed the outcome of the famous 2014 Burwell v. Hobby Lobby case, which allowed for-profit companies to deny its employees health coverage of contraception based on religious objections. If the ERA can win its final state ratification and pass through the many legal hurdles it faces, it would represent the realization of an almost century-long ordeal to ensure a basic principle of equal protection and rights under the law regardless of gender.

 

Chloe Aubuchon graduated from the University of Michigan with a B.A. in International Studies and Spanish in 2017 and anticipates graduating from Boston University School of Law in May 2020.

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