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PERSPECTIVE Health Insurance Reform and the Tensions of Federalism

state is not going to establish the balance of power and respon- shoals, but clearly, federal–state
one, when will a federal backup sibility between states and the tensions are about to be seriously
pool be established? How will it federal government. tested.
be run and administered? Will its Done right, the implementation
Disclosure forms provided by the au-
creation delay protections that are of the ACA can achieve the ad- thors are available with the full text of this
required to be in effect this year? vantages of a minimum national article at NEJM.org.
Long before the October 1, standard for coverage and greater
Mr. Jennings is president of Jennings Policy
2010, effective date of other insur- equity among Americans without
Strategies, Washington, DC, and was senior
ance reforms, the administration sacrificing the states’ traditional health care advisor to President Bill Clinton
will also need to provide thought- roles, responsibilities, and flexi- from 1994 to 2001. Ms. Hayes is the vice
president for health policy at Jennings Policy
ful guidance for states regarding bility. Done wrong, implementa-
Strategies and a scientist and lecturer in the
implementation and enforcement. tion will create excess layers of Department of Health Policy, George Wash-
There are inherent tensions be- bureaucracy, and delay will ensure ington University School of Public Health
and Health Services, Washington, DC.
tween state and federal interests that this historic health care re-
that must be resolved before in- form legislation falls far short of
This article (10.1056/NEJMp1004761) was
surance exchanges are established. its goals. It remains to be seen published on May 12, 2010, at NEJM.org.
And the implementation of the whether leaders at all levels of Copyright © 2010 Massachusetts Medical Society.
law’s substantial Medicaid expan- government will be able to navi-
sion will also create new tests for gate the political and policy-related

Justice John Paul Stevens — The Practice of Medicine


and the Rule of Law
George J. Annas, J.D., M.P.H.

A  lthough it’s not a thought


that has leapt to the minds
of commentators, U.S. Supreme
cussing abortion with patients. In
his dissent, Stevens wrote, “Roe v.
Wade and its progeny are not so
case before him are hallmarks
of Stevens’s approach to adjudi-
cation. And by paying close at-
Court Justice John Paul Stevens much about a medical procedure tention to the facts of cases, he
will be missed by phy­sicians and as they are about a woman’s fun- learned about medical practice on
patients. Stevens believes that the damental right to self-determina­ the job.
Constitution prohibits government tion  .  .  .  free from governmen- Nominated by President Gerald
from interfering in personal deci- tal domination.” 1 Similarly, in a Ford, Stevens was sworn in to re-
sion making, including medical 1990 dissent in Washington v. Harper, place Justice William O. Douglas
decisions that belong in the hands Stevens objected to what he saw in December 1975. Although his
of physicians and their patients, as an abuse of medicine: the appointment came almost 3 years
not politicians and regulators; it drugging of a prisoner for security after Roe v. Wade, he was not asked
was for this reason that he was reasons rather than health rea- a single question about that opin-
Justice Harry Blackmun’s staunch- sons. Stevens carefully examined ion at his confirmation hearing
est ally in upholding the Roe v. Wade the medical facts, including the and was confirmed by the Senate
abortion-rights decision. side effects of the drug in a patient 98 to 0. Like his confirmation, his
One clear articulation of this like the prisoner, Harper, who first two decades on the Court
belief can be found in Stevens’s already had dystonia and akathe- were uncontroversial. For exam-
1991 dissent in Rust v. Sullivan, in sia from previous forced medica- ple, in a 1994 book documenting
which the Court upheld the tion with psychotropic drugs.1 how the Warren Court’s social
“gag” rule prohibiting govern- Close attention to both statutory reform and equality agenda had
ment-funded physicians from dis- language and the facts of the radically altered the politics of Su-

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PERSPECTIVE The Practice of Medicine and the Rule of Law

preme Court confirmations, polit-


Key Opinions by Justice John Paul Stevens.
ical scientist Mark Silverstein nev-
er once even mentions Stevens.2 Maher v. Roe, 432 U.S. 464 (1977): Votes with the majority to uphold Connecticut’s
Stevens did not come into his Medicaid restrictions on elective abortion funding.
own until 1994 when, with Black- Harris v. McRae, 448 U.S. 297 (1980): Dissents from an opinion upholding the Hyde
mun’s retirement, he became the Amendment’s restrictions on therapeutic abortion funding.
Court’s senior associate justice. Bowers v. Hardwick, 478 U.S. 186 (1986): Dissents from an opinion upholding
The senior associate is second in state law out­lawing sodomy.
authority to the chief justice. The Washington v. Harper, 494 U.S. 210 (1990): Dissents from an opinion approving
senior associate has the power to the forced medication of a prisoner.
assign the writing of the Court’s Rust v. Sullivan, 500 U.S. 173 (1991): Dissents from an opinion upholding restric-
opinion when the chief justice is tions on phy­sicians’ speech in Title X clinics.
not in the majority but the senior Planned Parenthood v. Casey, 505 U.S. 833 (1992): Concurs in part (in upholding
associate is — and the writing of the “core” of Roe v. Wade), and dissents in part (in opposing the mandatory
the principal dissenting opinion waiting period before ­abortion).
when their positions are reversed.3 Stenberg v. Carhart, 530 U.S. 914 (2000): Assigns the majority opinion to Breyer,
Stevens has used this power stra- and the Court strikes down the law banning partial-birth abortions for being
vague and for not including an exception for the health of the pregnant woman.
tegically to assign important ma-
jority decisions (primarily to him- Bush v. Gore, 531 U.S. 98 (2000): Dissents from an opinion ending the Florida re-
count.
self and Justice Anthony Kennedy)
and to assign principal dissents Atkins v. Virginia, 536 U.S. 304 (2002): Writes the majority opinion that the death
in cases about which he felt par- penalty is ­unconstitutional as applied to mentally retarded defendants.
ticularly strongly.3 Lawrence v. Texas, 539 U.S. 558 (2003): Assigns the majority opinion to Kennedy,
When Blackmun retired, Ste- and the Court reverses Bowers on the basis of Stevens’s dissent.
vens became the justice most Rasul v. Bush, 542 U.S. 466 (2004): Writes the majority opinion holding that U.S.
knowledgeable about health care courts have ­jurisdiction over prisoners held at Guantanamo Bay.
— and most concerned about gov- Gonzales v. Raich, 545 U.S. 1 (2005): Writes the majority opinion affirming federal
ernment interference in and dis- authority over marijuana under the Commerce Clause.
tortion of the physician–patient Gonzales v. Oregon, 546 U.S. 243 (2006): Assigns the majority opinion to
relationship. He showed great em- Kennedy, and the Court finds that Congress did not delegate authority to the
pathy for suffering patients and U.S. Attorney General to define the practice of medicine.
their physicians in the physician- Hamdan v. Rumsfeld, 548 U.S. 557 (2006): Writes the majority opinion that the
assisted suicide cases, writing in a Third Geneva Convention applies to prisoners held at Guantanamo Bay.
concurring opinion that although Gonzales v. Carhart, 550 U.S. 124 (2007): Assigns the dissent to Ginsburg, who ar-
he agreed that patients have no gues that the Court was overruling Stenberg without a principled justification.
constitutional right to physician- Baze v. Rees, 553 U.S. 35 (2008): Concurs in upholding lethal injection as constitu-
prescribed lethal drugs, he might tional, but also argues that the death penalty itself is unconstitutional.
change his mind if such a pre- Wyeth v. Levine, 129 S.Ct. 1187 (2009): Writes the majority opinion stating that
scription was shown to be “the Congress did not preempt state safety requirements for pharmaceutical
only possible means of preserv- labeling.
ing a dying patient’s dignity and
alleviating her intolerable suffer-
ing” (Vacco v. Quill). He also as- sicians to be the gatekeepers of Blackmun, the predominant voice
signed Justice Kennedy to write marijuana for patients because of in abortion cases. Shortly after
the opinion that Congress had the danger that “some unscru- joining the Court, he voted with
not given the U.S. Attorney Gen- pulous physicians” would over- the majority that the Constitution
eral any authority to define the prescribe it if it was “sufficiently did not require Medicaid to pay
practice of medicine (Gonzales v. profitable to do so” (Gonzales v. for elective abortions even if it
Oregon). He was unwilling, how- Raich). paid for “medically necessary”
ever, to consider permitting phy- Stevens has also had, after ones (Maher v. Roe). But in a 1980

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PERSPECTIVE The Practice of Medicine and the Rule of Law

case about the Hyde Amendment reversed Breyer’s Stenberg decision, publican he was when he joined
— which restricted federal fund- with Kennedy writing the major- the Court. Stevens says the Court
ing of abortion to cases of rape, ity opinion. Stevens assigned the changed around him. He has
incest, and risk to the life of the writing of the principal dissent noted that, with the exception of
pregnant woman — Stevens vot- to the only woman on the Court, Justice Ginsburg, every Supreme
ed with the minority, dissenting Ruth Bader Ginsburg, who pro- Court appointee since President
against the 5-to-4 ruling that the duced an exceptional rebuttal of Richard Nixon’s nomination of
government is not constitution- the majority opinion (Gonzales v. Lewis Powell has been more con-
ally required to fund medically Carhart). servative than the justice he or
necessary abortions even if it funds Law professor Jeffrey Rosen has she replaced.3,5 Nonetheless, some
care for pregnancy and childbirth noted that Stevens has written of Stevens’s views did evolve dur-
(Harris v. McRae). more dissents and concurring ing his tenure on the Court. He
In 1992, when it looked as if opinions than any other sitting went from supporting the death
Roe might be overruled, Stevens justice.3 But Stevens has been penalty, for example, to banning
voted with Blackmun to keep Roe much more than a “great dissent- its imposition on mentally retard-
intact; more important, he per- er.” He believes that dissents and ed criminals (Atkins v. Virginia) to
suaded Justices Kennedy, Sandra concurrences serve the democratic turning against it altogether (Baze
Day O’Connor, and David Souter purpose of exposing the public v. Rees).
to craft their joint opinion in seg- to counterarguments, which is Most important, I think, Ste-
ments, so that a particular seg- preferable to creating the illusion vens should be hailed for a qual-
ment could have the support of of complete accord inherent in ity that we should expect (in fact,
all five justices, and the “core” unanimous decisions, and that demand) from all Supreme Court
principles of Roe could be upheld well-reasoned dissents can ulti- justices: fidelity to the rule of law.
as the majority opinion of the mately be adopted by the Court. He consistently applies the law as
Court (Planned Parenthood v. Casey).1,4 An example is a case in which he he understands it in a principled
Shortly thereafter, antiabortion emphasized the limits the Con- manner rather than relying on
tactics shifted to attempts to out- stitution places on government any ideological test or prejudice.
law so-called partial-birth abor- interference in personal relation- He had no problem, for example,
tions. When that issue first came ships. In Bowers v. Hardwick (1986), in concluding from reading the
before the Court in 2000, Stevens the Court found that a state stat- statute that Congress had pre-
assigned the majority opinion to ute outlawing consensual sexual empted state regulation of the
Justice Stephen Breyer, who wrote conduct by homosexuals was con- safety of medical devices, and
a medically sophisticated opinion stitutional. Stevens wrote a power- later finding — also on the basis
striking down the law, stating that ful dissent arguing that individual of statutory language — that
it was too vague for physicians to decisions about physical intimacy Congress had not preempted state
know what actions were prohib- are constitutionally protected. Sev- regulation of pharmaceuticals.
ited and that it lacked an excep- enteen years later, when the Court Stevens was also the justice most
tion for risks to the pregnant reversed Bowers, Kennedy wrote responsible for upholding the rule
woman’s health. Stevens wrote a for the Court, “Justice Stevens’ of law in the context of the “war
concurring opinion, noting, with analysis, in our view, should have on terror,” writing majority opin-
some frustration, that antiabor- been controlling in Bowers and ions applying the constitutional
tion rhetoric tends to obscure the should control here. Bowers was right of habeas corpus (Rasul v.
fact that almost three decades af- not correct when it was decided, Bush) and the Geneva Conventions
ter Roe, its core holding “has been and it is not correct today” (Law- (Hamdan v. Rumsfeld) to prisoners
endorsed by all but 4 of the 17 rence v. Texas). held at Guantanamo Bay. He was
Justices who have addressed the Now often praised as the “lib- able to take an authoritative lead-
issue” (Stenberg v. Carhart). Seven eral lion” of the Court, Stevens ership role on this front in part
years later, after the arrival of maintains — accurately, I think because he is the only justice
Chief Justice John Roberts and — that he hasn’t changed much with active-duty military experi-
Justice Samuel Alito, the Court from the middle-of-the-road Re- ence (U.S. Navy, World War II).4

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PERSPECTIVE The Practice of Medicine and the Rule of Law

He will also be remembered for change the way medicine is prac- 1. Annas GJ. Standard of care: the law of
American bioethics. New York: Oxford Uni-
the closing lines of his dissent in ticed, Justice Stevens’s strong voice versity Press, 1993.
Bush v. Gore: “Although we may for protecting the physician–­ 2. Silverstein M. Judicious choices: the new
never know with complete cer- patient relationship and promot- politics of Supreme Court confirmations.
New York: W.W. Norton, 1994.
tainty the identity of the winner ing the rule of law should serve 3. Rosen J. The dissenter, Justice John Paul
of this year’s presidential election, as a model for current and future Stevens. New York Times Magazine. Sep-
the identity of the loser is per- justices. tember 23, 2007.
4. Toobin J. The nine: Inside the secret world
fectly clear. It is the nation’s con- Disclosure forms provided by the author of the Supreme Court. New York: Doubleday,
fidence in the judge as an impar- are available with the full text of this article 2007.
tial guardian of the rule of law.” at NEJM.org. 5. Interview transcript: Justice John Paul Ste-
vens interview with Jeffrey Rosen, conducted
As health care professionals June 22, 2007. (Accessed May 3, 2010, at http://
look to the Court in the coming From the Department of Health Law, Bio- www.nytimes.com/2010/04/12/magazine/
months and years to rule on the ethics, and Human Rights, Boston Univer- 12stevens-interview.html?ref=magazine.)
sity School of Public Health, Boston.
constitutionality of the new health Copyright © 2010 Massachusetts Medical Society.

care reform law and any regula- This article (10.1056/NEJMp1004657) was
tions the government adopts to published on May 5, 2010, at NEJM.org.

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