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Why Litigators Should Be Looking Forward to Health-Care Reform

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  • Why Litigators Should Be Looking Forward to Health-Care Reform

    Opponents of the health-reform efforts have attacked congressional Democrats’ health-care reform efforts on a number of fronts: It’ll drive the deficit higher, objectors say. It’ll add layers of impenetrable bureaucracy to the system. The quality of care nationwide will go down.

    This morning, in the WSJ’s editorial pages, we came across another potential arrow in the skeptics’ quiver: lawsuits.

    Curt Levey, the executive director of the right-leaning Committee for Justice, opines that:
    By creating new federally enforceable rights and obligations, layers of complex federal regulations, and dozens of new programs and agencies—not to mention 50 newfangled “exchanges”— ObamaCare would guarantee a flood of litigation. That means more money wasted on attorney fees, physicians focused on legal rather than medical considerations, and growing delays in our already-overburdened courts.
    . . .

    The sources of litigation will be many, ranging from individual coverage disputes to other constitutional claims explored below. In between, there’s enough vague and ambiguous statutory language to keep lawyers employed for decades. One example: the compromise abortion provision contained in the Senate bill. Fervent disagreement over its meaning presages bitter court fights.

    The piece continues with Levy’s parade of horribles: trial lawyers will challenge not only the substance of regulations, but the procedures used to create them; they’ll attack HHS’s rule-making as an improper delegation of congressional authority. Individuals, imbued with new rights, will sue insurance companies to see those rights vindicated.

    Other awfuls certain to arrive, writes Levy, will be driven by identity politics:
    Women’s groups will likely sue if HHS requires coverage for erectile dysfunction but not breast augmentation. Gay-rights groups will litigate if they don’t like the way HHS defines “family” for insurance purposes. People 30 and over will file suit because only the young are permitted to purchase catastrophic coverage. Hispanics will go to court if they are disproportionately asked to prove citizenship before receiving insurance subsidies. And white folks will sue because of the various racial preferences in the bills.

    Of course, activist judges will take a role, also. “Creative trial lawyers will be aided by those activist judges more interested in making than interpreting the law,” writes Levey.

    LBers, let’s throw this question out to you. On the one hand, Levey is, in our view, almost certainly right. Especially in the early years following a bill’s passage, litigation would likely spike. Costs would go up. Lawyers would make money. Judges’ dockets would get even fuller.

    But on the other, it could be argued, this is what happens in our system. Congress passes laws, laws beget litigation. The Voting Rights Act of 1965 spawned generations of litigation, for example, but you don’t hear that trotted out as a reason to criticize the act itself.

    In any event, we’ll stop here. Thoughts?

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