Health Law Section leader’s work 
referenced in SCOTUS decision on ACA

Issue August 2012 By Jennifer Rosinski

An amicus brief co-authored by Massachusetts Bar Association Health Law Section Council member Lorianne Sainsbury-Wong was mentioned in the U.S. Supreme Court's landmark health care decision on the Affordable Care Act. The constitutionality of the act was upheld in a 5-4 decision on June 28, ruling that individuals who fail to obtain insurance must pay a tax penalty beginning in 2014.

"There were a lot of happy tears," Sainsbury-Wong said as she recalled the reaction at Health Law Advocates in Boston, where she is litigation director. Sainsbury-Wong spoke about the brief and the meaning of the ACA decision live on Fox 25 News the night of the June 28 decision. "Our efforts were validated in a very significant way. For me it was a humbling experience . . . It was clear the justices were paying attention to what was happening in Massachusetts."

Associate Justice Ruth Bader Ginsburg in her minority opinion quoted the brief on page 73 of the decision.

"[O]ut-of-state residents continue to seek and receive millions of dollars in uncompensated care in Massachusetts hospitals, limiting the state's efforts to improve its health care system through the elimination of uncompensated care," reads the brief, which argued that the Affordable Care Act is constitutional. (Brief for Health Care for All, Inc., et al. as Amici Curiae in No. 11-398, p. 4)

Ginsburg used the quote in a section of her opinion that states Congressional intervention is necessary because otherwise states that have undertaken their own health care reform are at an economic disadvantage.

"I knew early on the perspective I wanted to explore," said Northeastern University School of Law Associate Dean Wendy E. Parmet, a co-author of the brief and a board member at Health Law Advocates.

"Don't think about health care reform as something states can do on their own. The decisions people make in other states, whether to have or not to have insurance - affect the success of health care reform in Massachusetts," Parmet said. "The state can only go so far because of the interstate effect."

The statistics in the brief, and much of the research needed to make its arguments, was provided by a team of four second-year students at Boston University School of Law as part of their class, Constitutional Litigation and Health Care.

"I don't think there's many law students that can go into an interview with a Supreme Court citation in the most important case of the decade," said one of the class's professors, Kevin Outterson, an associate professor at both Boston University's School of Law and School of Public Health.

Outterson said to soften the blow of the students giving up their winter break to work on the brief, he promised them a party if any of the briefs were quoted or cited. "I still owe them that," Outterson said.

The students who worked on the brief were Paul Payer, Braden Miller and Katie O'Neill. Eleven additional students in the class worked on three other briefs submitted by the class.

Filed before the Supreme Court on Jan. 13, the brief was written on behalf of several Massachusetts organizations involved in Massachusetts' 2006 health reform legislation. Among the groups were Health Care For All, Community Catalyst, and the Massachusetts Hospital Association, all based in Boston. It was one of more than 120 briefs submitted in the case.