“ How Can Nurses Have An Impact On Outcome Of Legal Issues Related To Nursing And Health Care?”
Nursing and the courts
David M. Keepnews, Virginia Trotter Betts
“Power concedes nothing without a demand. It never did and it never will.”
The courts are an important source of health policy. Their decisions hold significant implications for nurses and for the patients, families, communities, and populations they serve. This chapter provides an overview of the legal and judicial systems and the role of the courts in shaping policy. It is not a comprehensive overview; rather, it aims to provide the reader with a general understanding of this policy arena and its critical importance for nursing. Although this chapter uses several examples to illustrate the relationships between law and policy, it is important to keep in mind that the policy landscape can change rapidly and unpredictably.
The judicial system
The United States has two parallel court systems: federal and state. The federal courts have jurisdiction over matters that involve federal law (generally speaking, those that pertain to the U.S. Constitution, federal statutes, and/or the actions of federal agencies). The trial courts for the federal system (the entry point for most federal cases) are called district courts, and there are 94 located throughout the United States and its territories. Federal courts of appeal, also referred to as circuit courts, are organized into 12 geographic circuits plus the Federal Circuit Court ( Administrative Office of the U.S. Courts, n.d. ). The U.S. Supreme Court is the federal court of last resort; there is no higher court to which its decisions can be appealed.
Each state has its own court system. State courts generally rule on issues arising under the state’s constitution and laws. They may also hear some claims that arise under federal law or the U.S. Constitution. The state court systems include trial-level and appellate courts, with a high court as the court of last resort. The high court is known as the Supreme Court in most states, but not all; in New York State, for example, its highest court is known as the Court of Appeals.
The role of precedent
An important legal doctrine, stare decisis (“let the decision stand”), sets the course for judicial precedents by adhering to previous findings in cases with substantially comparable facts and circumstances. Thus courts grant deference to their prior rulings. Courts are not completely bound by precedent; they sometimes overrule prior decisions, but they are expected to depart from precedent based only on compelling and clearly articulated reasons. Lower courts are expected to follow the rulings of a higher court ( Administrative Office of the U.S. Courts, 2010 ). Thus, for example, a federal district court in California or Oregon would look to rulings of the Ninth Circuit Court of Appeals (which includes those states) for guidance; the Ninth Circuit would look to the U.S. Supreme Court as well as the Ninth Circuit’s own prior rulings.
The constitution and branches of government
The U.S. Constitution sets out the basic structure of the federal government. State constitutions do the same for each state government. A key element of this structure is a system of checks and balances between the three branches of government: legislative branch, executive branch, and judicial branch. Each branch carries out specific functions, but no branch is completely autonomous. The federal courts act independently of the President and Congress, but judges are nominated by the President, subject to confirmation by the U.S. Senate.
The Constitution is the fundamental source of U.S. law. All government action and laws must be consistent with it. This is true of the U.S. Constitution (which applies to the actions of the federal and state governments) and each state constitution (which applies to the actions of each state). Laws passed by a state legislature must be consistent with both the U.S. Constitution and the state constitution.
Although much of the Constitution is concerned with the structure and functions of the federal government, the first 10 amendments to the Constitution, known as the Bill of Rights, define the basic rights of all people in the United States, including: freedom of speech; freedom of assembly; freedom of religion; freedom from unlawful searches and seizures; and protection against being deprived of life, liberty, or property without due process. In the United States, the rights outlined by the Bill of Rights are defined primarily as limitations on government’s power to restrict or deny them. Thus, for example, the First Amendment reads as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Although the language of the Bill of Rights specifically focuses on the federal government, the 14th Amendment has had the effect of applying these rights to actions by state governments.
Because the Bill of Rights applies to government action, it does not directly limit the behavior of private individuals (including employers). Other laws may apply to actions by employers and individuals, for example, civil rights laws, which protect people from discrimination based on race, gender, national origin, or other factors, and whistleblower laws that protect employees’ rights to report illegal conduct or unsafe practices.
Rules or regulations issued by the executive branch must be consistent with the Constitution. There must also be some statutory (legislative) source of authority for an executive agency to act. For example, the U.S. Secretary of Health and Human Services is authorized by federal law to issue rules and regulations to carry out the functions of his or her department, including the administration of the Medicare program (see, for example, Home Health Services Act, 42 U.S. Code, Section 1302, 2011); this is the basis for that agency to adopt regulations spelling out Conditions of Participation that health care organizations must meet to participate in the Medicare and Medicaid programs (see, for example, Medicare Conditions of Participation for Hospitals, 2018 .) Federal law Administrative Procedure Act (5 U.S. Code, Chapter 5 , 2011) and parallel state laws also spell out the procedures that government agencies must follow in issuing regulations, such as how much notice must be provided to the public and how members of the public can provide comments on any proposed regulations.
A major role of the judicial branch is to review actions of the legislative and executive branches if those actions are challenged. This power of judicial review has given the courts a significant role in public policy because they have the power to affirm or strike down laws or other government action.
Review of legislative action
In Marbury v. Madison (1803) , the U.S. Supreme Court first asserted its power to declare a law unenforceable if it is found to violate the Constitution. A significant illustration of this power was the U.S. Supreme Court’s decision in National Federation of Independent Business v. Sebelius (2012) , in which the constitutionality of major sections of the Patient Protection and Affordable Care Act (ACA) was challenged. (Legal issues related to the ACA are discussed in Box 45.1 .)
The Patient Protection and Affordable Care Act: Continuing Legal Issues
In National Federation of Independent Business v. Sebelius (2012) , the Court heard challenges to provisions of the Patient Protection and Affordable Care Act (ACA) and upheld the law’s minimum coverage provision (often referred to as the individual mandate), that is, the requirement that most people who are not covered through their employer or through a government program such as Medicare or Medicaid must purchase health insurance. Opponents argued that Congress does not have the authority to compel people to purchase something. This case was closely watched by opponents and supporters of the ACA since the outcome would determine whether a key component of the ACA could go into effect.
The Court found that the individual mandate, which is enforced by requiring people without insurance to pay a financial penalty that will be levied by the Internal Revenue Service, was within Congress’ power to lay and collect taxes.
In the same decision, the Court struck down another important part of the ACA. The ACA included an expansion of the Medicaid program. Medicaid, which provides health insurance to many poor and disabled people, is administered by the states with joint federal and state funding. States are not required to participate in the Medicaid program although all states currently do. The ACA called for making everyone with incomes below 133% of the Federal Poverty Level eligible for Medicaid. States that failed to comply with this provision could be excluded from federal Medicaid funding altogether.
The Court, by a 7-2 majority, found that this penalty was too severe and over-reaching and that it would coerce states into implementing the ACA’s Medicaid expansion. Justices Ginsberg and Sotomayor wrote a strong dissent from the majority opinion, arguing that the penalty was within Congress’s power, especially since state participation in the Medicaid program itself is voluntary. The impact of this ruling was to make states’ implementation of the Medicaid expansion voluntary. As of 2019, 14 states have opted not to implement it, thereby excluding millions of potential Medicaid recipients from health care coverage ( Kaiser Family Foundation, 2019 ).