BLS Library Blog

If you are researching legal issues related to the coronavirus pandemic, you will definitely want to check out the comprehensive coronavirus resource guide published by the Law Library of Congress, which provides links to laws, regulations and executive actions in the United States at both the federal and the state level, and in various countries.  The guide is updated at least weekly and in addition to direct links to laws and regulations, it includes Congressional Research Service reports which provide information to Congress about the coronavirus, law library blog posts, and articles from the Law Library of Congress Global Legal Monitor which tracks global legal developments. 

Some interesting Congressional Research Services reports listed in the Coronavirus Resource Guide include:

Todd Garvey, Constitutional Considerations of Remote Voting in Congress, Congressional Research Services(Apr. 14, 2020)

Colby Leigh Rachfal, COVID-19 and Broadband: Potential Implications for the Digital Divide, Congressional Research Services (Mar. 13, 2020)

Marc Labonte, COVID-19: Potential Economic Effects, Congressional Research Services (Mar. 11, 2020)

The Law Library of Congress’s Global Legal Monitor has dozens of articles organized by region which track individual country responses to the coronavirus, such as an article detailing Germany’s changes to its rules of procedure in Parliament and one discussing legislation in China that punishes the trade and consumption of wild animals.   

The guide also includes a link to a law library report on Legal Responses to Health Emergencies. Though written five years ago, the report provides useful summaries of regulations addressing health emergencies in 25 jurisdictions as well as a comparative summary and bibliography that may be useful in analyzing the level of preparedness of different countries for the current pandemic.

With the debate over the repeal and replacement of the Affordable Care Act raging, you might be interested in researching the act.  The library has 36 titles that are tagged with the subject, United States and the Patient Protection and Affordable Care Act.  Listed below are a few of those titles.

Purva H. Rawal, The Affordable Care Act: Examining the Facts (2016).

This is the first reference book to provide a detailed assessment of the Affordable Care Act, explaining the realities and myths surrounding one of the most divisive political struggles in recent U.S. history.  This is an e-book.  If you are off campus, you will need to implement the proxy instructions in a web browser.

Steven Brill, America’s bitter pill: Money, Politics, Backroom Deals, and the Fight to Fix our Broken Healthcare System (2015).

This book details how the Affordable Care Act, or Obamacare, was written, how it is being implemented, and, most important, how it is changing—and failing to change—the rampant abuses in the healthcare industry. It’s a fly-on-the-wall account of the titanic fight to pass a 961-page law aimed at fixing America’s largest, most dysfunctional industry.

Josh Blackman, Unraveled: Obamacare, Religious Liberty, and Executive Power (2016).

Six years after its enactment, this book provides the definitive account of the battle to stop Obamacare from being ‘woven into the fabric of America’. Unraveled is essential reading to understand the future of the Affordable Care Act in America’s gridlocked government in 2016, and beyond. This is an e-book.  If you are off campus, you will need to implement the proxy instructions in a web browser.

Josh Blackman, Unprecedented: The Constitutional Challenge to Obamacare (2013).

This inside story of the legal challenge to Obamacare from a conservative constitutional lawyer involved in the movement is a mixture of legal, political, and media intrigue capped by a truly consequential Supreme Court decision.

via Census.gov

The U.S. Census Bureau today launched an interactive global resource on the prevalence of HIV infection and AIDS cases and deaths. The database was developed in 1987 and now holds 149,000 statistics, an increase of approximately 10,800 new estimates in the last year, making it the most complete of its kind in the world. The launch comes as thousands of people worldwide meet in Washington, D.C., for the International AIDS Conference this week.

The resource is maintained by the Census Bureau with funding from the U.S. President’s Emergency Plan for AIDS Relief (PEPFAR) through the United States Agency for International Development (USAID).

The tool is a library of statistics from more than 12,000 articles in international scientific and medical journals, individual countries’ annual HIV/AIDS surveillance reports, and papers and posters presented at international conferences.

The menu-driven access tool permits users to search for statistical information in countries and territories across the world, as well as by subpopulation, geographic subarea (such as urban and rural), age, sex and year (back to 1960).

Statistics for the United States are available separately from the Centers for Disease Control and Prevention.

Earlier this month, the Department of Health and Human Services in a memorandum blocked a Food and Drug Administration recommendation to make Plan B available without a prescription to women under 17. The executive decision has drawn a response from a group of 15 US Senators who have sent a letter to HHS seeking the specific rationale and data that went into the decision. Now, US District Court for the Eastern District of New York Judge Edward R. Korman, Brooklyn Law School Class of 1966, has invited the Center for Reproductive Rights to file a motion to reopen its case, Tummino v. Hamburg, which accuses the FDA of failing to respond to a 2001 petition to remove age restrictions on Plan B and its generic form. The Center for Reproductive Rights press release states that “The FDA has essentially been holding women’s reproductive health hostage to political calculations.” 

The CRR, with the Association of Reproductive Health Professionals and National Latina Institute for Reproductive Health, brought suit challenging the FDA’s decision to restrict access to emergency contraception. In 2009, Korman issued an Order ruling in favor of the women’s groups and ordered the FDA to act within 30 days to extend over-the-counter access to 17-year-olds. Judge Korman rejected a request to hold the Food and Drug Administration in contempt of court over its policy on the emergency contraceptive Plan B but said he would consider reviewing the government’s refusal to make it easier for girls and women to get the drug. The judge will hear arguments over whether the agency should have allowed the sale of the morning-after pill to girls younger than 17 without a prescription. He also instructed advocacy groups to file the appropriate legal motions, specifically suggested adding Health and Human Services Secretary Kathleen Sebelius to the lawsuit. For more information, see the Bloomberg article on this story.

The Sixth Circuit Court of Appeals ruled in Thomas More Law Center v. Obama that the government can require a minimum amount of insurance for Americans. It is the first ruling by a federal appeals court on the constitutionality of the individual mandate for insurance coverage. The lead plaintiff, based in Ann Arbor, MI, argued that the “Patient Protection and Affordable Care Act” was unconstitutional and that Congress overstepped its powers when it imposed a penalty for failing to comply with the mandate. The individual plaintiffs contended that if they do not purchase health insurance and are forced to pay a tax, it would go into the general fund where it could be used to fund abortions. They object to being forced to contribute to the funding of abortions. 

The District Court for the Eastern District of Michigan at 720 F. Supp. 2d 882 (2010) dismissed the claim that the minimum coverage provision is unconstitutional. The 2-1 ruling by the Circuit Court, written by Judge Boyce F. Martin, appointed by former President Jimmy Carter, and joined by Judge James L. Graham, appointed by former President Ronald Reagan, affirmed the lower court saying “Congress had a rational basis for concluding that the minimum coverage provision is essential to the Affordable Care Act’s larger reforms to the national markets in health care delivery and health insurance.” The ruling went on to say: 
 

No matter how you slice the relevant market — as obtaining health care, as paying for health care, as insuring for health care — all of these activities affect interstate commerce, in a substantial way. Start with obtaining medical care. Few people escape the need to obtain health care at some point in their lives, and most need it regularly… Congress could reasonably conclude that the decisions and actions of the self-insured substantially affect interstate Congress.

In choosing how to regulate this group, Congress also did not exceed its power. The basic policy idea, for better or worse (and courts must assume better), is to compel individuals with the requisit income to pay now rather than later for health care…Call this mandate what you will — an affront to individual autonomy or an imperative of national health care — it meets the requirement of regulating activities that substantially affect interstate commerce…

Does the Commerce Clause contain an action/inaction dichotomy that limits congressional power? No — for several reasons. First, the relevant text of the Constitution does not contain such a limitation. To the extent “regulate,” “commerce,” “necessary” and “proper” might be words of confinement, the Court has not treated them that way, as long as the objects of federal legislation are economic and substantially affect commerce. All three methods of paying for medical care (private insurance, public insurance and self-insurance) meet this modest requirement. And if Congress may prescribe rules for some of these methods of payments, as plaintiffs seem to agree, it is difficult to see why these words prohibit it from doing the same for all three….

Second, the promise offered by the action/inaction dichotomy — of establishing a principled and categorical limit on the commerce power — seems unlikely to deliver in practice. Level of generality is destiny in interpretive disputes, and it remains unclear at what level plaintiffs mean to pitch their action/inaction line of constitutional authority or indeed whether a workable level exists.

An appeal of the ruling to the full circuit court to review the case is likely as is review before the US Supreme Court.

The BLS Library has in its collection Patient Protection and Affordable Care Act by CCH (Call #KF6276.6201 .A2 2010b) which has the full text of the Act. Earlier this year, Brooklyn Law School debate “Is ‘Obamacare’ Unconstitutional?” featured Professor Nelson Tebbe, an expert in constitutional law, and Ilya Shapiro, Senior Fellow in Constitutional Studies at the Cato Institute and Editor-in-Chief of the Cato Supreme Court Review.