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Emerging Legal Threats to the Public's Health

Published online by Cambridge University Press:  01 January 2021

James G. Hodge Jr.,
Sarah A. Wetter,
Leila Barraza,
Madeline Morcelle,
Danielle Chronister,
Alexandra Hess,
Jennifer Piatt and
Walter Johnson
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Abstract

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Type
Columns: Public Health and the Law
Information
Journal of Law, Medicine & Ethics , Volume 46 , Issue 2: Law and the Opioid Crisis: An Inter-Disciplinary Examination , Summer 2018, pp. 547 - 551
Copyright
Copyright © American Society of Law, Medicine and Ethics 2018

Politicization of public health has always contributed to legal and policy shifts during new presidential administrations, but perhaps never more so than now. The ascendancy of President Donald Trump in 2017, coupled with a Republican-controlled Congress and majorities in more than half the states, carry enormous legal repercussions for the public's health. Actual and proposed changes to the Affordable Care Act (ACA) may strip millions from health coverage or force them to “earn” access to basic health services. Health care workers (HCWs) may be authorized to deny services on religious/moral grounds that infringe patients' interests and reproductive rights. Substances like marijuana and opioids are counter-regulated while gun violence rages on due to lax laws and enforcement. Substantial delays or reversals of federal health policies may derail progress in childhood nutrition. Families seeking the promise of U.S. citizenship may be rerouted with enormous impacts on population health. The Administration's rollbacks of environmental regulations may cause public health aftershocks for generations. As discussed below, though hard to measure, cumulative negative health effects flowing from these and other law or policy objectives are substantial.

Undermining ACA's Essential Health Benefits

Among many ACA facets proposed for repeal or waiver is the requirement that covered health plans offer “essential health benefits” (EHBs) (including ambulatory/emergency care, hospitalization, maternity/pediatric services, mental health/substance use treatments, drugs, and preventive/wellness care).Reference Fielder1 Setting a national floor for insurance coverage via the ACA assures nearly 70 million Americans can access basic health services.2 Yet EHBs are challenged as economically unaffordableReference Gruber3 and politically volatile.4 In 2017, Congress proposed to curtail EHBs by allowing (1) Medicaid plans to forego mental health services;5 (2) insurance companies to market bare bones health plans;6 or (3) states to eliminate EHBs altogether.7 President Trump suggested in October 2017 that small businesses may “associate” to provide health plans lacking EHBs. On November 2, the Department of Health and Human Services (HHS) recommended loosening restrictions on states' EHB benchmarks and allowing greater leeway to insurers implementing EHBs. Collectively, these efforts may diminish the pool of Americans accessing these services.Reference Belluz8

Ending the Individual Mandate and Targeting Employer Mandates

As a pillar of the ACA, the individual mandate provisions imposed an annual tax penalty to encourage individuals to obtain health insurance. The goal was to stabilize premiums while expanding health services.Reference Jost9 However, the 2017 Tax Cuts and Jobs Act zeroed out the penalty, functionally quashing the individual mandate (effective 2019).10 As a result, the numbers of insured persons may decrease immediately by 3 million people in 2019 (and by 6 million by 2028) as healthy individuals drop coverage, raising insurance costs for others.11 Markets may struggle to distribute financial risks, lending to fewer insurance options.Reference Albeson12 Similar proposals have emerged on Capitol Hill to jettison ACA's employer mandate affecting mostly smaller businesses.13 If implemented, insureds could decline further absent state Medicaid programs accepting more enrollees or states adopting their own mandates.

Enabling Medicaid Work Requirements and Lifetime Limits

In September 2016, the Centers for Medicare and Medicaid Services (CMS) denied Arizona's request to implement a work requirement and time limit for Medicaid enrollees. Such request, opined CMS's former Acting Administrator, Andy Slavitt, “could undermine access to care.”14 Yet, on January 11, 2018, CMS reversed course, advising states that it would support efforts to test employment requirements for non-pregnant, non-elderly, “able-bodied” Medicaid enrollees.15 A day later, Kentucky became the first state approved to impose work requirements.Reference Haefner16 With some exceptions, adult Medicaid enrollees under age 65 in Kentucky must meet a qualifying work activity (e.g., employment, job search/training, volunteer service, education, or drug treatment) for 80 hours per month. Other states are seeking to impose similar work requirements;Reference Musumeci, Garfield and Rudowitz17 5 states (AZ, KS, ME, UT, WI) have asked CMS to allow lifetime limits on Medicaid coverage.Reference Roubein18 In sum, these initiatives create significant barriers to acquiring and continuing Medicaid coverage for essential health services, especially for thousands who may struggle to navigate work-exemption requirements.Reference Musumeci, Garfield and Rudowitz19

Shielding HCWs' Conscience and Religious Objections

On January 26, 2018, HHS proposed a rule20 allowing HCWs to refuse or resist providing patient care based on their religious/moral objections (exceeding those already permitted via the Religious Freedom and Restoration Act).21 Under the rule, employees of HHS-funded entities may refuse to “assist” with procedures that infringe their religious/moral “beliefs,” which are broadly defined and subject to limited judicial review.22 “Assist” means participating in any activity with “an articulable connection” to a procedure. HCWs — including janitorial and security staff — may also decline to act if an HHS-funded entity directly controls their work conduct. The prospective impacts of this rule on health care services are profound. Though subject to constitutional challenges, LGBTQIA individuals, patients seeking reproductive services, or minors requesting testing for sexually-transmitted infections (STIs) could all face HCW denials.Reference Eilperin and Cha23 HHS' Conscience and Religious Freedom Division24 may enforce the rule against offending entities through funding rejections, Department of Justice (DOJ) investigations, or other measures.

Almost 100 Americans are killed by guns every day across the U.S. When Nikolas Cruz opened fire at a Florida high school on February 14, 2018, killing 17 people, it marked the 17th incident in 2018 where a gun was fired at a school or college.

Dismantling Reproductive Health Rights

Multiple federal initiatives may undermine long-standing reproductive health rights, severing access to related services and raising the incidences of STIs, unplanned pregnancy, and maternal/infant morbidity and mortality. On October 13, 2017, HHS published an Interim Final Rule creating a broad religious and moral exemption to ACA's requirement that select health plans cover women's preventive care, screenings, or contraceptives without cost-sharing. Although temporarily enjoined on December 15, 2017, employers and insurers could ultimately curb such coverage for over 62 million women.25 On January 19, 2018, HHS rescinded Obama-era guidance barring states from denying Medicaid funding to qualified health care entities solely because they provide family planning services, including abortion care financed with non-federal dollars.26 HHS also cut $213.6 million for evidence-based teen pregnancy prevention in favor of promoting inefficacious abstinence-only curricula shown in the past to increase rates of teen pregnancy and HIV infection.Reference Stanger-Hall and Hall27

Shifting Priorities on Marijuana Enforcement

On January 4, 2018, Attorney General Jeff Sessions issued a DOJ Memorandum rescinding Obama-era polices regarding marijuana enforcement.28 Prior guidance discouraged federal prosecutors from bringing marijuana-driven charges under the federal Controlled Substances Act (CSA) in select contexts where marijuana use was allowed under state law.29 Mr. Sessions' Memo threatens prosecutions of patients, prescribers, producers, and dispensaries in the 30 U.S. jurisdictions legalizing marijuana for medicinal (or recreational) use. Despite marijuana's CSA Schedule I classification (rejecting all medicinal uses), the National Academies have acknowledged its effectiveness in treating chronic pain, multiple sclerosis symptoms, and chemotherapy-induced nausea.30 Doctors also recommend marijuana for epilepsy, glaucoma, and other conditions. Emerging evidence suggests states legalizing marijuana may experience reductions in opioid-related deaths.Reference Powell, Pacula and Jacobson31 If valid, increasing access to marijuana may help limit the raging opioid epidemic that claims 115 American lives daily.Reference Hedegaard, Warner and Miniño32 Of course, marijuana use carries its own risks, particularly among youths, pregnant women, and persons driving under its influence.Reference Hodge33 Discerning a proper balance between patient access and public health is thwarted by DOJ's prospective prosecutions that could chill ongoing uses and research studies of marijuana's efficacies and adverse effects.

Advancing Policies Promoting Gun Violence

Almost 100 Americans are killed by guns every day across the U.S.Reference Bauchner34 When Nikolas Cruz opened fire at a Florida high school on February 14, 2018, killing 17 people, it marked the 17th incident in 2018 where a gun was fired at a school or college.Reference Ducharme35 After the notorious Sandy Hook Elementary School shooting in December 2012, federal regulations required the Social Security Administration to send records of beneficiaries with severe mental disabilities to FBI's National Instant Criminal Background Check System (“NICS”).36 The law was projected to prevent an estimated 75,000 individuals with mental illness from purchasing firearms. Just a month into his term, however, President Trump signed legislation on February 28, 2017 blocking the rule.37 DOJ later removed approximately 500,000 individuals labeled “fugitives from justice” from NICS.Reference Hartmann38 Congress proposed the Fix NICS Act in 2017 to strengthen the background check system39 and proposed legislative bans of “bump stocks” (devices that fully automate semi-automatic weapons). To date, none of these proposed bills have passed. Cascading pleas for more significant gun controls after the Florida shooting led President Trump to voice support initially for a broader array of gun control measures, but federal action remains elusive.

Delaying Implementation of the Healthy, Hunger-Free Kids Act

Overconsumption of salt, fats, and sugar among America's youth contributes to heightened risks for obesity, diabetes, heart disease, and stroke. The 2010 Healthy, Hunger Free Kids Act (HHFKA) set evidence-based standards revamping school-provided meals that previously exceeded daily recommendations for kids' salt and caloric intakes.40 With 99% of schools complying with HHFKA requirements by 2016, the nutritional quality of school-provided meals improved significantly.Reference Johnson41 Harvard researchers projected HHFKA provisions could prevent over 2 million cases of childhood obesity and save $792 million in health care costs over the ensuing decade.Reference Gortmaker42 On November 30, 2017, however, the U.S. Department of Agriculture (DOA) proposed weakening HHFKA requirements. Effective July 1, 2018, DOA's Interim Final Rule will: (1) allow lesser standards for serving whole grains; (2) permit schools to serve 1% fat flavored milk instead of fat-free milk; and (3) stall salt-reduction requirements through 2020. As a result, schools could serve kids meals with fewer nutrients and substantially higher doses of salt, jeopardizing their current and future health.

Deferred Action for Childhood Arrivals

On September 5, 2017, the Trump Administration terminated the Deferred Action for Childhood Arrivals (DACA) program. DACA was initiated in 2012 to defer deportation of approximately 800,000 young, undocumented immigrants (“Dreamers”) meeting certain criteria and permit them to work legally in the U.S.Reference Cowan and Cornwell43 Public health repercussions of DACA's rescission for Dreamers and their families are immense. Living under threat of deportation increases rates of toxic stress, contributing to substance use and anxiety disorders, high blood pressure, and other serious health conditions.Reference Artiga and Ubri44 Access to health insurance or services may be denied altogether or diminished by Dreamers' reluctance to seek available medical care. Absent explicit authorizations, undocumented employees are often relegated to work in hazardous environments and are less likely to report injuries or assaults than documented personnel.Reference Fleming and Lopez45 While the Administration was attempting to leverage DACA to garner Congressional support for a U.S.-Mexico border wall,Reference Nelson46 two federal judges in January 2018 ordered that the program remain intact. The U.S. Supreme Court declined to hear DOJ's appeal, temporarily restraining the Administration from ending all protections.Reference Greenhouse47

Removing Safeguards Against Hazardous Air Pollutants

Following America's retraction from the Paris climate agreement less than 5 months into the Trump Presidency, the Environmental Protection Agency (EPA) withdrew longstanding precedent on January 25, 2018 for classifying pollution sources under the Clean Air Act. Under the 1995 “once in, always in” policy, stationary polluters emitting over a threshold of hazardous air pollutants (HAPs) per year were permanently classified as “major sources” subject to rigorous requirements.48 Now, polluters can be reclassified as “area sources,” subject to lesser regulations, by reducing emissions below the qualifying rate. HAPs include dangerous toxins such as mercury, arsenic, and lead emitted from industrial facilities or power plants. They are associated with serious health (e.g., cancer, brain damage, infertility, birth defects) and environmental impacts.49 In a press release, EPA's assistant administrator William Wehrum trumpeted the agency's deregulatory measures as industry incentives to pursue innovative technologies.50 Environmental scientists fear industries will intensify their release of dangerous emissions.Reference Goldman51

Conclusion

The pervasiveness of divisive laws and policies inhibiting health care access and diminishing public health outcomes reflects changing norms and values across society. Gone is the notion that collective federal contributions can advance the greater good that led to ACA's passage less than a decade ago. In its place is a perverse focus on state-based health interventions prioritizing federalism and fiscal limits over fair access to care and corresponding communal health benefits. This is more than a seminal shift in laws and policies impacting American health care. Taken together, these developments are an affront to core principles of health justice designed to assure for all the most basic of human needs: improved health.

Footnotes

The authors have no conflicts to disclose.

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