The Supreme Court announced Thursday it will no longer hear oral arguments later this month on an appeal over the controversial Medicaid work requirements program in New Hampshire and Arkansas.
Legal experts say the move likely means the case won’t be heard this term and possibly may not be heard at all, especially with the Biden administration signaling a different approach to work requirements.
“By taking the cases off the docket, the court is signaling that it won’t hear them this term and probably that it’ll never hear them at all,” University of Michigan Law Professor Nicholas Bagley told Fierce Healthcare.
A major question mark,though, is whether the court will vacate the decisions by several appellate courts that upheld lower court rulings that the programs should be struck down.
“If the Supreme Court is not going to vacate the D.C. Circuit ruling, that means the decision on the books is one that clearly explains why work requirements are not permitted under the Medicaid statute,” said Rachel Sachs, associate professor of law at Washington University, in an interview with Fierce Healthcare.
She added that it is unlikely for the case to come back and “extremely unlikely that this issue will return in the near future.”
The Biden administration asked the court back in February to cancel the oral arguments originally scheduled for March 29. The administration said in a filing that allowing the requirements to take effect won’t promote the objectives of Medicaid to extend health insurance to low-income people.
President Joe Biden’s Department of Justice called for the court to vacate judgments of appeals courts and remand the case back to the Department of Health and Human Services so it can finish a review of all the waivers.
Arkansas Attorney General Leslie Rutledge said in a statement back in February that the legal filing seeking the delay was a “politically motivated stunt designed to avoid a Supreme Court decision upholding a program that encourages personal responsibility while still providing healthcare coverage for those seeking gainful employment.”
Arkansas’ work requirements program was installed in 2018 and led to approximately 18,000 people losing Medicaid coverage before the program was struck down by a federal judge.
Appellate courts upheld judgments from lower courts that New Hampshire and Arkansas’ programs did not meet the objectives of the Medicaid program. The states appealed to the Supreme Court, which agreed to hear the cases late last year.
Court rulings have also struck down programs in other states including Kentucky and Michigan. Kentucky pulled its program in 2019 after a Democrat was elected governor.
Arkansas and New Hampshire’s attorneys general did not return requests for comment on the Supreme Court’s decision Thursday.
The payment gap was $63,000 for primary care doctors, $178,000 for medical specialists and $150,000 for surgeons.
Doctors who work for hospital outpatient facilities get much higher payments for their services from Medicare than doctors who practice independently, according to a new study.
The research, based on Medicare claims data from 2010-2016,found that the program’s payments for doctors’ work were, on average, $114,000 higher per doctor per year when billed by a hospital than when billed by a doctor’s independent practice.
Published in Health Services Research, results found that the amount Medicare would pay for outpatient care at doctors’ offices would have been 80% higher if the services had been billed by a hospital outpatient facility. In 2010, the average set of Medicare services independent doctors performed annually for patients was worth $141,000, but charging for the same group of services would have grossed $240,000 if a hospital outpatient facility billed for them.
The payment difference varied by specialty. The payment gap was $63,000 for primary care doctors, $178,000 for medical specialists and $150,000 for surgeons.
Moreover, the study found the differential grew over time. From 2010-2016, the average difference between hospital outpatient and private practice payments grew from 80% higher to 99% higher.
WHAT’S THE IMPACT?
The main reason for these large payment differences: facility fees. For each service a doctor performs, Medicare pays hospital outpatient facilities both a fee for the doctor’s work and a fee for the facility, whereas private practices receive only doctor fees.
Although the doctor fees are a bit lower in hospital outpatient locations, the facility fees more than make up for the difference, and the total payments to hospitals are reflected in higher doctor salaries and bonuses.
The Centers for Medicare and Medicaid Services has been trying to correct this imbalance for years with policies that would pay both sites the same amount. In 2015, the Bipartisan Budget Act authorized CMS to impose site-neutral payments but grandfathered existing hospital outpatient facilities. Later, CMS expanded the equal payments to other hospital outpatient facilities, but the American Hospital Association sued to overturn this regulation.
The groups filed for a petition for a rehearing, which was denied.
In February, the Supreme Court acknowledged the AHA’s request for judicial review. The government response was due by March 15, but on March 3, Norris Cochran, acting Secretary of Health and Human Service asked for an extension until April 14 to file the government’s response, according to court documents.
The significant difference between Medicare payments to hospital outpatient facilities and independent offices has encouraged hospitals and health systems to buy doctor practices, but the study noted that good research about this has been lacking up to now.
It found little evidence of a direct relationship linking the size of the pay gap between hospital outpatient facilities and independent offices, with hospitals buying doctor practices, in particular medical specialties. But it did find that doctors whose services had larger pay gaps were more likely to have a hospital buy their practice than doctors whose services had a smaller pay gap.
In an accompanying commentary, Dr. Michael Chernew of Harvard Medical School in Boston said the study had found that the ability of hospitals and employed doctors to earn more from Medicare had resulted in a greater amount of integration.
THE LARGER TREND
However, the authors pointed out that the Medicare payment difference is only one of many factors that have contributed to the huge increase in the share of doctors employed at hospitals over the past decade. For example, they found a higher probability of a doctor going to work for a hospital in highly concentrated hospital markets and rural areas.
Other studies, they said, have established that some health systems use integration with doctors’ offices as a bargaining chip with commercial health insurance plans. Also, some doctors may find that independent practice is less viable than it used to be for a variety of reasons.
It has also been suggested that many younger doctors prefer hospital employment to private practice because they crave economic security and work-life balance.
It’s been estimated that even the payments to hospitals vs. doctors could save CMS $11 billion over 10 years. But the paper illustrates that the payment disparities can also create broader market distortions because consolidation of hospitals and doctors’ offices has been shown to lead to higher prices overall.
Karen Lynch, the new president and CEO of CVS Health, said during an earnings call on Tuesday that Aetna will reenter the ACA business. The ACA business has improved, she said, and Aetna will rejoin the ACA marketplace, selling individual coverage in 2022.
“We’ll accelerate the pace of progress via targeted investments that will drive consumer-focused strategy,” Lynch said. “We will create future economic benefit for CVS Health and its shareholders.”
Aetna joined other insurers in leaving or downsizing its footprint as premiums rose and insurers lost money.
The ACA market has grown since the exodus and shown strength in 2021, in lower premiums for consumers, steady enrollment numbers and insurers expanding their marketplace reach.
As COVID-19 has cost many their employer-based health insurance, the Biden Administration has opened a new enrollment period that started on February 15 and goes through May 15.
THE LARGER TREND
President Donald Trump and Congressional GOP members attempted to get rid of the Affordable Care Act that was passed into law by his predecessor, President Barack Obama.
Trump’s successor, President Biden, has promised to strengthen the market, even as the Supreme Court considers whether the ACA law remains valid without the individual mandate’s tax penalty. The Supreme Court is expected to hand down a decision by June.
In 2018, Aetna became part of CVS Health in a $69 billion merger.
Under the Biden Administration, the DOJ says the ACA can stand even though there is no longer a tax penalty for not having health insurance.
The Department of Justice, under the Biden Administration, has told the Supreme Court that it has changed its stance on the Affordable Care Act.
The DOJ previously filed a brief contending that the ACA was unconstitutional because the individual mandate was inseverable from the rest of the law.
Following the change in Administration, the DOJ has reconsidered the government’s position and now takes the position that the ACA can stand, even though there is no longer a mandate for consumers to have health insurance or face a tax penalty, according to a February 10 filing.
WHY THIS MATTERS
Hospitals and health systems support the change in position.
“Without the ACA, millions of Americans will lose protections for pre-existing conditions and the health insurance coverage they have gained through the exchange marketplaces and Medicaid. We should be working to achieve universal coverage and preserve the progress we have made, not take coverage and consumer protections away,” said American Hospital Association CEO and president Rick Pollack.
The Supreme Court is expected to return a decision before the end of the term in June.
THE LARGER TREND
The Supreme Court heard oral arguments on November 10, 2020 regarding whether the elimination of the tax penalty made the remainder of the ACA invalid under the law.
The DOJ sided with the Trump Administration and Republican states that brought the legal challenge, while 20 Democratic attorneys general supported the ACA and asked the court for quick resolution.
The American Hospital Association, other trade groups and individual hospitals filed petitions Feb. 10 asking the U.S. Supreme Court to reverse appeals court decisions in two cases involving outpatient payment cuts to hospitals.
One lawsuit hospitals are asking the Supreme Court to hear challenges HHS’ payment reductions in 2019 for certain outpatient off-campus provider-based departments.
Under the 2019 Medicare Outpatient Prospective Payment System final rule, CMS made payments for clinic visits site-neutral by reducing the payment rate for evaluation and management services provided at off-campus provider-based departments by 60 percent.
In an attempt to overturn the rule, the AHA, the Association of American Medical Colleges and dozens of hospitals across the nation sued HHS. They argued CMS exceeded its authority when it finalized the payment cut in the OPPS rule. They further claimed the site-neutral payment policy violates the Medicare statute’s mandate of budget neutrality.
HHS argued that under the Bipartisan Budget Act of 2015 it has authority to develop a method for controlling unnecessary increases in outpatient department services. Since “method” is not defined in the statute, the government argued its approach satisfies generic definitions of the term. U.S. District Judge Rosemary M. Collyer rejected that argument and set aside the regulation implementing the rate reduction in September 2019.
HHS filed an appeal in the case, and the appellate court reversed the lower court’s decision July 17.
The second lawsuit hospitals are asking the Supreme Court to hear challenges HHS’ nearly 30 percent cut to 2018 and 2019 outpatient drug payments for certain hospitals participating in the 340B Drug Pricing Program.
A district court sided with hospitals and found the payment reductions were unlawful. Two members of a three-judge panel of the U.S. Court of Appeals overturned that ruling in July.
The hospitals argue in both petitions that the Supreme Court should review the cases because of the “excessive deference” the appeals court gave to HHS’ interpretation of the respective governing statutes.
President Biden is scheduled to take executive actions as early as Thursday to reopen federal marketplaces selling Affordable Care Act health plans and to lower recent barriers to joining Medicaid.
The orders will be Biden’s first steps since taking office to help Americans gain health insurance, a prominent campaign goal that has assumed escalating significance as the pandemic has dramatized the need for affordable health care — and deprived millions of Americans coverage as they have lost jobs in the economic fallout.
Under one order, HealthCare.gov, the online insurance marketplace for Americans who cannot get affordable coverage through their jobs, will swiftly reopen for at least a few months, according to several individuals inside and outside the administration familiar with the plans. Ordinarily, signing up for such coverage is tightly restricted outside a six-week period late each year.
Another part of Biden’s scheduled actions, the individuals said, is intended to reverse Trump-era changes to Medicaid that critics say damaged Americans’ access to the safety-net insurance. It is unclear whether Biden’s order will undo a Trump-era rule allowing states to impose work requirements, or simply direct federal health officials to review rules to make sure they expand coverage to the program that insures about 70 million low-income people in the United States.
The actions are part of a series of rapid executive orders the president is issuing in his initial days in office to demonstrate he intends to steer the machinery of government in a direction far different from that of his predecessor.
Biden has been saying for many months that helping people get insurance is a crucial federal responsibility. Yet until the actions planned for this week, he has not yet focused on this broader objective, shining a spotlight instead on trying to expand vaccinations and other federal responses to the pandemic.
The most ambitious parts of Biden’s campaign health-care platform would require Congress to provide consent and money. Those include creating a government insurance option alongside the ACA health plans sold by private insurers, and helping poor residents afford ACA coverage if they live in about a dozen states that have not expanded their Medicaid programs under the decade-old health law.
A White House spokesman declined to discuss the plans. Two HHS officials, speaking on the condition of anonymity about an event the White House has not announced, said Monday they were anticipating that the event would be held on Thursday.
According to a document obtained by The Washington Post, the president also intends to sign an order rescinding the so-called Mexico City rule, which compels nonprofits in other countries that receive federal family planning aid to promise not to perform or encourage abortions. Biden advisers last week previewed an end to this rule, which for decades has reappeared when Republicans occupied the White House and vanished under Democratic presidents.
The document also says Biden will disavow a multinational antiabortion declaration that the Trump administration signed three months ago.
The actions to expand insurance through the ACA and Medicaid come as the Supreme Court is considering two cases that could shape the outcome. One case is an effort to overturn rulings by lower federal courts, which have held that state rules, requiring some residents to work or prepare for jobs to qualify for Medicaid, are illegal. The other case involves an attempt to overturn the entire ACA.
According to the individuals inside and outside the administration, the order to reopen the federal insurance marketplaces will be framed in the context of the pandemic, essentially saying that anyone eligible for ACA coverage who has been harmed by the coronavirus will be allowed to sign up.
“This is absolutely in the covid age and the recession caused by covid,” said a health-care policy leader who has been in discussions with the administration. “There is financial displacement we need to address,” said this person, who spoke on the condition of anonymity to describe plans the White House has not announced.
The reopening of HealthCare.gov will be accompanied by an infusion of federal support to draw attention to the opportunity through advertising and other outreach efforts. This, too, reverses the Trump administration’s stance that supporting such outreach was wasteful. During its first two years, it slashed money for advertising and for community groups known as navigators that helped people enroll.
It is not clear whether restoring outreach will be part of Biden’s order or will be done more quietly within federal health-care agencies.
Federal rules already allow people to qualify for a special enrollment period to buy ACA health plans if their circumstances change in important ways, including losing a job. But such exceptions require people to seek permission individually, and many are unaware they can do so. Trump health officials also tightened the rules for qualifying for special enrollment.
In contrast, Biden is expected to open enrollment without anyone needing to seek permission, said Eliot Fishman, senior director of health policy for Families USA, a consumer health-advocacy group.
In the early days of the pandemic, the health insurance industry and congressional Democrats urged the Trump administration to reopen HealthCare.gov, the online federal ACA enrollment system on which three dozen states rely, to give more people the opportunity to sign up. At the end of March, Trump health officials decided against that.
During the most recent enrollment period, ending the middle of last month, nearly 8.3 million people signed up for health plans in the states using HealthCare.gov. The figure is about the same as the previous year, even though it includes two fewer states, which began operating their own marketplaces.
Leaders of groups helping with enrollment around the country said they were approached for help this last time by many people who had lost jobs or income because of the pandemic.
The order involving Medicaid is designed to alter course on experiments — known as “waivers” — that allow states to get federal permission to run their Medicaid programs in nontraditional ways. The work requirements, blocked so far by federal courts, are one of those experiments. Another was an announcement a year ago by Seema Verma, the Trump administration’s administrator of the Centers for Medicare and Medicaid Services, that states could apply for a fundamental change to the program, favored by conservatives, that would cap its funding, rather than operating as an entitlement program with federal money rising and falling with the number of people covered.
“You could think about it as announcing a war against the war on Medicaid,” said Katherine Hempstead, a senior policy adviser at the Robert Wood Johnson Foundation.
Dan Mendelson, founder of Avalere Health, a consulting firm, said Biden’s initial steps to broaden insurance match his campaign position that the United States does not need to switch to a system of single-payer insurance favored by more liberal Democrats.
The orders the president will sign “are going to do it through the existing programs,” Mendelson said.
Consumers choosing insurance via the federal Affordable Care Act exchanges reached 8.25 million over the 2021 open enrollment period, about the same number as the year before, CMS said Wednesday.
Because two fewer states are participating in the federal marketplace this year, adjusted year-over-year growth in plan selections was 7%, the agency said.
Of the total, 23% of consumers were new, down by 3.6%. Renewing consumers who actively chose a new plan and those who were automatically re-enrolled both increased.
The figures are the last from the Trump administration, which has drastically reduced money toward navigators who help people use the Healthcare.gov website and find the best ACA plan for them. The administration has made no secret of its opposition to the law and after failing to overturn it in Congress has used executive actions to undermine it.
President-Elect Joe Biden and his pick for HHS chief, California Attorney General Xavier Becerra, however, are eager supporters and are likely to take a number of actions to restore and burnish it. That could be increasing tax credits and subsidies, increasing navigator funding and building on protections like essential health benefits.
The U.S. Supreme Court is expected to make its ruling on the ACA case later this spring or summer, but the Biden administration could essentially make it moot by walking back the zeroing out of the individual mandate penalty that is the linchpin of the lawsuit against it.
The relatively steady enrollment could be increased through those actions and the possibility of a special enrollment period to account for needs during the coronavirus pandemic. The COVID-19 crisis and the recession it has caused have kicked millions of people off their employer-sponsored insurance, and they could turn to the exchanges for coverage, especially with higher tax credits and subsidies.
President-elect Joe Biden has chosen California Attorney General Xavier Becerra to be the secretary of the Department of Health and Human Services, the Biden transition team announced this morning and the New York Times first reported last night.
Why it matters:If confirmed, Becerra would be the first Latino to lead the department. He’s also been at the forefront of health care legal battles, most prominently over the future of the Affordable Care Act.
Becerra has led the effort by a group of 20 states and the District of Columbia in defending the ACA against a GOP lawsuit aiming to strike down the law. The case was argued in front of the Supreme Court last month.
Biden plans to announce several other top health care advisors, people familiar with the rollout told NYT.
Between the lines:Whoever leads HHS will immediately be in charge of addressing what will likely still be an out-of-control pandemic, including the government’s efforts to distribute coronavirus vaccines.
The virus has disproportionately affected people of color, and Becerra’s selection follows increasing pressure on Biden from the Latino community and the Congressional Hispanic Caucus to diversity his cabinet, per NYT.
On the other hand, Becerra has little experience managing a large bureaucracy or in public health, per Politico.
The big picture: If a global pandemic and the future of the ACA weren’t enough, the HHS secretary could end up in charge of executing most of Biden’s health agenda, particularly if the Senate remains in Republican hands.
Becerra’s legal background could prove useful in enacting a lawsuit-proof regulatory agenda.
Bonus: Biden has selected Rochelle Walensky, chief of infectious diseases at Massachusetts General Hospital and a professor at Harvard Medical School, to lead the Centers for Disease Control and Prevention, Politico reported last night.
For instance, in 2020, UnitedHealthcare, the nation’s largest insurer, became a new entrant in five states, according to the report: Arizona, Maryland, North Carolina, Tennessee and Virginia. Twenty states had new entrants to the market.
For 2021, 30 insurers are entering the individual market, and an additional 61 are expanding their service area within states.
There will be an average of five insurers per state in 2021, up from a low of 3.5 in 2018, but still below the peak of six in 2015. Only 10% of counties will have a single insurer offering in 2021, down from 52% of counties in 2018, the report said. Rural areas tend to have fewer insurers in the ACA market.
Often, when there is only one insurer participating on the exchange, that company is a Blue Cross Blue Shield or Anthem plan, the report said. Before the ACA, state individual markets were often dominated by a single Blue Cross Blue Shield plan.
WHY THIS MATTERS
Despite uncertainties surrounding the ongoing pandemic, the end of the individual mandate and the question of whether the Supreme Court will rule next year to invalidate the entire ACA, the numbers show that insurers appear bullish on participation.
Insurers remained profitable during the pandemic due to decreases in healthcare utilization and claims costs. They are on track yet again to owe substantial rebates to consumers based on low medical loss ratios in 2021.
Even with the lack of a mandate, individuals continue to enroll in ACA plans, with enrollment this year more than keeping pace with last year’s figures. Premiums for 2021 are 1-4% below the average.
THE LARGER TREND
The enrollment numbers continue a trend of rising insurer participation in the ACA going into the 2020 market, and lower premiums.
Insurer participation next year equals the average participation levels at the outset of the marketplaces in 2014, according to the KFF report.
Since 2014, the number of insurers participating on the exchanges has been in flux. Going into the 2018 plan year, many insurers left the market or reduced their footprint due to losses in the market.
The Supreme Court’s new conservative majority showed its muscle on Thanksgiving Eve, with Justice Amy Coney Barrett playing a key role in reversing the court’s past deference to local officials when weighing pandemic-related restrictions on religious organizations.
All three of President Trump’s nominees to the court were in the 5-to-4 majority that blocked New York Gov. Andrew M. Cuomo’s restrictions on houses of worship in temporary hot spots where the coronavirus is raging.
The court’s most conservative justices distanced themselves from Chief Justice John G. Roberts Jr. Justice Neil M. Gorsuch, Trump’s first nominee, went out of his way to say that lower courts should no longer follow Roberts’s guidance of deference, calling it “mistaken from the start.”
“Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical,” Gorsuch wrote. Rather than applying “nonbinding and expired” guidance from Roberts in an earlier case from California, Gorsuch said, “courts must resume applying the Free Exercise Clause.”
“Today, a majority of the court makes this plain.”
The halt of Cuomo’s orders, which had been allowed to remain in place by lower courts, was the first evidence that Roberts may no longer play the pivotal role he occupied over the past couple of years. He had been at the center of the court, with four consistently more conservative justices and four more liberal ones.
Barrett’s replacement of liberal Justice Ruth Bader Ginsburg means there are now five members of the court — a majority — more willing to move it quickly in a more conservative direction.
And pandemic-related restrictions on worship services have drawn the ire of the conservatives for months.
They were previously outvoted when Ginsburg was alive, as she and the other liberals joined with Roberts to leave in place restrictions in California and Nevada that imposed limits on in-person services at houses of worship.
In the cases involved in the court’s midnight order Wednesday, the Roman Catholic Diocese of Brooklyn and Jewish organizations led by Agudath Israel challenged Cuomo’s system of imposing drastic restrictions on certain neighborhoods when coronavirus cases spike.
Under Cuomo’s plan, in areas designated “red zones,” where the virus risk is highest, worship services are capped at 10 people. At the next level, “orange zones,” there is an attendance cap of 25. The size of the facility does not factor in to the capacity limit.
The diocese said in its petition that the plan subjects “houses of worship alone” to “onerous fixed-capacity caps while permitting a host of secular businesses to remain open in ‘red’ and ‘orange’ zones without any restrictions whatsoever.”
And the Jewish organizations noted that Cuomo, a Democrat, had specifically mentioned outbreaks in Orthodox Jewish neighborhoods when imposing the restrictions. “This court should not permit such remarkable scapegoating of a religious minority to stand,” the organizations said in court documents.
Cuomo attributed the court’s order to its more conservative majority. “I think that Supreme Court ruling on the religious gatherings is more illustrative of the Supreme Court than anything else,” Cuomo told reporters. “It’s irrelevant from a practical impact because the zone that they were talking about has already been moved. It expired last week. I think this was really just an opportunity for the court to express its philosophy and politics.”
Technically, the court’s order blocks Cuomo’s restrictions from being reimposed while legal challenges continue. But the court’s unsigned opinion would appear to make the ultimate outcome clear.
“Even in a pandemic, the Constitution cannot be put away and forgotten,” the opinion said. “The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”
The opinion was endorsed by Barrett, Gorsuch and Justices Clarence Thomas, Samuel A. Alito Jr. and Brett M. Kavanaugh, Trump’s second appointment to the court. It was mild compared with recent comments from Alito and the Gorsuch opinion, which no other justices joined.
Alito, who did not write a separate opinion, recently told the conservative legal organization the Federalist Society that the pandemic “has resulted in previously unimaginable restrictions on individual liberty.”
“It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right,” Alito said.
But Justice Stephen G. Breyer, writing for fellow liberals Sonia Sotomayor and Elena Kagan, said it was a strange time for the court to be offering relief.
“The number of new confirmed cases per day is now higher than it has ever been,” Breyer wrote, pointing to the growing national death toll and the outsize number of fatalities New York has suffered, which tracking by The Washington Post puts at more than 34,000.
“The nature of the epidemic, the spikes, the uncertainties, and the need for quick action, taken together, mean that the State has countervailing arguments based upon health, safety, and administrative considerations that must be balanced against the applicants’ First Amendment challenges,” Breyer wrote.
Sotomayor was more pointed in a separate opinion joined by Kagan: “Justices of this court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.”
Roberts noted in his opinion that the rules might be unduly restrictive but said Cuomo has already eased them, essentially giving the churches and synagogues the relief they had requested.
“The Governor might reinstate the restrictions. But he also might not,” the chief justice wrote. “And it is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic.”
“It is time — past time — to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques,” he wrote.
Gorsuch’s solo opinion was at times scathing and sarcastic. He noted that Cuomo had designated, among others, hardware stores, acupuncturists, liquor stores and bicycle repair shops as essential businesses not subject to the most strict limits.
“So, at least according to the governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians,” Gorsuch wrote. “Who knew public health would so perfectly align with secular convenience?”
Gorsuch criticized Roberts for relying on one of the court’s 1905 precedents for his position that the court should defer to local officials during health crises.
The chief justice seemed taken aback. He said his earlier opinion in the California case asserted only that the Constitution chiefly leaves such decisions to local officials.
That, he wrote, “should be uncontroversial, and the [Gorsuch] concurrence must reach beyond the words themselves to find the target it is looking for.”
He also defended the liberal justices from Gorsuch’s tough words, even though Roberts did not join their dissents.
“I do not regard my dissenting colleagues as ‘cutting the Constitution loose during a pandemic,’ yielding to ‘a particular judicial impulse to stay out of the way in times of crisis,’ or ‘shelter[ing] in place when the Constitution is under attack,’ ” Roberts wrote, quoting Gorsuch’s opinion.
“They simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.”
Conservative religious organizations praised the court’s action.
“Governor Cuomo should have known that openly targeting Jews for a special covid crackdown was never going to be constitutional,” said Eric Rassbach, vice president and senior counsel at the Becket Fund, which represented Agudath Israel. Covid-19 is the disease caused by the coronavirus. “The Supreme Court was right to step in and allow Jews and Catholics to worship as they have for centuries.”
But Donna Lieberman, executive director of the New York Civil Liberties Union, said the court’s action was dangerous.
“New York’s temporary restrictions on indoor gatherings do not discriminate against houses of worship, and, in fact, treat them better than comparable non-religious gatherings,” Lieberman said in a statement. “The Supreme Court’s decision will unfortunately undermine New York’s efforts to curb the pandemic.”