The National Health Law Program has launched a new project focused on promoting judicial advocacy as a strategy to protect Medicaid rights, with support from the Robert Wood Johnson Foundation.
Medicaid is an essential health care program that provides services to more than 65 million people. Since it was established in 1965, patients, health care providers, and advocates have turned to the courts to ensure that the rights enshrined in the Medicaid Act are upheld.
The focus of this project will be amicus curiae or “friend of the court” briefs that will increase the number of judges who are educated about important Medicaid issues. Our goal is to encourage judicial rulings that better reflect how Medicaid works and what coverage means to the more than 65 million people who depend on Medicaid for their health care needs.
What exactly are amicus curiae briefs?
Amicus briefs are filed by individuals and groups who are not parties to the case before the court, but nonetheless have an interest in the outcome. The key feature of an amicus brief is that it helps the court by providing important information and considerations that might otherwise not be presented.
How can amicus briefs help inform courts about Medicaid?
NHeLP has regularly used amicus briefs to highlight the importance of Medicaid and to encourage courts to uphold important protections.
- Provide historical context: The Medicaid program is over 50 years old. Amicus briefs that explain Medicaid’s history can help the court better understand how the program operates today. NHeLP’s amicus brief in NFIB v. Sebelieus, where the Supreme Court considered the constitutionality of the Medicaid expansion, explained how the Medicaid program had been repeatedly expanded throughout its history to new populations, in order to show that the Medicaid expansion was similar in kind to past expansions, and not coercive on the states. Justice Ginsburg cited our brief in her dissenting opinion.
- Explain the consequence of the Court’s decision: At first glance, Medicaid cases may appear to address narrow legal questions. But court decisions often have sweeping consequences for the whole program. Amicus briefs can explain how issues that may at first appear small can have broad consequences. For instance, NHeLP’s amicus brief in Zubik v. Burwell, addressed a challenge to the ACA’s contraceptive coverage requirement. We explained the importance of offering contraceptives without cost and detailed how even small costs decrease the number of people who use contraceptives.
- Share expertise in a complex or technical area: Medicaid cases can involve technical or scientific issues. For instance, disputes over whether to cover new medications or treatments for chronic conditions raise questions about standards of care. Amici from the relevant medical community can help the court by sharing their expertise. Likewise, the Medicaid program itself is complex, and advocates like NHeLP can help explain how the program operates. For instance, in Alaska v. Planned Parenthood of the Great Northwest, the Alaska Supreme Court considered a state law restricting abortion coverage for Medicaid-eligible women based on an extremely narrow definition of medical necessity. In an amicus brief, NHeLP and the Northern Justice Project provided the court a detailed description of other states’ medical necessity definitions to show that Alaska’s law was an outlier.
- Provide greater depth of legal argument: Because Medicaid has a long history in the courts, there may be legal arguments that the parties overlooked, or did not have space to address. Amicus briefs can amplify the legal arguments of the parties by providing greater detail and discussion of a particular legal issue. For instance, in Planned Parenthood of Greater Texas v. Smith, the Court considered whether patients could bring a lawsuit to challenge Texas’s decision to exclude Planned Parenthood from the Medicaid program. Our amicus brief presented additional evidence and argument, beyond what the parties were able to, demonstrating that Congress intended Medicaid beneficiaries to be able to access courts directly to enforce their rights.
- Tells stories: While cases about Medicaid and the Affordable Care Act often turn on technical issues, the real-life consequences for individuals who rely on those programs are enormous. Amicus briefs can help the courts understand how these programs really operate on the ground and highlight individual stories. For instance, NHeLP and Families USA’s brief in California v. Trump, helped the Court evaluate the federal administration’s decision to stop paying for the cost-sharing reductions that help reduce the costs of Marketplace coverage by describing the immediate, harmful effects on individuals access to health care that flowed from ending the funding.
For more information on NHeLP’s amicus work, and our Medicaid in the Courts project, check out our website: https://www.healthlaw.org/amicus-project/.
If you are interested in working with NHeLP on an amicus brief, please email [email protected].
