The Practice of Medicine and the Rule of Law

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George J. Annas, J.D., M.P.H. writes about recently retired U.S. Supreme Court Justice John Paul Stevens, a magistrate who wrote extensively on health-related US cases.

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PERSPECTIVE

Health Insurance Reform and the Tensions of Federalism

state is not going to establish one, when will a federal backup pool be established? How will it be run and administered? Will its creation delay protections that are required to be in effect this year? Long before the October 1, 2010, effective date of other insurance reforms, the administration will also need to provide thoughtful guidance for states regarding implementation and enforcement. There are inherent tensions between state and federal interests that must be resolved before insurance exchanges are established. And the implementation of the law’s substantial Medicaid expansion will also create new tests for

the balance of power and responsibility between states and the federal government. Done right, the implementation of the ACA can achieve the advantages of a minimum national standard for coverage and greater equity among Americans without sacrificing the states’ traditional roles, responsibilities, and flexibility. Done wrong, implementation will create excess layers of bureaucracy, and delay will ensure that this historic health care reform legislation falls far short of its goals. It remains to be seen whether leaders at all levels of government will be able to navigate the political and policy-related

shoals, but clearly, federal–state tensions are about to be seriously tested.
Disclosure forms provided by the authors are available with the full text of this article at NEJM.org. Mr. Jennings is president of Jennings Policy Strategies, Washington, DC, and was senior health care advisor to President Bill Clinton from 1994 to 2001. Ms. Hayes is the vice president for health policy at Jennings Policy Strategies and a scientist and lecturer in the Department of Health Policy, George Washington University School of Public Health and Health Services, Washington, DC. This article (10.1056/NEJMp1004761) was published on May 12, 2010, at NEJM.org.
Copyright © 2010 Massachusetts Medical Society.

Justice John Paul Stevens — The Practice of Medicine and the Rule of Law
George J. Annas, J.D., M.P.H. lthough it’s not a thought that has leapt to the minds of commentators, U.S. Supreme Court Justice John Paul Stevens will be missed by physicians and patients. Stevens believes that the Constitution prohibits government from interfering in personal decision making, including medical decisions that belong in the hands of physicians and their patients, not politicians and regulators; it was for this reason that he was Justice Harry Blackmun’s staunchest ally in upholding the Roe v. Wade abortion-rights decision. One clear articulation of this belief can be found in Stevens’s 1991 dissent in Rust v. Sullivan, in which the Court upheld the “gag” rule prohibiting government-funded physicians from dis-

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cussing abortion with patients. In his dissent, Stevens wrote, “Roe v. Wade and its progeny are not so much about a medical procedure as they are about a woman’s fundamental right to self-determination . . . free from governmental domination.”1 Similarly, in a 1990 dissent in Washington v. Harper, Stevens objected to what he saw as an abuse of medicine: the drugging of a prisoner for security reasons rather than health reasons. Stevens carefully examined the medical facts, including the side effects of the drug in a patient like the prisoner, Harper, who already had dystonia and akathesia from previous forced medication with psychotropic drugs.1 Close attention to both statutory language and the facts of the

case before him are hallmarks of Stevens’s approach to adjudication. And by paying close attention to the facts of cases, he learned about medical practice on the job. Nominated by President Gerald Ford, Stevens was sworn in to replace Justice William O. Douglas in December 1975. Although his appointment came almost 3 years after Roe v. Wade, he was not asked a single question about that opinion at his confirmation hearing and was confirmed by the Senate 98 to 0. Like his confirmation, his first two decades on the Court were uncontroversial. For example, in a 1994 book documenting how the Warren Court’s social reform and equality agenda had radically altered the politics of Su-

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The Practice of Medicine and the Rule of Law

preme Court confirmations, political scientist Mark Silverstein never once even mentions Stevens.2 Stevens did not come into his own until 1994 when, with Blackmun’s retirement, he became the Court’s senior associate justice. The senior associate is second in authority to the chief justice. The senior associate has the power to assign the writing of the Court’s opinion when the chief justice is not in the majority but the senior associate is — and the writing of the principal dissenting opinion when their positions are reversed.3 Stevens has used this power strategically to assign important majority decisions (primarily to himself and Justice Anthony Kennedy) and to assign principal dissents in cases about which he felt particularly strongly.3 When Blackmun retired, Stevens became the justice most knowledgeable about health care — and most concerned about government interference in and distortion of the physician–patient relationship. He showed great empathy for suffering patients and their physicians in the physicianassisted suicide cases, writing in a concurring opinion that although he agreed that patients have no constitutional right to physicianprescribed lethal drugs, he might change his mind if such a prescription was shown to be “the only possible means of preserving a dying patient’s dignity and alleviating her intolerable suffering” (Vacco v. Quill). He also assigned Justice Kennedy to write the opinion that Congress had not given the U.S. Attorney General any authority to define the practice of medicine (Gonzales v. Oregon). He was unwilling, however, to consider permitting phy-

Key Opinions by Justice John Paul Stevens. Maher v. Roe, 432 U.S. 464 (1977): Votes with the majority to uphold Connecticut’s Medicaid restrictions on elective abortion funding. Harris v. McRae, 448 U.S. 297 (1980): Dissents from an opinion upholding the Hyde Amendment’s restrictions on therapeutic abortion funding. Bowers v. Hardwick, 478 U.S. 186 (1986): Dissents from an opinion upholding state law outlawing sodomy. Washington v. Harper, 494 U.S. 210 (1990): Dissents from an opinion approving the forced medication of a prisoner. Rust v. Sullivan, 500 U.S. 173 (1991): Dissents from an opinion upholding restrictions on physicians’ speech in Title X clinics. Planned Parenthood v. Casey, 505 U.S. 833 (1992): Concurs in part (in upholding the “core” of Roe v. Wade), and dissents in part (in opposing the mandatory waiting period before abortion). Stenberg v. Carhart, 530 U.S. 914 (2000): Assigns the majority opinion to Breyer, and the Court strikes down the law banning partial-birth abortions for being vague and for not including an exception for the health of the pregnant woman. Bush v. Gore, 531 U.S. 98 (2000): Dissents from an opinion ending the Florida recount. Atkins v. Virginia, 536 U.S. 304 (2002): Writes the majority opinion that the death penalty is unconstitutional as applied to mentally retarded defendants. Lawrence v. Texas, 539 U.S. 558 (2003): Assigns the majority opinion to Kennedy, and the Court reverses Bowers on the basis of Stevens’s dissent. Rasul v. Bush, 542 U.S. 466 (2004): Writes the majority opinion holding that U.S. courts have jurisdiction over prisoners held at Guantanamo Bay. Gonzales v. Raich, 545 U.S. 1 (2005): Writes the majority opinion affirming federal authority over marijuana under the Commerce Clause. Gonzales v. Oregon, 546 U.S. 243 (2006): Assigns the majority opinion to Kennedy, and the Court finds that Congress did not delegate authority to the U.S. Attorney General to define the practice of medicine. Hamdan v. Rumsfeld, 548 U.S. 557 (2006): Writes the majority opinion that the Third Geneva Convention applies to prisoners held at Guantanamo Bay. Gonzales v. Carhart, 550 U.S. 124 (2007): Assigns the dissent to Ginsburg, who argues that the Court was overruling Stenberg without a principled justification. Baze v. Rees, 553 U.S. 35 (2008): Concurs in upholding lethal injection as constitutional, but also argues that the death penalty itself is unconstitutional. Wyeth v. Levine, 129 S.Ct. 1187 (2009): Writes the majority opinion stating that Congress did not preempt state safety requirements for pharmaceutical labeling.

sicians to be the gatekeepers of marijuana for patients because of the danger that “some unscrupulous physicians” would overprescribe it if it was “sufficiently profitable to do so” (Gonzales v. Raich). Stevens has also had, after

Blackmun, the predominant voice in abortion cases. Shortly after joining the Court, he voted with the majority that the Constitution did not require Medicaid to pay for elective abortions even if it paid for “medically necessary” ones (Maher v. Roe). But in a 1980

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case about the Hyde Amendment — which restricted federal funding of abortion to cases of rape, incest, and risk to the life of the pregnant woman — Stevens voted with the minority, dissenting against the 5-to-4 ruling that the government is not constitutionally required to fund medically necessary abortions even if it funds care for pregnancy and childbirth (Harris v. McRae). In 1992, when it looked as if Roe might be overruled, Stevens voted with Blackmun to keep Roe intact; more important, he persuaded Justices Kennedy, Sandra Day O’Connor, and David Souter to craft their joint opinion in segments, so that a particular segment could have the support of all five justices, and the “core” principles of Roe could be upheld as the majority opinion of the Court (Planned Parenthood v. Casey).1,4 Shortly thereafter, antiabortion tactics shifted to attempts to outlaw so-called partial-birth abortions. When that issue first came before the Court in 2000, Stevens assigned the majority opinion to Justice Stephen Breyer, who wrote a medically sophisticated opinion striking down the law, stating that it was too vague for physicians to know what actions were prohibited and that it lacked an exception for risks to the pregnant woman’s health. Stevens wrote a concurring opinion, noting, with some frustration, that antiabortion rhetoric tends to obscure the fact that almost three decades after Roe, its core holding “has been endorsed by all but 4 of the 17 Justices who have addressed the issue” (Stenberg v. Carhart). Seven years later, after the arrival of Chief Justice John Roberts and Justice Samuel Alito, the Court

reversed Breyer’s Stenberg decision, with Kennedy writing the majority opinion. Stevens assigned the writing of the principal dissent to the only woman on the Court, Ruth Bader Ginsburg, who produced an exceptional rebuttal of the majority opinion (Gonzales v. Carhart). Law professor Jeffrey Rosen has noted that Stevens has written more dissents and concurring opinions than any other sitting justice.3 But Stevens has been much more than a “great dissenter.” He believes that dissents and concurrences serve the democratic purpose of exposing the public to counterarguments, which is preferable to creating the illusion of complete accord inherent in unanimous decisions, and that well-reasoned dissents can ultimately be adopted by the Court. An example is a case in which he emphasized the limits the Constitution places on government interference in personal relationships. In Bowers v. Hardwick (1986), the Court found that a state statute outlawing consensual sexual conduct by homosexuals was constitutional. Stevens wrote a powerful dissent arguing that individual decisions about physical intimacy are constitutionally protected. Seventeen years later, when the Court reversed Bowers, Kennedy wrote for the Court, “Justice Stevens’ analysis, in our view, should have been controlling in Bowers and should control here. Bowers was not correct when it was decided, and it is not correct today” (Lawrence v. Texas). Now often praised as the “liberal lion” of the Court, Stevens maintains — accurately, I think — that he hasn’t changed much from the middle-of-the-road Re-

publican he was when he joined the Court. Stevens says the Court changed around him. He has noted that, with the exception of Justice Ginsburg, every Supreme Court appointee since President Richard Nixon’s nomination of Lewis Powell has been more conservative than the justice he or she replaced.3,5 Nonetheless, some of Stevens’s views did evolve during his tenure on the Court. He went from supporting the death penalty, for example, to banning its imposition on mentally retarded criminals (Atkins v. Virginia) to turning against it altogether (Baze v. Rees). Most important, I think, Stevens should be hailed for a quality that we should expect (in fact, demand) from all Supreme Court justices: fidelity to the rule of law. He consistently applies the law as he understands it in a principled manner rather than relying on any ideological test or prejudice. He had no problem, for example, in concluding from reading the statute that Congress had preempted state regulation of the safety of medical devices, and later finding — also on the basis of statutory language — that Congress had not preempted state regulation of pharmaceuticals. Stevens was also the justice most responsible for upholding the rule of law in the context of the “war on terror,” writing majority opinions applying the constitutional right of habeas corpus (Rasul v. Bush) and the Geneva Conventions (Hamdan v. Rumsfeld) to prisoners held at Guantanamo Bay. He was able to take an authoritative leadership role on this front in part because he is the only justice with active-duty military experience (U.S. Navy, World War II).4

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He will also be remembered for the closing lines of his dissent in Bush v. Gore: “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.” As health care professionals look to the Court in the coming months and years to rule on the constitutionality of the new health care reform law and any regulations the government adopts to

change the way medicine is practiced, Justice Stevens’s strong voice for protecting the physician– patient relationship and promoting the rule of law should serve as a model for current and future justices.
Disclosure forms provided by the author are available with the full text of this article at NEJM.org. From the Department of Health Law, Bioethics, and Human Rights, Boston University School of Public Health, Boston. This article (10.1056/NEJMp1004657) was published on May 5, 2010, at NEJM.org.

1. Annas GJ. Standard of care: the law of American bioethics. New York: Oxford University Press, 1993. 2. Silverstein M. Judicious choices: the new politics of Supreme Court confirmations. New York: W.W. Norton, 1994. 3. Rosen J. The dissenter, Justice John Paul Stevens. New York Times Magazine. September 23, 2007. 4. Toobin J. The nine: Inside the secret world of the Supreme Court. New York: Doubleday, 2007. 5. Interview transcript: Justice John Paul Stevens interview with Jeffrey Rosen, conducted June 22, 2007. (Accessed May 3, 2010, at http:// www.nytimes.com/2010/04/12/magazine/ 12stevens-interview.html?ref=magazine.)
Copyright © 2010 Massachusetts Medical Society.

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