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March 27 2012

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Arguing the Affordable Care Act Before the Supreme Court = The Lawyer’s Marathon

posted by Allie

 

Can you imagine being one of the attorneys arguing the Affordable Care Act before the Supreme Court?  Imagine the stress!  First, the entire world is watching your every move, and thanks to audio recordings, your every “um” and long pause will go down in history.  Second, it’s the Supreme Court, so you’re already probably already red in the face, perhaps slightly blotchy on the neck.  And finally, the Court scheduled the arguments to last 3 days.  That hasn’t happened since the 1960s.  This 3 day argument schedule is the lawyer’s equivalent of a 3 day Olympic contest. 

I remember preparing for my first Moot Court arguments.  I prepared, studied, and practiced, and after my baby 20-minute argument was over (which was heard before a panel of local attorneys, NOT Supreme Court Justices), I was exhausted and glad it was over.  I cannot fathom having to keep up that type of stamina—times a million—for 3 days in front of the Supreme Court.  I wonder if the attorneys have sequestered themselves in a local hotel with zero contact with the outside world.  I mean, no offense to any of the spouses of these attorneys, but can you imagine carrying on a small talk conversation over the phone at the end of your day?  I imagine it would go something like this:

     Attorney:  Hi, [insert term of endearment of your choice]. How was your day?

     Spouse: Stressful!  Traffic was horrible on the way to work.  My boss would not get off my back about this work project, and to top it all off, I blew a tire on the way home! 

     Attorney: Wow, that does sound stressful.  I just finished day 1 of 3 before the Supreme Court, arguing a landmark case before the Supreme Court that could determine the        outcome of health care in this country for the next 100 years. 

I listened to a short clip of the audio recording from day 1 on NPR, and the clip focused on a slip of tongue made by the Solicitor General arguing for the government.  The Solicitor’s argument was that the monetary penalty imposed by the law was not a tax so the court was not prohibited from hearing arguments because the tax had yet to be collected.  When questioned by the Justices, the Solicitor slipped and referred to the penalty as a tax.  Justice Breyer caught the slip and gently questioned whether the Solicitor meant to say “penalty.”  Again, I ask, can you imagine?!  I’ve handled a few minor hearings since becoming an attorney, and after each of my hearings I replay the judge’s every word and question my every move.  If I were corrected by Justice Breyer from the bench---even though the correction was almost done in jest—I would probably die right there on the spot.  

March 26 2012

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SCOTUS Hears Affordable Care Act and Cheney Gets a New Heart

posted by Allie

 

It’s ironic that the day before the Supreme Court takes up arguments on the Affordable Care Act, it was announced that former Vice President Dick Cheney had received a heart transplant at the age of 71.  New stories like this one, as well as the debate surrounding the Affordable Care Act, question the role of government in the realm of health care. 

There are approximately 3,100 people waiting for a heart transplant in the U.S. today, yet only about 2,000 heart transplant procedures are performed each year.  These figures beg the question, when supplies are scarce, who should regulate distribution—the market or regulations?  Should regulations keep the elderly from receiving these kinds of life saving transplants in favor of younger patients?  Should regulations require that individuals of all fiscal backgrounds and insurance coverage have access to heart screenings and transplant specialists?  Should the market rule all---whoever can pay receives the transplant?

These aren’t easy questions to answer.  A 71 year-old (let’s forget for a second that this particular 71 year-old is a polarizing political figure), could likely have several quality years ahead.  However, are those years more valuable than say the additional years added to the life of a 50 year-old who may have yet to see his/her children graduate from college or get married?   That type of question is way above my pay grade (and since I do this for free, that's not a high bar).  

There’s obviously a debate here that’s larger than the “new heart for Cheney” going on here.  As a society, I think collectively we’d like to view ourselves as in a positive light as treating every human with worth and value—you know the whole “all men are created equal” thing-- however, the health care system in this country would suggest that we have a long way to go towards reaching that ideal.  

March 19 2012

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Man Dies + Wife Conceives Through In Vitro = Social Security Benefits for Child?

posted by Allie

 

One of the things law school teaches its masses is the idea of learning to argue and understand both sides of an argument.  After my first few weeks of classes, I began using this “skill” in my personal life—arguing just for the sake of arguing.  It was quite a lovely habit, as I’m sure you can imagine.  So while I may look at most issues now in the “gray” realm, seeing both sides, there’s the rare occasion when I simply can’t get past my initial gut reaction.  My gut on this one is “Man Dies + Woman Conceives Through In Vitro = NO Social Security Benefits for Child.”

The United States Supreme Court will hear oral arguments in an interesting case today to determine whether a child born through in vitro fertilization after the death of the parent can qualify for child survivor benefits under the Social Security Act.

There are over 100 similar cases involving this issue before the Social Security Administration, but this particular case being heard before the Court today involves a husband who deposited sperm with a fertility clinic after learning that he would likely die from cancer.  After his death, his wife underwent in vitro fertilization and conceived twins.  The SSA denied the claim for survivor benefits based on the position that applicable state law would not allow a posthumously conceived child to inherit property unless named in a will.  The Court of Appeals reversed the SSA and determined that the children received after death fell with the Act’s definition of child for purposes of survivor benefits. 

Clearly the Court of Appeals is living in “gray land” where every issue has multiple facets and outcomes—which I’m ok with most of the time—but sorry, Court of Appeals, this time I am camp black and white.  These children were not even conceived when the husband died.  Technology has allowed this type of gap to exist, but the law doesn’t have to accommodate it.  In my eyes, the purpose of providing survivor benefits is for support and stability of children upon the unforeseen death of a parent.  Here, the woman obviously had the funds to go through with vitro fertilization—the idea that SSA should have to financially support the wife’s conscious decision to get pregnant after the death of her husband seems crazy to me. 

So what do you all think?  Should I join the Land of Gray on this one?  Are there two sides that I’m missing? What I’d also be interested in discussing is the opinion of individuals who believe that an embryo—pre-implantation—is a human life.  Would these individuals also support full financial support of these kids?

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