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Washington Report: AAP provides child health perspective through judicial advocacy :

March 14, 2016

A standard component of the Academy’s federal advocacy includes urging legislators to pass laws that prioritize child health and weighing in with comments to ensure that children’s needs are considered when regulations take shape. Perhaps less well-known, the Academy’s federal advocacy for children continues in the courts.

Over the coming months, the U.S. Supreme Court will hear several cases with important child health implications.

With the sudden death of Supreme Court Justice Antonin Scalia, questions have arisen as to whether President Barack Obama will be able to appoint a new justice whom the Senate would confirm before the end of his presidential term. In the meantime, if the remaining eight justices come to a 4-4 decision on a case, they could decide to delay a ruling until the next term. Otherwise, the case would default to the decision of the lower court where it originated.

Further complicating that scenario, several cases before the court had split decisions at the circuit court level, meaning some parts of the country would have different decisions governing them than others should the decision defer to the latest lower court ruling.

Following are some of the cases ahead of the Supreme Court and on the Academy’s radar:


Whole Woman’s Health v. John Hellerstedt, M.D., commissioner of the Texas Department of State Health Services 

Issue: The Supreme Court will consider a 2013 Texas law that would place strict restrictions on abortion providers. The law would require all abortion providers to obtain admitting privileges at a local hospital and all reproductive health care facilities offering abortion services to meet the same requirements as ambulatory surgical centers.

The outcome of the case is expected to be one of the most impactful on women’s access to reproductive health services since the 1973 ruling in Roe v. Wade upholding abortion rights.

AAP position: In January, the Academy joined an amicus brief with several other medical organizations, including the American Medical Association, arguing that the regulatory restrictions the law would impose serve no medical purpose, place an undue burden on access to health care and unnecessarily interfere in the doctor-patient relationship.

Timeline: In June 2015, the U.S. Court of Appeals for the Fifth Circuit authorized Texas to enforce the requirements against all abortion facilities except the clinic operated by plaintiff Whole Woman’s Health. Oral arguments for the case were heard on March 2, and a ruling is expected in late June.


David A. Zubik v. Sylvia Burwell, secretary of Health and Human Services (HHS)

Issue: The case challenges the contraceptive coverage requirement under the Affordable Care Act (ACA). The petitioners argue that the religious accommodation provided by the administration that requires insurers to independently provide contraceptive coverage instead of an employer that objects to contraception for religious reasons still violates the employer’s religious beliefs. Currently, religiously affiliated nonprofits and closely held for-profit corporations can apply for the accommodation by notifying the government in writing.

AAP position: The Academy filed an amicus brief, arguing that since there is no legally discernable difference between a religious objection to contraception and a religious objection to vaccines, a decision in favor of the petitioners could result in employers choosing not to provide vaccines to their employees.

Both objections are to the same provision in the ACA that requires covering cost-free contraceptive care as well as cost-free coverage for any immunizations recommended by the Centers for Disease Control and Prevention. The Academy strongly opposes any religious exemptions that would result in children and adolescents not receiving crucial medical services.

Timeline: The U.S. Court of Appeals for the Third Circuit and the U.S. Court of Appeals for the D.C. Circuit ruled in favor of HHS. The Supreme Court heard oral arguments for the case on March 23.


United States of America v. State of Texas 

Issue: In November 2015, the Fifth Circuit rejected President Barack Obama’s effort to move forward with executive actions on immigration that would expand the Deferred Action for Childhood Arrivals program and create the Deferred Action for Parents of Americans and Lawful Permanent Residents program.

The Obama administration asked the Supreme Court to review the case and lift the nationwide ban on the expansion of temporary protection from deportation and ability to get work permits for people who entered the U.S. illegally as children, as well as the ability for certain parents of U.S. citizens and lawful permanent residents to apply for work authorization and temporary protection from deportation.

AAP position: The Academy joined other child health and education groups on an amicus brief, outlining harms to children whose parents face deportation. They argued that lifting the circuit’s injunction would provide millions of children with the family stability and security essential to their psychological, physical and emotional well-being.

Timeline: Oral arguments are set for April 18.


Clean Power Plan implementation stay 

Issue: In February, the Supreme Court issued an order staying (stopping) implementation of the Environmental Protection Agency’s Clean Power Plan (CPP) until final judicial action.

The CPP aims to address climate change through strong limits on carbon pollution from fossil fuel-fired power plants, which the Academy supports. The stay was announced as several challenges to CPP implementation advanced in federal courts.

AAP position: While states can continue their work to meet the regulation’s requirements, they are not required to do so during the stay, further delaying much-needed action to address climate change. The Academy is considering joining partner medical societies in weighing in with the Supreme Court to defend the CPP and its health benefits.

Timeline: The D.C. Circuit will consider the case on June 2, and then it likely will be considered by the Supreme Court.

In the coming months, the Academy will continue to monitor these cases before the Supreme Court and keep members informed of decisions affecting children’s health.

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