Skip to main content

How a Supreme Court Ruling and Retirement Shifted Healthcare Politics This Week

Analysis  |  By Steven Porter  
   June 28, 2018

Beyond organized labor, this week's developments could foretell renewed legal battles over controversial healthcare topics, such as the ACA and abortion.

With two documents released on the final day of its term, the Supreme Court shifted the nation's long-term political trajectory to the right this week, likely with significant implications for U.S. healthcare.

The court released its 5–4 decision finding that non-union public employees cannot be compelled to pay agency fees to a union they didn't join, dealing a blow to the left-leaning labor groups that have often been boosters for Democrat-backed causes.

Related: Nurses Union Decries Supreme Court Decision on Public-Sector Unions

Then Justice Anthony Kennedy—an 81-year-old Reagan appointee long-considered a swing vote on the bench—hand-delivered his retirement letter to President Donald Trump, giving the White House an opportunity to nominate a second conservative justice who could serve for decades to come.

Public-Sector Unions Still Kicking

NYC Health + Hospitals President and CEO Mitchell Katz, MD, said the municipal healthcare system he oversees will not allow the Supreme Court's decision to undermine the system's collaboration with unions.

"We expect labor organizations to continue to remain a force in working together with us to improve care to our patients, build a supportive workplace for our employees and shape our shared vision for a stronger, more resilient public health care system that will serve many more generations of New Yorkers," Katz said in a statement.

As the largest municipal healthcare system in the country, NYC Health + Hospitals filed an amicus brief in January jointly with Los Angeles County's Department of Health Services and the Service Employees International Union, arguing that the Supreme Court should affirm its 1977 precedent to allow public-sector unions to charge non-members agency fees.

"Many healthcare employers in particular have benefitted from partnerships with their employees' unions, and workplaces with collective bargaining have been shown in some circumstances to outperform their non-union counterparts," the brief argued, adding that agency fees are a logical source of stability to such unions.

"We expect labor organizations to continue to remain a force in working together with us to improve care to our patients."

—Mitchell Katz, president and CEO of NYC Health + Hospitals

Although most states had already implemented so-called "right-to-work" policies prohibiting unions from collecting agency fees from non-member public employees, the nation's 23 collective bargaining states could see an increase in instability among public-sector unions as a result of this week's ruling. Research by the Illinois Economic Policy Institute estimates that the decision could reduce union membership among state and local government employees by 8.2 percentage points, or 726,000 workers—more than a quarter of them in California.

Given the history of these unions advocating for Medicare and Medicaid, a significant drop in membership could translate to a shift in the political consciousness surrounding these and other social programs.

Citing their advocacy track record, union nurses employed by the government called the ruling "an attack on our patients" and accused the plaintiff's backers of trying to steamroll anything in the way of "their profits and authoritarian power."

Conservative-Controlled Court

Disappointment among liberals sank deeper Wednesday when Kennedy's retirement opened the door for Trump to install a conservative majority—one which could reconsider the court's past decisions on controversial healthcare topics, such as abortion or the Affordable Care Act.

Although some Republicans insist the court's decision in Roe v. Wade, which legalized abortion nationwide, is a matter of "settled law," the possibility that it could be overturned seems much more feasible after this week's developments, especially since Trump vowed on the campaign trail to appoint Supreme Court justices willing to reverse the 1973 decision.

"We're a long way from Roe being overturned," Sam Baker wrote for Axios on Thursday. "The more immediate likelihood is that limits on the procedure will be upheld, and that red states will seize that opening to push the envelope on more restrictive policies."

All of this comes, of course, as a legal battle over the ACA is festering in a federal courtroom in Texas, where the Department of Justice has declined to defend the constitutionality of key provisions in the Obama-era law's constitutionality.

While that legal battle could make debate over preexisting conditions a major talking point in the run-up to this fall's midterm elections, the developments this week at the Supreme Court could shape public healthcare policy for decades to come.

Steven Porter is an associate content manager and Strategy editor for HealthLeaders, a Simplify Compliance brand.

Get the latest on healthcare leadership in your inbox.