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People gather outside the Supreme Court building, on the day of hearing arguments in the Mississippi abortion rights case Dobbs v. Jackson Women's Health, in Washington, U.S., December 1, 2021. REUTERS/Jonathan Ernst
(Reuters) – The next year will likely be an active one for health law – particularly as the U.S. Supreme Court is poised to issue significant rulings on abortion rights and COVID-19 vaccine mandates. Here are some highlights to watch in 2022:
THE SUPREME COURT COULD ELIMINATE LONGSTANDING ABORTION RIGHTS
During oral arguments in December on a Mississippi abortion law, the Supreme Court's conservative justices signaled a willingness to dramatically curtail abortion rights in America. The state law, which bans abortion starting at 15 weeks of pregnancy, has been blocked by lower courts, but Mississippi has asked the nation's top court to revive it. Its 1973 ruling in Roe v. Wade established broad nationwide abortion rights. But Justice Brett Kavanaugh, echoing his conservative colleagues, said during the argument that "the Constitution is neither pro-life nor pro-choice on the question of abortion but leaves the issue to the people of the states or perhaps Congress to resolve in the democratic process." If Roe v. Wade is overturned, it will be the realization of a decades-long goal by anti-abortion activists, made possible by the court's current 6-3 conservative majority, and would likely make abortion inaccessible in many Republican-run states.
SUPREME COURT WILL WEIGH BIDEN'S COVID VACCINE MANDATES
In early January, the high court will hear disputes over the Biden administration's nationwide vaccine-or-testing COVID-19 mandate for large businesses, and its separate vaccine requirement for healthcare workers. The workplace mandate is currently in effect nationwide, while the healthcare worker mandate is blocked in half of the 50 U.S. states. The decision could be important in setting the limits of the federal government's power to mandate public health measures.
DRUGMAKERS FACE LITIGATION OVER INSULIN PRICING
Drugmakers Eli Lilly and Co, Novo Nordisk Inc and Sanofi-Aventis US LLC and the nation's largest pharmacy benefit managers – United Health Group's OptumRx Inc unit, CVS Health Corp's Caremark LLC and Express Scripts Inc – are facing claims by drug purchasers of inflating the price of insulin drugs, which are indispensable in treating diabetes. The claims in 2021 survived motions to dismiss, setting the stage for an intensifying legal battle in the coming year. Insulin has come under heavy scrutiny in recent years amid a growing chorus decrying high drug prices. The three insulin makers were highlighted in a Congressional report earlier this month, which found that drugmakers have targeted the U.S. market to earn outsized profits from old medicines.
FTC SEEKS TO UNDO ILLUMINA, GRAIL MERGER
The U.S. Federal Trade Commission is seeking to unwind life science company Illumina Inc's $7.1 billion acquisition of cancer test detection company Grail Inc in an administrative proceeding, in which a trial was held in 2021. Antitrust lawyers are closely tracking the FTC trial as a rare enforcement action against a "vertical" merger in which two companies are not direct competitors. It could represent a newly aggressive approach to merger review under the Biden administration, particularly in the healthcare field.
U.S. GOVERNMENT PURSUES OVERBILLING CLAIMS AGAINST KAISER PERMANENTE
California's Kaiser Permanente, one of the largest non-profit healthcare systems in the country, is facing whistleblower claims that it systematically overbilled Medicare. Those claims gained momentum in 2021, when the federal government took the step of intervening in six whistleblower lawsuits brought under the False Claims Act. In addition to being unusually large, with potential damages of $1 billion or more, the case shines a spotlight on privately run Medicare Advantage plans, which critics say incentivize overbilling. The government claims Kaiser Permanente doctors were pressured to submit diagnosis codes that increased patients' so-called risk scores, used by the Centers for Medicare & Medicaid Services (CMS) to calculate payments to Medicare Advantage plans.
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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at brendan.pierson@thomsonreuters.com.
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