Update: today, the department of justice filed a lawsuit against the state of Ohio for violations of EMTALA. This is only the first shot. ERISA is next. The department of labor has already weighed in last week in the state of Massachusetts on fiduciary violations under that statute. Enforcement is coming. This is not a drill. The following was written on July 1, and I stand by it:
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With Roe overturned, we are about to find out what happens when judges try to change the past. In H. G. Wellsâ cautionary tale, The Time Machine, this led to more problems than the time traveler imagined. The future created by his attempts led to (spoiler alert) giant crabs, only. Turning back the clock fifty years on Roe will lead to similarly catastrophic outcomesâphysician shortages, dead patients beyond those seeking abortions, and tax liability for large employers in impacted states. Now join me for the ending of this real-life tale of hubris:
When Roe vs. Wade was snatched from history, it became illegal to provide standard medical care. However, standards of care cannot be changed by courts or legislators. The government can legally mandate âall surgeons must stab their patients in the heart at the end of every procedure.â This law would not change the fact that killing your patient violates your Hippocratic Oath. Violating standards invites malpractice lawsuits. Therefore, were the law for post-operative chest-stabbing passed, it would create a problem for the medical malpractice carriers covering surgeons. Families would sue, and win.Â
Once you mandate malpractice, you create uninsurable doctors. Uninsured doctors wonât practice in states withs bans. Iâm a doctor, and it was expensive. Most doctors carry debt. They need to make a living that can pay it off. So, as soon as patients sue doctors who canât follow established medical guidelines, doctors will flee those states. When you create gaps in doctor availability, you end up with health plans that donât provide comprehensive medical care. No one can legally sell these, or buy them. (Already employers are trying to deal with this by buying plane tickets.) This problem becomes worse over timeâ not enough OB/GYNâs means no med school education in such states.
It turns out law can be really boring, which might be why the Supreme Court glossed over so much of it. Try to stay awake! The 1974 Employment Retirement Income Security Act (ERISA) is a federal tax and labor law establishing standards for private industry. It provides the rationale for which health insurance gets a tax break. Most regulation of healthcare and its payments is built on this law. Importantly, the Combined Appropriations Act of 2021 mandated employers and benefits brokers act as fiduciaries, making it illegal for employers to pay for a health insurance plan that does not cover all medically necessary care. Abortion is sometimes medically necessary.  Legislators living outside the messy world of what is necessary can pass laws all day long. Laws donât have to be realistic or a good idea. Doctors donât have this option because our standards include what is ethical, not just legal. And since employer benefits that pay for what doctors do are tax exempt only if they comply with ERISA we have a paradox. No abortion allowed? No tax exemption. Â
No matter what we think of abortion on personal or moral grounds, taxes are taxes. Now, every employer who has any employees in any state that bans abortion owes the IRS on every penny they spend on health benefits for their employees. This is a problem for virtually all large employers.Â
The current situation reminds me of a Jenga gameâs unavoidable ending. Legal precedent built on legal precedent is equivalent to Jenga blocks stacked on one another. And anyone who's ever played the game knows that you donât pull out the block at the bottom. Roe vs. Wade was this fundamental blockâand not just for abortion. In the wreckage that follows, doctors canât practice for lack of insurance, patients canât get medical care they need, and employers have a massive tax bill if they try to provide insurance. Â
It is illegal to practice medicine without a license for a good reason. The reality of health care provision is deeply complicated and canât be left to just anybodyâ except when the Supreme Court says anyone who can get elected gets to decide what medical care should be!Â
There are a hell of a lot of lawsuits coming. This will be catastrophic for most patients, their employers, doctorsâ and even insurance conglomerates. No amount of legislated practice of medicine without a license can change death and taxes, though it seems the Supreme Court is trying to do just that. Buckle up. Itâs going to get bumpy. Does anyone know a good lawyer?
This is an awesome analysis of my favorite law: the law of unintended consequences. The Supreme Court, in its Supreme Ignorance, did not know what it did.