BU Law Students' Amicus Brief Cited by Supreme Court in 'Obamacare' Ruling:
Justice Ginsburg quotes 'Health Care for All' brief in siding with majority opinion

Abigail R. Moncrieff Kevin Outterson
Abigail R. Moncrief Kevin Outterson

As part of the Supreme Court's 5-4 decision to uphold President Obama's health care law, Justice Ruth Bader Ginsburg cited an amicus brief that was crafted with the help of BU Law students Braden Miller ('13), Paul Payer ('13), and Katie O'Neill ('13). The students worked on the "Health Care for All" brief in the seminar, "Constitutional Health Care Litigation," which was taught by Associate Professors of Law Abigail Moncrieff and Kevin Outterson. The lead client for the brief was Health Care for All, based in Boston.

Since 2006, Massachusetts has required residents to maintain affordable and comprehensive health insurance. Justice Ginsburg cites the brief's section on the economic disadvantage faced by individual states, such as Massachusetts, that undertake health care reform on their own:

"Out-of-state residents continue to seek and receive millions of dollars in uncompensated care in Massachusetts hospitals, limiting the State's efforts to improve its health care system through the elimination of uncompensated care."

Ginsburg continues in her opinion: "Facing that risk, individual States are unlikely to take the initiative in addressing the problem of the uninsured, even though solving that problem is in all States' best interests. Congress' intervention was needed to overcome this collective-action impasse."

Fourteen students submitted four Supreme Court amicus briefs as part of the class. "We are incredibly proud of the great work that our students did on all of the briefs," Outterson says. "It was an opportunity for them to have an impact on one of the Court's most critical opinions."

Rachel Smit
Rachel Smit

Another amicus brief, which was written by BU Law students Rachel Smit ('13), Zoe Sajor ('13) and Emily Westfall ('13) for the same class and filed on behalf of the Jewish Alliance for Law and Social Action, argues that the individual mandate is functionally indistinguishable from a tax.

"That is the exact argument that saved the mandate," Moncrieff says. "While there was no official citing of this brief in the Supreme Court's opinion, it's nice to have been on the right side of the ruling. Perhaps, it may have influenced Chief Justice Roberts, who provided the deciding vote."

Smit, who worked for three years at a state health policy institute prior to enrolling at BU Law, says, "Because the ACA makes health insurance accessible to many people with low incomes, I was glad to have an opportunity to defend the law."

On the Medicaid expansion issue, seven justices found the law unconstitutional; five justices ruled that the remedy should be a state-by-state option to accept or refuse the additional funds, without risking existing Medicaid funding. This was the exact argument made in the Health Law & Policy Scholars’ Brief, supported by BU Law students Valerie Moore (’12) and Amrit Gupta (’13), together with BC Law students Max Bauer (BC ’13) and Frederick Thide (BC ’13). Other BU Law students who participated in the brief writing were Julia Mirabella (’12), DJ Arnold (’12), Kyle Thomson (’12) and Hao Wang (’12).

“Over 120 amicus briefs were filed in this case,” Outterson says, “only a very few were cited, less than 10 by my quick count. The briefs we wrote were high impact and made a difference.”