Stuart Gerson Quoted in “Health Care Cases to Watch in 2020”


Stuart M. Gerson, Member of the Firm in the Litigation and Health Care & Life Sciences practices, in the firm’s Washington, DC, and New York offices, was quoted in Law360, in “Health Care Cases to Watch in 2020,” by Jeff Overley. (Read the full version – subscription required.)

Following is an excerpt:

Health care litigation in the 2020s is poised for a roaring start as opioid suits head to trial, defense attorneys trumpet a U.S. Supreme Court decision on Medicare rulemaking, the Affordable Care Act faces another life-or-death legal showdown and conservative justices consider curtailing abortion rights. Here, Law360 explains key cases to watch as the new decade gets underway. …

Abortion Rights in High Court Crosshairs

Another case with unmistakable political implications is a Supreme Court sequel to an abortion rights case, Whole Woman’s Health v. Hellerstedt, that the high court decided three years ago — before President Donald Trump added two justices and solidified the court’s conservative majority.

The prospect of a revamped court reviewing an abortion case for the first time is notable by itself. But the case also involves a Louisiana admitting-privileges law that’s practically identical to the Texas law that the Supreme Court rejected in Whole Woman’s Health.

The move to quickly revisit the admitting-privileges issue is shining a spotlight on the conservative majority’s willingness to overturn liberal precedent. In an amicus brief, constitutional law scholars quoted from the Supreme Court’s landmark abortion ruling in Planned Parenthood v. Casey, which cautioned that overruling major precedent without a compelling reason could “subvert the court’s legitimacy.”

Amicus briefs filed by other parties, including the American Bar Association and former federal judges, have added that the Fifth Circuit’s decision to uphold Louisiana’s law presents a threat to “the rule of law.”

Some observers doubt the conservative justices will completely scrap the constitutional right to abortion, while also predicting that they may nonetheless create new leeway for states to restrict abortion access.

“Roe v. Wade is well entrenched,” Epstein Becker Green member Stuart Gerson said, adding that there is, however, a “substantial probability that a conservative majority will uphold the Louisiana restrictive law this time around.”

Arguments are set for March 4, and a decision is expected by late June, right when the presidential campaigns will likely be kicking into high gear.

The cases are June Medical Services LLC et al. v. Rebekah Gee, case number 18-1323, and Rebekah Gee v. June Medical Services LLC, case number 18-1460, in the Supreme Court of the United States.