Abortion, Vaccines and Religious Freedom: Key Health Law Decisions of 2021

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(Reuters) – An active year for healthcare law, 2021 has seen continued litigation over the COVID-19 pandemic, abortion and the Affordable Care Act. Here are some of the key decisions:

THE SUPREME COURT REVISITS ABORTION

In December, the United States Supreme Court left a ban on most abortions in Texas in place while a legal challenge against it continues, the clearest sign yet that the most conservative court, with three justices appointed by Republican President Donald Trump, could be open to weakening or overturning the landmark Roe v. Wade guaranteeing abortion rights nationwide when ruling on a separate case involving a similar Mississippi law.

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Texas law prohibits abortions at around six weeks, a time when many women do not yet realize they are pregnant, with no exceptions for pregnancies resulting from rape or incest, and allows private citizens to prosecute anyone who performs or assists a woman to obtain an abortion prohibited by law. It’s one of several recent efforts by Republican state lawmakers to criminalize abortion in hopes that the nation’s top court will overturn its precedent.

CHALLENGES TO COVID RULES EXPAND RELIGIOUS FREEDOM

Rules put in place by states to combat COVID-19, including limits on gatherings, mask mandates and the like, have sparked numerous legal challenges on the grounds of religious freedom. The Supreme Court, acting largely through its parallel role, expanded the scope of religious freedom claims, experts say, striking down several rules on the grounds that they treated religious institutions less favorably than some secular institutions.

The change was further crystallized by a ruling in June in favor of a Catholic Church-affiliated agency that sued after Philadelphia refused to place children in foster care with the organization because that it prohibited same-sex couples from applying to become adoptive parents.

COURTS REQUESTS FEDERAL VACCINE WARRANTS

President Joe Biden’s administration moved aggressively in 2021 to promote vaccination against COVID-19, but many of those efforts met with resistance in court. A rule requiring vaccinations for workers in healthcare facilities that receive Medicare or Medicaid funding and an Occupational Safety and Health Administration rule requiring vaccination warrants for companies with more than 100 employees has was blocked, but was later reinstated and is now awaiting Supreme Court review.

SUPREME COURT UPHOLDS AFFORDABLE CARE ACT

In June, the Supreme Court again upheld the Affordable Care Act against Republican-led state court challenges, cementing former President Barack Obama’s legislative achievement. The law prohibited insurers from charging more to patients with preexisting conditions, created regulated health insurance exchanges for consumers to purchase coverage, and funded the expansion of Medicaid in many states.

FEDERAL CIRCUIT RETAINS COVID VACCINE PATENTS

In December, the United States Court of Appeals for the Federal Circuit upheld biotech start-up Arbutus Biopharma Corp’s patents on nanoparticle technology used in Moderna Inc’s COVID-19 vaccines, potentially sparking a legal battle to find out if Moderna has to pay royalties.

The decision comes amid a separate patent dispute between Moderna and the US National Institute of Health. Both cases suggest that high-stakes litigation over life-saving technology should continue.

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Brendan Pierson

Brendan Pierson reports on product liability litigation and all areas of healthcare law. He can be reached at [email protected]

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