Topic: Health Care and Health Insurance
Senator: Durbin
Date: SEPTEMBER 14, 2005
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DURBIN: So let me follow through on that because I think that's what people need to hear. But we need to apply it to your real-life and legal experiences.
Let me talk to you about a case that you were a private attorney and involved in. Today, there are about 45 million uninsured people in America. Too often, Americans with insurance can't receive coverage for medically necessary procedures and have to fight the insurance companies.
In my home state of Illinois we have a law called the Illinois Health Maintenance Organization Act. I think you're familiar with it. It provides that if a patient's primary care physicians deems a proposed procedure to be medically necessary but their HMO disagrees and denies coverage for the procedure, the patient may have the HMO's decision reviewed by an outside physician, the determination of that outside physician binding on the HMO.
You challenged this law on behalf of an HMO that refused to pay $95,000 for the shoulder surgery of Debra Moran of my state of Illinois.
Case went to the Supreme Court in 2002. You argued for Rush Prudential and you argued they weren't subject to the Illinois law and the governing HMOs because you said they weren't really an insurance company.
You claimed that since the HMO was not providing health care, but merely a promise to pay for health care, it was exempt.
Thankfully, from my point of view, you lost the case. If you had won it it would have put millions of American consumers and families at risk of losing coverage for necessary health care.
Judge Roberts, did you have any reservations about taking this case?
ROBERTS: No, Senator, I did not.
The result in the case, I did lose. I lost 5-4 if I'm remembering correctly. In other words, four of the justices on the Supreme Court thought the argument I was making on behalf of my client was correct.
It has always been my position that I do not sit in judgment other than once I have satisfied myself that the legal arguments are reasonable ones, within the mainstream, if you will, that I don't decide whether that's the way I would rule as a judge or whether I would rule the other way.
My practice has been to take the cases that come to me and if the other side in that case had come to me first I would have taken their side.
DURBIN: So you didn't step back at any point in your practice and say, "No, I'm not going to do this; I can't be associated with a case or cause even though it may be legal and ethical that might cause so much harm to so many innocent people"?
ROBERTS: That's a judgment for the legal system to make, asserting legal rights. Lawyers aren't judges when they're representing clients. They don't sit there and say -- well, maybe some do, I don't. I think it's a basic fundamental principle of the legal system and the bar that you take clients who have reasonable arguments -- now, I'm not talking about frivolous arguments. I don't take cases in which those are raised.
But the lawyers aren't the judges. The judges are. Now the case you mentioned, you've explained the arguments on one side, there were legal arguments on the other side. And four justices agreed with those.
This isn't an extreme case when it's decided 5-4. And that's one of the very point I was making earlier; that I take cases on all sides of the issue.
ROBERTS: You can go through and find cases. For example, when I was asked to assist an inmate on Florida's death row, I didn't step back and say: Well, is this really a good thing for me to assist this individual guilty of -- convicted of particular murders? I took the case.
IN the various pro bono activities in which my firm was involved, I didn't sit in judgment and say: Is that something I agree with? Is it not something I agree with?
I was a lawyer involved in that area of the law and I felt it my obligation to take the cases that come in.
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