Dobbs and Workers' Compensation

There will be no readers this morning who have not heard about Dobbs v. Jackson, ___ U.S. ___; No. 19-1392 (June 24, 2022). In a word, the decision is broad. One might struggle with the implications for workers' compensation; I periodically get inquiries, essentially "what does this have to do with workers' comp." In a nutshell, the law has everything to do with workers' compensation, and this community is touched in many ways by the U.S. Constitution, and various aspects of state law. One must remember that these administrative systems have fundamentally altered a variety of rights, supplanted tort recovery and liability, and that the constitutionality of these systems has been often questioned and periodically litigated. 

In Florida, we need look no further for constitutional analysis than Westphal, discussed in Constitutional Law in Florida 2016 (December 2016). There is also Another Look at Castellanos (July 2017), and Waiving Statutory Rights in Florida (September 2017). In terms of the Grand Bargain, The Quid Pro Quo (March 2019) provides some overview of the U.S. Supreme Court conclusion in 1917 that the taking of property from employers, with no demonstration of their fault, is constitutional. Yes, the analysis of constitutional rights is bedrock to workers' compensation. 

Integral in workers' compensation is also the Supremacy Clause. That has been a seemingly frequent workers' compensation topic recently. An interesting example can be found in Kansas Cannot Prosecute Identity Theft (September 2017); this is about an instance of federal law preempting state law. The market has similarly seen challenges with the FDA, and its processes in the age of Opioids and overdose. See Zohydro or Pot, a Study in Federalism (April 2014), and Zohydro Update a Year Later (October 2010). There are challenges from another perspective with federal policy regarding pot, state laws, and the Supremacy Clause. See Federal Law Matters in Colorado (June 2015) and Federal Law Matters in Maine Also (June 2018) and Mischaracterizing Pot Again (February 2020). With less fanfare, perhaps, the Court just recently declined to review the implications of pot reimbursement in workers' compensation. Yes, the Court and constitution have implications in this community. 

The potentials for pharmacy policy and the FDA to play a further role in the subject of abortion also has some intriguing aspects. Those may be explored in a future post. 

These are merely examples of challenges in the environment of federalism, and our constitutional republic (there is a great deal of debate as to our status as a democracy or a republic, see The Atlantic in which a critic of the republic characterizations shares perspective). Some arguments are more persuasive than others perhaps in that regard, but I note that it is "to the republic for which it stands" that most all rose too in grade school.  And, as the Atlantic has also published, some reasonably respected figures have agreed with the "republic" characterization. Despite personal differences the phraseology engaged to describe it, our government authority is shared between federal and state authorities. Some will argue that Dobbs merely clarifies that relationship: "the people of the various States may evaluate those interests differently"; "The Court . . . returns that authority to the people and their elected representatives."

We have seen the discussions of potential federal influence in workers' compensation. See Medical Mileage and Legislative Lessons (March 2021), State Line Disputes (May 2016), and Federalization in the Wind (October 2021). We have heard much of the Grand Bargain, and the compromise that underpins much of this administrative remedy that supplants common law rights to damages and Constitutional Rights to trial by jury and more. There are implications in that for both the employee and the employer, with workers' compensation struggling to provide balance between the rights of each. See Professor Burton as a Witness (June 2015). Are benefits to workers increasing or decreasing? Is the immunity for employers of greater of less value today compared to when the U.S. Supreme Court found constitutionality of this exchange back in 1917?

Workers' compensation, in short, reminds me mostly of Truckin' by the Grateful Dead. That song notes "lately it occurs to me what a long, strange trip its been." And, indeed, the last century has been that in this community. As we look back across its depth and breadth, some see that "race to the bottom," a cycle of benefit diminution impairing the injured worker. Others see an erosion of the exclusive remedy and accretion of responsibility. From the perspective of both employees and employers, I have heard lamentations of the Grand Bargain and conclusions regarding the fairness, equity, and balance of the whole system (notably, there are at least 60 systems, and indicting them all collectively as if they were one is perhaps a very broad brush stroke). 

But, but, but, what does abortion have to do with workers' compensation? That is a fair question, and I must admit that the topic that led to Dobbs, abortion, perhaps has no real connection to this community. But the Court's analysis of June 2022 has some interesting points that this community might nonetheless consider studying. 

Not the least of these is stare decisis which has graced these pages before as regards Florida and other jurisdictions. See Stare Decisis, Goodgame, Livingood, and Westphal (October 2015). There is also A Kentucky Constitutional Decision (April 2017), and more. There are times when courts may necessarily retreat from prior decisions. The real point, as discussed in Stare Decisis, Death Penalty, and Workers' Comp (January 2020) is whether there is a reason why a court might retreat from a prior ruling. The Dobbs decision provides extensive explanation of that topic. 

Dobbs involves a state law that prohibits the performance of an act, except within certain parameters. The challenge presented is the manner in which that state statute is perceived as contradicting the rights of certain people who wish to either have that act performed, or to support or advise others who may wish to have that act performed. In effect, it is a challenge of Mississippi regulating despite the existence of a fundamental right of each individual to have that act performed. In fairness, that fundamental right has in fact been previously recognized by the Court. Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). 

There are those who perceive Dobbs as rendering abortion illegal or denying access to it. That may well be an ultimate outcome in certain places, but the ultimate outcome will not be reached in days to come, but will become apparent in years instead. 

What can this community learn from Dobbs?

First, consistency for consistency's sake is not sacred. In other words, the previous interpretations and rulings may find critics unwilling to sustain them. See Daubert's New Day (May 2019). That may be the most challenging aspect of the law for many to accept. The law may follow precedent, and it may not. In this instance, Dobbs, it did not. In adopting the Florida legislative shift to the Daubert standard in 2019, the Florida Supreme Court reversed its earlier decision eschewing that standard. 

Regarding stare decisis, the Dobbs Court noted that "It 'contributes to the actual and perceived integrity of the judicial process' . . . [a]nd it restrains judicial hubris by respecting the judgment of those who grappled with important questions in the past." In this, there is value, but it also noted that "stare decisis . . . is at its weakest when [the Court] interpret[s] the Constitution.” In support of departing from precedent, the Court reminded all of "the infamous decision in Plessy v. Ferguson," and says that similarly "Roe was also egregiously wrong." 

Plessy, of course, is the foundational decision of 1896, in which the U.S. Supreme Court created the concept of "separate but equal" that frustrated the promise of the Thirteenth and Fourteenth Amendments for decades until Brown v. Board of Education in 1954 began a new era in America. The Dobbs Court concludes "adherence to precedent is the norm but not an inexorable command. If the rule were otherwise, erroneous decisions like Plessy would still be the law." 

Not cited, but also illustrative of the Court's potential for committing error is Dred Scott v. Sandford, 60 U.S. 393 (1857). In The Florida Court Declines Review of Padgett (December 2015), I reminded of observations regarding the finality of Supreme Court conclusions:

"in Brown v. Allen (1953), Justice Jackson observed that 'we are not final because we are infallible, but we are infallible only because we are final.' A paraphrase of this has been a favorite of Supreme Court scholars since: 'the Court is not last because it is always right, but it is always right because it is last.'"

And, in that, one might note from both Brown and Dobbs that perhaps even the Court is not necessarily final in that it may in time return to any decision and reexamine outcome and foundation. The caution, perhaps, is that when precedent is questioned or overruled, there should be detailed explanation of why. The Dobbs decision is extensive and detailed. 

Second, the foundation of our rights may not be as solid as we might periodically hope or wish. The Court noted in Dobbs that "the Constitution makes no express reference to a right to obtain an abortion." It noted that several rights have been cited as suggesting such a right, particularly the right to privacy (which is also not mentioned in the Constitution, but which the Court has concluded is implied by "the First, Fourth, Fifth, Ninth, and Fourteenth Amendments." Citations omitted. Thus, that the Court recognizes a right at one point, from its then collective perspective, may not mean that such right is sacrosanct or permanent. In some future consideration or different perspective changes may come, as Billy Shakespeare once noted, that perhaps "must give us pause." Hamlet, 1602. 

Third, the Court in Dobbs is critical of the Roe decision and its stated perceptions of the state of the law regarding abortion when Roe was decided. This is an examination of the foundations of Roe. It concluded "that the right to abortion is not deeply rooted in the Nation’s history and tradition." The Court noted that substantive rights may or may not be in the Constitution itself (or the amendments). However, "the Court has been 'reluctant' to recognize rights that are not mentioned in the Constitution." In the analysis,

"the question is whether the right is 'deeply rooted in [our] history and tradition' and whether it is essential to this Nation’s “scheme of ordered liberty.”

Through this analysis, it reached the conclusion that there is no constitutional right to an abortion. The Court expounded that "Attempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much." The generality of such a statement "could license fundamental rights to illicit drug use, prostitution, and the like." Note that both illicit drug use and prostitution are allowed and accommodated by some state laws. See e.g. Heroin and LSD no Longer Illegal (November 2020). Notably, laws are different from state to state in various regards. 

There will be those who see serious differences with workers' compensation. They will be quick to point out, accurately, that many of the rights balanced in workers' compensation statutes are most certainly patent in the Constitution. They will argue that these rights are more demonstrably fundamental and therefore critical. But, in those discussions, will critics of workers' compensation acknowledge that fundamentality is present on both the employer and employee side of the Grand Bargain? 

The Dobbs Court noted that "[w]ithout any grounding in the constitutional text, history, or precedent, Roe imposed on the entire country a detailed set of rules . . . much like those that one might expect to find in a statute or regulation." That is intriguing perhaps when one reflects on workers' compensation and the Florida Supreme Court's adoption of rules regarding attorney fees in 1968 in Lee Engineering v. Fellows. That is a precedent of longer application than Roe, is it more steadfast, or as easily questioned? 

The same question might be voiced regarding Castellanos v. Next Door Co., 192 431 (Fla. 2016) and the Court conclusion that attorney fees are "the linchpin to the constitutionality of workers' compensation. Notably the author of Castellanos is no longer a justice, but the author of a dissent contradicting the "linchpin" analysis remains. Might a future Florida court conclude that various court decisions have "imposed" in a legislative mode, disregarding separation of powers, and lacking foundation? There is Florida precedent for such a change of direction; the Court retreated from its decades-long assumption of rule-making authority for this Office. 

The Dobbs Court noted that Roe included "many paragraphs conducting the sort of factfinding that might be undertaken by a legislative committee," and then proceeded with explanation of its conclusion with "a constitutional 'right of personal privacy.'” Thus, there is some criticism of judicial creation of policy and appellate fact finding there. The Court continued "Roe conflated the right to shield information from disclosure and the right to make and implement important personal decisions without governmental interference." In that context too, there may be those who argue a similar conflation of the judicial and legislative roles in the evolution of workers' compensation, in Florida and elsewhere. 

The Roe Court, focused at least in part on  “the relative weights of the respective interests involved," which one might perceive similarly in the Grand Bargain. There is no doubt there is a balancing of interests in the workers' compensation world, and its various state systems. The Court in Dobbs concluded that such discussion of relative weight 

"are precisely the sort of considerations that legislative bodies often take into account when they draw lines that accommodate competing interests."

That, might sound a bit like workers' compensation, with lines, boundaries, compromises, and balance? Might a court in some jurisdiction return to the legislative language and provisions and question prior judicial interpretations and analyses? Might there be in Dobbs some harbinger of greater deference to legislative process and separation of powers?

In the analysis of Dobbs, perhaps there will be perceptions of the challenges of stare decisis. While a court's past decisions may in fact stand, that does not mean that is inexorable or inviolate. In the analysis of Dobbs, there may be some who perceive that decisions of legislatures will perhaps henceforth be afforded greater deference. 

However, in terms of constitutionality, perhaps the property rights elements in workers' compensation may militate against such in this particular (the property of the owner is taken without fault on one side, and the right to full recompense or loss is taken on the other). In other words, perhaps the property, due process, and First Amendment rights noted in workers' compensation are indeed more fundamental and thus challenging than the implied right to privacy and right to abortion that until Dobbs rested thereon?

What does abortion have to do with workers' compensation? The real question is what can the reader learn about stare decisis and precedent from the analysis in Dobbs, and perhaps from the regulatory and legislative process that may follow? In short, there are perhaps broader considerations on the impact of the Supreme Court's analysis, and much to think about in days to come.