The United States has two major, parallel court systems: federal and state. The federal courts have jurisdiction over matters that involve federal law (generally, those that pertain to the U.S. Constitution, federal statutes and/or the actions of federal agencies). Federal courts can also hear complaints that arise between parties in different states if a sufficient monetary amount (currently a minimum of $75,000) is in dispute. The trial courts for the federal system (the entry point for most federal cases) are called district courts; there are 94 federal district courts located throughout the U.S. and its territories. Federal courts of appeal, also referred to as Circuit Courts, are organized into 11 geographic circuits plus the District of Columbia Circuit Court and the Federal Circuit Court (Want, 2009). The U.S. Supreme Court is the federal court of last resort—there is no higher court to which its decisions can be appealed.

Each state has its own court system. State courts generally rule on issues arising under the state’s constitution and laws. (State courts may also hear some claims that arise under federal law or the U.S. Constitution.) Generally, state court systems include trial-level and appellate courts, with a high court as the court of last resort. (The high court is known as the Supreme Court in most states, but not all; in New York State, for example, it is known as the Court of Appeal.) Often, trial courts are further subdivided on the basis of subject matter, an amount in dispute or a type of remedy. (Thus, states may have a family court, probate court, municipal court, mental health court, and so on.) On certain matters, decisions of a state Supreme Court may be appealed directly to the U.S. Supreme Court.

In Marbury v. Madison (1803), the U.S. Supreme Court first asserted its power to declare a law null and void if it is found to violate the Constitution. This concept of judicial review has evolved into one of the courts’ most important powers because it grants them significant influence over government action. Another important doctrine, stare decisis (“let the decision stand”), set the course for judicial precedents by adhering to previous findings in cases with substantially comparable facts and situations. Thus, courts grant deference to their own prior rulings. Courts are not completely bound by precedent, and they sometimes overrule their prior decisions, but they are expected to depart from precedent based on compelling and clearly articulated reasons.

The scope of the Supreme Court’s influence on American life expanded greatly in the years after the Civil War when the Fourteenth Amendment to the Constitution, ratified in 1868, limited states’ abilities to restrict the rights of their citizens, including the right to due process and the equal protection of the law. This amendment made many state laws susceptible to challenge in the federal courts, particularly as the Supreme Court ruled that the Fourteenth Amendment had the effect of making most of the rights in the Bill of Rights (e.g., the right of free speech under the First Amendment) applicable to the states.

Rules or regulations issued by the executive branch (administrative agencies) must be consistent with the Constitution. There must also generally be some statutory (legislative) source of authority for them to act. For example, the U.S. Secretary of Health and Human Services is authorized by federal law to issue rules and regulations to carry out the functions of her department, including the administration of the Medicare program (42 U.S.C. Sections 1302 and 1395 [2008]); this is the basis for that agency to adopt regulations spelling out Conditions of Participation that hospitals and other health care organizations must meet in order to participate in the Medicare and Medicaid programs (42 CFR Chapter IV, Subchapter G, 2004.) The federal Administrative Procedure Act (5 U.S.C., Chapter 5 [2009]) and parallel state laws also spell out the procedures that government agencies must follow in issuing regulations—for example, how much notice must be provided to the public and how members of the public can provide comments on proposed regulations. The actions of an executive agency may be challenged on the basis that it has allegedly acted without legal authority or fails to comply with procedural requirements.

For example, in Spine Diagnostics Center of Baton Rouge, Inc. v. Louisiana State Board of Nursing (2008), a Louisiana appellate court considered a challenge to a Board of Nursing Advisory Opinion that interventional pain management is within the scope of practice of Certified Registered Nurse Anesthetists (CRNAs). The court upheld a trial court finding that this Advisory Opinion constituted a “rule” (regulation) expanding the CRNA scope of practice into an area in which they had not traditionally practiced. The court agreed that interventional pain management is “solely the practice of medicine.” Since this “rule” expanding (according to the court) CRNAs’ scope of practice had not been issued in accordance with the state’s Administrative Procedures Act (including advance notice and an opportunity for public comment), it was found to be an improper attempt at rule making. The state Supreme Court subsequently declined to hear an appeal of the decision thus allowing it to stand.

Two other examples, both pertaining to nurse staffing ratios in California, also help to illustrate the court’s power to review agency actions. In 1999, California enacted Assembly Bill (AB) 394, which requires hospitals to abide by mandatory nurse staffing ratios. AB 394 directed the California Department of Health Services (CDHS) to issue regulations implementing the ratios. When the CDHS issued its ratios regulations in 2002, they included a proviso that the ratios be in effect “at all times.” The state hospital association argued that this requirement was too rigid—that applying it during meal and bathroom breaks would be costly and impractical. They sued the CDHS, seeking to have that provision overturned. A California Superior Court ruled against them, finding that the “at all times” language accurately reflected the intent of AB 394 and that eliminating it would render the law “meaningless” (Egelko, 2004).

Another section in the regulations initially set requirements for nurse staffing on medical-surgical units at 6 patients per licensed nurses (6 : 1), but included a change to a required 5 : 1 staffing ratio, scheduled to go into effect on January 1, 2005. At the behest of a newly elected governor, the CDHS issued emergency regulations to delay implementation of the 5 : 1 ratio until January 1, 2008. California law allows a state agency to issue emergency regulations (which are not subject to requirements for advance notice and public comment) “if the emergency situation clearly poses such an immediate, serious harm that delaying action to allow public comment would be inconsistent with the public interest” (California Government Code Section 11346.1).

The California Nurses Association, a major proponent of mandatory nurse staffing ratios, sued to stop the emergency regulations (and thus to stop delay in implementation of the more stringent staffing ratios). A Superior Court judge granted their request, finding that the CDHS had failed to follow required procedures for changing state regulations and that it had not demonstrated that the delay was needed for the immediate preservation of public health and safety (California Nurses Association v. Schwarzenegger et al., 2005). The planned 1 : 5 ratio for medical-surgical units was implemented; an appeal of the judge’s decision was later dropped (Martin, 2005).

Over the decades, advocates have had a strong tradition of using the courts strategically to establish, affirm, or clarify rights. Litigation that is pursued with a goal of achieving a broad social affect that sets a significant precedent or benefits a class of people is often referred to as impact litigation. Impact litigation “is most commonly understood to mean litigation that is expected to have far-reaching results” (Churchill, 2009).

A major example of impact litigation is Brown v. Board of Education, the 1954 case in which the U.S. Supreme Court struck down school segregation and mandated that states begin a process of desegregating their public schools. The Court unanimously found that segregated public school education constituted a state policy of inferior education—that “separate educational facilities are inherently unequal”—and that it thus violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. This case had been pursued by civil rights advocates who sought to use the courts as a vehicle for vindicating their rights as promised by the U.S. Constitution.

Another prominent example of using the courts to forge social policy is Roe v. Wade (1973) in which the U.S. Supreme Court found that women had a right to choose abortion without unreasonable state restrictions. The Court made its ruling on the basis of its interpretation of various amendments to the Constitution that taken together conferred a right of privacy that included self-determination in seeking a medical procedure to terminate pregnancy. Although Roe v. Wade has been modified and narrowed in some respects by subsequent Supreme Court decisions, the basic right of a woman to choose abortion to terminate an unwanted pregnancy as established by the Court in 1973 has remained intact and continues as current reproductive health policy.

Litigation has also helped to establish and advance tobacco policy (Parmet, 1999). Through both individual lawsuits and class actions, advocates have sought to hold the tobacco industry accountable for illnesses and deaths caused by tobacco use. These legal efforts have also helped publicize important, previously undisclosed information about the tobacco industry and its practices and about the serious health effects of tobacco use, adding ammunition to both legal and political efforts to limit access to and use of tobacco. In 1998, 46 states settled a lawsuit against U.S. tobacco manufacturers, agreeing on payments to states of over $250 billion, as well as restricting advertising and marketing of tobacco products (Wilson, J., 1999). This multistate settlement helped to spur increased social and political support for numerous public health–oriented anti-tobacco efforts. In 2009, Congress passed—and President Obama signed—the Family Smoking Prevention and Tobacco Control Act giving the Food and Drug Administration authority to regulate tobacco and further restricting tobacco advertising. Tobacco companies challenged this new law in court. In January 2010, a federal court struck down some of the bill’s provisions, but upheld key provisions, including FDA regulation and some advertising restrictions (Wilson, D., 2010; Commonwealth Brands Inc. v. U.S., 2010).

Traditionally, health professionals were largely free from antitrust scrutiny under an exemption for “learned professions.” In 1975, the U.S. Supreme Court essentially eliminated that exemption (Goldfarb v. Virginia State Bar, 1975). Over the past 3 decades, antitrust laws have become significant to the health care industry. Beginning in the 1990s, merger activity among hospitals, insurance companies, and health systems brought attention from antitrust enforcement agencies.

Although federal antitrust laws are enforced through two federal agencies, the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ), private parties can also bring antitrust suits directly in federal court. In June 2006, class action antitrust suits were filed on behalf of nurses in Detroit, San Antonio, Albany, Chicago, and Memphis. (Class action suits seek to vindicate the rights of an entire class of individuals who share a common interest giving rise to the suit and who seek a common outcome.) These suits alleged that hospitals and health systems in each of those metropolitan areas had secretly shared nurses’ pay and planned raises, agreeing not to compete with each other on compensation. This collusion between erstwhile competitors, the suits alleged, violated federal antitrust laws (Evans, 2007; Miles, 2007). Some hospitals opted to settle without going to trial. An Albany, New York, health system reached a $1.25 million settlement (Greenhouse, 2009); a Detroit health system agreed to a $13.6 million settlement (Greene, 2009).

Professional associations can also be subject to antitrust scrutiny. For example, in a prominent case, the U.S. Supreme Court found that an agreement by a county medical society to establish maximum fees for medical procedures constituted illegal price-fixing (Arizona v. Maricopa County Medical Society, 1982). In Wilk v. American Medical Association (1990), the AMA was found to have violated antitrust laws for anticompetitive activities aimed toward chiropractors. The AMA had advised that physicians were guilty of unethical conduct if they referred patients to chiropractors or accepted referrals from them, since one of the AMA’s ethical principles barred cooperation with “unscientific practitioners.” A group of chiropractors filed suit against the AMA and prevailed in the Seventh Circuit Court of Appeals, which found that this was part of an attempt to conduct an illegal group boycott of the chiropractic profession.

Many of the court decisions that have an impact on health policy and nursing practice are civil actions. In some prominent instances, however, actions in criminal courts have posed significant policy implications for nursing as well. For example, while negligent acts or commissions that lead to patient injury or death are usually addressed in civil suits by the injured party (or his or her family), on occasion they have led to criminal prosecution. In 2006, a Wisconsin nurse faced criminal charges for negligence leading to the tragic death of a teenage mother in labor. She was charged with Neglect of a Patient Causing Great Bodily Harm—a felony. This case drew national attention because of concern that criminalizing medical errors was over reaching and excessive and that emphasizing individual blame rather than systems-level accountability for errors and their prevention could actually impede efforts to improve patient safety. The Wisconsin nurse eventually accepted a plea bargain, agreeing to plead “no contest” to two misdemeanor charges and accepting 2 years’ probation and restrictions on her work hours; in addition, the Wisconsin Board of Nursing suspended her license for 9 months (Treleven, 2006).

In 2006, 10 nurses simultaneously resigned their positions at a Long Island nursing home. These nurses were among a larger group—all of them recruited from the Philippines—working in facilities owned by the Sentosa Care nursing home chain. These nurses had complained that many of the promises made to them when they were first hired regarding wages, working, and living conditions had been broken. The nurses, fearing retaliation by their employer, resigned with minimal notice. The facility, whose patients included ventilator-dependent children, covered their shifts with other nurses. After receiving a complaint from the nursing home, the state’s board of nursing found no basis to proceed with a patient abandonment complaint. An investigation by the state Department of Health later yielded a conclusion that no patients had been put at risk. Nonetheless, the local county District Attorney filed criminal charges against the nurses, indicting them for conspiracy and for putting children and disabled patients at risk.

The case raised significant concerns not only about mistreatment of immigrant nurses but about the rights of all nurses (Keepnews, 2009). Nursing organizations, including the ANA, the New York State Nurses Association, and the Philippine Nurses Association of America, supported the nurses’ call for charges to be dropped. The trial court judge refused to drop the charges. However, the nurses filed an appeal of this decision. A state appellate court issued an order that the trial be stopped. The court found that “criminalizing [the nurses’] resignations” would have the effect of unjustifiably “abridging the nurses’ Thirteenth Amendment rights”—referring to that Constitutional amendment’s prohibition on involuntary servitude (Matter of Vinluan v. Doyle, 2009).