Chair's Column: Being a Lawyer in Uncertain Times

The changeover of the presidential administration has produced a steady stream of actions and proposals intended to shake up the operation of the government and implement new policy directions. While it is expected that a new administration will work to pursue its agenda and the goals that were part of its campaign, an essential part of how our government functions is to do all of that within the framework of the law.

With the fast pace of actions, the role that all of us as lawyers play is essential and important. With our training and knowledge of laws and regulations, we must help parse through everything that is happening and respond appropriately.

Statement from ABA President

On February 10, 2025, the ABA President issued a statement about the ABA’s support of the rule of law. The ABA President offered a few key reminders about how lawyers and judges (who are also ABA members, some of whom are in the Health Law Section) must stand up to protect the law (both federal and state) and the Constitution, among other obligations. Some of the key statements from the ABA President were:

• The American Bar Association supports the rule of law. That means holding governments, including our own, accountable under law. We stand for a legal process that is orderly and fair. We have consistently urged the administrations of both parties to adhere to the rule of law. We stand in that familiar place again today. And we do not stand alone. Our courts stand for the rule of law as well.
• There is much that Americans disagree on, but all of us expect our government to follow the rule of law, protect due process, and treat individuals in a way that we would treat others in our homes and workplaces. The ABA does not oppose any administration. Instead, we remain steadfast in our support for the rule of law. 
• We call upon our elected representatives to stand with us and to insist upon adherence to the rule of law and the legal processes and procedures that ensure orderly change. The administration cannot choose which law it will follow or ignore. These are not partisan or political issues_—these are rule of law and process issues. We cannot afford to remain silent. We must stand up for the values we hold dear. The ABA will do its part and act to protect the rule of law.
• We urge every attorney to join us and insist that our government, a government of the people, follow the law. It is part of the oath we took when we became lawyers. Whatever your political party or your views, change must be made in the right way. Americans expect no less.

The basic message from the ABA President is that we must know what the law requires and then follow it. Change can occur, but it needs to follow an appropriate process. Just bowing to random whims is not how the American legal system operates. No matter the political or ideological view, the core of the ABA President’s message is that fundamental to our legal system is following the rules and mandated processes to ensure appropriate checks and balances to avoid one point of view running roughshod over the other co-equal branches of government.

Connection to Healthcare and Health Law

How do these issues connect to healthcare? The quick answer is that some of the actions and changes already taken target the type of healthcare services that can be delivered, and are also delaying or stopping the distribution of funds for different government-supported healthcare programs. By the time this article is published, there will likely have been other attempted actions, and more will be coming.

What should we as healthcare lawyers be concerned about? There are multiple layers to that question, which mirrors healthcare, where there are always more layers to peel back once you start diving down any hole. One of the first layers is advising our clients on what current statutes and regulations require when assessing proposed actions. If a law is on the books, it cannot just be ignored. The requirements of that law or regulation are what control those actions, unless the law or regulation is changed through a new statute being enacted or the appropriate administrative process for changing a regulation. The changes do not happen overnight or based on personal feeling.

As we all know, the laws and regulations within healthcare go deep very quickly and require careful parsing of language to understand what needs to or should happen. Providing off-the-cuff advice is difficult given the interconnected and sometimes conflicting nature of different regulations. That all calls for being careful before assuming a certain action can either be taken or is not fully blocked. However, it does mean that some health policy decisions are fully baked at the moment and could create a dissonance between the regulation and executive statements.

Alongside determining what laws and regulations require, there are also a growing number of questions about interplay with constitutional rights. The question of who can make decisions about certain healthcare services goes straight into discussions of what rights to access services or what rights to autonomy exist under the Constitution. Those questions require lawyers to provide insight and advocacy. Arguably, those are core tenets of what it means to be a lawyer.

While we need to provide insight and advocate for our clients, we also cannot help a client break the law. Our ethical requirements tell us that we have to draw a line where the law sets it. That can be challenging at times when a client wants to push the envelope. However, that is where playing on the strong relationships we all hopefully develop with clients enables those forthright discussions.

Those issues all go to the rule of law. If the law is not followed, then what does that mean for the American system? Again, change is not impossible. Change just needs to be done appropriately. When it comes to legislation, enacted legislation is supposed to be executed by the executive branch, not selectively followed or directly contradicted. If legislation is passed and there is a disagreement, then new legislation is needed to change the law already in place. Similarly, regulations must adhere to the process for new rules, which means notice and comment period. Again, processes must be respected.

The rule of law also impacts the operational advice that we give to our clients. Business planning becomes very challenging, if not impossible, when uncertainty exists about established programs in healthcare. That again turns back to utilizing the skills that we were trained to have as lawyers and providing as much informed insight as possible. At times, that will likely require taking tough positions and strongly advocating on behalf of our clients to protect rights or requirements under the law.

The Road Ahead

Echoing the concluding statement from the ABA President, protecting and promoting the rule of law is not a political issue. It is about respecting the norms on which the country was established. The checks and balances and division of power to the different branches of government must exist to avoid too much accumulating in one branch or another. That also means we as lawyers need to provide honest and accurate advice and counsel. It may not be the advice or counsel that a client wants to hear, but we are bound as lawyers to explain what the law is and what it allows. We should not encourage taking action that skirts the law or is contrary to the lines set by law. Those can be difficult discussions, but we cannot avoid them.