This article explains how and why the U.S. Supreme Court’s increasingly erratic preemption jurisprudence has fueled a health care system that routinely harms patients, frustrates health care providers, and derails state reform efforts. It begins by describing the mechanics of ERISA preemption, and then analyzes the Court’s 30 year odyssey from no preemption of state law claims against managed care payers, to broad preemption, retreating to limited preemption and, for now at least, trending again toward broad preemption. This is an extremely unstable area of the law which, at this point, demands not just an update but a thorough overview. This article does both while also tying it to federal health reform efforts, and examining the impact on ERISA preemption jurisprudence of the U.S. Supreme Court’s March 2009 decision in Wyeth v. Levine, _ U.S. _, 129 S. Ct. 1187 (2009) (holding that the Food, Drug & Cosmetic Act does not preempt product liability claims under Vermont law for inadequate labeling of prescription drug). Synthesizing all of the above demonstrates why, in a nation where 180 million already receive employer-sponsored health benefits and millions more will do so post-PPACA, Congress must tackle ERISA preemption or grant state waivers if it truly wants to reform American health care.
Mary Ann Chirba. "Drawing Lines in Shifting Sands: The U.S. Supreme Court's Mixed Messages on ERISA Preemption Imperil Health Care Reform." Journal of Legislation 36, (2010): 91-138.