“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Eleventh Sixth Circuit judge Kevin Newsom wrote a 2-1 decision reversing a district court order that required the Florida Department of Corrections (DOC) to provide antiviral medication to all incarcerated people suffering from Hepatitis C–a progressive disease that impairs liver function and can cause other disease and death. The August 2020 case is Hoffer v. Secretary, Florida Dept of Corrections.
Although there is no vaccine for the deadly disease of Hepatitis C, a class of drugs called direct-acting antivirals (DAAs) has recently proven to be an effective treatment, although its cost is high. As of 2017, the Florida DOC was not providing DAA treatment to any of the thousands of incarcerated people with Hepatitis C in the state. In May 2017, Carl Hoffer (who has since died of the disease) and three other individuals filed a class action contending that DOC was violating the Eighth Amendment by being “deliberately indifferent” to the “serious medical needs” of those with Hepatitis C because it declined to provide effective DAA treatment. In response to the suit, the DOC adopted a plan that provided DAAs to people with advanced Hepatitis C with liver scarring but continued to deny it to most such infected individuals.
The district court proceeded to hold a five-day evidentiary hearing. After granting a preliminary injunction to require DAA treatment for some additional Hepatitis C victims, the court later granted summary judgment mandating such treatment for all. As the court explained, DOC had “not put forth any medical reason” to withhold DAA treatment from those with currently less severe but progressing Hepatitis C, and the “only reason why” was cost, which reflects “deliberate indifference.” DOC appealed.
In a 2-1 decision written by Trump judge Newsom, the Eleventh Circuit reversed the district court. Newsom extensively discussed the expert testimony at the hearing. He concluded that there was “good-faith disagreement” between the experts as to whether the care that was being provided to individuals with less severe Hepatitis C was adequate, especially since the DOC plan called for monitoring all those with the disease in case it progressed. Newsom maintained that this showed that DOC’s refusal to provide DAAs to all those with Hepatitis C was not “reckless and conscience-shocking”, as he claimed must be shown to prove deliberate indifference. Nothing in previous precedent, Newsom asserted, “precludes prison authorities” from considering “the cost of treatment in making medical decisions.”
Judge Beverly Martin strongly dissented. She began by stating that even though the Supreme Court has long recognized that “prison officials must ensure” that incarcerated people, who have “no access to outside aid,” “receive adequate…medical care,” this and other recent 11th Circuit rulings “undermine the rights of our incarcerated citizens to maintain their health and safety while they serve their sentence.”
Specifically, she explained that the majority had improperly re-interpreted the experts’ testimony, which actually showed that they agreed that “all” people with Hepatitis C should be treated with DAAs. The record demonstrated, she continued, that delaying or denying such treatment for those currently with less advanced Hepatitis C risks liver damage and other types of debilitating disease, as well as death as shown in the case of plaintiff Carl Hoffer. Newsom was wrong in suggesting that cost could justify not providing DAAs, Martin went on, because case law was clear that cost cannot justify the failure to provide “constitutionally adequate medical care,” and that authorities should be considered “deliberately indifferent” when “non-medical reasons” like cost are the reason it is not provided.
As in another recent case in which a Trump judge provided the deciding vote to deny DAA treatment to incarcerated people in Tennessee with Hepatitis C, Newsom’s opinion will harm many such individuals in Florida. In addition, as Judge Martin pointed out, it is part of a pattern of recent Eleventh Circuit decisions, in which Trump judges have also been involved, that improperly threaten the health and safety of incarcerated people.