“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 Sixth Circuit judge Eric Murphy provided the deciding vote to affirm a lower court decision that approved the practice of the Tennessee Department of Corrections (DOC) to refuse to provide antiviral medication to most 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 Atkins v. Parker.
As of 2019, almost 1 in 4 inmates in Tennessee’s prisons had Hepatitis C. Although there is no vaccine for the disease, a class of drugs called direct-acting antivirals “halt the progress” of the disease and “eventually cause the virus to disappear completely.” Because of the high cost of antivirals, however, Tennessee’s DOC developed a “prioritization” or “rationing” policy under which only people with advanced liver scarring receive such treatment. The specifics of the policy changed over time, but most incarcerated people with Hepatitis C do not receive antivirals.
Gregory Atkins and other individuals filed suit in district court on behalf of all those incarcerated in Tennessee who have Hepatitis C, contending that the denial of antiviral medication to most of them pursuant to the “prioritization” policy amounted to deliberate indifference that violated their 8th Amendment rights. Although the district court found that only around 450 of “at least 1,374” incarcerated people with Hepatitis C were receiving antiviral treatment, it denied relief to Atkins and the class, who then appealed.
In a 2-1 decision in which Trump judge Murphy provided the deciding vote, the Sixth Circuit affirmed. The majority maintained that DOC was trying to “employ the finite resources” that they had to “maximize their benefit,” and held that it was not deliberate indifference to fail to obtain more funds or order treatment that they could not pay for..
Judge Ronald Gilman strongly dissented. Since DOC clearly recognized the substantial medical risk to prisoners, he explained, Sixth Circuit precedent provided that the issue was whether DOC was taking “reasonable measures to abate” the risk. The evidence was clear, Judge Gilman continued, that delaying or denying antiviral treatment would result in kidney and other types of debilitating disease as well as death, so that the “rationing scheme” could not be considered a “reasonable measure.”
Judge Gilman went on to explain that Supreme Court and other precedent is clear that “cost cannot excuse an ongoing constitutional violation,” and that the majority had made “no effort” to show why that principle “should not apply here.” Gilman also noted that there was “no justification” for DOC not asking for additional funding, that providing the antiviral treatment could well “save the state money in the long run” because of the extremely “costly treatment” that later debilitating conditions would likely require, and that if the state “truly cannot afford” to house incarcerated people in accord with the Constitution, “the answer is to release or transfer” them. But the law is clear, Gilman concluded, that prison officials “may not” deliberately use a treatment they “know to be ineffective” or “refuse to treat” a patient with effective drugs “merely to avoid paying the bill.”
As a result of Murphy’s deciding vote, however, that is precisely what will happen to numerous incarcerated people in Tennessee, in violation of the Constitution.
Note: The initial draft of this post was prepared of PFAW legal intern Oliver Telusma