Law Commons^™

הורות משפטית מן הדין ומן הצדק - Legal Parenthood - Law And Justice, Yehezkel Margalit

Hezi Margalit

From Baby M To Baby M(Anji): Regulating International Surrogacy Agreements, Yehezkel Margalit

Hezi Margalit

In 1985, when Kim Cotton became Britain’s first commercial surrogate mother, Europe was exposed to the issue of surrogacy for the first time on a large scale. Three years later, in 1988, the famous case of Baby M drew the attention of the American public to surrogacy as well. These two cases implicated fundamental ethical and legal issues regarding domestic surrogacy and triggered a fierce debate about motherhood, child-bearing, and the relationship between procreation, science and commerce. These two cases exemplified the debate regarding domestic surrogacy - a debate that has now been raging for decades. Contrary to the well-known …

Can Dna Be Speech?, Jorge R. Roig

Jorge R Roig

Unenumerated Rights And The Limits Of Analogy: A Critque Of The Right To Medical Self-Defense, O. Carter Snead

O. Carter Snead

Volokh’s project stands or falls with the claim that the entitlement he proposes is of constitutional dimension. If there is no fundamental right to medical self-defense, the individual must, for better or worse, yield to the regulation of this domain in the name of the values agreed to by the political branches of government. Indeed, the government routinely restricts the instrumentalities of self-help (including self-defense) in the name of avoiding what it takes to be more significant harms. This same rationale accounts for current governmental limitations on access to unapproved drugs and the current ban on organ sales. The FDA …

From A Constitutional Right To A Policy Of Exceptions: Abigail Alliance And The Future Of Access To Experimental Therapy, Seema Shah, Patricia Zettler

Patricia J. Zettler

In 1999, nineteen-year-old Abigail Burroughs was diagnosed with head and neck cancer. Abigail underwent the conventional treatments-chemotherapy and radiation therapy-with no success. Her physician recommended that Abigail attempt to enroll in clinical trials for two unapproved drugs that her physician hoped might have an effect on her tumor. Abigail, however, was unable to enroll in the trials because she did not meet the scientific criteria for inclusion. In June 2001, shortly after enrolling in a clinical trial of a third unapproved drug, Abigail passed away. Following her death, her father founded the Abigail Alliance for Better Access to Developmental Drugs …

How Obamacare’S Future Rests On A Single Clause, Alan E. Garfield

Alan E Garfield

No abstract provided.

Does The Right To Elective Abortion Include The Right To Ensure The Death Of The Fetus?, Stephen G. Gilles

Stephen G Gilles

Is the right to an elective abortion limited to terminating the woman’s pregnancy, or does it also include the right to ensure the death of the fetus? Important as this question is in principle, in today’s world the conduct that would squarely raise it cannot occur in practice. The right to elective abortion applies only to fetuses that are not viable, which by definition means that they have been determined to have no realistic chance of surviving outside the uterus. Even if abortion providers used fetus-sparing methods rather than the fetus-killing methods they currently prefer, pre-viable fetuses would die within …

King V. Burwell And The Rise Of The Administrative State, Ronald D. Rotunda

Ronald D. Rotunda

The Patient Protection and Affordable Care Act (ACA) is a complex law totaling nearly a thousand pages in length. The litigation now before the Supreme Court in King v. Burwell presents, on the surface, a simple issue of statutory interpretation. However, that surface has a very thin veneer. If the Court allows administrators carte blanche to change the very words of a statute, we will have come a long way towards governance by bureaucrats. Over the years, Congress has delegated many of its powers, but it has never delegated the power to raise taxes or spend tax subsidies in ways …

The Uneasy Relationship Of Hobby Lobby, Conestoga Wood, The Affordable Care Act, And The Corporate Person: How A Historical Myth Continues To Bedevil The Legal System, Malcolm J. Harkins Iii

Malcolm J Harkins III

On November 26, 2013, the Supreme Court of the United States agreed to hear two cases — Sebelius v. Hobby Lobby Stores, Inc., and Conestoga Wood Specialties v. Sebelius — challenging the validity of the Affordable Care Act’s (“ACA”) mandate that employer-sponsored health plans cover all FDA-approved contraceptives (the “Contraceptive Mandate”). In each case, closely held plaintiff corporations contend that the Contraceptive Mandate illegally infringed upon the corporations’ freedom to exercise religion.

The problem confronting the Supreme Court as it takes up the Hobby Lobby and Conestoga Wood cases is that the concept of corporate personhood did not develop gradually …

Equal Protection, Immigrants And Access To Health Care And Welfare Benefits – A 2014 Update, Mel Cousins

Mel Cousins

The introduction of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) led to considerable litigation on the rights of immigrants to welfare benefits and access to health care. There was significant divergence between the approaches adopted by the different courts (both federal and State) based, in part, on the different statutory schemes involved but also on different approaches to equal protection. However, none of the cases reached the Supreme Court so the ‘correct’ approach remained unclarified. In response to the Great Recession and subsequent budget crises, several States have again excluded certain legal immigrants from the scope …

Public Assistance, Drug Testing And The Law: The Limits Of Population-Based Legal Analysis, Candice Player

Candice T Player

In Populations, Public Health and the Law, legal scholar Wendy Parmet urges courts to embrace population-based legal analysis, a public health inspired approach to legal reasoning. Parmet contends that population-based legal analysis offers a way to analyze legal issues—not unlike law and economics—as well as a set of values from which to critique contemporary legal discourse. Population-based analysis has been warmly embraced by the health law community as a bold new way of analyzing legal issues. Still population-based analysis is not without its problems. At times Parmet claims too much territory for the population-perspective. Moreover Parmet urges courts to recognize …

Deadly Dicta: Roe’S “Unwanted Motherhood”, Gonzales’S “Women’S Regret” And The Shifting Narrative Of Abortion Jurisprudence, Stacy A. Scaldo

Stacy A Scaldo

For thirty-four years, the narrative of Supreme Court jurisprudence on the issue of abortion was firmly focused on the pregnant woman. From the initial finding that the right to an abortion stemmed from a constitutional right to privacy[1], through the test applied and refined to determine when that right was abridged[2], to the striking of statutes found to over-regulate that right[3], the conversation from the Court’s perspective maintained a singular focus. Pro-life arguments focusing on the fetus as the equal or greater party of interest were systematically pushed aside by the Court.[4] The consequences of an unwanted pregnancy, or as …

For Health's Sake Be Not Colorblind, Ruth Hackford-Peer

Ruth Hackford-Peer

The United States’ past ideology of overt state-sanctioned racism has been replaced by a covert, seemingly race-neutral ideology. This Article looks at the history of racism in the United States and traces the recent shift in ideology and discourse about race, positing that the discourse of “colorblindness” powerfully maintains the racial status quo while purporting to advance race neutrality. Then, using affirmative action as the lens from which to view these shifts in ideology and discourse, this Article analyzes racial disparities in health and healthcare. It highlights some of the health consequences people of color face because they live a …

Chief Justice Roberts' Individual Mandate: The Lawless Medicine Of Nfib V. Sebelius, Gregory Magarian

Gregory P. Magarian

After the U.S. Supreme Court in National Federation of Independent Business v. Sebelius held nearly all of the Patient Protection and Affordable Care Act constitutional, praise rained down on Chief Justice John Roberts. The Chief Justice’s lead opinion broke with his usual conservative allies on the Court by upholding the Act’s individual mandate under the Taxing Clause. Numerous academic and popular commentators have lauded the Chief Justice for his political courage and institutional pragmatism. In this essay, Professor Magarian challenges the heroic narrative surrounding the Chief Justice’s opinion. The essay contends that the opinion is, in two distinct senses, fundamentally …

Desafíos Para Los Derechos De La Persona Ante El Siglo Xxi: Ciencia Y Vida / Sfide Per I Diritti Della Persona Nel Xxi Secolo: Vita E Scienza / Challenges Of Individual Rights In The Xxi Century: Life And Science, Antonio Pérez Miras, Germán M. Teruel Lozano, Edoardo C. Raffiotta

Germán M. Teruel Lozano

Scientific advances often go beyond the classic thoughts of Law. Rapidly, new discoveries and the development of new techniques question fundamental aspects of human existence and the future of our species. So the law and legal operators cannot stand still when faced with the challenges posed by new discoveries and techniques, especially applied to humans. In this book the reader will find many works that examine these challenges, which arise with respect to constitutionalism, and in particular to the rights of the individual; intense debates, sometimes difficult to reconcile from the moral, but that cannot be ignored in the law.

A Submission To The New Zealand Government On The Plain Packaging Of Tobacco Products, Matthew Rimmer

Matthew Rimmer

EXECUTIVE SUMMARYThis submission draws upon a number of pieces of research and policy papers on the plain packaging of tobacco products including:1. Becky Freeman, Simon Chapman, and Matthew Rimmer, 'The Case for the Plain Packaging of Tobacco Products' (2008) 103 (4) Addiction 580-590.2. Matthew Rimmer, 'A Submission to the Senate Legal and Constitutional Committee on the Trade Marks Amendment (Tobacco Plain Packaging) Bill (Cth)', September 2011, https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=dabfcd75-9807-493f-bc99-4a7506bf493b3A. Matthew Rimmer, 'Tobacco's Mad Men Threaten Public Health', The Conversation, 23 September 2011, http://theconversation.edu.au/tobaccos-mad-men-threaten-public-health-34503B. Matthew Rimmer, 'Big Tobacco's Box Fetish: Plain Packaging at the High Court', The Conversation, 20 April 2012, https://theconversation.edu.au/big-tobaccos-box-fetish-plain-packaging-at-the-high-court-65183C. Matthew …

Obamacare And Federalism's Tug Of War Within, Erin Ryan

Erin Ryan

This month, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution. In the “Obamacare” cases, the Court considers whether the Affordable Care Act (“ACA”) exceeds the boundaries of federal authority under the various provisions of the Constitution that establish the relationship between local and national governance. Its response will determine the fate of Congress’s efforts to grapple with the nation’s health care crisis, and perhaps other legislative responses to wicked regulatory problems like climate governance or education policy. Whichever way the gavel falls, the decisions will likely impact …

A Recipe For Change: Constitutional Reform In Saint Lucia, Amit Chhabra, Damian Greaves

Amit Chhabra

In spite of relative peace over the years in the English-speaking Caribbean, recent debate has centered on whether certain constitutional charters should be amended or replaced in their entirety. This movement presents the first major opportunity for these British Commonwealth nations to re-examine their governments’ parliamentary underpinnings so as to account for adequate protections of civil liberties and inter-branch checks; moreover, it is an opportunity to disallow “the law to become the hostage of history.” Too often, “constitutional reform” is cited as an essential course of action, whereas an expansion of the body of law and improvements in enforcement of …

Excerpts From Chief Justice Roberts' Opinion In Nfib V. Sebelius, Wilson Huhn

Wilson R. Huhn

In NFIB v. Sebelius the Supreme Court upheld the constitutionality of all but one of the provisions of the Patient Protection and Affordable Care Act. The opinion of Chief Justice Roberts is the controlling opinion in all respects. This is an editted summary of the Chief Justice's opinion.

The Constitutionality Of The Patient Protection And Affordable Care Act In The Courts Of Appeals, Mel Cousins

Mel Cousins

Having undergone an extensive process of political discussion and debate, the ACA (properly the Patient Protection and Affordable Care Act) is now under intensive legal challenge with over 20 different cases from both states and organizations and individuals having been initiated. The challengers argue that the Act lacks a constitutional basis and/or infringes on their constitutional rights. These cases involve a fascinating intersection of legal, political and policy issues and, regardless of the outcome, will have important implications for the future direction of US health care policy. There have now been four decisions of the courts of appeal on the …

Perfectly Legal To Mandate The Purchase Of Insurance, Alan E. Garfield

Alan E Garfield

No abstract provided.

Commerce Games And The Individual Mandate, Leslie Meltzer Henry, Maxwell L. Stearns

Leslie Meltzer Henry

While the Supreme Court declined an early invitation to resolve challenges to the Patient Protection and Affordable Care Act (“PPACA”), a recent split between the United States Courts of Appeals for the Sixth Circuit (sustaining the PPACA’s “individual mandate”) and the Eleventh Circuit (striking it down) virtually ensures that the Court will decide the fate of this centerpiece of the Obama Administration’s regulatory agenda. Whatever the Court’s decision, it will likely affect Commerce Clause doctrine- and related doctrines - for years or even decades to come. Litigants, judges, and academic commentators have focused on whether the Court’s “economic activity” tests, …

“Health Laws Of Every Description”: John Marshall’S Ruling On A Federal Health Care Law, David B. Kopel, Robert G. Natelson

David B Kopel

If John Marshall, the greatest of Chief Justices, were to hear a challenge to the constitutionality of the Patient Protection and Affordable Care Act of 2010, how would he rule? Would the nationalist justice who, according to the New Deal Supreme Court, “described the Federal commerce power with a breadth never yet exceeded,” agree that federal control of health care was within that power?

In the fictional opinion below, Marshall rules on the constitutionality of a bill similar to the Patient Protection and Affordable Care Act.

We constructed this opinion chiefly from direct quotation and paraphrases of Marshall’s own words, …

Funding Stem Cell Research: The Convergence Of Science, Religion & Politics In The Formation Of Public Health Policy, Edward A. Fallone

Edward A Fallone

The controversy over the funding of stem cell research by the federal government is used as a case study for examining how policy choices are made in the field of public bioethics. This article examines the manner in which the decision to fund stem cell research has been influenced by the convergence of evolving scientific knowledge, conflicting religious values, and the role of elected officials in a representative democracy. The article begins by reviewing the current state of scientific knowledge concerning adult stem cells, embryonic stem cells, induced pluripotent stem cells, and the process of direct cell re-programming. Because each …

When Is Medical Care “Futile”? The Institutional Competence Of The Medical Profession Regarding The Provision Of Life-Sustaining Medical Care, Meir Katz

Meir Katz

“Medical futility,” the doctrine by which hospital ethics boards have assumed the right to authorize medical providers to unilaterally withdraw or decline to provide aggressive life sustaining medical care, has swelled in popularity in recent years and has affected the lives of countless terminal patients. The case law governing medical futility is inconsistent and appears to provide medical providers and patients alike little guidance in this extremely sensitive area of health law. Lost in the confusion created by the case and statutory law is due consideration of the normative case behind “medical futility.” “Futility,” by definition, is preceded by an …

Bad News For Professor Koppelman: The Incidental Unconstitutionality Of The Individual Mandate, David B. Kopel, Gary Lawson

David B Kopel

In "Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform," Professor Andrew Koppelman concludes that the individual mandate in the Patient Protection and Affordable Care Act (PPACA) is constitutionally authorized as a law "necessary and proper for carrying into Execution" other aspects of the PPACA. However, the Necessary and Proper Clause rather plainly does not authorize the individual mandate. The Necessary and Proper Clause incorporates basic norms drawn from eighteenth-century agency law, administrative law, and corporate law. From agency law, the clause embodies the venerable doctrine of principals and incidents: a law enacted under the clause must …

Somebody's Watching Me: Protecting Patient Privacy In De-Identified Prescription Health Information, Christopher R. Smith

Christopher R Smith

Increasingly, legal scholars, state legislatures and the federal courts are examining patient privacy concerns that arise in the context of the dissemination, distribution and use of patient prescription information. However, less attention has been paid to the sharing of de-identified or encrypted patient prescription information versus identifiable patient prescription information. Though many patients may not realize it, identifiable, de-identified and encrypted patient prescription information is being used for a host of purposes other than insurance reimbursement and treatment, most notably for pharmaceutical marketing purposes. Existing state and federal laws and ethical guidelines provide some protection for the privacy of patient …

The Great American Public, Mass Society, And The New Constitutional Order, Richard C. Boldt

Richard C. Boldt

No abstract provided.

Commerce In The Commerce Clause: A Response To Jack Balkin, David B. Kopel, Robert G. Natelson

David B Kopel

The Constitution’s original meaning is its meaning to those ratifying the document during a discrete time period: from its adoption by the Constitutional Convention in late 1787 until Rhode Island’s ratification on May 29, 1790. Reconstructing it requires historical skills, including a comprehensive approach to sources. Jack Balkin’s article Commerce fails to consider the full range of evidence and thereby attributes to the Constitution’s Commerce Clause a scope that virtually no one in the Founding Era believed it had.

Two Types Of Discrimination: The Familiar And The Forgotten, Deborah Hellman

Deborah Hellman

This essay argues that current Equal Protection doctrine fails to recognize an important conceptual distinction between two types of discrimination. Current doctrine is inadequate, according to the author, because it treats all discrimination cases as if they were instances of only one of these types. As a result, the Supreme Court mistreats discrimination cases of the forgotten variety. The author draws a distinction between proxy and non-proxy discrimination. Proxy discrimination uses the classification in the law as a means to reach a set of persons with a different, correlated trait. Non-proxy discrimination, by contrast, aims at the set defined by …