Health Law and Policy Commons^™

Autonomy And Death, Annette E. Clark

Faculty Articles

In this article, Professor Clark explores the contours of the current debate over physician-assisted death. She begins by focusing on the legal issues raised by statutory attempts to either legalize or criminalize physician-assisted death, with particular emphasis on the constitutional questions that are currently before the United States Supreme Court. She then examines physician-assisted death from both medical and societal perspectives. Professor Clark uses a thought experiment in which assisted death is facilitated by persons other than physicians, and in doing so, questions whether physicians are the proper persons in whom to wrest power over assisted death. She points out …

Balancing The Barriers: Exploiting And Creating Incentives To Promote Development Of New Tuberculosis Treatments, Patricia C. Kuszler

Articles

This Article considers the many barriers that health-care providers and public health authorities face in stemming the modem TB epidemic. Part II reviews historical public health measures, their results, and their adaptability to resurgent and MDR-TB. Part III considers the fundamental barriers to a successful global effort using these public health strategies, concluding that these barriers are insurmountable given the current arsenal of anti-tuberculosis therapies. Part IV examines the reasons why research and development of new anti-tuberculosis drugs and vaccines have stagnated over the last quarter century. Finally, part V explores incentives that might revive research and development of such …

Foreword: Nonfinancial Barriers To Health Care, Thomas Wm. Mayo

Faculty Journal Articles and Book Chapters

Health care policy traditionally has been seen as a three-legged stool. Three interdependent variables-cost, quality, and access-have largely defined the domain of health policy. Ignore one of the variables, and the stool topples. It is not surprising, therefore, that health care policymakers have tended to view the problem of access to health care resources primarily in economic terms. Economic analysis of the access problem is useful because it gives policymakers a common methodology, vocabulary, and set of analytical tools that provide insights into the related problems of cost containment and quality, as well as the access issue. This in turn …

Facilitating Choice: Judging The Physician's Role In Abortion And Suicide, George J. Annas

Faculty Scholarship

When I was invited to give this talk I thought, "I'll just give my standard slide show on death in America." I thought I would just talk about the right to die, something I can do in my sleep, and everybody would be happy. And you probably would, since it's a pretty good speech. I am going to give it at a Pennsylvania Judges Conference in a couple of weeks, and they will like it. But it is not very challenging, either for me or for you. So, what I want to explore with you today is how judges have …

The Promised End: Constitutional Aspects Of Physician-Assisted Suicide, George J. Annas

Faculty Scholarship

The debate over physician-assisted suicide has dramatically shifted to a discussion of constitutional issues. This spring, within a month of each other, U.S. Circuit Courts of Appeals on both coasts ruled that state prohibitions of assisted suicide are unconstitutional when applied to physicians who prescribe lethal medication for terminally ill, competent adults who wish to end their lives. The Ninth Circuit includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, and the Second Circuit includes New York, Connecticut, and Vermont. Both courts reached the same conclusion but for different legal reasons.

Questing For Grails: Duplicity, Betrayal And Self-Deception Postmodern Medical Research, George J. Annas

Faculty Scholarship

Contemporary physicians and scientists often describe their experi-
ments as part of a search for the "Holy Grail." Sometimes this quest is
expressed more specifically, as when the Human Genome Project is de-
scribed as a search for the "Holy Grail of biology."1 This rhetoric sug-
gests that experimental work is holy, God's work, and that the results will
prove miraculous and good for everyone. But this type of blind devotion
produces uncritical action that can ultimately destroy values essential to
human dignity.

The Promised End - Physician-Assisted Suicide And Abortion, George J. Annas

Faculty Scholarship

The debate over late term intact dilation and evacuation abortions (so-called "partial birth" abortions) has been an uncomfortable one for those in the pro-choice community.' Although the United States Senate narrowly refused to override President Clinton's veto of a bill criminalizing this procedure, many in Congress agreed with Senator Daniel Patrick Moynihan (D-N.Y.) that it was "as close to infanticide as anything I have come upon."2 States have a compelling interest in preventing infanticide that is not contradicted by a woman's constitutional right to decide whether to continue a pregnancy. Similarly, states have a legitimate and perhaps even compelling interest …

A Feminist Exploration Of Issues Around Assisted Death, Jocelyn Downie, Susan Sherwin

Articles, Book Chapters, & Popular Press

Although a great deal of public attention has recently been focused on issues around assisted death remarkably little of it has come from an explicitly feminist perspective. This is a serious omission at a time when legislators are feeling pressure to review and perhaps revise existing policies on assisted death, and when the policies they contemplate may have a significant negative and disproportionate impact on women. We think it is essential that there be some discussion of these issues from an explicitly feminist perspective in order to ensure that concerns about the oppression of women become part of the public …

The Law And Ethics Of Organ Sales, Keith N. Hylton

Faculty Scholarship

The proposed solutions to my hair supply hypothetical, transfer of property and reliance on altruism, are essentially the only two solutions formally adopted in response to the real world "organ supply" problem.' Because of the shortcomings of these solutions, a number of commentators, myself among them, ² have suggested the allowance of some limited commerce in body parts. This solution can be seen as a compromise between the extremes of transferring property rights and relying entirely on altruism. Property rights are maintained under the market system because anyone who wants the body part of another must gain the consent of …

Medicine And Human Rights: Reflections On The Fiftieth Anniversary Of The Doctors’ Trial, George J. Annas

Faculty Scholarship

1996 marks the fiftieth anniversary of the commencement of the trial of Nazi physicians at Nuremberg, a trial that has been variously designated as the "Doctors' Trial" and the "Medical Case." In addition to documenting atrocities committed by physicians and scientists during WWII, the most significant contribution of the trial has come to be known as the "Nuremberg Code," a judicial codification of 10 prerequisites for the moral and legal use of human beings in experiments. Anniversaries provide us with an opportunity to reflect upon the past, but they also ena ble us to renew our efforts to plan for …

Cowboys, Camels, And The First Amendment: The Fda's Restrictions On Tobacco Advertising, George J. Annas

Faculty Scholarship

The Marlboro Man and Joe Camel have become public health enemies number one and two, and removing their familiar faces from the gaze of young people has become a goal of President Bill Clinton and his health care officials. The strategy of limiting the exposure of children to tobacco advertisements is based on the fact that almost all regular smokers begin smoking in their teens. This approach is politically possible because most Americans believe that tobacco companies should be prohibited from targeting children in their advertising.

When The Surgeon Has Hiv: What To Tell Patients About The Risk Of Exposure And The Risk Of Transmission, Phillip L. Mcintosh

Journal Articles

This Article explores the legal aspects of the dilemma facing an HIV-infected surgeon with respect to whether the doctrine of informed consent requires, or can require, disclosure of the surgeon's HIV-infection under some circumstances. This Article then examines the nature of the risks associated with HIV as they affect patients during surgery. Next, this Article evaluates whether the risks are sufficiently material to require disclosure (or at least to present a jury question), and, in any event, whether state law can require such disclosure under the Americans with Disabilities Act of 1990 (ADA). In particular this Article examines the doctrine …

Introductory Remarks Of Panel Ii: Legal, Medical, And Ethical Considerations For The Future Of Physician-Assisted Suicice Symposium: Physician-Assusted Suicide: Legal Rights In Life And Death: Introductory Remarks Of Panel Ii: Legal, Medicial, And Ethical Considerations For The Future Of Physician-Assisted Suicide, Tanya K. Hernandez

Faculty Scholarship

Once the Supreme Court issues it decision in the cases of Quill v. Vacco1 and Compassion in Dying v. Washington2 regarding the constitutionality of outlawing physician-assisted suicide for competent and terminally ill persons, the tension surrounding legal, medical, religious and ethical issues concerning end of life decision making will not be resolved.

Why Mandatory Hiv Testing Of Pregnant Women And Newborns Must Fail: A Legal, Historical, And Public Policy Analysis Special Issue: Mandatory Hiv Testing Of Newborns And Their Mothers, Elizabeth B. Cooper

Faculty Scholarship

The debate surrounding mandatory HIV testing of newborns and pregnant women requires an understanding of the historical context of women in the epidemic. Although the epidemic first was recognized in gay men in 1981, anecdotal reports reveal that women already were dying from what seems to have been HIV-related symptomatology. Indeed, in Gena Corea's book, The Invisible Epidemic, we learn that, as early as 1981, not insignificant numbers of drug-using and former drug-using women were falling ill and not recovering from conditions that normally are not fatal, including bacterial pneumonia. Yet, because we did not necessarily expect these populations to …

Destructuring Disability: Rationing Of Health Care And Unfair Discrimination Against The Sick, David Orentlicher

Scholarly Works

No abstract provided.

First, Do No Harm: Why Doctors Are Not Omnipotent Under The Americans With Disabilities Act, Sharona Hoffman

Faculty Publications

This article argues that employers are not shielded from liability under the ADA if they rely upon the advice of a doctor in making an adverse employment decision.

Introduction, Arthur S. Leonard

Articles & Chapters

No abstract provided.

Choice, Conscience, And Context, Mary Crossley

Articles

Building on Professor Michael H. Shapiro's critique of arguments that some uses of new reproductive technologies devalue and use persons inappropriately (which is part of a Symposium on New Reproductive Technologies), this work considers two specific practices that increasingly are becoming part of the new reproductive landscape: selective reduction of multiple pregnancy and prenatal genetic testing to enable selective abortion. Professor Shapiro does not directly address either practice, but each may raise troubling questions that sound suspiciously like the arguments that Professor Shapiro sought to discredit. The concerns that selective reduction and prenatal genetic screening raise, however, relate not to …

South Bend, Indiana: A Case Study Of The Possibilities And Realities Of Hospital Cooperation, Joseph P. Bauer

Journal Articles

South Bend, the county seat of St. Joseph County, Indiana, is a city with a population of slightly more than 100,000. Located about 100 miles from Chicago, it serves many of the educational, financial and health care needs of a five county metropolitan area of over 700,000 people. South Bend and its sister city, Mishawaka, are served by four general hospitals. The two largest each have about 40 percent of the available beds in the community. One of them, Memorial Hospital of South Bend, is a not-for-profit corporation which is unaffiliated with any other hospital; the other large hospital, St. …

Medical Advocates: A Call For A New Profession, Maxwell J. Mehlman

Faculty Publications

No abstract provided.

Blame And Danger: An Essay On Preventive Detention, Stephen J. Morse

All Faculty Scholarship

No abstract provided.

The Politics Of Human-Embryo Research: Avoiding Ethical Gridlock, George J. Annas

Faculty Scholarship

[...]abortion is about more than politics; it is fundamentally about ethics, morals, equality, and religion, and how we think about abortion reveals much about how we are likely to think about other life-and-death issues in contemporary American medical practice. Because politics as currently practiced seems so unprincipled, there have been sporadic attempts to redefine abortion-related issues as ethical questions and to set up national panels and advisory groups to examine various practices and make recommendations about their ethics.

Disciplinary Actions And Pain Relief: Analysis Of The Pain Relief Act, Sandra H. Johnson

All Faculty Scholarship

Debilitating pain is a widespread problem that cuts across many patient populations. Despite a recognized ethical duty to relieve pain and effective pain management capabilities, health care professionals continue to undertreat pain.

Improved pain management begins with consideration of reasons pain is presently undertreated. Fear of disciplinary action is a central barrier to effective pain management. The Pain Relief Act represents an effort to mitigate this fear by preventing unnecessary investigations, protracted proceedings, and inappropriate legal sanctions for pain treatment.

This article begins by recognizing doctors’ legitimate fears of legal sanctions. While few doctors are actually penalized due to pain …

Globalization, International Law, And Emerging Infectious Diseases, David P. Fidler

Articles by Maurer Faculty

The global nature of the threat posed by new and reemerging infectious diseases will require international cooperation in identifying, controlling, and preventing these diseases. Because of this need for international cooperation, international law will certainly play a role in the global strategy for the control of emerging diseases. Recognizing this fact, the World Health Organization has already proposed revising the International Health Regulations. This article examines some basic problems that the global campaign against emerging infectious diseases might face in applying international law to facilitate international cooperation. The international legal component of the global control strategy for these diseases needs …

Biology, Justice, And Women's Fate, Dorothy E. Roberts

All Faculty Scholarship

No abstract provided.

Beyond Autonomy: Coercion And Morality In Clinical Relationships, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

This article considers the problem of line-drawing between autonomy-preserving and autonomy-negating influence in clinical relationships. The author’s purpose is not to propose particular boundaries, either with respect to reproductive decisions by HIV-infected women or for other clinical choices. Rather, he attempts to shed some light on what drives our disputes about whether one or another influence method is compatible with autonomous choice.

The author argues that such disagreements reflect underlying conflicts between normative commitments, and that resolving these conflicts is essential to settling controversies over whether particular influences unduly interfere with autonomous choice. Alternative understandings of the prerequisites for autonomous …

Mission Impossible? International Law And Infectious Diseases, David P. Fidler

Articles by Maurer Faculty

No abstract provided.