Law Commons^™

Achieving Transparency In Implementing Abortion Laws, Rebecca Cook, Joanna Erdman, Bernard Dickens

Articles, Book Chapters, & Popular Press

National and international courts and tribunals are increasingly ruling that although states may aim to deter unlawful abortion by criminal penalties, they bear a parallel duty to inform physicians and patients of when abortion is lawful. The fear is that women are unjustly denied safe medical procedures to which they are legally entitled, because without such information physicians are deterred from involvement. With particular attention to the European Court of Human Rights, the UN Human Rights Committee, the Constitutional Court of Colombia, the Northern Ireland Court of Appeal, and the US Supreme Court, decisions are explained that show the responsibility …

Respecting Adolescents' Confidentiality And Reproductive And Sexual Choices, Rebecca Cook, Joanna Erdman, Bernard Dickens

Articles, Book Chapters, & Popular Press

Adolescents, defined as between 10 and 19 years old, present a growing challenge to reproductive health. Adolescent sexual intercourse contributes to worldwide burdens of unplanned pregnancy, abortion, spread of sexually transmitted infections (STIs), including HIV, and maternal mortality and morbidity. A barrier to contraceptive care and termination of adolescent pregnancy is the belief that in law minors intellectually mature enough to give consent also require consent of, or at least prior information to, their parental guardians. Adolescents may avoid parental disclosure by forgoing desirable reproductive health care. Recent judicial decisions, however, give effect to internationally established human rights to confidentiality, …

Turning The Health Professional Carousel: Is Canada Undermining Human Rights In Developing Countries?, Karinne Lantz

Articles, Book Chapters, & Popular Press

This article will address the issue of health professional migration, with a specific focus on how this migration affects health systems in developing countries. The central question being examined is whether or not states have an obligation to ensure that their policies – or actions by private actors based in their states – do not undermine the delivery of healthcare in other states. After exploring this obligation, this article will analyze how the issue may be effectively addressed by drawing upon the experience of the United Kingdom; how successful has the U.K. been in meeting its obligation? What are the …

Respecting Adolescents' Confidentiality And Reproductive And Sexual Choices, Rebecca J. Cook, Joanna Erdman, Bernard M. Dickens

Articles, Book Chapters, & Popular Press

Adolescents, defined as between 10 and 19 years old, present a growing challenge to reproductive health. Adolescent sexual intercourse contributes to worldwide burdens of unplanned pregnancy, abortion, spread of sexually transmitted infections (STIs), including HIV, and maternal mortality and morbidity. A barrier to contraceptive care and termination of adolescent pregnancy is the belief that in law minors intellectually mature enough to give consent also require consent of, or at least prior information to, their parental guardians. Adolescents may avoid parental disclosure by forgoing desirable reproductive health care. Recent judicial decisions, however, give effect to internationally established human rights to confidentiality, …

Mris And The Perception Of Risk, Steven Goldberg

Georgetown Law Faculty Publications and Other Works

The most important safety decision concerning MRIs was to change the name of the procedure. In the late 1970s, the procedure known as nuclear magnetic resonance (NMR) became magnetic resonance imaging (MRI) because of the negative connotations the word “nuclear” invited. The change was understandable since MRIs do not expose patients to dangerous radiation: “nuclear” was in the original name because basic research on the atomic nucleus led to the development of MRIs. The main cost of the name change was to obscure the important link between basic research and useful medical technologies.

In recent years, however, MRIs, a generally …

Biomedical Research Involving Prisoners: Ethical Values And Legal Regulation, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Until the early 1970's, approximately 90% of all pharmaceutical research was conducted on prisoners, who were also subjected to biochemical research, including studies involving dioxin and chemical warfare agents. By the mid-1970's, biomedical research in prisons sharply declined as knowledge of the exploitation of prisoners began to emerge and the National Commission for the protection of Human Subjects of Biomedical Research was formed. Federal regulations to protect human subjects of research were established in 1974. Special protections for prisoners were added in 1978, severely limiting research involving prisoners. However, the US correctional system has undergone major changes since the adoption …

Striving For Equality, But Settling For The Status Quo In Health Care: Is Title Vi More Illusory Than Real?, Ruqaiijah A. Yearby

All Faculty Scholarship

Prior to 1964, racial segregation and discrimination in health care was government funded under the Hospital Survey and Construction Act, better known as the Hill-Burton Act. Specifically, section 622(f) of the Hill- Burton Act proscribed federal funding for “separate but equal” health care services. The United States tried to put an end to racial discrimination in the health care system by intervening in a private action that challenged the constitutionality of the Hill-Burton Act and with the enactment of Title VI of the Civil Rights Act of 1964, which banned racial discrimination in health care for institutions receiving federal funding. …

The Road From Massachusetts To Missouri: What Will It Take For Other States To Replicate Massachusetts Health Reform?, Sidney D. Watson, Timothy Mcbride, Heather Bednarek, Muhammad Islam

All Faculty Scholarship

In April 2006, the Massachusetts Legislature passed Chapter 58 of the Acts of 2006, An Act Providing Access to Affordable, Quality, Accountable Health Care, sweeping health reform legislation designed to achieve nearly universal health insurance coverage.¹ While Massachusetts is not the first state in recent years to enact legislation intended to achieve near-universal coverage, its efforts have attracted the most national attention and the most notice from other states interested in duplicating the Massachusetts Model.

Fortuitous political and budgetary circumstances converged in Massachusetts to move reform forward. First, stakeholders and elected officials worked together over a number of years …

Polluting Medical Judgment? False Assumptions In The Pursuit Of False Claims Regarding Off-Label Prescribing, Sandra H. Johnson

All Faculty Scholarship

Over half of the FDA-approved prescription medications taken by patients are prescribed for a different purpose, in a higher or lower dose, for a discrete population, or over a longer period of time than that for which the drug was approved. Safety and efficacy concerns attract the most attention; but critical benefits in fostering innovation and providing patients with medications that may be uniquely effective for them are often overlooked.

The current dominant public policy response to off-label prescribing addresses this practice as a particular breed of financial conflicts of interest in which pharmaceutical firms pollute medical judgment by appealing …

The Health Care Choice Act: The Individual Insurance Market And The Politics Of 'Choice', Elizabeth Pendo

All Faculty Scholarship

Traditionally, employer-sponsored group insurance plans have been the backbone of health insurance coverage in the United States. While it is still true that most Americans get their health insurance through their employment, the erosion of employer-sponsored health insurance has increased the ranks of the uninsured and pushed more workers, retirees and their families into the individual insurance market. In 2005, for example, nine percent of the population, or nearly 27 million people, turned to individual policies for health insurance coverage.

The Health Care Choice Act of 2005 (the "Act") currently before Congress aims to reform perceived problems in the individual …

Book Review: Reviewing Susan Starr Sered And Rushike Fernandopulle, Uninsured In America (2007), Elizabeth Pendo

All Faculty Scholarship

Book Review of Susan Starr Sered and Rushike Fernandopulle, Uninsured in America (2007).

Book Review: Social Justice: The Moral Foundations Of Public Health And Health Policy, Robin West

Georgetown Law Faculty Publications and Other Works

This essay is a review of Social Justice: The Moral Foundations of Public Health and Health Policy by Madison Powers & Ruth Faden (2006).

In this pathbreaking book, senior bioethicists Powers and Faden confront foundational issues about health and justice. How much inequality in health can a just society tolerate? In a world filled with inequalities in health and well-being, which inequalities matter most and are the most morally urgent to address? In order to answer these questions, Powers and Faden develop a unique theory of social justice that, while developed for the specific contexts of public health and health …

Shape Stops Story, Elizabeth F. Emens

Faculty Scholarship

Storytelling and resistance are powerful tools of both lawyering and individual identity, as I argue in this brief essay published in Narrative as part of a dialogue on disability, narrative, and law with Rosemarie Garland-Thompson and Ellen Barton. Garland-Thompson's work shows us the life-affirming potential of storytelling, its role in shaping disability identity, and its role in communicating that identity to the outside world. By contrast, Barton powerfully shows how those same life-affirming narratives can force a certain kind of storytelling, can create a mandate to tell one story and not another. In short, Barton reminds us of the need …

Obesity, Public Health, And The Food Supply, Barbara L. Atwell

Elisabeth Haub School of Law Faculty Publications

This Article proposes a three-part approach to improve the food supply. Specifically, it explores government taxing and spending, two traditional public health tools, and suggests that both of these governmental powers can be used to make healthier foods more readily reasonable prices, while increasing the cost of less healthy alternatives. Finally, it proposes that we promote a true “food democracy” through the creation of an education and awareness campaign. This campaign would not only better educate Americans about proper nutrition but would also focus on how we can change our entire relationship with food. It would encourage consumption of locally …

Cooperative Federalism And Healthcare Reform: The Medicare Part D 'Clawback' Example, Elizabeth Weeks Leonard

Scholarly Works

This symposium article recounts recent litigation by several states over a provision of the Medicare Modernization Act Part D prescription drug benefit: The clawback, which requires states to pay the a potentially substantial portion of new federal program. I then examine the unique federalism implications of the clawback for ongoing state and federal health reform initiatives.

In spring 2006, several states petitioned the United States Supreme Court for original jurisdiction to hear a challenge to one provision of the new Medicare Part D prescription drug law. The federal government, while taking over prescription drug coverage for dually eligible beneficiaries, required …

Developing Markets In Baby-Making: In The Matter Of Baby M, Carol Sanger

Faculty Scholarship

In this Essay, I want to explore the Baby M case from a different, less philosophical perspective. The question I pose is simply this: how did the Sterns and the Whiteheads find one another in the first place? After all, apart from their New Jersey location (and a shared fondness for Bruce Springsteen), the two couples had little in common. Mary Beth was a high school dropout; Betsy had a Ph.D. and M.D. from the University of Michigan. Rick was a Vietnam vet fighting an ongoing battle with unemployment and alcoholism; Bill led what close friends called "a quiet, industrious …

Abortion, Equality, And Administrative Regulation, Gillian E. Metzger

Faculty Scholarship

Abortion and equality are a common pairing; courts as well as legal scholars have noted the importance of abortion and a woman's ability to control whether and when she has children to her ability to participate fully and equally in society. Abortion and administrative regulation, on the other hand, are a more unusual combination. Most restrictions on abortion are legislatively imposed, while guarantees of reproductive freedom are constitutionally derived, so administrative law does not frequently figure in debates about access to abortion.

Reforming Fda Policy For Pediatric Testing: Challenges And Changes In The Wake Of Studies Using Antidepressant Drugs, Joanna K. Sax

Faculty Scholarship

No abstract provided.

The Fragility Of The Affordable Care Act's Universal Coverage Strategy, Elizabeth Weeks Leonard

Scholarly Works

This paper was presented at DePaul University in March 2006, as part of a Symposium on Shaping a New Direction for Law and Medicine: An International Debate on Culture, Disaster, Biotechnology & Public Health. Following the catastrophic events of 2005, including Hurricane Katrina, Pakistani Earthquakes, bird flu transmission to human populations, and the real threat of bioterrorism, government struggled in the aftermath to make sense of the devastation and human displacement. Medical teams, try as they might, are not always prepared and alerted as to how best investigate and quickly render assistance. The Symposium addressed the role of government, policy-makers, …

Foreword: The Politics Of Health Law: Any Tipping Points In View?, Frances H. Miller

Faculty Scholarship

Malcolm Gladwell explored the way certain ideas and behaviors can proliferate "just like viruses do" once they achieve a critical mass in The Tipping Point,' his best-seller about the sorts of widespread and rapidly adopted social phenomena he labels epidemics. Gladwell's subtitle, "How Little Things Can Make a Big Difference," indicates that he thinks it need not take much to get one of these social epidemics rolling. He does believe, however, that three factors are essential: getting "people with a particular and rare set of social gifts" involved,² packaging the ideas so they are "irresistible" under the circumstances, ^{3 …}

Suppose The Schindlers Had Won The Schiavo Case, Alan Meisel

Articles

In this Article, I will identify and discuss the harms that would have occurred had the Schindlers won the Schiavo Case - the harms both to Terri Schiavo in the private case and the larger set of harms to public policy in the public case. The Schindlers fought Michael Schiavo on a variety of battlegrounds - the Florida courts, the Florida legislative and executive branches, the federal courts, and eventually Congress. Had they definitively prevailed in any of these forums, the consequences for end-of-life decisionmaking would have been largely the same. Had they prevailed in Congress or even in the …

An Essay On The Need For Subsidized, Mandatory Long-Term Care Insurance, Lawrence A. Frolik

Articles

Imagine yourself in a room with 100 persons, all age sixty. Of the group, fifty-three are women and forty-seven are men. Racially and ethnically they mirror the population of Americans age sixty. Now answer the question: "Before the 100 die, how many will require long-term care and, on the average, for how many days and at what cost?" Give up? So do I. While it is common knowledge that many of us will need long-term care, no one seems to know how many will need such care or for how long. And some of you will ask, 'What do you …

Is A Guardian The Alter Ego Of The Ward?, Lawrence A. Frolik

Articles

A guardian has a fiduciary relationship to the ward, but what exactly does that mean? Certainly a guardian is expected to act in the best interests of the ward, but how are those interests determined? Guardians are encouraged to act just as the ward would, but that implies that a guardian is closer to being an agent of the ward than a fiduciary. Yet a guardian must reconcile that agent like duty with obligations to the court who appointed him. In light of the perceived value of implementing the wishes of the ward, increasingly, appointing courts have come to treat …

Lessons From Katrina: Response, Recovery And The Public Health Infrastructure, Elizabeth Weeks

Scholarly Works

This paper was presented at DePaul University in March 2006, as part of a Symposium on Shaping a New Direction for Law and Medicine: An International Debate on Culture, Disaster, Biotechnology & Public Health. Following the catastrophic events of 2005, including Hurricane Katrina, Pakistani Earthquakes, bird flu transmission to human populations, and the real threat of bioterrorism, government struggled in the aftermath to make sense of the devastation and human displacement. Medical teams, try as they might, are not always prepared and alerted as to how best investigate and quickly render assistance. The Symposium addressed the role of government, policy-makers, …

Tackling The "Evils" Of Interlocking Directorates In Healthcare Nonprofits, Nicole Huberfeld

Faculty Scholarship

Though they are sometimes regarded as corrupt, the complete cessation of existing interlocking boards in healthcare nonprofits is not immediately attainable and arguably not always desirable. This article comments that the doctrine of fiduciary duties should be modified to encompass the reality of overlapping boards; to recognize the trend toward more global, comprehensive, and proactive governance in the healthcare sector; and to enable directors to decipher, document, and resolve conflicts at a more meaningful point in their decision-making processes by expanding the doctrine of the duty of obedience.

To facilitate the discussion, the article draws on three examples of overlap …

Bibliography Of Law Review Articles On Disability Law, Ann Puckett

Scholarly Works

Bibliography of law review articles discussing legal issues pertaining to disabilities, originally presented as a continuously updated online database.

Beyond Compensation: Using Torts To Promote Public Health, Elizabeth Weeks Leonard

Scholarly Works

Personal injury litigation, or tort law, traditionally, has been viewed as antithetical to the goals of public health. The focus on individual compensation for injuries resulting from accidents, products, and international wrongdoing arguably does not serve the "greater good" or communitarian objectives of public health. This Article, originally presented on a January 2006 AALS Panel on Teaching Public Health In Law School, takes issue with the traditional view and will demonstrate ways that personal injury litigation and public health objectives may be complimentary and mutually reinforcing. Some areas of tort law, such as mass torts against tobacco companies, toxic polluters, …

Two-Dimensional Doctrine And Three-Dimensional Law: A Response To Professor Weinstein, Philip A. Hamburger

Faculty Scholarship

Professor Weinstein examines how the IRB laws would fare under Supreme Court doctrine, and whereas it is my view that these laws should be considered unconstitutional, he reaches largely the opposite conclusion. His article therefore offers a valuable opportunity for further exploration of the constitutional questions, and although there is not sufficient space here to discuss all of his analysis, it seems important at least to draw attention to the major points on which we take different perspectives.

International Union, U.A.W. V. Johnson Controls: The History Of Litigation Alliances And Mobilization To Challenge Fetal Protection Policies, Caroline Bettinger-Lopez, Susan P. Sturm

Faculty Scholarship

The Supreme Court's decision in Johnson Controls is the culmination of a long legal campaign by labor, women's rights, and workplace safety advocates to invalidate restrictions on women's employment based on pregnancy. This campaign powerfully demonstrates the use of amicus briefs as opportunities to link the efforts of groups with overlapping agendas and to shape the Supreme Court's understanding of the surrounding empirical, social and political context. But Johnson Controls also provides important lessons about the narrowing effects and fragility of litigation-centered mobilization. The case affirmed an important anti-discrimination principle but ironically left women (and men) with the right to …