Law Commons^™

Pursuing A Right To Genetic Happiness, George P. Smith Ii

Scholarly Articles

With the continued expansion of assisted reproductive technology (ART), and society's inability to regulate it, complex medico-legal issues and ethical and social dilemmas are arising. Although the desire to prevent or limit genetic disease by, for example, gene editing and mitochondrial transfer is noble, what has been termed the "customization" of birth, raises the fundamental issue of procreative liberty, and, more specifically, the extent to which the state is obligated to assist in the use of ART which, in turn, validate the quest for genetic happiness. There is a current notion that reproductive freedom includes, within it, a right to …

The Limits Of Reading Law In The Affordable Care Act Cases, Kevin C. Walsh

Scholarly Articles

One of the most highly lauded legacies of Justice Scalia's decades-long tenure on the Supreme Court was his leadership of a movement to tether statutory interpretation more closely to statutory text. His dissents in the Affordable Care Act cases- National Federation of Independent Business v. Sebelius and King v. Burwell- demonstrate both the nature and the limits of his success in that effort.

These were two legal challenges, one constitutional and the other statutory, that threatened to bring down President Obama's signature legislative achievement, the Patient Protection and Affordable Care Act. Both times the Court swerved away from a direct …

From The New Deal To The New Healthcare: A New Deal Perspective On King V. Burwell And The Crusade Against The Affordable Care Act, Sarah Helene Duggin

Scholarly Articles

Americans describe the new healthcare system established by the Patient Protection and Affordable Care Act (“ACA”) as both a blessing and a nightmare. For millions of low and middle income Americans, the ACA offers access to health insurance they could not otherwise afford. The ACA’s opponents, however, view the new healthcare system as a threat to economic prosperity, an intrusion on personal liberty and a violation of the principles of federalism at the heart of our system of government. These same kinds of arguments were made more than eighty years ago in response to President Franklin Delano Roosevelt’s New Deal. …

The Subsidy Question In King V. Burwell, Antonio F. Perez

Scholarly Articles

On the surface, King v. Burwell appears to be a simple case about statutory interpretation. In the Affordable Care Act (widely known as Obamacare), when Congress referred to the “State,” in the provision triggering federal subsidies to insurance consumers for purchases made from federally-authorized insurance providers selling federally-authorized insurance products, should the “State” be understood to refer to the federal market (i.e., exchanges) as well as “State” markets. Simple tools of statutory construction–namely, that Congress knew full well how to refer to a “federal” exchange and failed to do so–would seem to be sufficient to supply a result. It would …

Re-Negotiating A Theory Of Social Contract For Universal Health Care In America Or, Securing The Regulatory State?, George P. Smith Ii

Scholarly Articles

Political ideologies and evolving notions of social justice have shaped public health policies throughout American history in a quest to find a point of balance between the collective good and economic realities. In pursuit of this balance, Congress enacted the Affordable Care Act in 2010. This Article first examines the new law through the lens of the social contract as envisioned by Rousseau and adopted by the Framers of the Constitution. Using economic data, public opinion, and information from the medical community, Smith and Gallena proceed to offer a frank appraisal of the state of health care in America and …

Applying Bioethics In The 21st Century: Principlism Or Situationism?, George P. Smith Ii

Scholarly Articles

After an examination of the four cardinal bioethical principles which define Principlism — autonomy, beneficence, non maleficence and justice — an explication of Joseph Fletcher’s theory of Situationism is undertaken.

The conclusion of this Article is that when an ethical dilemma arises and is “tested” as to its moral efficacy, rather than judge the acts in question in order to determine whether they are in conformance with one of the four bioethical principles, it is more humane and practical to determine the ethical propriety of questioned conduct by use of a situation ethic which in fact is more sensitive. This …

Gently Into The Good Night: Toward A Compassionate Response To End-Stage Illness, George P. Smith Ii

Scholarly Articles

End-of-life decision making by health care providers must respect individual patient values. Indeed, these values must always be viewed as the baseline for developing and pursuing patient-centered palliative care for those with terminal illness. Co-ordinate with this fundamental bioethics principle is that of beneficence or, in other words, respect for conduct which benefits the dying patient by alleviating end-stage suffering — be it physical or existential. Compassion, charity, agape and/or just common sense, should be a part of setting normative standards and of legislative and judicial responses to the task of managing death. Aided by the principles of medical futility, …

The Ghost That Slayed The Mandate, Kevin C. Walsh

Scholarly Articles

Virginia v. Sebelius is a federal lawsuit in which Virginia has challenged President Obama's signature legislative initiative of health care reform. Virginia has sought declaratory and injunctive relief to vindicate a state statute declaring that no Virginia resident shall be required to buy health insurance. To defend this state law from the preemptive effect of federal law, Virginia has contended that the federal legislation's individual mandate to buy health insurance is unconstitutional. Virginia's lawsuit has been one of the most closely followed and politically salient federal cases in recent times. Yet the very features of the case that have contributed …

The Anti-Injunction Act, Congressional Inactivity, And Pre-Enforcement Challenges To § 5000a Of The Tax Code, Kevin C. Walsh

Scholarly Articles

Section 5000A of the Tax Code is one of the most controversial provisions of federal law currently on the books. It is the minimum essential coverage provision of the Patient Protection and Affordable Care Act ("ACA" or "Act")-a provision more popularly known as the individual mandate. Opponents challenged this provision immediately upon its enactment on March 23, 2010. The Supreme Court is poised to hear arguments about its constitutionality in one of these challenges, just over two years later.

Refractory Pain, Existential Suffering, And Palliative Care: Releasing An Unbearable Lightness Of Being, George P. Smith Ii

Scholarly Articles

Since the beginning of the hospice movement in 1967, “total pain management” has been the declared goal of hospice care. Palliating the whole person’s physical, psycho-social, and spiritual states or conditions is central to managing the pain which induces suffering. At the end-stage of life, an inextricable component of the ethics of adjusted care requires recognition of a fundamental right to avoid cruel and unusual suffering from terminal illness. This Article urges wider consideration and use of terminal sedation, or sedation until death, as an efficacious palliative treatment and as a reasonable medical procedure in order to safeguard the “right” …

Bounty Hunters And Whistleblowers: Constitutional Concerns For False Claims Actions After Passage Of The Patient Protection And Affordable Care Act Of 2010, A.G. Harmon

Scholarly Articles

Recently, the False Claims Act (FCA) was amended by the Patient Protection and Affordable Care Act of 2010 (PPACA). In a five-word alteration, the PPACA has greatly expanded the reach of the statute, in terms of how a case must be proven, who has to prove it, and what circumstances, if any, will bar the proceeding from going forward." Additionally, new constitutional and policy concerns stem from the increased governmental discretion in deciding which suits can and cannot proceed.6 The problems resulting from the government's expanded discretion go to the very nature of qui tam actions themselves.

This article will …

Health Care: Why Jurisdiction Matters, Kevin C. Walsh

Scholarly Articles

Congress’s enactment of comprehensive healthcare reform legislation last year was the culmination of one round of an intense debate that continues today. The second round began the same day that the first round ended, when President Obama signed the legislation. In this second round, the locus of debate has shifted from Congress to the courts, which are processing a slew of lawsuits filed immediately after enactment.

One of the most prominent is Virginia v. Sebelius. The lawsuit presents on its face a prominent and critically important question of federalism: Did Congress exceed the limits of its enumerated legislative powers by …

The Elderly And Health Care Rationing, George P. Smith Ii

Scholarly Articles

This Monograph derives from research undertaken during my appointment as a Visiting Scholar at The Poynter Center for The Study of Ethics and American Institutions, Indiana University, Bloomington in July-August, 2000. The thesis of this Monograph is that before contemporary society can confront the issue of health care rationing for the elderly, it must seek to integrate the disciplines of moral and ethical reasoning with the qualitative formulations of needs and resources. Until such a point is reached, however, the greatest danger to avoid is the perpetuation of non-decisions regarding health care treatment. Such "decisions" all too frequently result in …

Reshaping The Common Good In Times Of Public Health Emergencies: Validating Medical Triage, George P. Smith Ii

Scholarly Articles

Public health ethics require individuals who are inherently at risk for transmitting communicable disease to be subjected, oftentimes, to isolation, quarantine, or compulsory vaccination - all undertaken, as such, to protect the common good and thereby secure the public-at-law for exposure to the spread of an infectious disease.

This article tests the extent to which public health emergencies necessitate a reinterpretation or reshaping of the common good and proceeds to analyze the extent to which the medical principle of triage is a relevant construct for allocating scarce medical resources during contemporary public health emergencies. The article proceeds to test the …

Weighing Medical Judgments: Explaining Evidentiary Preferences For Treating Physician Opinions In Erisa Cases After Black & Decker Disability Plan V. Nord, Roy F. Harmon Iii, A.G. Harmon

Scholarly Articles

No abstract provided.

Social Justice And Health Care Management: An Elusive Quest?, George P. Smith Ii

Scholarly Articles

Contemporary debate on health care resource management is tied to a central moral issue: namely, how to achieve an optimum level of reasonable or appropriate treatment based on the medical condition of each patient. Failing to tackle and resolve this issue in a confident and forthright manner assures the present approach to health care decision making to continue in a state of indecisiveness if, indeed, not lethargy.

Undergirding this moral issue is the foundational economic dilemma of controlling costs while limiting access to health care resources. Finding a just solution to an equitable distribution of finite health care resources is …

Cigarette Smoking As A Public Health Hazard: Crafting Common Law And Legislative Strategies For Abatemen, George P. Smith Ii

Scholarly Articles

The debate over when, and to what extent, the government may regulate public smoking, is a contentious one of great moment. The point at which the line will be drawn with regard to an individual's right to smoke in public is narrowing. This right may stop at public restaurants and the workplace; or it may reach as far as public stadia, outdoor gathering spots and public streets. In 2006, one report showed 461 municipalities in thirty-three states and the District of Columbia, had adopted one-hundred percent smoke-free coverage in restaurants, bars or workplaces; and 135 municipalities had one-hundred percent coverage …

Policy Making And The New Medicine: Managing A Magnificent Obsession, George P. Smith Ii

Scholarly Articles

Scientific issues become - inevitably - political issues because of one principal fact: they put in focus the extent to which the government can restrict private medical research undertakings - either in the name of generational safety, morality or the public good. The multiple and varied concerns of applying the New Medicine, derived as such from the New Biology, conduce - essentially - to a suspicion continued reductionism in the biological analysis of humans will erode the notions of autonomy, dignity and personal integrity that have traditionally justified the constitutional protection of civil liberties. Driven by painful technologies and sciences, …

The Impact Of The War Over The Corporate Attorney-Client Privilege On The Business Of American Health Care, Sarah Helene Duggin

Scholarly Articles

The purpose of this article is to review the current dispute over the corporate attorney-client privilege and work product doctrine and to explore its impact on the provision of health care. The article's principal thesis is that a strong attorney-client privilege, along with robust work product protection, is critical to the business of health care, the quality of medical services, and the effective enforcement of federal and state health care laws. Part I begins with a brief account of the origins and scope of the conflict between federal law enforcement policies and the corporate attorney-client privilege and work product doctrine …

Human Rights And Bioethics: Formulating A Universal Right To Health, Health Care, Or Health Protection?, George P. Smith Ii

Scholarly Articles

Codifying, and then implementing, an international right to health, health care, or protection is beset with serious roadblocks - foremost among them being contentious issues of indeterminacy, justiciability, and progressive realization. Although advanced - and to some degree recognized under the rubric of a social or cultural entitlement within the law of human rights and, more particularly, the U.S. Declaration on Human Rights, together with International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and presently UNESCO's Draft Declaration on Universal Norms on Bioethics - attainment …

The Science, Law, And Politics Of Fetal Pain Legislation, Kevin C. Walsh

Scholarly Articles

Most people prefer not to inflict gratuitous pain on other sentient beings, especially other humans. What, then, should be the legal system's reaction to the mounting evidence that in late-term abortions doctors are inflicting just such pain on fetuses who have the anatomical, physiological, and neurological capacity to experience it? The pain being inflicted is gratuitous because it can be easily avoided with no significant increases in cost or health risk by the administration of tar geted fetal pain relief. If informed that an abortion is likely to cause pain to the fetus and given a choice between a procedure …

Constitutional Values And The Ethics Of Health Care: A Comparison Of The United States And Germany, William J. Wagner

Scholarly Articles

In the first section, this essay will consider questions the new era in health care poses for a health-care ethics of ends. The second section will address the question this emerging era raises for a health-care ethics of duty. Under the rubric of an ethics of ends, the essay examines, more particularly, the ends of health and efficiency. Under that of duty, it addresses the duties of respect for the dignity of the human person; respect for the covenant of treatment; and respect for justice in distribution. In each case, it seeks to identify the basis for an adequate response …

Medical Savings Accounts: Windfalls For The Healthy, Wealthy, And Wise, Regina T. Jefferson

Scholarly Articles

This article analyzes the Medical Savings Account (MSA) program, and critiques its impact on the retirement and health care systems. The MSA program is an experimental health care program created by The Health Insurance Portability and Accountability Act of 1996. The program allows a limited number of small employers and self-employed individuals to establish MSAs during an experimental period. MSA funds may be used for medical expenses, or carried forward and accumulated tax-free as retirement savings. The underlying purpose of the MSA program is to reduce the cost of medical care by providing consumers greater incentives to be sensitive to …

In The Beginning: A Tenth Anniversary History Of The Journal Of Contemporary Health Law And Policy, George P. Smith Ii

Scholarly Articles

No abstract provided.

Market And Non-Market Mechanisms For Procuring Human And Cadaveric Organs: When The Price Is Right, George P. Smith Ii

Scholarly Articles

In the United States, as well as throughout the world, current demands for organ transplants far exceed the actual supply. Nonconsensual human donations, taken from minors, incompetents and prisoners are regulated carefully by the courts. The Uniform Anatomical Gift Act and the National Organ Transplant Act serve also as statutory frameworks for organ retrievals and allocations and place various restrictions upon each. Altruistically motivated donations at death continue to be an inadequate mechanism for meeting the growing demands of the market. Included among the various approaches to resolving the critical shortage of human organs for transplantation are post mortem harvesting, …

Murder, She Wrote Or Was It Merely Selective Nontreatment?, George P. Smith Ii

Scholarly Articles

This article will both explore and thereby establish the medical, ethical, and legal validity of selective nontreatment of severely handicapped newborns. A construct for principled decision-making, tied to a basic recognition of the right of self-determination, as shaped by compassion and validated principles of triage and cost-benefit analysis, will be seen as the most effective means for the states-and not the federal government-to evaluate the intensely complex issues associated with allocating scarce medical resources to defective infants. Governmental intrusions into the familial decision- making forum in these circumstances must be kept to a minimum and allowed only in grave cases.

Stop, In The Name Of Love!, George P. Smith Ii

Scholarly Articles

Although the traditional means for affording access to goods and services in a capitalistic economy is the free market system, Americans have been unwilling in the past - for the most part - to either condone or accept financial ability as the central means for distributing health care. Responding to this attitude or consensus, the United States Congress established both Medicare and Medicaid programs to deal with the commitment to provide health care services regardless of ability to pay. Recent surveys show, however, that while the American public is concerned about the idea or principle of providing not only health …

The Contractual Reallocation Of Procreative Resources And Parental Rights: The Natural Endowment Critique, William J. Wagner

Scholarly Articles

This article inquires into the meaning and value of contract as a principle for ordering technologically assisted human reproduction. The article seeks to provide an analytically sound definition of this contractual option for ordering the new reproductive technologies, an accurate statement of its current legal status, and an assessment of its theoretical cogency and political and practical appeal. The purpose of the article is the clarification and critique of contract-based proposals for a new legal ordering of human reproduction. On a more general level, it seeks to contribute to a sound conceptual framework for the ongoing discussion of the legal …

The Ethical And Legal Implications Of Hired Maternity, William J. Wagner

Scholarly Articles

If an effective exploration of the ethics of the civil law's response to the practice of hired maternity is to occur, the abstract analysis of the personal ethics of hired maternity must at a certain point give way to a statement of the generic goals that ethics can be said to establish in the area for lawmaking as such. Clarity about the appropriate moral purposes of law mediates between more abstract moral principles and the concrete demands peculiar to making of laws on a concrete issue.

Here, the development of such a statement is an intermediate step towards the article's …

The Plight Of The Genetically Handicapped Newborn: A Comparative Analysis, George P. Smith Ii

Scholarly Articles

Confusion and controversy surround efforts to re-evaluate and, thus, redefine the extent to which governmental intrusion should be allowed in the doctor-patient relationship vis-a-vis the treatment or non treatment of genetically handicapped, at risk infants. The purpose of this article is to present a succinct comparative analysis of the medical-legal posture in Britain and the United States and from this analysis to develop a construct to aid the physician and the family in making decisions concerning the administration or the withholding of treatment for genetically defective newborns.