Law Commons^™

The Ripple Effects Of Dobbs On Health Care Beyond Wanted Abortion, Maya Manian

Articles in Law Reviews & Other Academic Journals

The Supreme Court’s momentous decision in Dobbs v. Jackson Women’s Health Organization to overturn fifty years of precedent on the constitutional right to abortion represents a sea of change, not only in constitutional law, but also in the public health landscape. Although state laws on abortion are still evolving after Dobbs, the decision almost immediately wreaked havoc on the delivery of medical care for both patients seeking abortion care and those not actively seeking to terminate a pregnancy.

This Article also argues that focusing the public’s attention on the deleterious consequences of abortion bans for health care beyond wanted abortion …

Health Care Civil Rights Under Medicare For All, Valarie K. Blake

Law Faculty Scholarship

The passage of Medicare for All would go a long way toward curing the inequality that plagues our health care system along racial, sex, age, health status, disability, and socioeconomic lines. Yet, while laudably creating a universal right to access to health care, Medicare for All may inadvertently dampen civil rights protections that are necessary to ensure equality in health care delivery, an outcome its creators and supporters surely would not intend.

Federal money is typically requisite for civil rights enforcement. Title VI, Title IX, and the Age Discrimination Act of 1975 all apply to recipients of federal financial assistance. …

Sex Discrimination In Healthcare: Section 1557 And Lgbtq Rights After Bostock, Amy Post, Ashley Stephens, Valarie K. Blake

Law Faculty Scholarship

Section 1557 of the Affordable Care Act (“ACA”) banned sex discrimination in health care. In June of 2020, however, the Trump administration finalized a rule that explicitly removed sexual orientation and gender identity from Section 1557’s safeguards. That same month, the Supreme Court held that sexual orientation and gender identity discrimination are forms of sex discrimination for purposes of Title VII employment discrimination in Bostock v. Clayton County. Following the Court’s decision in Bostock, this Article argues that sex discrimination under Section 1557 necessarily encompasses gender identity and sexual orientation discrimination.

Is Medicare For All The Answer? Assessing The Health Reform Gestalt As The Aca Turns 10, Nicole Huberfeld

Faculty Scholarship

As presidential candidates debate health reform, the expression “Medicare for All” (“M4A”) is on repeat, yet few appear to understand precisely what Medicare is or what M4A would mean. Even more striking is that Americans are vigorously debating health reform when the ACA – President Obama’s signature legislation and a health reform effort on a scale not seen in decades – turns 10 on March 23.

The ACA pioneered universal coverage, but it also ratcheted up health care complexity by building new scaffolding around an old foundation. This fragmented landscape has been exacerbated by a crazy quilt of implementation crafted …

A Black Box For Patient Safety?, Nathan Cortez

Faculty Journal Articles and Book Chapters

Technology now makes it possible to record surgical procedures with striking granularity. And new methods of artificial intelligence (A.I.) and machine learning allow data from surgeries to be used to identify and predict errors. These technologies are now being deployed, on a research basis, in hospitals around the world, including in U.S. hospitals. This Article evaluates whether such recordings – and whether subsequent software analyses of such recordings – are discoverable and admissible in U.S. courts in medical malpractice actions. I then argue for reformulating traditional "information policy" to accommodate the use of these new technologies without losing sight of …

Chapter 8: Is The Preemption Clause Of Erisa Unconstitutional?, Andrew Morrison, Elizabeth Mccuskey

Faculty Scholarship

The authors suggest plaintiffs and/or state attorneys general should consider taking Justice Clarence Thomas up on his effective suggestion, in the 2016 Supreme Court case of Gobeille v. Liberty Mutual Insurance, to put before the federal courts the question whether the preemption clause of the Employee Retirement Income Security Act of 1974 (“ERISA”) represented a valid exercise of federal power under the Commerce Clause of the Constitution. ERISA’s exceptionally broad statement of preemption does in fact seem to have unconstitutional reach: It purports to preempt “any and all” state laws that simply “relate to” employee benefits, a formulation without logical …

Drug Prices, Dying Patients, And The Pharmaceutical Marketplace: A New Conditional Approval Pathway For Critical Unmet Medical Needs, Robert A. Bohrer

Faculty Scholarship

Prescription drugs have been a major topic in the news for much of the past year. There are two issues which appear often: first, the very high prices of new drugs, particularly the "specialty" drugs developed for serious diseases; and second, the time required for FDA approval in relation to the perceived need for earlier access to new therapies for critically ill patients. Much less in the news, but lurking behind both issues, is the need for better information for physicians and patients to use in making decisions about prescribing and taking drugs, and for insurance companies and the government …

Direct-To-Consumer Ads Are Misleading: Concise Statements Of Effectiveness Should Be Required, Robert A. Bohrer

Faculty Scholarship

Direct-to-consumer (DTC) advertising of prescription pharmaceuticals has been the subject of much criticism and the issue has become even more pressing with the Trump administration’s proposal to require the disclosure of prices in DTC ads. In this article I argue that a more powerful approach to the problem of DTC ads would require the disclosure of the effectiveness of the advertised drugs, at least as found in the clinical trials submitted for FDA approval. To support the need for an effectiveness disclosure, I describe the problem of DTC ads and examine representative ads to illustrate the potential of such ads …

What Is Federalism In Health Care For?, Nicole Huberfeld

Faculty Scholarship

The Affordable Care Act offers a window on modern American federalism—and modern American nationalism—in action. The ACA’s federalism is defined not by separation between state and federal, but rather by a national structure that invites state-led implementation. As it turns out, that structure was only a starting point for a remarkably dynamic and adaptive implementation process that has generated new state-federal arrangements. States move back and forth between different structural models vis-à-vis the federal government; internal state politics produce different state choices; states copy, compete, and cooperate with each other; and negotiation with federal counterparts is a near-constant. These characteristics …

Can You Keep It? An Examination Of The Individual Health Insurance Market, Rachael Carnale

Honors Scholar Theses

The passage of the Patient Protection and Affordable Care Act (PPACA, ACA, or Obamacare) in 2010 significantly altered the structure of the individual health insurance market. The new regulatory environment and establishment of the health insurance exchanges forced insurers to adopt to be successful in the reformed individual market. However, the complexity of the law and uncertainty surrounding both the law itself and the newly insured have threatened the stability of the individual market. This thesis will explore the history of the individual health insurance market, the issues that current afflict the exchanges, and viability of possible solutions. Special attention …

A Test For Freedom Of Conscience Under The Canadian Charter Of Rights And Freedoms: Regulating And Litigating Conscientious Refusals In Health Care, Jocelyn Downie, Francoise Baylis

Articles, Book Chapters, & Popular Press

Conscientious refusal to provide insured health care services is a significant point of controversy in Canada, especially in reproductive medicine and end-of-life care. Some provincial and territorial legislatures have developed legislation or regulations, and some professional regulatory bodies have developed policies or guidelines, to better reconcile tensions between health care professionals’ conscience and patients’ access to health care services. As other groups attempt to draft standards and as challenges to existing standards head to court, the fact that the meaning of “freedom of conscience” under the Canadian Charter of Rights and Freedoms is not yet settled will become ever more …

Corporate Law After Hobby Lobby, Lyman P.Q. Johnson, David K. Millon

Scholarly Articles

We evaluate the U.S. Supreme Court’s controversial decision in the Hobby Lobby case from the perspective of state corporate law. We argue that the Court is correct in holding that corporate law does not mandate that business corporations limit themselves to pursuit of profit. Rather, state law allows incorporation for any lawful purpose. We elaborate on this important point and also explain what it means for a corporation to “exercise religion.” In addition, we address the larger implications of the Court’s analysis for an accurate understanding both of state law’s essentially agnostic stance on the question of corporate purpose and …

What Patients With Disabilities Teach Us About The Everyday Ethics Of Health Care, Elizabeth Pendo

All Faculty Scholarship

In Healers: Extraordinary Clinicians at Work, by David Schenck and Dr. Larry Churchill, and in What PatientsTeach: The Everyday Ethics of Health Care, their follow-up with Joseph Fanning, the authors look at theeveryday experience of health care and the relationships that shape it. This article expands upon that inquiry by exploring the experiences and challenges of patients with disabilities and by exploring what patients withdisabilities can teach us about the everyday ethics of health care.

The authors of What Patients Teach provide a framework in which to focus on the everyday experience ofhealth care from the perspective of patients. This …

A Vision Of An Emerging Right To Health Care In The United States: Expanding Health Care Equity Through Legislative Reform, Allison K. Hoffman

All Faculty Scholarship

When asked to write a chapter on how litigation has advanced a right to health in the U.S., I responded skeptically, both because evidence of the existence of any such right is weak and the role of litigation in promoting its development is small at best. A snapshot of the U.S. health care system evinces the absence of even a more narrow right to health care – a guarantee of equitable access to basic medical care. Instead, it reveals a fragmented picture of public and private financing that leaves many people lacking meaningful access to care. More so, the places …

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

NULR Online

No abstract provided.

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

Scholarship@WashULaw

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 …

Bending The Health Cost Curve: The Promise And Peril Of The Independent Payment Advisory Board, Ann Marie Marciarille

Faculty Works

Underlying today's and the future's health care reform debate is a consensus that America's health care financing system is in a slow-moving but deep crisis: care appears substandard in comparison with other advanced industrial countries, and relative costs are exploding beyond all reasonable measures. The Obama Administrations' Patient Protection and Affordable Care Act (ACA) attempts to grapple with both of these problems. One of the ACA's key instrumentalities is the Independent Payment Advisory Board - the IPAB, designed to discover and authorize ways to reduce the rate of growth of Medicare and other categories of health spending. The IPAB is …

The Benefits Of Opt-In Federalism, Brendan S. Maher

Faculty Scholarship

The Affordable Care Act (“ACA”) is a controversial and historic statute that mandates people make insurance bargains. Unacknowledged is an innovative mechanism ACA uses to select the law that governs those bargains: opt-in federalism.

Opt-in federalism – in which individuals choose between federal and state rules – is a promising theoretical means to make and choose law. This Article explains why, and concludes that the appeal of opt-in federalism is independent of ACA. Whatever the statute’s constitutional fate, future policymakers should consider opt-in federalist approaches to answer fundamental but exceedingly difficult questions of health and retirement law.

Federalism, Lochner, And The Individual Mandate, Peter J. Smith

GW Law Faculty Publications & Other Works

The individual mandate provision in the Affordable Care Act requires individuals to obtain minimum essential health insurance coverage. This provision has been the focus of legal attacks on the Act. Opponents of the mandate have contended that Congress lacks power to compel individuals to engage in a private, commercial transaction. These claims are most sensibly understood as libertarian objections - that is, objections to government attempts to regulate certain personal decisions or actions, on the ground that those decisions or actions are for the individual, and only the individual, to make or take. As such, as a doctrinal matter this …

Section 8: Federalism, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Health Care And The Un Disability Rights Convention, Michael Ashley Stein, Penelope J S Stein, Dorothy Weiss, Raymond Lang

Popular Media

No abstract provided.

Patient Negligence: The Unreasonableness Of Relying On Trust, Song Richardson

Articles in Law Reviews & Other Academic Journals

This project initiates a conversation about patient negligence and trust in the medical setting and offers a test to determine whether patient negligence should be considered in litigation. The project examines the line at which a physician’s impermissible conduct should become reasonably obvious to a patient and therefore trigger a reasonable response. Absent a reasonable response by patients, this project considers whether comparative negligence attaches. Goodwin and Richardson argue due diligence, an aspect of loyalty, is treated as a value fiduciaries owe their clients, rather than a reasonable step that clients owe themselves.

In this collaboration, the authors imagine and …

The Public’S Right To Health: When Patient Rights Threaten The Commons, Elizabeth Weeks Leonard

Scholarly Works

This Article offers a contemporary examination of traditional public health objectives to address social problems not amenable to individual resolution. Taking the tradition a step further, it defines a "public health right" that may justify certain government actions that otherwise appear to impair individual rights. For example, lawmakers are considering whether current regulations on prescription drugs should be loosened to allow terminally ill patients to access drugs before they have been tested and approved for the general public. This Article concludes that expanding access to experimental drugs would violate the public health right to scientific knowledge and new drug development. …

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, …

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 …

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, …

Problematic Principles: The Cma On Public/Private Health Care, Jocelyn Downie, Nuala Kenny, Chantelle Rajotte

Articles, Book Chapters, & Popular Press

In June 2006, the Canadian Medical Association [CMA] published a discussion paper, "It's about access! Informing the debate on public and private health care," to evaluate how best to manage the public and private health care sectors in order to improve access to high-quality health care. The report comes at a critical time for the health care system in Canada, with the talk of renewal and reform at the forefront of public discussion. In their report, the CMA "identified 10 first-order policy principles that should guide any policy and decision-making related to the public-private interface." The CMA's use of these …

Re Provincial Health Services Authority And Peiupse, Innis Christie

Innis Christie Collection

Grievance by the Union alleging wrongful dismissal of the Grievor, based on allegations of physical abuse of a patient in one of the Employer's health care facilities. The Union has requested pre­hearing production of various documents in the medical file of the patient who made the allegations. The Employer has refused pro­duction based on the P.E.I. Mental Health Act, R.S.P.E.I. 1988, c. M-6.1. The parties have agreed that the issue of whether the Employer can and should be ordered to produce the documents in issue is to be decided by the Chair of the Board of Arbitration estab­lished to deal …

The Boundaries Of Medicare: Tensions In The Dual Role Of Ontario's Physician Services Review Committee, Colleen M. M. Flood, Joanna Erdman

Articles, Book Chapters, & Popular Press

In this research, we describe and analyse the Physician Services Committee (PSC) in Ontario, focusing on its role in determining what physician services are publicly funded and what services are de-listed (i.e. no longer eligible for public funding). We explain how the PSC's role in determining the boundaries of Medicare is in tension with its role as a medium for labour relations between the government and the medical profession. We suggest that while the values of privacy, secrecy and a lack of transparency may enhance the PSC's fulfillment of its labour relations mandate, they impede the Committee's successful fulfillment of …

Steering And Rowing In Health Care: The Devolution Option?, Colleen Flood, Joanna Erdman, Duncan Sinclair

Articles, Book Chapters, & Popular Press

Publicly funded health care systems are often the subject of heated policy debates. All too often (particularly in Canada), these debates focus on the prohibitive costs, the resultant taxation levels, and the questionable efficiency and outcomes associated with a publicly funded system. Moreover, the institutionalization of the system and the entrenchment of its many stakeholders make effecting change particularly difficult. In this article, the authors begin with an assessment of the drawbacks of the Canadian health care system in the federal-provincial context and its resulting gaps in governance (steering), in management (rowing), and in overall accountability (apart from that offered …