Health Law and Policy Commons^™

Teaching Dobbs As A Contemporary Case Study Of Federalism In Action And An Introduction To The Cross-Disciplinary Nature Of The Law, Antonia A.B. Miceli

Saint Louis University Journal of Health Law & Policy

With its decision in Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court ended the constitutional right to an abortion, overturning Roe v. Wade and Planned Parenthood v. Casey, and returned the issue of legal access to an abortion to the states. Prior to Dobbs, reproductive rights and the right to an abortion were firmly situated within the substantive due process and fundamental rights coverage of law school constitutional law courses. But this coverage often falls late in, or completely outside the scope of, the required constitutional law curriculum at U.S. law schools. This Article offers the …

The Shifting Landscape Of Substantive Due Process: Could Dobbs Pose A Threat To Contraceptive Rights?, Madeline C. Tatro

Saint Louis University Journal of Health Law & Policy

Nearly two years ago, the Supreme Court issued its infamous decision in Dobbs v. Jackson Women’s Health Organization, a challenge to one of the then-most restrictive abortion bans in the country. In a stunning—yet not entirely surprising—6-3 decision, the Court held that the Fourteenth Amendment’s Due Process Clause does not protect abortion as a fundamental right and returned the power to regulate abortion to the states. Of course, legal questions abound as to the future of reproductive care in the United States following this infamous decision, and Justice Thomas’ concurring opinion raises one of the largest-looming concerns. In that …

Emtala Preemption Of State Laws Restricting Emergency Abortions, Rachel N. Reeder

Saint Louis University Journal of Health Law & Policy

The Emergency Medical Treatment and Labor Act (EMTALA) was established to restrict hospitals from refusing to treat or transferring patients with an unstable emergency medical condition. While intended to protect vulnerable groups from discrimination, the duty EMTALA imposes on hospitals also applies when a pregnant patient presents to a participating emergency room experiencing an emergency medical condition where the standard of care is pregnancy termination. Since Dobbs v. Jackson Women’s Health Organization, states have enacted laws prohibiting abortions, many with no exception or exceptions too narrow for stabilizing a pregnant patient’s emergency medical condition as required by EMTALA. This …

Divine Law Or Constitutional Flaw: The Clash Of Religious Belief And Legal Neutrality In Missouri’S Abortion Ban, Caela M. Camazine

Saint Louis University Journal of Health Law & Policy

This Note explores the constitutional implications of Missouri’s recent abortion ban enacted in the wake of the Dobbs v. Jackson Women’s Health Organization decision, which overturned Roe v. Wade and Planned Parenthood v. Casey. This Note examines the clash of religious beliefs and the law by dissecting the legislative history and intent behind Missouri’s abortion ban. The ban, known as House Bill 126 or the “Missouri Stands for the Unborn Act,” took effect immediately upon certification by State Attorney General Eric Schmitt and prohibits nearly all abortions, except in cases of a narrowly defined “medical emergency.” Notably, the law invokes …

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Saint Louis University Journal of Health Law & Policy

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Saint Louis University Journal of Health Law & Policy

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Regulating The Pains Of Racial Discrimination, Alice Abrokwa

Saint Louis University Journal of Health Law & Policy

This essay examines the relationship between experiences of racial discrimination and pain, assessing how social, legal, and regulatory responses to racial pain in the United States can enable further discrimination and compound the underlying pain. The essay articulates a conceptual framework for understanding this relationship, contending that: racial discrimination can contribute to pain severity and sensitivity; patients of color seeking pain relief are subject to heavy social scrutiny, including from their medical providers; social scrutiny and regulatory restriction together limit patients’ lawful avenues for pain relief, including their access to controlled substances that are used to manage pain; patients who …

Desegregating Behavioral Health Care For Medicaid Youth, Caroline M. Marsh, Valarie K. Blake

Saint Louis University Journal of Health Law & Policy

The Supreme Court held in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 581 (1999) that it is a violation of the Americans with Disabilities Act (ADA) for states to rely on institutionalized care when home and community-based care is more appropriate. Yet, over a quarter of a century later, states persist in institutionalizing youth experiencing behavioral health disabilities. This article explores Olmstead’s impact thus far on deinstitutionalization of youth behavioral health care, and the limits of Olmstead as a vehicle for lasting change. We argue that, although recent enforcement actions reflect critical change, Olmstead enforcements alone cannot succeed …

The Supreme Court’S Access To Court Decisions In 2023-2024, Jane Perkins, Amanda Avery, Arielle Linsey, Sarah Somers

Saint Louis University Journal of Health Law & Policy

The Supreme Court’s 2023–24 Term produced a number of controversial decisions, affecting everything from where unhoused people can sleep to the president’s absolute immunity. In this Article, we discuss significant decisions that have implications for access to court for civil litigants, focusing on a trio of decisions that curtail the power of administrative agencies. Also highlighted are decisions that address jurisdiction, standing and mootness, sovereign immunity, statutory construction, due process, and equal protection. We close with a brief preview of cases before the Court during the 2024–2025 Term.

Health Care Transactions And The 2023 Merger Guidelines: Shift To Substantial Lessening Principle, Nadia C. Hundley

Saint Louis University Journal of Health Law & Policy

In response to growing concerns regarding consolidation in the healthcare industry and the limitations of the consumer welfare standard focus, the Biden Administration’s repeal of healthcare-specific guidance and the introduction of the 2023 Merger Guidelines mark an important shift in antitrust enforcement. Departing from the 2010 Horizontal Merger Guidelines, the new framework centers on the “substantial lessening” principle grounded in the text of Section 7 of the Clayton Act. The goal––to empower regulators to scrutinize mergers that may harm the competitive process beyond cases that clearly raise prices for consumers. This Note discusses the legal implications of this shift, particularly …

From Crisis To Controversy: Examining The Legality Of Overdose Prevention Centers In New York And Beyond, Hallie R. Schechter

Saint Louis University Journal of Health Law & Policy

The opioid overdose epidemic in the United States has prompted the implementation of Overdose Prevention Centers [OPCs] as a harm reduction strategy, despite uncertain legality under federal law and conflicting statutory interpretations. These OPCs face imminent legal challenges, primarily due to the application of the federal “Crack House Statute,” which criminalizes maintaining a drug-involved premises. If unresolved, these legal uncertainties could lead to the prosecution and closure of OPCs, exacerbating the epidemic. To secure the future of OPCs, independent judicial interpretation of the Crack House Statue by certain circuits or legislative action amending the Crack House Statute to authorize OPCs …

Walking A Tightrope: The Future Of Controlled Substance Prescriptions Via Telehealth, Michaela K. Ellison

Saint Louis University Journal of Health Law & Policy

The COVID-19 Public Health Emergency (COVID-19 PHE) spurred changes in healthcare delivery, greatly increasing telemedicine utilization and resulting in temporary exceptions to the Ryan Haight Act (RHA). These exceptions allowed limited prescriptions of controlled substances through telemedicine without a prior in-person patient evaluation. Research indicates that these relaxed prescribing standards did not lead to an increase in overdose related deaths, specifically with respect to drugs like buprenorphine administered in opioid use disorder (OUD) treatment, instead improving access and retention outcomes. However, in anticipation of the COVID-19 PHE’s end, in 2023 the Drug Enforcement Administration (DEA) released notices of proposed rulemakings …

Reproductive Rights And Medico-Legal Education Post-Dobbs: A Fireside Chat, Michael S. Sinha, Anna Krotinger, Maya A. Phan, Louise P. King

Saint Louis University Journal of Health Law & Policy

The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization was a pivotal moment that reshaped the landscape of abortion policy and delivery of abortion care in the United States. To create a space for critical reflection on the implications of Dobbs for the teaching and learning of abortion care in both medical and legal education, the authors engage in a dialogue highlighting the varied perspectives of professionals and professionals-in-training in both the medical and legal professions. As new attacks on reproductive autonomy continue at both state and federal levels, we foreshadow a tumultuous landscape for abortion policy …

Ai Renaissance: Pharmaceuticals And Diagnostic Medicine, Ty J. Feeney, Michael S. Sinha

All Faculty Scholarship

The explosive growth of Artificial Intelligence (AI) in the modern era has led to significant advancements in the world of medicine. In drug discovery, AI technology is used to classify proteins as drug targets or non-targets for specific diseases, more accurately interpret and describe pharmacology in a quantitative fashion, and predict protein structures based on only a protein sequence for input. AI methods are used in drug development to generate predictive models for drug screening purposes, refine and modify candidate structures of drugs to optimize compounds, and predict a drug’s physiochemical properties, bioactivity, and toxicity. For medical devices, the advancement …

Reproductive Rights And Medico-Legal Education Post-Dobbs: A Fireside Chat, Michael S. Sinha, Anna Krotinger, Maya A. Phan, Louise P. King

All Faculty Scholarship

The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization was a pivotal moment that reshaped the landscape of abortion policy and delivery of abortion care in the United States. To create a space for critical reflection on the implications of Dobbs for the teaching and learning of abortion care in both medical and legal education, the authors engage in a dialogue highlighting the varied perspectives of professionals and professionals-in-training in both the medical and legal professions. As new attacks on reproductive autonomy continue at both state and federal levels, we foreshadow a tumultuous landscape for abortion policy …

Physician Decision Making Under Uncertainty In A Post-Dobbs America, Molly J. Walker Wilson, Michael S. Sinha

All Faculty Scholarship

Following the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization and a series of restrictive state laws post-Dobbs, physicians in many states now face difficult choices between evidence-based practice and criminal penalties. Previously, when deciding whether to provide abortion care, concern for the health of the patient was paramount. Now, fear of criminal penalties drives decision-making for physicians practicing in many areas of the country, including our home state: Missouri. For certain life-threatening complications, termination of pregnancy is warranted, but since Dobbs, physicians have been delaying these potentially lifesaving procedures for fear of criminal repercussions. Behavioral research on …

Fool Me Once … Why The American Data Privacy Act Proposal Fails To Adequately Deter Data Privacy Violations, Melissa Mann

SLU Law Journal Online

The recent Supreme Court decision of Dobbs v. Jackson Women's Health Organization raises many questions regarding the privacy of health data. In this article, Melissa Mann discusses some concerns that may arise with the use health applications to track personal data and potential privacy laws that could be enacted to protect these users.

Prioritizing Patients Or Impropriety?: Why The 8th Circuit’S Cairns Decision Sets A Dangerous Precedent Jeopardizing Patient Protection And Government Investment In Federal Programs, Nicole Beachboard

SLU Law Journal Online

In July 2022, the 8th Circuit established a stricter causation standard for plaintiffs alleging a False Claims Act claim through a violation of the Anti-Kickback Statute in United States ex rel. Cairns v. D.S. Medical LLC. The requirement that a plaintiff demonstrate but-for causation stands in stark contrast to the 3rd Circuit’s “at least one claim standard.” In this article, Nicole Beachboard addresses how the 8th Circuit’s decision enforces an onerous burden on the plaintiff, undermines statutory authority, and facilitates defendant misconduct.

Table Of Contents

Saint Louis University Journal of Health Law & Policy

No abstract provided.

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Saint Louis University Journal of Health Law & Policy

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The Battle For Medicare, Isaac D. Buck

Saint Louis University Journal of Health Law & Policy

America is aging. From 2019 to 2060, the total population of Americans over sixty-five will grow from fifty-four million to ninety-five million. Of all Americans, sixteen percent were aged sixty-five and older in 2019; nearly twenty-two percent are projected to be in this age group by 2040. This shift will put unprecedented pressure on the Medicare program. Its enrollment is already in the midst of an unparalleled boom, growing from forty-eight million in 2010 to eighty-six million by just 2035. As it grows in importance and size, the future of Medicare will be dominated by two competing pressures.

First, Medicare …

Gender Identity, Health, And The Law: An Overview Of Key Laws Impacting The Health Of Transgender And Gender Non-Conforming People, Naomi Seiler, Amanda Spott, Mekhi Washington, Paige Organick-Lee, Aaron Karacuschansky, Gregory Dwyer, Katie Horton, Alexis Osei

Saint Louis University Journal of Health Law & Policy

A growing population of transgender, nonbinary, and other gender non-conforming Americans experience the burden of multiple physical and mental health inequities. Largely rooted in discrimination and stigma, these disparities are compounded by barriers to respectful, appropriate healthcare.

A range of new policies, including state laws attempting to limit access to gender-affirming care for minors, may further compound health disparities. However, in some states and at the federal level, protective laws seek to prohibit discrimination and support access to care. Meanwhile, the constitutional status of gender identity under the Equal Protection Clause, and the legality of certain federal protections challenged on …

The Future Of Health Care Must Be Harm Reductionist—To Bring It About, We Need Moral Philosophy, Travis N. Rieder

Saint Louis University Journal of Health Law & Policy

In the United States, more than 100,000 people now die each year from drug overdose, but nearly all of these deaths are preventable. The purpose of this Article is to show that harm reduction interventions could go a long way towards saving these lives, but we don’t adopt many of these interventions, or fail to adopt them at the scale needed. Although it is often suggested by opponents of harm reduction that the interventions are unlikely to actually reduce harm, this Article argues that the empirical debate is largely over—decades of data demonstrate that harm reduction saves lives, promotes health, …

Inefficacy Of The Transparency In Coverage Final Rule In Promoting Cost-Effective Choices, Abigail Jaeger

Saint Louis University Journal of Health Law & Policy

The Transparency in Coverage Final Rule requires health plans to provide beneficiaries with financial information such as estimates of their personalized cost-sharing liabilities for items and services offered by different providers, the plan’s negotiated in-network rates with these providers, and the plan’s allowed out-of-network amounts. The Final Rule is designed to enhance consumers’ access to pricing information under their health plan so they have the ability to make well-informed and cost-effective decisions regarding their health care. However, empirical evidence suggests that the Final Rule will not effectuate its intended purpose. Many consumers lack the high level of health insurance comprehension …

Who Pays First?: Medicaid Third-Party Liability In Florida And Virginia’S Birth-Related Neurological Injury Compensation Programs, Alexandra M. Robbins

Saint Louis University Journal of Health Law & Policy

In response to an impending obstetrician shortage and medical malpractice crisis, the states of Florida and Virginia adopted no-fault birth-related neurological injury compensation programs in the 1980s. Both of these programs provide lifetime coverage for eligible children with serious birth-related neurological injuries; however, both programs treated themselves as the payer of last resort and required families to submit claims to Medicaid first based on an inaccurate interpretation of Medicaid third party-liability (“TPL”) laws and the program-enabling statutes. Both programs’ policies treating themselves as the payer of last resort not only violated Federal and State Medicaid laws, they caused harm to …

Public Health Product Hops, Michael S. Sinha

All Faculty Scholarship

Pharmaceutical product hops are anticompetitive maneuvers that often represent a last-ditch effort by brand manufacturers to preserve market share in the face of generic competition. An integral part of product life cycle management strategies, product hops may offer marginal benefits to patients but can substantially increase costs to payers and patients alike. Yet industry advocates maintain that this is essential follow-on research and development, resulting in the development of novel products that would otherwise never reach the market.

Is there a middle ground between these two diametrically opposed views? Might certain product hops be considered beneficial, perhaps if they furthered …

Dobbs In A Technologized World: Implications For Us Data Privacy, Jheel Gosain, Jason D. Keune, Michael S. Sinha

All Faculty Scholarship

In June of 2022, the U.S. Supreme Court issued its opinion in Dobbs v. Jackson Women’s Health Organization, overturning 50 years of precedent by eliminating the federal constitutional right to abortion care established by the Court’s 1973 decision in Roe v. Wade. The Dobbs decision leaves the decision about abortion services in the hands of the states, which created an immediately variegated checkerboard of access to women’s healthcare across the country. This in turn laid bare a profusion of privacy issues that emanate from our technologized world. We review these privacy issues, including healthcare data, financial data, website tracking and …

The Psychology Of Science Denialism And Lessons For Public Health Authorities, Brenna Moreno, Molly J. Walker Wilson

All Faculty Scholarship

As it wreaked tragedy on the world, the outbreak of COVID-19 helped expose a pandemic of a different kind, one steeped in distrust and contrarianism. This movement, termed science denialism, has been lurking and undermining public health efforts for decades. Specifically, it is “the employment of rhetorical arguments to give the appearance of legitimate debate where there is none, an approach that has the ultimate goal of rejecting a proposition on which a scientific consensus exists.” Unlike skepticism, which is “doubt as to the truth of something” and works to progress both science and society, denialism is characterized by individuals’ …

Table Of Contents

Saint Louis University Journal of Health Law & Policy

No abstract provided.

Masthead

Saint Louis University Journal of Health Law & Policy

No abstract provided.