Health Law and Policy Commons^™

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 …

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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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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 …

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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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Post-Pandemic, But Not Post-Racial, Courtney Lauren Anderson

Saint Louis University Journal of Health Law & Policy

The Fair Housing Rights Act and the Voting Rights Act have had measurable success in providing opportunities to address intentional discrimination in housing and voting contexts. Plaintiffs with evidence of direct illegalities have clear frameworks under which justice may be sought, and both Acts provide a path for relief upon violations of housing and voting rights because of one’s membership in a protected class. However, the disparate impact theories that are cognizable under both Acts have been scrutinized for lackluster results. Practitioners and academicians have written about and experienced the difficulties plaintiffs face in successfully proving that a particular housing …

Developing A Health Care Workforce That Supports Team-Based Care Models That Integrate Health And Social Services, Jessica Mantel, Mcclain Sampson, David S. Buck, Winston Liaw, Lechauncy Woodard, Jasmine Singh

Saint Louis University Journal of Health Law & Policy

Across the country, health care professionals are joining forces to improve the health care of populations with complex social, financial, and behavioral health needs. One promising approach relies on community-based integrated health teams (CIHTs), or interprofessional teams that integrate a broad range of medical, behavioral health, and social services, offer intensive case management, and link patients to available community resources. Yet whether CIHTs fulfill their potential depends in part on policymakers enacting policies that support CIHTs delivering comprehensive, high-value care to their patients. Drawing on the insights of CIHT professionals shared with the authors, this Article highlights several factors that …

Immigration Reforms As Health Policy, Medha D. Makhlouf, Patrick J. Glen

Saint Louis University Journal of Health Law & Policy

The 2020 election, uniting control of the political branches in the Democratic party, opened up a realistic possibility of immigration reform. Reform of the immigration system is long overdue, but in pursuing such reform, Congress should cast a broad net and recognize the health policies embedded in immigration laws. Some immigration laws undermine health policies designed to improve individual and population health. For example, immigration inadmissibility and deportability laws that chill noncitizens from enrolling in health-promoting public benefits contribute to health inequities in immigrant communities that spill over into the broader population—a fact highlighted by the still-raging COVID-19 pandemic. Restrictions …

Insurer Accountability In The Next Generation Of Health Reform, Katie Keith

Saint Louis University Journal of Health Law & Policy

Democrats continue to debate how to extend health insurance coverage to the remaining uninsured and improve the affordability and quality of coverage and care. Prior intraparty debates—over whether to build upon the Affordable Care Act, create a public option, or expand the Medicare program to all (or more)—have centered on how to best accomplish these goals and whether health care delivery should be mediated through public versus private payers. These are worthwhile debates, but the history of health reform suggests that private health insurers are here to stay. This Article accepts the premise that future coverage expansions will likely rely …

Revisiting Health Care Fraud In The Biden Administration, Joan H. Krause

Saint Louis University Journal of Health Law & Policy

Although not one of the Biden administration’s initial priorities, health care fraud inevitably will be a major concern. First, the federal government’s response to the COVID-19 pandemic—including the disbursement of more than $175 billion in provider relief funds and the loosening of traditionally strict rules on Medicare reimbursement for telehealth services—has created new opportunities to divert health care funds for fraudulent purposes. Second, President Joseph Biden took office in the midst of the incomplete transition from volume-based to value-based payment in the federal health care programs, which will allow fraud to flourish in the gaps between multiple reimbursement systems. Third, …

Beyond Disability Rights: A Way Forward After The 2020 Election, Robyn M. Powell

Saint Louis University Journal of Health Law & Policy

Throughout Donald Trump’s presidency, people with disabilities and other historically marginalized communities experienced incessant attacks on their rights. From continuous attempts to repeal the Affordable Care Act, to decreased enforcement of federal disability rights laws, to reductions to social safety net programs, to the intentional disregard of the COVID-19 pandemic, Trump’s presidency threatened nearly every facet of disabled people’s lives. However, even before the Trump administration, people with disabilities experienced a range of pervasive and persistent social, economic, and health inequities. Moreover, many of these injustices endure today—nearly two years since President Trump left office.

The disability rights movement originated …

Access To Court Cases From The Supreme Court’S 2020–2021 Term: The New Majority’S Debut, Sarah Somers, Jane Perkins, Abigail Coursolle, Sarah Grusin

Saint Louis University Journal of Health Law & Policy

Throughout the Supreme Court’s first term without Justice Ruth Bader Ginsburg, the Court issued only a few major opinions with respect to access to the Court for civil litigants, and it issued none that discarded major precedents. Yet, in several areas, the Court demonstrated an increasingly conservative bent and began to lay the groundwork for major changes. In this Article, we discuss selected opinions from the Court’s 2020–2021 term that may have an impact on access to the courts for individuals seeking to vindicate civil and constitutional rights. In particular, it focuses on cases that may affect access for low-income …

The Impact Of Bostock V. Clayton County On Access To Health Care For Lgbtq Persons, Hiba B. Al-Ramahi

Saint Louis University Journal of Health Law & Policy

LGBTQ individuals face countless acts of discrimination in health care insurance and delivery. In spite of this inequality, there are zero LGBTQ-inclusive health insurance protections in over half of the United States. Title VII of the Civil Rights Act (Title VII) and Section 1557 of the Patient Protection and Affordable Care Act (ACA) are two federal statutes that prohibit discrimination, in relevant part, on the basis of sex. Both federal statutes have been greatly impacted by the Supreme Court decision in Bostock v. Clayton County, which interpreted “sex” in Title VII to include gender identity and sexual orientation. This …

“Woman Enough” To Win? An Analysis Of Sex Testing In College Athletics, Brenna M. Moreno

Saint Louis University Journal of Health Law & Policy

In recent years, dozens of bills restricting the rights of transgender, or trans, individuals have been introduced in state legislatures throughout the country. To date, ten states have successfully passed laws prohibiting trans athletes from competing on teams in accordance with their gender identities. For its athletes, the National Collegiate Athletic Association (NCAA), the United States’ largest intercollegiate athletic organization, has pursued a compromise to balance trans inclusion and fair competition. Established in 2011, the NCAA’s conditionally inclusive policy permits trans women—meaning those who were assigned the sex of male but identify as women—to compete on a women’s team only …

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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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Foreword: Probing The Intersection Of Climate Change And Public Health, Ana Santos Rutschman

Saint Louis University Journal of Health Law & Policy

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Pursuing Climate Justice: Learning The Lessons Of The Covid-19 Response, Lance Gable

Saint Louis University Journal of Health Law & Policy

The COVID-19 pandemic and the climate crisis have many parallels. Both are large disruptive events that pose foundational threats to humanity through the capacity to cause substantial harm and death to humans. Both pose complex and multifaceted challenges perpetuated by multiple factors that are difficult to interrupt or mitigate. Both are subject to evolving scientific understandings of their underlying causes and potential interventions. Both are novel challenges not previously faced by most humans alive today that comprise potential threats to human society over an extended time period. These similarities allow scholars and policymakers to extrapolate and understand how the responses …

Tribal Water Rights And Tribal Health: The Klamath Tribes And The Navajo Nation During The Covid-19 Pandemic, Robin Kundis Craig

Saint Louis University Journal of Health Law & Policy

Public health measures to combat COVID-19, especially in the first year before vaccines became widely available, required individuals to be able to access fresh water while remaining isolated from most of their fellow human beings. For the approximately 500,000 households in the United States and over two million Americans who lacked access to reliable indoor running water, these COVID-19 measures presented a considerable added challenge on top of the existing risks to their health from an insecure water supply.

Many of these people were Native Americans, whose Tribes often lack fully adjudicated, quantified, and deliverable rights to fresh water. To …

Meeting Water Affordability Challenges In The Era Of The Unexpected, Amy Hardberger

Saint Louis University Journal of Health Law & Policy

The vast majority of Americans depend on a public water supply for the procurement and delivery of their water. Water providers are tasked with securing water supplies for the future, building and maintaining the infrastructure needed for delivery, and ensuring service is available for new customers. This system has worked for many decades in part because the costs of water and construction were relatively low; however, in the past twenty years, water rates have increased at twice the rate of inflation. At the same time, income has remained stagnant. Water services now require a larger percentage of household budgets than …

Preventing Maternal Deaths: A Critical Feminist Approach To Maternal Mortality In The United States, Jemalyn Harvey

Saint Louis University Journal of Health Law & Policy

With roughly 700 women dying each year as a result of pregnancy and/or delivery complications, the United States has the highest rate of maternal deaths in the developed world. As each year passes, the maternal death rate continues to increase, despite the fact that sixty percent of these deaths are preventable. Factors such as quality care, receiving accurate and timely medical diagnoses, and recognizing urgent maternal warning signs all contribute to the preventability of deaths and why women, particularly women of color, so often fall victim to this tragic phenomenon. As an effort to address maternal death in the United …