Health Law and Policy Commons^™

Professional Sovereignty In A Changing Health Care System: Reflections On Paul Starr's The Social Transformation Of American Medicine, Timothy Stoltzfus Jost, Keith Wailoo, Mark Schlesinger

Scholarly Articles

Not available.

Health Law And Administrative Law: A Marriage Most Convenient, Timothy Stoltzfus Jost

Scholarly Articles

This symposium explores the complex relationship between health law and administrative law. It is based on the observation that these two fields of law are peculiarly intertwined. It attempts to understand why this is so, as well as whether it is necessary and whether it is desirable. Would we as a society, that is, be better off if health law were less permeated by administrative law? Even if we would be better off, is it indeed possible to extricate health law from administrative law? This essay begins by defining health law and administrative law. It then proceeds to describe the …

The Uses Of The Social Transformation Of American Medicine: The Case Of Law, Timothy Stoltzfus Jost

Scholarly Articles

Not available.

The Tenuous Nature Of The Medicaid Entitlement, Timothy Stoltzfus Jost

Scholarly Articles

Though Medicare was from the outset an entitlement under federal law, the status of Medicaid has always been less certain. Arguably, it was the Supreme Court, rather than Congress that first recognized that Medicaid recipients (and providers) could sue the states in federal court to enforce federal Medicaid requirements. A recent widely reported federal court decision, however, called radically into question the continuing existence of a federal Medicaid entitlement. Though this decision has now been reversed, and rejected by other courts, it illustrates the tenuous nature of the Medicaid entitlement, and the need to reconstitute Medicaid as an exclusively federal …

Comparative And International Health Law, Timothy Stoltzfus Jost

Scholarly Articles

No abstract provided.

The Role Of Courts In Health Care Rationing: The German Model, Timothy Stoltzfus Jost

Scholarly Articles

Virtually every country in the world is currently attempting to find ways to ration health care services in order to control exploding health care costs. In some countries the courts play a role in overseeing the rationing of health care. This article examines the role that the courts play in the United States in health care rationing in various contexts and programs. It then goes on to present the German social courts as an alternative model for judicial oversight of health care rationing that is both responsive to the rights of health care consumers and professionals and sensitive to the …

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 …

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 …

Private Or Public Approaches To Insuring The Uninsured: Lessons From International Experience With Private Insurance, Timothy Stoltzfus Jost

Scholarly Articles

In the recent past a broad consensus has emerged in the United States that the best way to expand coverage of the uninsured is to use tax subsidies to encourage the purchase of private health insurance policies. Many advocates of this approach also call for replacing employment-related group policies with individual policies, and for minimizing regulation of private insurance. Those who advocate these policies, however, have rarely considered the experience that other nations have had with private health insurance.

In fact most other countries have private insurance markets, and in many countries private insurance plays a significant role in financing …

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 …

So-Called "Partial-Birth Abortion" Bans: Bad Medicine? Maybe. Bad Law? Definitely!, Ann Maclean Massie

Scholarly Articles

None available.

Valuing Intrauterine Life, Samuel W. Calhoun

Scholarly Articles

No abstract provided.

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.

Withdrawal Of Treatment For Minors In A Persistent Vegetative State: Parents Should Decide, Ann Maclean Massie

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.

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 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 …

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 …

Handicapped Babies And The Law: The United States Position, George P. Smith Ii

Scholarly Articles

No abstract provided.

Quality Of Life, Sanctity Of Creation: Palliative Or Apotheosis?, George P. Smith Ii

Scholarly Articles

This Article will suggest an approach to facilitate decision-making where the concepts of quality of life and sanctity of life appear to clash. It is hoped that a reconciliation of these two ideas will provide an alternative to the increasing federal intervention in the process of family decision-making vis-a-vis handicapped infants.

The construct will combine deontological standards with situational, or consequential, ethics. This unique synthesis will then be placed within a sphere of expanded family advisers-medical, social, spiritual, legal, etc.-who are called into being with the birth of a genetically defective newborn. The force of the construct arises from the …

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.

Sexuality, Privacy And The New Biology, George P. Smith Ii, Roberto Iraola

Scholarly Articles

This Article investigates two alternative methods of human conception: Specifically, the artificial insemination of unmarried women for either their own personal purposes of pregnancy without the benefit of marriage or as surrogates for infertile women. Surrogation is evaluated, then, as an analytic complement to the sexual privacy of women who are expressing their sexual freedom through unconventional means to become pregnant.

The conclusion drawn is that an unmarried woman’s fundamental right to privacy or procreation does not encompass a right to either artificial insemination or surrogation. To allow unfettered access to these two methods of conception would - quite simply …

The Iceperson Cometh: Cryonics, Law And Medicine, George P. Smith Ii

Scholarly Articles

The "New Biology" has already made profound impact on the law. Cryonics and genetic engineering represent technological triumphs. The natural, organic process of dying is being replaced by a humanly engineered technological process for living. The dying phase of lite is prolonged until biological knowledge is available to reverse the dying phase and restore the living phase. Both cryonics and genetic engineering in their attempts to replace the organic process with the technological process disturb the delicate balance of the triad of lite which each individual experiences-faith, health, and justice. Since law is a basic tool to achieve justice among …

The Razor’S Edge Of Human Bonding: Artificial Fathers And Surrogate Mothers, George P. Smith Ii

Scholarly Articles

This article will examine the plight of the artificial father and surrogate mother by focusing on how the law views artificial insemination. From this focus, the author will explore alternative responses for dealing with problems involving surrogate mothers, donor insemination, and infertility and show their symbiotic, if not direct, relation to the problem of infertility.

Intrusions Of A Parvenu: Science, Religion, And The New Biology, George P. Smith Ii

Scholarly Articles

Both religion and the law must seriously consider artificial insemination so that dogma and laws are formed to incorporate the process. Science has brought the procedure to a society unequipped to deal with the religious and legal implications of birth through artificial insemination in any of its forms. Not all religions or jurisdictions can be expected to treat the process exactly alike, but there must be an effort on the part of each organization to react to the situation facing them so that their citizens will have some guidance.

Section II of this article illuminates the path science is on …

The Promise Of Abundant Life: Patenting A Magnificent Obsession, George P. Smith Ii

Scholarly Articles

The purpose of this essay will be to explore the parameters of the scientific imperative to explore truth. The scope of this inquiry is shaped in part by the United States patent laws and administrative interpretations and, more specifically, by the United States Supreme Court in its recent holding allowing the new forms of life created in a laboratory to be patented. The ultimate purpose of this piece, then, is to refute the arrogance of power theory expressed as being implicit in the investigations of the vast potential for the positive achievement of good through harnessing the "New Biology." Thus, …

Great Expectations Or Convoluted Realities: Artificial Insemination In Flux, George P. Smith Ii

Scholarly Articles

No abstract provided.

The Right Of A Mental Patient To Refuse Antipsychotic Drugs In An Institution, Lawrence D. Gaughan, Lewis H. Larue

Scholarly Articles

Not available.

A Close Encounter Of The First Kind: Artificial Insemination And An Enlightened Judiciary, George P. Smith Ii

Scholarly Articles

No abstract provided.