Health Law and Policy Commons^™

Gender, Family, And Work, Marcia L. Mccormick

All Faculty Scholarship

The country has prohibited sex discrimination since the 1960’s, but society continues to view women and men differently because women give birth, breastfeed, and are traditional caregivers. This article takes a historical look at court decisions and legislative efforts to address equality where men and women are not similarly situated and also explores recent developments and current debates, such as caregiver discrimination, lactation rooms and breaks, and the Affordable Care Act’s contraceptive mandate. Despite the abundance of legislation and court decisions over the past forty years, much progress still needs to be made.

Pursuing High Performance In Rural Health Care, A. Clinton Mackinney, Keith J. Mueller, Andrew F. Coburn, Jennifer P. Lundblad, Timothy D. Mcbride, Sidney D. Watson

All Faculty Scholarship

In 2001, the Institute of Medicine (IOM) called for transformation of the United States health care system to make it safe, effective, patient-centered, timely, efficient, and equitable.1 The journey toward these six aims in public policy and the private sector is underway, but fundamental challenges detailed by the IOM remain. Patients are injured at alarming rates, wide variation in care exists across geographies, patients complain of insensitive and/or inaccessible health care providers, health care costs are nearly twice that in other developed countries, and nearly 50 million Americans lack health insurance. As a result, our health care is often fragmented, …

Shifting Public Health Priorities And The Global Effort To Prevent A Bird Flu Pandemic, Robert Gatter

All Faculty Scholarship

Global strategy to control highly pathogenic avian influenza (HPAI) has changed dramatically since 2003 when it was first reported that a confirmed bird flu jumped the species barrier to infect a human in Hong Kong. Evidence of this shift in priorities in the global fight against HPAI can be found most clearly in program funding trends. In late 2008 and into 2009, financial commitments from international donors for all HPAI programs dropped significantly. Meanwhile, within HPAI programs, funding shifted substantially away from animal biosecurity projects and into human response and preparedness work. This Article examines three reasons for this shift …

Rethinking The New Public Health, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

This Article contributes to an emerging theoretical debate over the legitimate scope of public health law by linking it to a particular doctrinal debate in public nuisance law. State and local governments have been largely stymied in their efforts to use public nuisance litigation against harmful industries to vindicate collectively-held, common law rights to non-interference with public health and safety. The ways in which this litigation has failed are instructive for a broader movement in public health that is only just beginning to take shape. In response to evolving scientific understanding about the determinants of health, public health advocates are …

“Early-Bird Special” Indeed!: Why The Tax Anti-Injunction Act Permits The Present Challenges To The Minimum Coverage Provision, Michael C. Dorf, Neil S. Siegel

Faculty Scholarship

In view of the billions of dollars and enormous effort that might otherwise be wasted, the public interest will be best served if the Supreme Court of the United States decides the present challenges to the Patient Protection and Affordable Care Act (ACA) during its October 2011 Term. Potentially standing in the way, however, is the federal Tax Anti-Injunction Act (TAIA), which bars any “suit for the purpose of restraining the assessment or collection of any tax.” The dispute to date has turned on the fraught and complex question of whether the ACA’s exaction for being uninsured qualifies as a …

The Liberty Of Free Riders: The Minimum Coverage Provision, Mill’S 'Harm Principle,' And American Social Morality, Jedediah S. Britton-Purdy, Neil S. Siegel

Faculty Scholarship

In this Article, we show that cost-shifting and adverse selection problems link the federalism dimension of the debate over the Affordable Care Act to the doctrinally separate and suppressed individual rights dimension. As the scope of these free-rider problems justifies federal power to require individuals to obtain health insurance coverage, so the very existence of the free-rider problems illuminates the difficulty of arguing directly — as opposed to indirectly through the Commerce Clause — that the minimum coverage provision infringes individual liberty. The interdependence between some people’s decisions to forgo insurance and the well-being of other people means that refusing …

A Visual Guide To Nfib V. Sebelius, Colin Starger

All Faculty Scholarship

Though Chief Justice Roberts ultimately provided the fifth vote upholding the Affordable Care Act (ACA) under the Tax Power, his was also one of five votes finding the ACA exceeded Congress’ power under the Commerce Clause.

The doctrinal basis for Roberts’ Commerce Clause analysis was hotly contested. While Roberts argued that the ACA’s purported exercise of Commerce power “finds no support in our precedent,” Justice Ginsburg accused the Chief Justice of failing to “evaluat[e] the constitutionality of the minimum coverage provision in the manner established by our precedents.”

These diametrically opposed perspectives on “precedent” might prompt observers to ask whether …

Mandates, Markets, And Risk: Auto Insurance And The Affordable Care Act, Jennifer Wriggins

Faculty Publications

Now that the Affordable Care Act (ACA) individual health insurance mandate has been upheld by the United States Supreme Court, it is an opportune time to examine precedents for the individual mandate that were not considered in the legislative debate or litigation about the ACA’s constitutionality, particularly auto insurance mandates. Although opponents’ arguments were cast largely as Commerce Clause claims, the arguments have a deeper foundation as claims about liberty and coercion which go far beyond the Commerce Clause. Although auto insurance mandates are obviously different, particularly in that they are state rather than federal, auto insurance mandates can help …

Health Care And The Illegal Immigrant, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

The question of whether illegal immigrants should be entitled to some form of health coverage in the United States sits at the uneasy intersection of two contentious debates: health reform and immigration reform. Befitting this place, the rhetoric surrounding the issue has been exponentially heightened by the multiplying effects of combining two vitriolic debates. On one side, it is argued that the United States has a moral obligation to provide health care to all those within its borders needing such assistance. On the other, it is argued with equal force that those illegally present in this country should not be …

"Sell's" Conundrums: The Right Of Incompetent Defendants To Refuse Anti-Psychotic Medication, Christopher Slobogin

Vanderbilt Law School Faculty Publications

The Supreme Court's 2003 decision in Sell v. United States declared that situations in which the state is authorized to forcibly medicate a criminal defendant to restore competency to stand trial "may be rare." Experience since Sell indicates that this prediction was wrong. In fact, wittingly or not, Sell created three exceptions to its holding (the dangerousness, treatment incompetency, and serious crime exceptions) that virtually swallow the right to refuse. Using the still-on-going case of Jared Loughner as an illustration, this essay explores the scope of these exceptions and the dispositions available in those rare circumstances when none of them …

An Investigation Of The Rationality Of Consumer Valuations Of Multiple Health Risks, W. Kip Viscusi, Wesley A. Magat, Joel Huber

Vanderbilt Law School Faculty Publications

After developing a conceptual analysis of consumer valuation of multiple risks, we explore both economic and cognitive hypotheses regarding individual risk-taking. Using a sample of over 1,500 consumers, our study ascertains risk-dollar tradeoffs for the risks associated with using an insecticide and a toilet bowl cleaner. We observe the expected positive valuation of risk reductions andfind empirical supportfor a diminishing in the valuation of risk reduction as the extent of the risk reduction increases. We also find evidence of certainty premiums for the total elimination of one risk, but no strong evidence of additional certainty premiums for the elimination of …

Death In Our Life, Joseph Raz

Faculty Scholarship

This is the text of the Annual Lecture of the Society for Applied Philosophy, delivered in Oxford on 22-5-12. I kept the talk style of the paper. It examines a central aspect of the relations between duration and quality of life by considering the moral right to voluntary euthanasia, and some aspects of the moral case for a legal right to euthanasia. Would widespread acceptance of a right to voluntary euthanasia lead to widespread changes in attitude to life and death? Many of its advocates deny that seeing it as a narrow right enabling people to avoid ending their life …

About Abortion: The Complications Of The Category, Carol Sanger

Faculty Scholarship

My subject this afternoon is abortion, a subject that for the last 40 years has embedded itself in American consciousness, American politics, and American culture with remarkable durability and reach. Looking only at the first decade of this century – from George W. Bush to Barack Obama, to use two presidential landmarks – abortion has been central to how Americans conceptualize, debate, and sometimes resolve all sorts of things: foreign aid, health care reform, high school sex education, and judicial nominations to the Supreme Court. Abortion has been at the heart of disputes over what products Walmart keeps on its …

Medical Marijuana: A Study Of Unintended Consequences, Gerald Caplan

McGeorge School of Law Scholarly Articles

No abstract provided.

Health Equity, Healthy People 2020, And Coercive Legal Mechanisms As Necessary For The Achievement Of Both, Emily Whelan Parento

McGeorge School of Law Scholarly Articles

Principles of health equity require that all people have equal opportunity to develop and maintain their health, yet in the face of widespread and presumptively inequitable health disparities, the law has done little. This paper argues that health equity demands the use of coercive legal mechanisms in certain circumstances given the existence of current disparities and the evidence of effectiveness of direct regulation as compared to its alternatives. Moreover, the paper argues that Healthy People 2020, which is the nation's “master blueprint for health” and explicitly seeks to achieve health equity, has not fully incorporated the principles of health equity …

Prosecutorial Discretion In Assisted Dying In Canada: A Proposal For Charging Guidelines, Jocelyn Downie, Ben White

Articles, Book Chapters, & Popular Press

English Abstract: An Expert Panel of the Royal Society of Canada and a Select Committee of the Québec National Assembly both recently recommended the issuance of permissive guidelines for the exercise of prosecutorial discretion on voluntary euthanasia and assisted suicide and “medical aid in dying” respectively. It seems timely, therefore, to propose a set of offence-specific guidelines for how prosecutorial discretion should be exercised in cases of voluntary euthanasia and assisted suicide in Canadian provinces and territories. We take as our starting point the only existing guidelines of this sort currently in force in the world (i.e. the British Columbia …

Unlocking Health Canada’S Cache Of Trade Secrets: Mandatory Disclosure Of Clinical Trial Results, Matthew Herder

Articles, Book Chapters, & Popular Press

Health Canada should publicly disclose information about the safety and efficacy of pharmaceuticals, biologics and medical devices, and should especially disclose the designs and results of clinical trials. This disclosure is necessary to preserve public trust, address weaknesses in the evidence base, and protect Canadians from harm.

A prime example of the need for this disclosure involves selective serotonin reuptake inhibitors (SSRIs). Health Canada did not authorize SSRIs for sale to people younger than 19 years because of data from clinical trials showing risks of harm, including self-harm, associated with use of SSRIs in that age group. But Health Canada …

Substitute Decision Making About Research: Identifying The Legally Authorized Representative In Four Canadian Provinces, Sheila Wildeman, Gina Bravo, Marie-France Dubois, Carole Cohen, Janice Graham, Karen Painter, Suzanne Bellemare

Articles, Book Chapters, & Popular Press

When an adult is legally incapable of deciding whether to participate in health research, who (if anyone) has the legal authority to make that decision? Furthermore, how well do Canadians with a stake in health research, such as older adults, informal caregivers of older persons with cognitive impairments, researchers in aging, and members of research ethics boards (“REBs”), understand the state of the law on this question? These two interrelated matters are addressed by our study.

We find that the laws of the four provinces we target are frequently unclear as to whether, or in what circumstances, a guardian, proxy …

Prosecutorial Guidelines For Voluntary Euthanasia And Assisted Suicide: Autonomy, Public Confidence And High Quality Decision-Making, Ben White, Jocelyn Downie

Articles, Book Chapters, & Popular Press

This article proposes offense-specific guidelines for how prosecutorial discretion should be exercised in cases of voluntary euthanasia and assisted suicide. A similar policy has been produced in England and Wales but we consider it to be deficient in a number of respects, including that it lacks a set of coherent guiding principles. In light of these concerns, we outline an approach to constructing alternative guidelines that begins with identifying three guiding principles that we argue are appropriate for this purpose: respect for autonomy; the need for high-quality prosecutorial decision-making; and the importance of public confidence in that decision-making.

Recent Crime Legislation: The Challenge For Prison Health Care, Adelina Iftene, Allan Manson

Articles, Book Chapters, & Popular Press

This article reviews the potential effects of Bill C-10 and related legislation that provide for more legal minimum sentences and reduce the possibility of conditional release. Without more resources overcrowding - an already pressing issue in Canadian corrections - will increase. We further review the potential effects of overcrowding as exemplified in other jurisdiction.

Harm Reduction, Human Rights, And Access To Information On Safer Abortion, Joanna Erdman

Articles, Book Chapters, & Popular Press

A harm reduction and human rights approach, grounded in the principles of neutrality, humanism, and pragmatism, supports women's access to information on the safer self-use of misoprostol in diverse legal settings. Neutrality refers to a focus on the risks and harms of abortion rather than its legal or moral status. Humanism refers to the entitlement of all women to care and concern for their lives and health, to be treated with respect, worth, and dignity, and to the empowerment of women to participate in decision-making and political action. Pragmatism accepts the historical reality that women will engage in unsafe abortion, …

Consent Requirements For Pelvic Examinations Performed For Training Purposes, Elaine Gibson, Jocelyn Downie

Articles, Book Chapters, & Popular Press

In 2010, The Society of Obstetricians and Gynaecologists of Canada (SOGC) and The Association of Professors of Obstetrics and Gynaecology of Canada (APOG) released an updated policy statement regarding pelvic examinations performed on women under anesthesia. The updated statement, unlike the previous 2006 guideline that applied to “medical trainees” (explicitly including students and residents), for the most part only applies to “medical students”. Pelvic examinations conducted for training purposes presumably constitute a battery in law, subject to the defence of consent. Residents need to be covered by an SOGC and APOG policy statement regarding pelvic examinations for training purposes with …

Substitute Decision-Making About Research: Identifying The Legally Authorized Representative In Four Canadian Provinces, Sheila Wildeman, Gina Bravo, Marie-France Dubois, Carole Cohen, Janice Graham, Karen Painter, Suzanne Bellemare

Articles, Book Chapters, & Popular Press

When an adult is legally incapable of deciding whether to participate in health research, who (if anyone) has the legal authority to make that decision? Furthermore, how well do Canadians with a stake in health research, such as older adults, informal caregivers of older persons with cognitive impairments, researchers in aging, and members of research ethics boards (“REBs”), understand the state of the law on this question? These two interrelated matters are addressed by our study. We find that the laws of the four provinces we target are frequently unclear as to whether, or in what circumstances, a guardian, proxy …

Understanding 'Elder Abuse And Neglect': A Critique Of Assumptions Underpinning Responses To The Mistreatment And Neglect Of Older People, Joan Harbison, Steve Coughlan, Marie Beaulieu, Jeff Karabanow, Madine Vanderplaat, Sheila Wildeman, Ezra Wexler

Articles, Book Chapters, & Popular Press

This article provides an overview of the ways in which the mistreatment and neglect of older people have come to be understood as a social problem, one which is underpinned by a variety of substantive and theoretical assumptions. It connects the process of conceptualizing elder abuse and neglect to political-economic and social evolution. The authors draw on a review of the literature, government sources, interest group websites, and their own research to provide a critical commentary illustrating how these understandings have become manifest in legislation, policies, and programs pertaining to "elder abuse and neglect" in Canada. Suggestions are provided for …

Consent Requirements For Pelvic Examinations Performed For Training Purposes, Elaine Gibson, Jocelyn Downie

Articles, Book Chapters, & Popular Press

In 2010, The Society of Obstetricians and Gynaecologists of Canada (SOGC) and The Association of Professors of Obstetrics and Gynaecology of Canada (APOG) released an updated policy statement regarding pelvic examinations performed on women under anesthesia. The updated statement, unlike the previous 2006 guideline that applied to “medical trainees” (explicitly including students and residents), for the most part only applies to “medical students”. Pelvic examinations conducted for training purposes presumably constitute a battery in law, subject to the defence of consent. Residents need to be covered by an SOGC and APOG policy statement regarding pelvic examinations for training purposes with …

The Convention On The Rights Of Persons With Disabilities: Beginning To Examine The Implications For Canadian Lawyers' Professional Responsiblities, H Archibald Kaiser

Articles, Book Chapters, & Popular Press

The United Nations Convention on the Rights of Persons with Disabilities (hereafter the CRPD or the Convention) should herald a new epoch in the way persons with disabilities are treated throughout the world community. The entire panoply of ramifications of this Convention, the purpose of which is “to promote, protect and ensure the full enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity”, (Article 1) is as yet unascertainable. However, States Parties must “take all appropriate measures to eliminate discrimination by any person, organization or private enterprise” (Article …

Pereira's Attack On Legalizing Euthanasia Or Assisted Suicide: Smoke And Mirrors, Jocelyn Downie, Kenneth Chambaere, Jan L. Bernheim

Articles, Book Chapters, & Popular Press

In a paper published in Current Oncology, University of Ottawa palliative care physician Jose Pereira states that the, “laws and safeguards [in countries in which euthanasia or assisted suicide have been legalized] are regularly ignored and transgressed in all the jurisdictions, and that transgressions are not prosecuted.” He purports to demonstrate that the safeguards and controls put in place in the permissive jurisdictions are an “illusion.”

In the present paper, we expose problems with the evidence base provided and relied upon by Pereira. It should be noted that we provide only examples of each of the categories of mistakes made …

Confine Is Fine: Have The Non-Dangerous Mentally Ill Lost Their Right To Liberty? An Empirical Study To Unravel The Psychiatrist’S Crystal Ball, Donald H. Stone

All Faculty Scholarship

This Article will examine the reverse trend in civil commitment laws in the wake of recent tragedies and discuss the effect of broader civil commitment standards on the care and treatment of the mentally ill. The 2007 Virginia Tech shooting, the 2011 shooting of Congresswoman Giffords, and the 2012 Aurora movie theatre shooting have spurred fierce debates about the dangerousness of mentally ill and serve as cautionary tale about what happens when warning signs go unnoticed and opportunities for early intervention missed. This piece will explore the misconception about the role medication and inpatient civil commitments should play in prevention …

Defensive Medicine And Obstetric Practices, Michael D. Frakes

Faculty Scholarship

Using data on physician behavior from the 1979–2005 National Hospital Discharge Surveys (NHDS), I estimate the relationship between malpractice pressure, as identified by the adoption of non-economic damage caps and related tort reforms, and certain decisions faced by obstetricians during the delivery of a child. The NHDS data, supplemented with restricted geographic identifiers, provides inpatient discharge records from a broad enough span of states and covering a long enough period of time to allow for a defensive medicine analysis that draws on an extensive set of variations in relevant tort laws. Contrary to the conventional wisdom, I find no evidence …

Choosing Between Tax And Nontax Delivery Mechanisms For Health Insurance Subsidies, Lawrence Zelenak

Faculty Scholarship

No abstract provided.