Health Law and Policy Commons^™

The Affordable Care Act, The Constitutional Meaning Of Statutes, And The Emerging Doctrine Of Positive Constitutional Rights, Edward Rubin

William & Mary Law Review

No abstract provided.

Childhood Obesity: Balancing The Nation's Interest With A Parent's Constitutional Right To Privacy, Denise Cohen

Cardozo Public Law, Policy & Ethics Journal

The note argues that governmental intervention into parental rights regarding childhood obesity is constitutionally justifiable under strict scrutiny, as it serves the compelling interests of both the child's well-being and societal welfare. While the constitutional right to privacy in parenting is fundamental, it is not absolute, and the growing public health crisis of childhood obesity necessitates narrowly tailored measures to hold parents accountable. The analysis proposes that existing legal frameworks, such as neglect statutes, can be effectively applied to address severe cases of childhood obesity, balancing individual rights with public health needs.

Functional Parenting And Dysfunctional Abortion Policy: Reforming Parental Involvement Legislation, Maya Manian

Scholarly Articles in Law Reviews & Journals

Abortion-related parental involvement mandates raise important family law issues about the scope of parents’ power over their children’s intimate decisions. While there has been extensive scholarly attention paid to the problems with parental involvement laws, relatively little has been said about strategies for reforming these laws. This article suggests using insights from family law relating to functional parenthood and third party caregiving as a basis for crafting more capacious methods of ensuring adult guidance for teenage girls facing an unplanned pregnancy. Recent developments in family law bolster the case for reforming parental involvement legislation to allow teenagers to consult with …

Free Riding On Benevolence: Collective Action Federalism And The Minimum Coverage Provision, Neil S. Siegel

Faculty Scholarship

Opponents of the minimum coverage provision in the Patient Protection and Affordable Care Act (ACA) argue that this “individual mandate” is beyond the scope of Congress’s commerce power because it regulates the “inactivity” of not purchasing health insurance. Defenders of the provision argue that it regulates the “activity” of participating in the interstate health care market, including by obtaining health care without paying for it. This Article argues that the distinction between inactivity and activity is irrelevant to the limits of the commerce power.

Drawing from the theory of collective action federalism that he recently articulated with Robert Cooter, the …

Some Thoughts On Health Care Exchanges: Choice, Defaults, And The Unconnected, Brendan S. Maher

Faculty Scholarship

One feature of the ACA that appealed to observers across the political spectrum was the creation of health insurance “exchanges.” Among other things, exchanges are intended to aid consumers in making simple and transparent choices regarding the purchase of health insurance. This Article considers how exchanges might benefit from the use of “default” options — both online and off. Given the significant number of Americans that have limited or no Internet access, offline defaults may be an attractive way to promote coverage of the “unconnected.”

Cosmetic Neurology: Enhancement Of The Mind And Attention Deficit Hyperactive Disorder Medication Abuse Among College Students, Mary M. Huff

Senior Honors Theses

Cosmetic neurology is becoming increasingly popular, and it is not just sleep deprived, over worked college students who are interested. People are beginning to seek off-label prescriptions for medications that are typically used to treat disorders such as attention deficit hyperactive disorder (ADHD) or narcolepsy, while researchers are trying to create drugs used solely for mind enhancement purposes. Along with these drugs come many legal and ethical quandaries relating to the regulation of current use as well as the what ifs of future possibilities. A survey was conducted among college students regarding the diagnosis of ADHD, the abuse of ADHD …

Gene Patents No More? Deciphering The Meaning Of Prometheus, Fazal Khan, Lindsay Kessler

Scholarly Works

When Congress enacted the United States Patent Act in 1952, it specified that patentable subject matter included anything “under the sun that is made by man.” Three decades ago the United States Patent and Trademark Office (USPTO) issued the first gene patent and ushered in a brave new gold rush. Some genes are associated with specific diseases, so being able to identify these sequences is an essential first step for developing genomic diagnostic tests and therapies. The problem with gene patents is that they allow modern-day prospectors to cordon off access to naturally occurring DNA sequences and exclude others from …

The Affordable Care Act And Health Promotion: The Role Of Insurance In Defining Responsibility For Health Risks And Costs, Wendy K. Mariner

Faculty Scholarship

This article examines whether insurance is an appropriate mechanism for improving individual health or reducing the cost of health care for payers. The Affordable Care Act contains implicit standards for allocating responsibility for health, especially in provisions encouraging health promotion and wellness programs. A summary of the accumulating evidence of the effects of such programs suggests that wellness programs have been somewhat more effective in making people feel better than in reducing costs. Health promotion should be encouraged, because health is valuable for its own sake. Insurance is not well suited to improve health or manage behavioral risks to health; …

Healthcare Reform Hangs In The Balance, Lawrence O. Gostin

O'Neill Institute Papers

In this timely new briefing, Professor Lawrence O. Gostin, University Professor and Faculty Director, O’Neill Institute for National and Global Health Law, Georgetown University writes:

Prior to Tuesday’s arguments, I believed that the Supreme Court would uphold the health insurance purchase mandate by a comfortable margin. But now I believe that health care reform hangs in the balance. Here are the key arguments on which the future of President Obama’s health care reform depends: a greater freedom, cost-shifting, the health care market, acts versus omissions, limiting principles, the population-base approach, and what is necessary and proper. If the Court strikes …

Why The Affordable Care Act's Individual Purchase Mandate Is Both Constitutional And Indispensable To The Public Welfare, Lawrence O. Gostin

O'Neill Institute Papers

Integral to the Affordable Care Act's (ACA’s) conceptual design is the individual purchase mandate, which requires most individuals to pay an annual tax penalty if they do not have health insurance by 2014. Despite the vociferous opposition, the mandate is the most “market-friendly” financing device because it relies on the private sector. Ironically, less market-oriented reforms such as a single-payer system clearly would have been constitutional.

It is common sense for everyone to purchase health insurance and thus gain security against the potentially catastrophic costs of treating a serious illness or injury. However, Congress’ method of ensuring that everyone has …

Why Congress Did Not Think About The Constitution When Enacting The Affordable Care Act, Neal Devins

Faculty Publications

No abstract provided.

Forgive And Forget: Recognition Of Error And Use Of Apology As Preemptive Steps To Adr Or Litigation In Medical Malpractice Cases , Ashley A. Davenport

Pepperdine Dispute Resolution Law Journal

Medical malpractice cases are a special breed within the field of tort jurisprudence as mistakes in the medical field are regrettably inevitable. Medical universities use some of the greatest hospitals in this country as interactive classrooms to teach future physicians. A vast number of people are treated in hospitals throughout the United States every day, and of those treated, a number are neglected under the confines of the law. The American public expects infallible care from our health care system and any deviation from perfection may result in legal action. Those wronged seek litigation primarily as a means to punish …

In The Aftermath Of The Terri Schiavo Case: Resolving End-Of-Life Disputes Through Alternative Dispute Resolution, Alisa L. Geller

Pepperdine Dispute Resolution Law Journal

Imagine yourself the proud parent of an adult daughter. You have spent many years nurturing your precious child so that she may excel in the world. Just as all of your dreams for her are coming true, the news no parent wants to hear was delivered. Your daughter lost control of her car, the vehicle overturned and she was found lying face down in a ditch. You gasped. You expected the worst. A tragic end to a life yet lived. Then, the good news was delivered. You breathed a sigh of relief. You learned she survived. She was in a …

Mediation In The Health Care System: Creative Problem Solving , Sheea Sybblis

Pepperdine Dispute Resolution Law Journal

Part I of this paper provides a comparison of the use of litigation and mediation in the health care context. Part II explores how mediation can be used to improve many of the often criticized aspects of adjudication systems and alleviate tension between parties in health care disputes. Part III provides an evaluation of current mediation programs and studies in health care, as well as the expanding role of mediators. Part IV incorporates assessments of the potential success of mediation to resolve health care disputes in the future and provides suggestions to strengthen the process.

Brushing Off Lawsuits: Dental Peer Review Examined , Lisa C. Markarian

Pepperdine Dispute Resolution Law Journal

For all contractual and legal intents and purposes, a dentist is a provider of services, while the patient who consents to treatment is a consumer. A dentist's fees reflect, in part, the cost of malpractice insurance protection. Dentists can also calculate into their fees any refunds they may pay back to patients who suffer adverse results.8 An injured patient on the other hand has limited means of protection against damages resulting from the wrongful acts of dentists. The options open to patients include: (1) filing a complaint in civil court, (2) reporting the incident to a government agency such as …

Sustainability & Ethics Of Animal Farming Practices, Joyce Tischler, Bruce Myers, Mark Risse, Terence Centner

Working in the Public Interest Conferences

High-density farming practices in the production of eggs, meat, dairy, and poultry make these products more affordable and more widely accessible— but at what cost? Panelists will discuss the ethics of these practices, as well as the impact on the environment and human health.

Is A For-Profit Structure A Viable Alternative For Catholic Health Care Ministry?, Kathleen M. Boozang, Michael J. Ricciardelli, Gregory S. Corcoran

Books

No abstract provided.

Roe V. Wade Inverted: How The Supreme Court Might Have Privileged Fetal Rights Over Reproductive Freedoms, Jack Wade Nowlin

Mercer Law Review

In Roe v. Wade, the United States Supreme Court privileged reproductive freedoms over fetal rights, but what if the Court had done the reverse in resolving the question of abortion under the Constitution- elevating fetal rights over reproductive freedoms? How might the Supreme Court have justified such a holding? What arguments, doctrines, and cases would the Court have invoked? What might concurring and dissenting opinions have said in response? A full analysis of these questions requires an exploration of a range of issues: the basis of constitutional personhood, the suspect nature of birth-status classifications, the fundamentality of access to …

Maximizing Health Care Enrollment Through Seamless Coverage For Families In Transition: Current Trends And Policy Implications, Ann Marie Marciarille, Ken Jacobs, Laurel Lucia, Ann O’Leary

Faculty Works

The Affordable Care Act (ACA) builds on the employment-based health insurance system which is the bedrock of health insurance coverage for most Americans. When these Americans experience a change in their work or family lives, they are at risk for losing their job-based health insurance coverage. The health insurance exchanges established by the ACA provide an unprecedented opportunity to address one of the major sources of gaps in health insurance coverage: transitions in life that result in the loss of health insurance. The uninsured population is not static. Many people who are uninsured cycle in and out of coverage over …

Native American Health Care: Is The Indian Health Care Reauthorization And Improvement Act Of 2009 Enough To Address Persistent Health Problems Within The Native American Community?, Koral E. Fusselman

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The Need For Change: Evaluating The Medical Necessity Of Gender Reassignment Through International Standards, Chad Ayers

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The Guatemala Std Inoculation Study As The Incentive To Change Modern Informed Consent Standards, Marie Constance Scheperle

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Why Virginia's Challenges To The Patient Protection And Affordable Care Act Did Not Invoke Nullification, Robert S. Claiborne Jr.

Law Student Publications

This comment's focus is to convincingly demonstrate that neither the General Assembly's Health Care Freedom Act nor the Commonwealth's constitutional challenge to the minimum essential coverage provision were exercises of nullification. Part II of this comment relates a brief history of the ACA's passage alongside the Virginia Health Care Freedom Act's enactment and the Attorney General of Virginia Ken Cuccinelli's suit against Secretary of Health and Human Services Kathleen Sebelius. Part III defines nullification and further explains it through the historical instances when Virginia has considered the doctrine. Part IV demonstrates that-far from nullifying the minimum essential coverage provision-Virginia has …

Why Virginia's Challenges To The Patient Protection And Affordable Care Act Did Not Invoke Nullification, Robert S. Claiborne Jr.

University of Richmond Law Review

No abstract provided.

Facial And As-Applied Challenges To The Individual Mandate Of The Patient Protection And Affordable Care Act, Edward A. Hartnett

University of Richmond Law Review

No abstract provided.

Constitutional Forbearance, A. Christopher Bryant

University of Richmond Law Review

No abstract provided.

Beyond The Doctrine: Five Questions That Will Determine The Aca's Constitutional Fate, Bradley W. Joondeph

University of Richmond Law Review

No abstract provided.

The Rhetoric Hits The Road: State Challenges To The Affordable Care Act Implementation, Elizabeth Weeks Leonard

University of Richmond Law Review

No abstract provided.

The Clinton-Obama Approach To Medical Malpractice Reform: Reviving The Most Meaningful Features Of Alternative Dispute Resolution, Grant Wood Geckeler

Pepperdine Dispute Resolution Law Journal

An introduction to medical malpractice reform would be incomplete without mentioning the Institute of Medicine's (IOM) 1999 report, To Err is Human: Building a Safer Health System, which lists medical errors as the eighth leading cause of death in the United States. While much attention premiums, the media's recent interest in the application of alternative dispute resolution (ADR) tactics in medical malpractice cases has increased. The quest for a one-size-fits-all fix to rising health care costs has turned to ADR for guidance in the past, with hopes that binding arbitration and voluntary mediation would resolve the crisis. Recently, the …

Recent Proposals To Limit Medigap Coverage And Modify Medicare Cost Sharing, Kathryn Linehan

National Health Policy Forum

As policymakers look for savings from the Medicare program, some have proposed eliminating or discouraging “first-dollar coverage” available through privately purchased Medigap policies. Medigap coverage, which beneficiaries obtain to protect themselves from Medicare’s cost-sharing requirements and its lack of a cap on out-of-pocket spending, may discourage the judicious use of medical services by reducing or eliminating beneficiary cost sharing. It is estimated that eliminating such coverage, which has been shown to be associated with higher Medicare spending, and requiring some cost sharing would encourage beneficiaries to reduce their service use and thus reduce program spending. However, eliminating first-dollar coverage could …