Health Law and Policy Commons^™

Does The Individual Mandate Coerce?, Raphael Boleslavsky, Sergio J. Campos

Articles

The Patient Protection and Affordable Care Act includes an individual mandate that penalizes individuals who do not purchase health insurance. Critics of the individual mandate, including a majority of justices on the Supreme Court, contend that Congress cannot use its Commerce Clause power to coerce individuals to buy a product. Supporters concede that the mandate coerces but argue that it is otherwise permissible under the Commerce Clause. This article questions whether the individual mandate coerces. It uses a simple economic model to show that, under certain conditions, the individual mandate induces insurers to sell health insurance at a price each …

Complementarity In Public Health Systems: Using Redundancy As A Tool Of Public Health Governance, Lance Gable, Benjamin Mason Meier

Law Faculty Research Publications

No abstract provided.

Beyond Abortion: Why The Personhood Movement Implicates Reproductive Choice, Jonathan Will

Journal Articles

In 2008, an amendment was proposed to the Colorado Constitution that sought to attach the rights and protections associated with legal “personhood” to any human being from the moment of fertilization. Although the initiative was defeated, it sparked a nation-wide Personhood Movement that has spurred similar efforts at the federal level and in over a dozen states. Personhood advocates choose terms like “fertilization,” or phrases such as “human being at any stage of development,” to identify the “person”-defining moment in the reproductive process, and these designations have profound implications for reproductive choice. Proponents are outspoken in their desire to outlaw …

Developing A Durable Right To Health Care, Erin C. Fuse Brown

Faculty Publications By Year

The Patient Protection and Affordable Care Act’s (ACA) signature accomplishment was the creation of a statutory right to health care for the uninsured. This is a momentous change in policy, addressing one of the most vexing social issues of our time and affecting millions of people and billions of dollars of the U.S. economy. This ambition and the degree of societal and political debate leading up to the Act’s passage suggests that it is a “superstatute,” a rare breed of statute that can, among other things, create rights and institutions more typically thought to be the province of constitutional undertaking. …

The Contraception Mandate, Caroline Mala Corbin

Articles

Under the new health care regime, health insurance plans must cover contraception. While religious employers are exempt from this requirement, religiously affiliated employers are not. Several have sued, claiming that the "contraception mandate" violates the Free Exercise Clause, the Free Speech Clause, and the Religious Freedom Restoration Act. This Essay explains why the contraception mandate violates none of them.

What To Do, What To Do: Employer Health Benefit Plans During And After 2012’S Uncertainty, Susan E. Cancelosi

Law Faculty Research Publications

No abstract provided.

The Future Of Gene Patents And The Implications For Medicine, Jacob S. Sherkow, Henry Greely

Other Publications

The Supreme Court decision in Myriad Genetics struck down the patenting of human genomic DNA. What will this mean for genetic testing and medicine, more broadly?

Supreme Court Nixes Requirement For Anti-Prostitution Pledge, Arthur S. Leonard

Other Publications

No abstract provided.

Is More Information Always Better? Mandatory Disclosure Regulations In The Prescription Drug Market, Joanna Shepherd

Faculty Articles

This Article proceeds as follows. In Section I, I describe the structure of the PBM industry. I also describe the business model PBMs employ to administer prescription drug coverage and the methods they use to reduce prescription drug spending. In Section II, I discuss mandatory disclosure regulations enacted in several states and at the federal level under the Affordable Care Act. In Section III, I explain why mandatory disclosure regulations are not needed to ensure that health plan sponsors pay a competitive price for PBM services. In Section IV, I discuss the various costs that mandatory disclosure regulations will impose …

An Exploration Of Compulsory Licensing As An Effective Policy Tool For Antiretroviral Drugs In India, Dipika Jain, Jonathan J. Darrow

Health Matrix: The Journal of Law-Medicine

No abstract provided.

International Health Emergencies In Failed And Failing States, Chiara Giorgetti

Law Faculty Publications

Global health emergencies, particularly those occurring in Jailed and Jailing States, can become threats to the stability of the international community. This Article assesses the international mechanisms available to respond to such emergencies. After defining global health emergencies, it discusses the implications of global outbreaks in Jailed and Jailing States. It then examines the role played by the World Health Organization in controlling global health emergencies, with particular reference to the newly amended 2005 International Health Regulations and the Global Outbreak Alert and Response Network. Finally, it explores the role of other international organizations, including the United Nations Children's Fund …

The Competitive Consequences Of Most-Favored-Nation Provisions, Jonathan Baker, Judith A. Chevalier

Scholarly Articles in Law Reviews & Journals

"Most Favored Nation" contractual provisions have come under scrutiny in recent years by antitrust authorities in both the US and EU. MFNs are a type of vertical agreement between suppliers and buyers. The literature has recognized that there may be efficiency rationales for these arrangements but the literature has also recognized that these arrangements have anticompetitive potential. In this paper, we distill the economics literature on MFNs to explore both possibilities.

Is Circumcision Legal?, Peter W, Adler

Richmond Journal of Law and the Public Interest

An important, divisive, and unanswered question of American law - and indeed of international law - is whether it is legal to circumcise healthy boys. American medical association and experts assert that circumcision is a common, safe, and relatively painlesss procedure with many medical benefits that exceed the risks. They argue that insurance should pay for it. Some religious organizations argue that circumcision is a sacred religious ritual. In any event, proponents claim that parents have a general and religious right to make the circumcision decision. They can point to the fact that no physician has ever been held liable …

Heed Not The Umpire (Justice Ginsburg Called Nfib), Nicole Huberfeld

Law Faculty Scholarly Articles

The pervasiveness of our healthcare problem seems to have bypassed most justices on the Supreme Court in the landmark case National Federation of Independent Business v. Sebelius (NFIB). And early commentary predominantly has focused on the constitutionality of the individual mandate, which codified the idea that Americans must have minimum health insurance coverage by January 1, 2014 or pay a tax penalty. Further narrowing the conversation, much of the postdecision commentary has also focused on Chief Justice Roberts’s constitutional analysis and its interplay with the joint dissent. This narrow scrutiny has resulted in missed opportunities: first, a critique of …

Where There Is A Right, There Must Be A Remedy (Even In Medicaid), Nicole Huberfeld

Law Faculty Scholarly Articles

This Article will explore the power struggle that Medicaid invites and its potential elevation due to the pressures that will follow the Patient Protection and Affordable Care Act’s (ACA) expansion. Part I of this Article will describe the three phases of private enforcement litigation and how they have affected Medicaid reimbursement rates. This Part also will highlight the deceptive stability that has taken root in the lower federal courts by describing the recent state attempts to end private enforcement actions. The first Part will conclude by briefly considering the nature of the federalism arguments that states are making. Part II …

The Goals Of Fda Regulation And The Challenges Of Meeting Them, Ralph S. Tyler

Health Matrix: The Journal of Law-Medicine

No abstract provided.

The Moral From Sorrell: Educate, Don't Legislate, Goerge R. Gooch, J. James Rohack, Marisa Finley

Health Matrix: The Journal of Law-Medicine

No abstract provided.

Drafting A Sensible Conscience Clause: A Proposal For Meaningful Conscience Protections For Religious Employers Objecting To The Mandated Coverage Of Prescription Contraceptives, Daniel J. Rudary

Health Matrix: The Journal of Law-Medicine

No abstract provided.

The Oliver C, Schroeder, Jr. Scholar-In-Residence Lecture: Improving The Quality Of Health Care Where Law, Accreditation, And Professionalism Collide, Mark R. Chassin

Health Matrix: The Journal of Law-Medicine

No abstract provided.

The Naprapath In The Rainforest, John D. Blum

Faculty Publications & Other Works

No abstract provided.

Forward Special Edition: “Innovations In Public Health Law: Exploring New Strategies”, Lawrence E. Singer

Faculty Publications & Other Works

No abstract provided.

Fatal Flaws: New Zealand's Human Tissue Act Fails To Provide An Avenue For Individuals To Give Legally Binding Informed Consent, Jennifer J. Howard

Washington International Law Journal

Improving the worldwide organ transplantation rate is an important goal for the world health community. Thousands of people die each year waiting for organs that would save their lives. New Zealand has one of the poorest rates of transplantation in the Western world. In 2008, New Zealand passed the Human Tissue Act in an attempt to improve the number of donors and ultimately increase the number of transplants performed. To promote the autonomy of individuals, the new law prioritized who can give informed consent for organ donation upon death, with individuals’ actions and intentions being paramount. The law allows individuals …

Patient Awareness And Approval For An Opt-Out Genomic Biorepository, Ellen Wright Clayton, Kyle B. Brothers, Matthew J. Westbrook, M. Francis Wright, John A. Myers, Daniel R. Morrison, Jennifer L. Madison, Jill M. Pulley

Vanderbilt Law School Faculty Publications

Aim: In this study, we sought to assess patient awareness and perceptions of an opt-out biorepository. Materials & methods: We conducted exit interviews with adult patients and parents of pediatric patients having their blood drawn as part of their clinical care at Vanderbilt University Medical Center (TN, USA). Results: 32.9% of all patients and parents of pediatric patients report having heard of the opt-out biorepository, while 92.4% approve of this research effort based on a brief description. Awareness that leftover blood could be used for research increased among adult patients during the study period, from 34.3 to 50.0%. Conclusion: These …

Deactivating Implanted Cardiac Devices: Euthanasia Or The Withdrawal Of Treatment?, David Orentlicher

Scholarly Works

No abstract provided.

Concussion And Football: Failures To Respond By The Nfl And The Medical Profession, David Orentlicher

Scholarly Works

No abstract provided.

The Fda’S Graphic Tobacco Warning And The First Amendment, David Orentlicher

Scholarly Works

No abstract provided.

Nfib V. Sebelius: Proportionality In The Exercise Of Congressional Power, David Orentlicher

Scholarly Works

With its opinion on the constitutionality of the Affordable Care Act (ACA), the U.S. Supreme Court sparked much discussion regarding the implications of the case for other federal statutes. In particular, scholars have debated the significance of the Court's recognition of an anticoercion limit to the Spending Clause power.

When it recognized an anticoercion limit for the ACA's Medicaid expansion, the Court left considerable uncertainty as to the parameters of that limit. This essay sketches out one valuable and very plausible interpretation of the Court's new anticoercion principle. It also indicates how this new principle can address a long-standing problem …

Conflicts Of Interest In Medicine, Research, And Law: A Comparison, Stacey A. Tovino

Scholarly Works

Several of the remarks and articles presented in this symposium have addressed conflicts of interest arising during the provision of legal counsel to individuals who are elderly, including specific conflicts of interest implicated by estate planning, retirement planning, and long-term care planning. Topics examined thus far include conflicts of interest with respect to the application of rules of confidentiality within state rules of professional conduct to elderly clients with impaired decision-making capacity; conflicts of interest involving representative payees for Social Security benefits; conflicts of interest in distributions when parents enter into marriages that are unprotected by law; and conflicts of …

Gone Too Far: Federal Regulation Of Health Care Attorneys, Stacey A. Tovino

Scholarly Works

Outside health care counsel frequently obtain medical records, billing records, health insurance claims records, and other records containing individually identifiable health information in the course of representing health industry clients in medical malpractice, licensure, certification, accreditation, fraud and abuse, peer review, and other civil, criminal, and administrative health law matters. This Article is the first to argue that state rules of professional conduct, not federal health information confidentiality regulations, should govern outside health care counsel’s use and disclosure of confidential client information, and that outside counsel should be excepted from direct federal regulation under the HIPAA Privacy Rule.

The Individual Mandate's Due Process Legality: A Kantian Explanation, And Why It Matters, Peter Brandon Bayer

Scholarly Works

In National Federation of Independent Business v. Sebelius, one of the most controversial decisions of this young century, an intensely divided Supreme Court upheld the Patient Protection and Affordable Care Act's most provocative feature-the Individual Mandate-under Congress's taxing power. In so doing, the Court rejected what appeared to be the Individual Mandate's more applicable constitutional premise-Congress's authority to regulate interstate commerce. Yet, neither the Constitution's Taxing Clause nor its Commerce Clause provide the ultimate answer as to whether Congress may regulate the multi-billion dollar healthcare market by compelling unwilling persons to buy private health insurance. The final determination of the …