Health Law and Policy Commons^™

Taxing The Platypygous, James J. White

Articles

This Article maintains that obesity in the United States is an enormous public health issue that causes the health care costs of the obese Americans greatly to exceed those of citizens of normal weight. Recognizing that that much of that cost will be born by publicly financed programs and that the taxes supporting those programs will constitute an externality that the fat impose on the thin, the Article proposes a tax on high calorie food-but only when that food is purchased by the obese. The Article addresses many of the administrative, moral and other objections to a tax aimed at …

Constitutional Uncertainty And The Design Of Social Insurance: Reflections On The Obamacare Case, Michael J. Graetz, Jerry L. Mashaw

Faculty Scholarship

In 2010, Barack Obama signed the Patient Protection and Affordable Care Act (the ACA), a complex statute of more than nine hundred pages that fulfilled his goal of extending health-insurance coverage to virtually all Americans – an objective that previous U.S. presidents had sought and failed to achieve for a century. This legislation was hotly contested in the Congress, passing with the support of very few Republicans in the Senate and none in the House.

To broaden access to health insurance, the ACA relies primarily on two devices: (1) an expansion to Medicaid – a joint federal-state health-insurance program for …

The Individual Mandate As Health Care Regulation: What The Obama Administration Should Have Said In Nfib V. Sebelius, Abigail R. Moncrieff

Law Faculty Articles and Essays

There was an argument that the Obama Administration's lawyers could have made—but didn't—in defending Obamacare 's individual mandate against constitutional attack. That argument would have highlighted the role of comprehensive health insurance in steering individuals' healthcare savings and consumption decisions. Because consumer-directed healthcare, which reaches its apex when individuals self-insure, suffers from several known market failures and because comprehensive health insurance policies play an unusually aggressive regulatory role in attempting to correct those failures, the individual mandate could be seen as an attempt to eliminate inefficiencies in the healthcare market that arise from individual decisions to self-insure. This argument would …

Whose Pregnancy Is It Anyway? The Intrusion Of Abortion-Related Informed Consent Laws And Compelled Medical Treatment On The Doctor-Pregnant Patient Relationship, Jennifer Jascoll

Student Works

No abstract provided.

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. …

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.

Updated Who Guidance On Safe Abortion: Health And Human Rights, Joanna Erdman, Teresa Depiñeres, Eszter Kismodi

Articles, Book Chapters, & Popular Press

Since its first publication in 2003, the World Health Organization's “Safe abortion: technical and policy guidance for health systems” has had an influence on abortion policy, law, and practice worldwide. To reflect significant developments in the clinical, service delivery, and human rights aspects of abortion care, the Guidance was updated in 2012. This article reviews select recommendations of the updated Guidance, highlighting 3 key themes that run throughout its chapters: evidence-based practice and assessment, human rights standards, and a pragmatic orientation to safe and accessible abortion care. These themes not only connect the chapters into a coherent whole. They reflect …

Protecting Rights And Building Capacities: Challenges To Global Mental Health Policy In Light Of The Convention On The Rights Of Persons With Disabilities, Sheila Wildeman

Articles, Book Chapters, & Popular Press

The World Health Organization (WHO) has in the last decade identified mental health as a priority for global health promotion and international development, to be targeted through promulgation of evidence-based medical practices, health systems reform, and respect for human rights. Yet these overlapping strategies are marked by tensions as the historical primacy of expert-led initiatives is increasingly subject to challenge by new social movements — in particular, disabled persons’ organizations (DPOs). These tensions come into focus upon situating the WHO’s contributions to the analysis of global mental health in light of the negotiation and early stages of implementation of the …

Protecting Rights And Building Capacities: Challenges To Global Mental Health Policy In Light Of The Convention On The Rights Of Persons With Disabilities, Sheila Wildeman

Articles, Book Chapters, & Popular Press

The World Health Organization (WHO) has in the last decade identified mental health as a priority for global health promotion and international development, to be targeted through promulgation of evidence-based medical practices, health systems reform, and respect for human rights. Yet these overlapping strategies are marked by tensions as the historical primacy of expert-led initiatives is increasingly subject to challenge by new social movements – in particular, disabled persons’ organizations (DPOs). These tensions come into focus upon situating the WHO’s contributions to the analysis of global mental health in light of the negotiation and early stages of implementation of the …

Legislating Interprofessional Regulatory Collaboration In Nova Scotia, William Lahey Prof.

Articles, Book Chapters, & Popular Press

To shift health professions regulation from traditional to ‘collaborative’ self-regulation, Nova Scotia has adopted legislation which will: make all self-regulating health professions members of the Regulated Health Professions Network; mandate the Network to facilitate voluntary collaboration among its members; and enable regulators to work together on investigations of patient complaints, to adjust scopes of practice on an ongoing basis and to adjudicate appeals of unsuccessful applicants for registration. The goals are to give health professions regulation the capacity to enable and support the functioning of interprofessional teams. The legislation was adopted primarily for two reasons: collaborative development and unanimous support …

The Speakers’ Bureau System: A Form Of Peer Selling, Lynette Reid, Matthew Herder

Articles, Book Chapters, & Popular Press

Physicians need to stay abreast of information about emerging drugs and devices, but the time pressures of clinical practice may limit their ability to do so independently. The companies that manufacture and sell these products have the resources and the motivation to “educate” physicians but cannot be expected to distinguish their marketing goals from physicians’ educational needs. Physicians’ professional associations and regulatory bodies, as well as medical journal publishers and editors, drug and device regulatory agencies, and academic medical institutions, have long debated their respective roles and responsibilities in ensuring the safety, efficacy, and probity of prescribing in light of …

Regulating Prescription Drugs For Patient Safety: Does Bill C-17 Go Far Enough?, Matthew Herder, Elaine Gibson, Janice Graham, Joel Lexchin, Barbara Mintzes

Articles, Book Chapters, & Popular Press

Canada was the last developed country in the world to remove thalidomide from the market, and doing so required an Act of Parliament. At the request of Health Canada’s then Food and Drug Directorate, thalidomide’s two manufacturers voluntarily withdrew the drug from the market on Mar. 2, 1962. However, most of the drug’s distribution was in the form of free samples to medical professionals, which the directorate had no legal authority to control. Therefore, to avoid similar situations in the future and to stop sales of thalidomide, on Dec. 4, 1962, the Parliament of Canada amended the Food and Drugs …

Moving Forward With A Clear Conscience: A Model Conscientious Objection Policy For Canadian Colleges Of Physicians And Surgeons, Jocelyn Downie, Jacquelyn Shaw, Carolyn Mcleod

Articles, Book Chapters, & Popular Press

In 2008, one of us (JD) together with the former Dean of Law at the University of Ottawa (Sanda Rodgers), wrote a guest editorial for the Canadian Medical Association Journal on the topic of access to abortion in Canada. In the editorial, we argued, among other things, that "health care professionals who withhold a diagnosis, fail to provide appropriate referrals, delay access, misdirect women or provide punitive treatment are committing malpractice and risk lawsuits and disciplinary proceedings." In response to a series of letters to the editor written about our editorial, we wrote that, under the CMA Code of Ethics …

When Everyone Is An Orphan: Against Adopting A Us-Styled Orphan Drug Policy In Canada, Matthew Herder

Articles, Book Chapters, & Popular Press

Putting aside whether diseases that affect only small numbers of people ("rare diseases") should be prioritized over diseases that are otherwise orphaned, in this paper I argue that a new approach to rare, orphan diseases is needed. The current model, first signaled by the United States’ Orphan Drug Act and subsequently emulated by several other jurisdictions, relies on a set of open-ended criteria and market-based incentives in order to define and encourage drug therapies for rare, orphan diseases. Given a) the biopharmaceutical industries’ growing interest in orphan diseases, b) progress in the sphere of personalized medicines enabling more and more …

Filial Support Laws In The Modern Era: Domestic And International Comparison Of Enforcement Practices For Laws Requiring Adult Children To Support Indigent Parents, Katherine C. Pearson

Faculty Scholarship

Family responsibility and support laws have a long but mixed history. When first enacted, policy makers used such laws to declare an official policy that family members should support each other, rather than draw upon public resources. This article tracks modern developments with filial support laws that purport to obligate adult children to financially assist their parents, if indigent or needy. The author diagrams filial support laws that have survived in the 21st Century and compares core components in the United States (including Puerto Rico) and post-Soviet Union Ukraine. While the laws are often similar in wording and declared intent, …

Health Care Law, Mary Jean Geroulo

SMU Law Review

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 …

More Law Than Politics: The Chief, The “Mandate,” Legality, And Statesmanship, Neil S. Siegel

Faculty Scholarship

This chapter in a forthcoming book on NFIB v. Sebelius asks whether the various parts of Chief Justice Roberts’s opinion on the minimum coverage provision are legally justifiable. I focus on what Roberts decided, not why he decided it that way.

Law is fully adequate to explain the Chief Justice’s vote to uphold the minimum coverage provision as within the scope of Congress’s tax power. Roberts embraced the soundest constitutional understanding of the Taxing Clause. He also showed fidelity to the law by applying—and not just giving lip service to—the deeply entrenched presumption of constitutionality that judges are supposed to …

The Benefit Corporation: A Questionable Solution To A Non-Existent Problem., Justin Blount, Kwabena Offei-Danso

St. Mary's Law Journal

Throughout American history a continuous call for businesses to wield their power and influence in such a way as to not only create economic value for shareholders, but also to create value in an ethical manner that benefits society as a whole has existed. Currently, many businesses respond to this call by integrating social responsibility into their operations. A recent innovation on this front is the development of the “benefit corporation” by the non-profit organization “B Lab.” The benefit corporation is essentially a hybrid entity. It is designed to have characteristics of both non-profit and for-profit entities. The entity also …

To A Friend: The Honorable Will Garwood., Emilio M. Garza

St. Mary's Law Journal

William Lockhart Garwood died on July 14, 2011. In his thirty years on the court, Will would author numerous notable decisions, but his reputation would be solidified by two extraordinary cases: United States v. Lopez, in which, for the first time in recent judicial history, a court of appeals held that a congressional act was invalid as beyond the power of Congress under the Commerce Clause; and United States v. Emerson, in which, a court of appeals first articulated the Second Amendment protects individual Americans’ right to keep and bear arms. Neither case was without controversy. Not surprisingly, the Supreme …

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.