Health Law and Policy Commons^™

Stereotyping Women In The Health Sector: Lessons From Cedaw, Simone Cusack, Rebecca J. Cook

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Insurance Discrimination On The Basis Of Health Status: An Overview Of Discrimination Practices, Federal Law And Federal Reform Options, Sara Rosenbaum

O'Neill Institute Papers

Actuarial underwriting, or discrimination based on an individual’s health status, is a business feature of the voluntary private insurance market. The term “discrimination” in this paper is not intended to convey the concept of unfair treatment, but rather how the insurance industry differentiates among individuals in designing and administering health insurance and employee health benefit products.

Discrimination can occur at the point of enrollment, coverage design, or decisions regarding scope of coverage. Several major federal laws aimed at regulating insurance discrimination based on health status focus at the point of enrollment. However, because of multiple exceptions and loopholes, these laws …

One Step Closer To Mental Health Parity, Lorraine Schmall

Nevada Law Journal

No abstract provided.

Genetic Discrimination In The Workplace: Lessons From The Past And Concerns For The Future, Laurie A. Vasichek

Saint Louis University Journal of Health Law & Policy

No abstract provided.

Striving For Equality, But Settling For The Status Quo: Is Title Vi More Illusory Than Real?, Ruqaiijah Yearby

All Faculty Scholarship

A plethora of empirical studies, such as the Institute of Medicine’s Unequal Treatment report, have shown that racial inequities in health care continue at the same level as in the Jim Crow Era. Innumerable reasons have been offered to explain the continuation of these health inequities, including racial discrimination. Congress enacted Title VI of the Civil Rights Act of 1964 to put an end to racial discrimination in health care, but it still persists. Given the regulation and enforcement mechanisms established under Title VI explicitly aimed at remedying racial discrimination such as that directed at elderly African-Americans it is unbelievable …

Racially-Tailored’ Medicine Unraveled, Sharona Hoffman

Faculty Publications

In June 2005, the FDA approved BiDil, a heart failure medication that is labeled for use only by African-Americans and thus is the first treatment of its kind. The drug likely portends a future of growing interest in "race-based" medicine. This phenomenon is emerging at the same time that scientists, in light of the Human Genome Project, are reaching an understanding that "race" has no biological meaning, and consequently, "racially-tailored" medicine is both puzzling and troubling.

This Article explores the reasons for the new focus on "racial-profiling" in medicine. It analyzes the risks and dangers of this approach, including medical …

Book Review: Michele Goodwin's Black Markets: The Supply And Demand Of Body Parts, Barbara A. Noah

Faculty Scholarship

The Author reviews Michele Goodwin’s book BLACK MARKETS: THE SUPPLY AND DEMAND OF BODY PARTS, published by Cambridge University Press, 2006. The book discusses the shortage of cadaveric organs available for transplantation. It argues that the shortage disproportionately impacts racial minorities. It then analyzes existing organ procurement laws and proposed alternatives, with a focus on market solutions.

BLACK MARKETS is impeccably researched and persuasively argued, though some of its points are certainly controversial. The book is aimed at and very accessible to a general audience, but it will also prove interesting and informative to legal, medical and public health academic …

"Racially-Tailored" Medicine Unraveled, Sharona Hoffman

American University Law Review

In June 2005, the FDA approved BiDil, a heart failure medication that is labeled for use only by African-Americans and thus is the first treatment of its kind. The drug likely portends a future of growing interest in "race-based" medicine. This phenomenon is emerging at the same time that scientists, in light of the Human Genome Project, are reaching an understanding that "race" has no biological meaning, and consequently, "racially-tailored" medicine is both puzzling and troubling. This Article explores the reasons for the new focus on "racial-profiling" in medicine. It analyzes the risks and dangers of this approach, including medical …

Constitutional Law—State Employees Have Private Cause Of Action Against Employers Under Family And Medical Leave Act—Nevada Department Of Human Resources V. Hibbs, 538 U.S. 721 (2003)., Gabriel H. Teninbaum

ExpressO

The Eleventh Amendment of the United States Constitution provides that non-consenting states are not subject to suit in federal court. Congress may, however, abrogate the states’ sovereign immunity by enacting legislation to enforce the provisions of the Fourteenth Amendment. In Nevada Department of Human Resources v. Hibbs, the Supreme Court of the United States considered whether Congress acted within its constitutional authority by abrogating sovereign immunity under the Family and Medical Leave Act (FMLA), which allows private causes of action against state employers to enforce the FMLA’s family-leave provision. The Court held abrogation was proper under the FMLA and state …

Is Atkins The Antithesis Or Apotheosis Of Anti-Discrimination Principles? Sorting Out The Groupwide Effects Of Exempting People With Mental Retardation From The Death Penalty, Christopher Slobogin

Vanderbilt Law School Faculty Publications

In "Atkins v. Virginia", the U.S. Supreme Court held that people with mental retardation may not be executed. z Many advocates for people with disability cheered the decision, because it provides a group of disabled people with protection from the harshest punishment imposed by our society. But other disability advocates were dismayed by "Atkins", not because they are fans of the death penalty, but because they believe that declaring disabled people ineligible for a punishment that is accorded all others denigrates disabled people as something less than human. If people with disability are to be treated equally, these dissenters suggest, …

Aboilishing The Texas Jury Shuffle., Michael M. Gallgher

St. Mary's Law Journal

This Article argues that the Texas Legislature should abolish the jury shuffle and join the other forty-nine states who have already done so. The jury shuffle, when requested, is a procedure which results in a random shuffling of the names of the jury pool members. Texas attorneys currently possess an entirely cost and risk free procedure through which they can discriminate against potential jurors on the basis of race, gender, ethnicity, or anything else that suits their fancy. An attorney can request a jury shuffle without stating a reason and a judge cannot ask why a shuffle was requested or …

Infected Judgment: Legal Responses To Physician Bias, Mary Crossley

Villanova Law Review (1956 - )

No abstract provided.

Disability, Doctors And Dollars: Distinguishing The Three Faces Of Reasonable Accommodation, Elizabeth Pendo

All Faculty Scholarship

Despite a decade of litigation, there is no consistent understanding of the reasonable accommodation requirement of Title I of the Americans with Disabilities Act of 1990 (the 'ADA'). Indeed, there are three inconsistent distributive outcomes that appear to comport with the reasonable accommodation requirement: cost-shifting, cost-sharing, and cost-avoidance.

One reason for such inconsistent outcomes is a failure to develop a coherent and consistent theory of disability. Because disability has been and continues to be medicalized, this Article takes a fresh look at the medical literature on health, illness, and disability. It recommends the use of the experiential health model over …

The Potential For Discrimination In Health Insurance Based On Predictive Genetic Tests, Karen H. Rothenberg

Congressional Testimony

No abstract provided.

Genomic Medicine: The Human Genome Project From A Healthcare Provider's Perspective, Georgia Wiesner

Journal of Law and Health

But the Human Genome Project from my point of view as a healthcare provider has really been on what advantages and what advances can we be able to provide from that. So we really learned a lot about how genes work, how they talk together and how we actually have both health and disease as a consequence of the Human Genome Project. So really understanding this complex interaction is one of the most exciting things as well. What this really has done for healthcare is allowed us to individualize our healthcare. To be able to say for one person against …

Legislation And Genetic Discrimination, Sharona Hoffman

Journal of Law and Health

State legislation addresses genetic discrimination in both employment and health insurance. Thirty-one states have passed laws that address genetic discrimination in employment. Approximately thirteen states prohibit employers from requiring applicants to undergo genetic testing as a condition of employment. Some states have more limited restrictions. Florida prohibits only the screening of applicants for the sickle-cell trait. Wisconsin requires employers to obtain written and informed consent from applicants prior to administering genetic tests, but does not preclude their utilization altogether. Some states establish exceptions that permit genetic testing that is job-related or that is conducted, with the employee's written and informed …

Racial Profiling In Health Care: An Institutional Analysis Of Medical Treatment Disparities, René Bowser

Michigan Journal of Race and Law

This Article links unscientific, race-based medical research to a broader, institutionalized pattern of racial profiling of Blacks in clinical decision-making. Far from providing a solution to the problem of racial health disparities, this Article shows that race-based health research fuels a collection of dubious background assumptions, creates a negative profile of Black patients, and reinforces taken-for-granted knowledge that leads to inferior medical treatment. This form of racial profiling is unjust, and also causes countless unnecessary deaths in the Black population.

The Girl Who Cried Pain: A Bias Against Women In The Treatment Of Pain, Diane E. Hoffmann, Anita J. Tarzian

Faculty Scholarship

In general, women report more severe levels of pain, more frequent incidences of pain, and pain of longer duration than men, but are nonetheless treated for pain less aggressively. The authors investigate this paradox from two perspectives: Do men and women in fact experience pain differently - whether biologically, cognitively, and/or emotionally? And regardless of the answer, what accounts for the differences in the pain treatment they receive, and what can we do to correct this situation?

Genetic Testing And Employment Litigation, Harry Zanville

Journal of Law and Health

I have only a couple of comments to make that relate to litigation hurdles and how to achieve this balance, and the first thing I want to talk about, following the wonderful presentation is, in fact, we probably don't in some ways even need a new cause of action.

Taas And Gi Forum V. Texas Education Agency: A Critical Analysis And Proposal For Redressing Problems With The Standardized Testing In Texas., Blakely Latham Fernandez

St. Mary's Law Journal

Texas’s use of the Texas Assessment of Academic Skills (TAAS) test as an accountability program has had numerous negative and far-reaching effects on minorities. Today, students in Texas public schools first take the TAAS test in the third grade. Students continue to take a form of the TAAS test each year, with the exit-level assessment initially given in the eleventh grade. Students must pass all four sections–Mathematics, English, Science, and Social Studies–in order to graduate and receive their high school diploma. Although devised to effectively motivate students, schools, and teachers with the goal of enhancing educational standards, the TAAS test …

Bragdon V. Abbott, Asymptomatic Genetic Conditions, And Antidiscrimination Law: A Conservative Perspective , Roger Clegg

Journal of Health Care Law and Policy

No abstract provided.

Olmstead V. Zimring, Unnecessary Institutionalization Constitutes Discrimination Under The Americans With Disabilities Act, Shoshana Fishman

Journal of Health Care Law and Policy

No abstract provided.

Cleveland V. Policy Management Systems Corporation: Triumph For The Working Disabled Or Hollow Procedural Device?, Sarah N. Otwell

Journal of Health Care Law and Policy

No abstract provided.

Advances In Genetic Research And Technologies: Challenges For Public Policy, Karen H. Rothenberg

Congressional Testimony

No abstract provided.

Same-Sex Harassment - The Next Step Up In The Evolution Of Sexual Harassment Law Under Title Vii Comment., Regina L. Stone-Harris

St. Mary's Law Journal

Women sexually harassed by male co-workers are protected by Title VII of the Civil Rights Act. Yet, men are not protected because the federal courts in the Fifth Circuit do not protect men who are sexually harassed by other men. Male victims of sexual harassment are protected if they live in another district which does offer Title VII protection to same-sex victims. But should geography dictate protection? The federal courts are currently split as to whether a claim of sexual harassment between members of the same gender is actionable under Title VII of the Civil Rights Act. In the absence …

Calming Aids Phobia: Legal Implications Of The Low Risk Of Transmitting Hiv In The Health Care Setting, American Bar Association Aids Coordinating Committee

University of Michigan Journal of Law Reform

Scientists are concluding that the risk of becoming infected with the virus that causes AIDS based on transmission from an infected health care worker is infinitesimal: in fact, only one health care worker has ever been documented as the source of HN transmission to a patient. This Article sets forth the medical evidence concerning this low risk and argues that legal decision making should incorporate these facts into its analysis of legal problems involving HN-infected health care workers. The Article analyzes three areas of such legal decision making: (1) employment and related credentialing of HN-infected health care workers; (2) liability …

The Women's Convention And The Equal Protection Clause Symposium - Human Rights In The Americas., Michael J. Corbera

St. Mary's Law Journal

This Article addresses whether the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (Women’s Convention) violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Because international treaties such as the Women’s Convention carry the same weight and are subject to the same treatment as U.S. federal law, the constitutionality of the Convention is dictated by U.S. jurisprudence. Part II of this Article outlines and discusses the origin and content of the Women’s Convention. Part III contains a historical review of gender jurisprudence in the United States, with particular emphasis on …

Forshadowing Future Changes: Implications Of The Aids Pandemic For International Law And Policy Of Public Health, Ilise Levy Feitshans

Michigan Journal of International Law

Review of AIDS in the Industrialized Democracies: Passions, Politics and Policies (Ronald Bayer & David L. Kirp eds.) and The Social Impact of AIDS in the United States (Albert R. Jonsen & Jeff Stryker eds.)

Benign Classification Based On Race Must Be Narrowly Tailored To Achieve A Compelling Governmental Interest., Martha J. Hess

St. Mary's Law Journal

In City of Richmond v. J.A. Croson Co., the Supreme Court held a minority business utilization plan (Richmond Plan) was violative of the Fourteenth Amendment’s Equal Protection Clause. The Richmond Plan required all builders awarded city construction contracts to subcontract, at minimum, 30% of the contract value to Minority Business Enterprises. A state government enacting legislation that burdens one class of persons and benefits a similarly-situated class must provide sufficient justification for its action to survive equal protection analysis. When distinction is based on race or national origin—classes considered inherently suspect—a reviewing court subjects the governmental legislation to strict scrutiny, …

Aids And Discrimination In The United States: Reflections On The Nature Of Prejudice In A Virus, Mary C. Dunlap

Villanova Law Review (1956 - )

No abstract provided.