Medical Jurisprudence Commons^™

(Re)Criminalizing Abortion: Returning To The Political With Stories, George J. Annas

Faculty Scholarship

Abortion stories have always played a powerful role in advancing women’s rights. In the abortion sphere particularly, the personal is political. Following the Court’s reversal of Roe v. Wade, abortion politics, and abortion storytelling, take on an even deeper political role in challenging the bloodless judicial language of Dobbs with the lived experience of women.

Dobbs V. Jackson Women’S Health: Undermining Public Health, Facilitating Reproductive Coercion, Aziza Ahmed, Dabney P. Evans, Jason Jackson, Benjamin Mason Meier, Cecília Tomori

Faculty Scholarship

Dobbs v. Jackson Women’s Health continues a trajectory of U.S. Supreme Court jurisprudence that undermines the normative foundation of public health — the idea that the state is obligated to provide a robust set of supports for healthcare services and the underlying social determinants of health. Dobbs furthers a longstanding ideology of individual responsibility in public health, neglecting collective responsibility for better health outcomes. Such an ideology on individual responsibility not only enables a shrinking of public health infrastructure for reproductive health, it facilitates the rise of reproductive coercion and a criminal legal response to pregnancy and abortion. This commentary …

Continuous Reproductive Surveillance, Michael Ulrich, Leah R. Fowler

Faculty Scholarship

The Dobbs opinion emphasizes that the state’s interest in the fetus extends to “all stages of development.” This essay briefly explores whether state legislators, agencies, and courts could use the “all stages of development” language to expand reproductive surveillance by using novel developments in consumer health technologies to augment those efforts.

Pov: What Rights Could Unravel Next, In Light Of Draft Opinion By Scotus Overturning Roe V. Wade, Robert L. Tsai

Shorter Faculty Works

Beyond what Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization portends for the future of abortion rights is the striking method of analysis he employs in the reported draft. Despite his many efforts to reassure that the opinion “does not undermine” other constitutional rights “in any way,” it actually outlines a roadmap for the withdrawal of other cherished constitutional rights.

Evidence Supporting The Value Of Surgical Procedures: Can We Do Better?, Jonathan J. Darrow, Christopher Robertson, Willard S. Kasoff

Faculty Scholarship

There is an acknowledged need for higher-quality evidence to quantify the benefit of surgical procedures, yet not enough has been done to improve the evidence base. This lack of evidence can prevent fully informed decision-making, lead to unnecessary or even harmful treatment, and contribute to wasteful expenditures of scare health care resources. Barriers to evidence generation include not only the long-recognized technical difficulties and ethical challenges of conducting randomized surgical trials, but also legal challenges that limit incentives to conduct surgical research as well as market-based challenges that make it difficult for those funding surgical research to recoup investment costs. …

The Affordable Care Act: Up For A Final Vote?, Wendy K. Mariner

Faculty Scholarship

For more than a decade, the minimum essential coverage requirement, commonly known as the individual mandate, has been a key point of controversy over the ACA, symbolizing ideological and political disagreements over government assistance to low-income populations, federal regulation of private industry, and the legacy of President Obama. 26 U.S.C. §5000A(a) requires everyone (with exceptions) to be covered by a private or public health benefit program meeting ACA standards. 26 U.S.C. §5000A(b) requires those who are not so covered to pay a fee (“shared responsibility payment”) to the Treasury. 26 U.S.C. §5000A(c) sets forth the amount of that fee.

Stewart V Azar And The Purpose Of Medicaid: Work As A Condition Of Enrollment, Nicole Huberfeld

Faculty Scholarship

On June 29, 2018, a federal district court found that the US Department of Health and Human Services (HHS) did not properly approve Kentucky’s application for a controversial Medicaid waiver, the first to require work as a condition of eligibility.¹ Because HHS’s approval was vacated, Kentucky’s Medicaid program was required to continue as if no waiver existed, but 3 other states had already received HHS approval to proceed with work requirements. This article provides context for understanding the relevance of work requirements to implementation of Medicaid expansion under the Patient Protection and Affordable Care Act (hereinafter, Affordable Care Act), …

Pregnant Women And Equitable Access To Emergency Medical Care, Michael Ulrich

Faculty Scholarship

A diabetic patient suffering from ketoacidosis was taken from his hospital bed, removed from the hospital, and left in the parking lot without shoes or a shirt because the patient did not have health insurance and had not paid for prior services (Fedas, Alexander, and Chase-Lubitz 1991). The patient died at home the following day. A man with a steak knife in his back, wedged against his spine, was transferred from an emergency room because he was uninsured and could not pay $1,000 cash in advance to remove the knife (Annas 1986). A woman who was mistakenly identified …

The Tip Of The Iceberg: A First Amendment Right To Promote Drugs Off-Label, Christopher Robertson

Faculty Scholarship

Scholars, advocates, and courts have begun to recognize a First Amendment right for the makers of drugs and medical devices to promote their products “off-label,” without proving safety and efficacy of new intended uses. Yet, so far, this debate has occurred in a vacuum of peculiar cases, where convoluted commercial speech doctrine underdetermines the outcome. Juxtaposing these cases against other routine prosecutions of those who peddle unapproved drugs reveals the common legal regime at issue. Review of the seven arguments deployed in the off-label domain finds that, if they were valid, they would undermine the FDA’s entire premarket approval regime. …

Picturing Moral Arguments In A Fraught Legal Arena: Fetuses, Photographic Phantoms And Ultrasounds, Jessica Silbey

Faculty Scholarship

This article investigates the movement in the U.S. that seeks to regulate the abortion decision by mandating ultrasounds prior to the procedure. The article argues that this reform effort is misguided not only because it is ineffective, but also because ultrasounds provide misleading information and are part of shaming practices that degrade the dignity of women. Both of these problems violate the main tenets of Planned Parenthood of Southern Pennsylvania v. Casey (1992). Central to the article’s argument and novelty is that the pro-ultrasound movement’s mistake is both legal and cultural. It misunderstands the nature of visual technology by failing …

Perceptions Of Efficacy, Morality, And Politics Of Potential Cadaveric Organ-Transplantation Reforms, Christopher Robertson, David V. Yokum, Megan S. Wright

Faculty Scholarship

We sought to explore the political feasibility of potential policy reforms to address the shortage of cadaveric organs for transplantation in America. We recruited 730 human subjects from an online population and assigned them to writing tasks that experimentally manipulated the salience of moral and posthumous risks. Subjects read 95-word descriptions of six proposed policy reforms, rating efficacy, morality, and overall support for each. We created weighted estimates of the overall potential support for each reform (WEOS), correcting for the skew in our study population to very roughly approximate the political affiliations of the American public.

The data suggest that …

Medicaid Expansion As Completion Of The Great Society, Nicole Huberfeld, Jessica L. Roberts

Faculty Scholarship

A state’s decision whether to expand Medicaid has become a highly politicized issue, spawning countless news stories and on-going debate. However, this Essay takes a step back from that highly charged discourse and situates Medicaid expansion in its historical context. We reveal that this latest change universalizes the program, holding the power to finally realize President Johnson’s vision for the Great Society, almost fifty years later. Medicaid can be understood as a universal program for three reasons: (1) the percentage of thepopulation of children, pregnant women, and non-elderly adults it covers; (2) the degree to which Medicaid funds long-term care …

The Split Benefit: The Painless Way To Put Skin Back In The Health Care Game, Christopher Robertson

Faculty Scholarship

This Article proposes a solution to the growth of health care costs, focusing on the sector of expensive, and often unproven, treatments. Political, legal, and market limits prevent insurers or physicians from rationing care or putting downward pressure on prices. Since the insurer bears the cost, the patient is also not sensitive to price, and thus consumes even low-value treatments.

The traditional cost-sharing solution is stymied by the patients’ limited wealth. When treatments can cost $25,000 or more, the median patient cannot be expected to pay a significant portion thereof. Instead, patients often enjoy supplemental insurance or exhaust their cost-sharing …

Guidance From Vaccination Jurisprudence, Michael Ulrich

Faculty Scholarship

The lengthy history of case law covering compulsory vaccination policies state consistently that conscientious exemptions and evaluating their validity can be difficult, administratively cumbersome, and potentially unconstitutional.

The Duty To Rescue In Genomic Research, Michael Ulrich

Faculty Scholarship

Applying the duty to rescue to incidental findings in genomic research provides benefits over the ancillary care framework. A rescue model avoids conflating the return of genetic information with providing needed clinical care, it recognizes the ethical duties researchers have toward the research study and offers a mechanism for appropriately balancing these with obligations to individual subjects, and answers definitively that there is no duty to search for incidental findings.

Resource Restraints: Rethinking Disclosure Of Individual Genomic Findings, Michael Ulrich

Faculty Scholarship

While there has been a seemingly endless debate over whether individual results should be disclosed in genomic research, the role that resources should play in determining a researcher's duty has been left unanswered. This commentary fills this void by fully examining how resource limitations constrain a researcher's duty to disclose. This paper is the first to anchor an obligation in the duty to rescue alone, and as a result, the first to find not only an ethical floor of what must be returned, but also a ceiling of the amount of resources that may be utilized to fulfill this duty. …

The Money Blind: How To Stop Industry Bias In Biomedical Science, Without Violating The First Amendment, Christopher Robertson

Faculty Scholarship

The pharmaceutical and medical device industries use billions of dollars to support the biomedical science that physicians, regulators, and patients use to make healthcare decisions—the decisions that drive an increasingly large portion of the American economy. Compelling evidence suggests that this industry money buys favorable results, biasing the outcomes of scientific research. Current efforts to manage the problem, including disclosure mandates and peer reviews, are ineffective. A blinding mechanism, operating through an intermediary such as the National Institutes of Health, could instead be developed to allow industry support of science without allowing undue influence. If the editors of biomedical journals …

Conditional Spending And Compulsory Maternity, Nicole Huberfeld

Faculty Scholarship

More than 45 million Americans are uninsured, and even more are seeking government assistance accessing healthcare, rendering the conditions placed on government spending a timely and significant issue. Federal funding often demands a sacrifice of the recipient, meaning that Congress can condition the receipt of federal funds on certain statutory prerequisites. Given the demand to expand the nation's major public healthcare programs, it is important to reconsider the Supreme Court's Spending Clause jurisprudence. The Court's major decisions regarding conditional spending have facilitated a disconnect that analytically separates the individual from the conditional spending program, a divide that has allowed Congress …

Federalization Snowballs: The Need For National Action In Medical Malpractice Reform, Abigail Moncrieff

Faculty Scholarship

Because tort law generally and healthcare regulation specifically are traditional state functions and because medical, legal, and insurance practices are highly localized, legal scholars have long believed that medical malpractice falls within the states' exclusive jurisdiction and sovereignty. Indeed, this view is so widely held that modern legal scholarship takes it for granted. Articles on general federalism issues use medical malpractice as an easy example of a policy in which federal intervention lacks functional justification, and articles that focus on federalization of other tort reforms use medical malpractice as an easy foil, pointing out that the uniformity interest that justifies …

Do Defendants Pay What Juries Award - Post-Verdict Haircuts In Texas Medical Malpractice Cases, 1988-2003, David A. Hyman, Bernard S. Black, Kathryn Zeiler, Charles Silver, William M. Sage

Faculty Scholarship

Legal scholars, legislators, policy advocates, and the news media frequently use jury verdicts to draw conclusions about the performance of the tort system. However actual payouts can differ greatly from verdicts. We report evidence on post-verdict payouts from the most comprehensive longitudinal study of matched jury verdicts and payouts. Using data on all insured medical malpractice claims in Texas from 1988-2003 in which the plaintiff received at least $25,000 (in 1988 dollars) following a jury trial, we find that most jury awards received "haircuts." Seventy-five percent of plaintiffs received a payout less than the adjusted verdict (jury verdict plus pre-judgment …

Criminal Performances: Film, Autobiography, And Confession, Jessica Silbey

Faculty Scholarship

This article questions the criminal justice emphasis on filmed confession as the superlative evidentiary proffer that promotes accuracy and minimizes unconstitutional coercion by comparing filmed confessions to autobiographical film. It suggests that analyzing filmed confessions as a kind of autobiographical film exposes helpful tensions between the law's reliance on confession as revealing the inner self and the literary and filmic conception of confession as constituting one self among many. Through a close examination of several filmed confessions along side an examination of the history of autobiographical writing and film, this article shows how filmed confessions do not reveal the truthfulness …

Jacobson V Massachusetts: It's Not Your Great-Great-Grandfather's Public Health Law, Wendy K. Mariner, George J. Annas, Leonard H. Glantz

Faculty Scholarship

Jacobson v Massachusetts, a 1905 US Supreme Court decision, raised questions about the power of state government to protect the public’s health and the Constitution’s protection of personal liberty. We examined conceptions about state power and personal liberty in Jacobson and later cases that expanded, superseded, or even ignored those ideas.

Public health and constitutional law have evolved to better protect both health and human rights. States’ sovereign power to make laws of all kinds has not changed in the past century. What has changed is the Court’s recognition of the importance of individual liberty and how it limits …

Turning From Damage Caps To Information Disclosure: An Alternative To Tort Reform, Kathryn Zeiler

Faculty Scholarship

Medical malpractice damage caps are among the most popular instruments of tort reform at the state level. Recently the Bush administration proposed a federal damage cap on non-economic damages to quell the rise of medical malpractice insurance premiums despite the paucity of empirical evidence demonstrating that damage caps actually decrease premiums. This Case Study argues that imposing statutory caps on medical malpractice damages is not an effective method of remedying the medical malpractice insurance crisis: therefore, policymakers should consider alternatives to damage caps. In particular, evidence suggests that implementing mandatory disclosure of the contract terms between managed care organizations and …

Blinded By Bioterrorism: Public Health And Liberty In The 21st Century, George J. Annas

Faculty Scholarship

In Blindness, Nobel Prize laureate Jos6 Saramago chronicles the quarantining of the first victims of a plague of blindness.1 We meet many people who become blind in Saramago's novel, including an opthamologist, a one-eyed man with an eye patch, and a man born blind. Saramago reminds us that we are all blind in one way or another, and that there are many things about ourselves and our society that we can't or won't see. The quarantine itself turns out to be isolating, inhumane, and degrading; the interred blind being portrayed by themselves and others as pigs, dogs, and "lame crabs." …

Slouching Toward Managed Care Liability: Reflections On Doctrinal Boundaries, Paradigm Shifts, And Incremental Reform, Wendy K. Mariner

Faculty Scholarship

Following the seemingly endless debate over managed care liability, I cannot suppress thoughts of Yeats’s poem, “The Second Coming.” It is not the wellknown phrase, “Things fall apart; the centre cannot hold,” that comes to mind; although that could describe the feeling of a health-care system unraveling. The poem’s depiction of lost innocence — “The best lack all conviction, while the worst/Are full of passionate intensity” — does not allude to the legislature, the industry, the public, or the medical or legal profession. What resonates is the poem’s evocation of humanity’s cyclical history of expectation and disappointment, with ideas as …

The Limits Of Law At The Limits Of Life: Lessons From Cannibalism, Euthanasia, Abortion, And The Court-Ordered Killing Of One Conjoined Twin To Save The Other, George J. Annas

Faculty Scholarship

The subject is law at the beginning and end of life. Most of my work is in the area of general health law: law and medicine, public health law, and health and human rights. But this is my favorite subject area, and I expect you to ask me the hardest questions you can. I am not saying I can answer them, but if I cannot that is my fault, not yours. I am going to make a pretty broad argument today about law and medicine; specifically about how new medical technology and medical practice standards have eclipsed religion (and sometimes …

What Recourse?—Liability For Managed Care Decisions And The Employee Retirement Income Security Act, Wendy K. Mariner

Faculty Scholarship

Should managed-care organizations be accountable to patients injured by the company's negligence or wrongdoing? The general rule is that all organizations, including managed-care organizations, are legally liable for causing personal injury as a result of their own negligence or the negligence of their employees or agents.1-4 However, as most observers of the U.S. health care system know by now, there is an exception to this basic legal rule of accountability. The Employee Retirement Income Security Act of 1974 (ERISA) has been interpreted to grant health benefit plans provided by employers or unions (and the managed-care organizations that sell or …

Symposium: Regulatory And Liability Considerations, Michael S. Baram, Ellen Flannery, Patricia Davis, Gary Marchant

Faculty Scholarship

You can tell from remarks by prior speakers that regulatory approvals and liability prevention are of critical importance to progress in biomaterials. Gene therapy trials and the tragic outcomes of some of those trials have raised the specter of government suspension of clinical studies, termination of funding, and potential liability for personal injury under malpractice or products liability doctrines. Regulatory requirements and the terms of research grants and contracts have to be very carefully addressed by organizations testing, developing, making, selling and using biomaterials, biotechnology, and medical devices. However, many regulatory requirements are incomplete, ambiguous and confusing because the agencies …

Human Cloning: A Choice Or An Echo, George J. Annas

Faculty Scholarship

The chant is "cloning, cloning, cloning"; but the echo is "choice, choice, choice." From all the hoopla about human cloning as a human choice it would seem that cloning must be the most important scientific issue of our age. My intent in this Commentary is not to join this chorus, but to take advantage of cloning's high visibility to explore the nature of the choice it offers. What is it that makes human cloning at once so appealing to a few and so repulsive to most? The answer, I think, can be found in Roman mythology: Cloning recalls Ovid's myth …

Physician Assisted Suicide And The Supreme Court: Putting The Constitutional Claim To Rest, Wendy K. Mariner

Faculty Scholarship

Like the debate about many controversial questions of ethics and medical care in America, public debate about physician assisted suicide became focused on questions of constitutional law. On June 26, 1997, the United States Supreme Court unanimously rejected any constitutional right of terminally ill patients to physician assisted suicide. An analysis of the Court's reasoning reveals that its decisions resolved only a narrow constitutional question that affects relatively few people--mentally competent, terminally ill patients who wish to hasten their imminent deaths by having a physician prescribe medication that they intend to use to commit suicide. Although suicide is not a …