HealthLawProf Blog

Mass. Contraception Law Applies to Catholic Hospitals, Too

From today's Modern Healthcare (Daily Dose [requires subscription]):

Mass. contraception law to apply to hospitals
Catholic hospitals won't be exempt from Massachusetts law requiring access to emergency contraception for rape victims, although the church prohibits the use or prescription of such drugs once a woman becomes pregnant. Massachusetts Gov. Mitt Romney on Thursday withdrew support for a state Health Department proposal to let hospitals opt out of the soon-to-be-implemented law on religious or moral grounds, the Boston Globe reported. The Catholic Church's religious and ethical directives for hospitals allow for emergency contraception if "after appropriate testing, there is no evidence that conception has occurred already." The law, which survived Romney's veto earlier this year, also allows pharmacies to sell emergency contraception without a prescription. At least seven of Massachusetts' 78 hospitals are affiliated with the Catholic Church, according to the American Hospital Association.

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Gene Basanta Named to Distinguished Professorship

Basanta named to distinguished professorship

CARBONDALE, Ill. -- W. Eugene Basanta, a nationally recognized expert in health law and policy at Southern Illinois University Carbondale, will serve as the law school's inaugural Southern Illinois Healthcare Professor of Law.

Basanta is "a gifted colleague," law school Dean Peter C. Alexander said.

"He has a national reputation in health law and policy. He is a member of the faculty who contributes greatly to the day-to-day operations, as well as the long-term goals of the School of Law."

An investiture ceremony is set for 5 p.m., Dec. 19, in the law school's courtroom. The public is welcome, and reservations are due by Thursday, Dec. 15, to Linda Vineyard at 618/453-8761 or via email at wedetc@siu.edu.

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Cartoon Roundup

This is the week that was, in cartoons . . . .

Sam Alito came in for his share of hits over his mid-80's DOJ memo on Roe v. Wade:

• Tom Toles, Washington Post
• Mike Luckovich, Atlanta Constitution
• Dan Wasserman, Boston Globe
• Dwane Powell, Raleigh News and Observer
• Ann Telnaes, CWS/NYTS

though not everyone was put off by his memo:

• Chuck Asay, Colorado Springs Sun

Bird flu? Still hot, though the tie-in for some has moved on from Thanksgiving imagery to Christmas:

• Dick Locher, Chicago Tribune (extra points for Dr. Seuss allusion)

And the Supreme Court's oral argument this week in the New Hampshire parental-notification/abortion case generated a few, including:

• Gary Varvel, Indianapolis Star

And Medicare Part D continues to garner its share of comment.  This one is typical:

• Chuck Asay, Colorado Springs Sun

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Doctrine of Double Effect: It's Everywhere

Three recent postings to SSRN on the doctrine of double effect, or something like it:

• Aspects of the Theory of Moral Cognition: Investigating Intuitive Knowledge of the Prohibition of Intentional Battery and the Principle of Double Effect [download]
  John Mikhail
  Georgetown University Law Center
  Abstract:
  Where do our moral intuitions come from? Are they innate? Does the brain contain a module specialized for moral judgment? Does the human genetic program contain instructions for the acquisition of a sense of justice or moral sense? Questions like these have been asked in one form or another for centuries. In this paper we take them up again, with the aim of clarifying them and developing a specific proposal for how they can be empirically investigated. The paper presents data from six trolley problem studies of over five hundred individuals, including one group of Chinese adults and one group of American children, which suggest that both adults and children ages 8-12 rely on intuitive knowledge of moral principles, including the prohibition of intentional battery and the principle of double effect, to determine the permissibility of actions that require harming one individual in order to prevent harm to others. Significantly, the knowledge in question appears to be merely tacit: when asked to explain or justify their judgments, subjects were consistently incapable of articulating the operative principles on which their judgments appear to have been based. We explain these findings with reference to an analogy to human linguistic competence. Just as normal persons are typically unaware of the principles guiding their linguistic intuitions, so too are they often unaware of the principles guiding their moral intuitions. These studies pave the way for future research by raising the possibility that specific poverty of the stimulus arguments can be formulated in the moral domain. Differences between our approach to moral cognition and those of Piaget (1932), Kohlberg (1981), and Greene et al. (2001) are also discussed.



• In Incognito: The Principle of Double Effect in American Constitutional Law [download]
  57 Fla. L. Rev. 469 (2005)
  Edward C. Lyons
  Ave Maria School of Law
  Abstract:
  In Vacco v. Quill, 521 U.S. 793 (1997), the Supreme Court for the first time in American case law explicitly applied the principle of double effect to reject an equal protection claim to physician-assisted suicide. Double effect, traced historically to Thomas Aquinas, proposes that under certain circumstances it is permissible unintentionally to cause foreseen evil effects that would not be permissible to cause intentionally. The court rejected the constitutional claim on the basis of a distinction marked out by the principle, i.e., between directly intending the death of a terminally ill patient as opposed to merely foreseeing that death as a consequence of medical treatment. The Court held that the distinction comports with fundamental legal principles of causation and intent. Id. at 802.
  
  Critics allege that the principle itself is intrinsically flawed and that, in any event, its employment in Vacco is without legal precedent. I argue in response to contemporary objections that double effect is a valid principle of ethical reflection (Part II); claims to the contrary notwithstanding, double effect analysis is a pervasive, albeit generally unacknowledged principle employed regularly in American case law (Part III); and drawing on the preceding two sections, Vacco's application of the principle of double effect is appropriate (Part IV).
  
  My conclusion is that [o]peration of some form of the principle, by whatever name, is inevitable. In an imperfect world where duties and interests collide, the possibility of choices of action foreseen to have both good and evil consequences cannot be avoided. In rare circumstances, ethics and the law require that a person refrain from acting altogether. More often, however, they provide that a determination of whether an actor may pursue a good effect although knowing it will or may unintentionally cause an harmful effect requires a more complex analysis - a double effect analysis.
  


• Balancing Acts: Intending Good and Foreseeing Harm - The Principle of Double Effect in the Law of Negligence [download]
  3 Geo. J.L, & Pub. Pol. (2005)
  Edward C. Lyons
  Ave Maria School of Law
  Abstract:
  In this article, responding to assertions that the principle of double effect has no place in legal analysis, I explore the overlap between double effect and negligence analysis. In both, questions of culpability arise in situations where a person acts with no intent to cause harm but where reasonable foreseeability of unintended harm is present. Under both analyses, determination of whether such conduct is permissible involves a reasonability test that balances the foreseeable harm against the good intended by the conduct. In both, absent a finding that the foreseeable harm is unreasonable in light of that intended good, no liability will be imposed upon the actor.
  
  Even conceding, however, such general similarity between double effect and negligence analysis - disagreement over the proper interpretation of the reasonability criterion at play in negligence poses an additional challenge for the attempt to correlate negligence with double effect.
  
  Economic efficiency interpretations of negligence, for example, purportedly based on the Learned Hand Formula and the RESTATEMENT (SECOND) OF THE LAW OF TORTS, propose that culpability depends upon a utilitarian balancing of good effects of conduct (utility) versus its harmful foreseeable consequences (magnitude of risk of injury). Based on such an interpretation of negligence, however, contrasts between actors' states of mind, and normative differences between kinds of goods and harms, ultimately fade into the background and become irrelevant as essential conditions for properly assessing liability.
  
  This article elaborates and defends the view that double effect analysis lies at the heart of negligence theory. Part I elucidates in more detail the principle of double effect and describes its prima facie operation in negligence analysis. Part II considers and rejects the economic efficiency interpretation that has been offered as a theory of negligence, overcoming the challenge that such an interpretation presents for the effort to locate double effect analysis in the law. Part III illustrates and confirms the overlap between double effect and negligence by consideration of a series of case applications.
  
  The Article proposes that the weighing of conflicting values in double effect analysis and negligence is not achieved - as proposed by law and economics theory with respect to negligence - by imposing a consequentialist-utilitarian reduction of all value to a single concept of good and eliminating the relevance of traditional state of mind distinctions between intention and foreseeability. Instead, each mode of analysis recognizes that distinct culpability determinations flow naturally and plausibly from an appreciation of the traditional legal distinctions made between various types of goods and harms, and upon whether such goods and harms come about as result of an actor's intention or mere foreseeability.

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Organizational Structure and Minority Health

From SSRN's listing of health-law-related published papers and working drafts:

Organizational Structure and Minority Health in the United States 
LOUIS SADDLER
University of Georgia - Department of Public Administration and Policy
ANDREW B. WHITFORD
University of Georgia - Department of Public Administration and Policy
(2005)
 
Abstract:      
Substantial attention has turned to the elimination of racial health disparities, the role of race in health care provision, and the socioeconomic determinants of public health outcomes in the United States. We shift the focus to the organizational structure of minority health resources and advocacy at the federal level in the United States. We compare and contrast the two agencies most responsible for this issue area: the Office for Civil Rights and the Office of Minority Health. Our purpose is to evaluate their ability to coordinate efforts with other organizations and agencies in the pursuit of eliminating health disparities.

Download draft paper here.  [tm]

Tom McGarity on Daubert

From the SSRN listing of health-law-related published papers and working drafts:

Daubert and the Proper Role for the Courts in Health, Safety, and Environmental Regulation
THOMAS OWEN MCGARITY
University of Texas at Austin - School of Law
95 Am. J.Pub. Health S92 (2005)
The Coronado Conference: Scientific Evidence and Public Policy Paper 

Abstract:      
Assigning a Daubert-like gatekeeper role to courts engaged in judicial review of risk assessments prepared by federal agencies is a profoundly bad idea. I describe the role of courts in reviewing regulatory agency decisionmaking and explore the potential impact of incorporating Daubert principles into administrative law. A Daubert form of judicial review will prevent agencies from employing a weight of the evidence approach, forcing them to adopt a corpuscular approach that rewards efforts by regulatees to find and exaggerate flaws in individual scientific studies. Consequently, applying Daubert to federal agency decisionmaking will have a predictable impact on regulatory policy that runs directly counter to the precautionary policies that animate most health, safety and environmental statutes.

Download paper here.  [tm]

Pentagon Underreported Anthrax-Related Hospitalizations to Congress

According to the first installment in a four-part series in the Hampton Roads Daily Press, "[t]he Pentagon never told Congress about more than 20,000 hospitalizations involving troops who'd taken the anthrax vaccine, despite repeated promises that such cases would be publicly disclosed."

It's unclear how many of the hospitalizations were actually anthrax-related:

No one knows how many, or how few, of the 20,765 hospitalizations are directly attributable to the vaccine. Ruling out certain illnesses, such as broken bones or injuries from falls or other accidents, might appear a safe bet. But military doctors have documented cases where broken bones and other injuries from falling were the result of vaccine-induced loss of consciousness affecting the nervous system - sometimes beginning months after vaccination.

The difficulty of figuring out what's related and what isn't is why safety officials encourage people to file reports even if they're not sure.

There are all kinds of reasons to believe that very few of the hospitalizations are related to the anthrax vaccine, but the military's refusal to help create a database on vaccine recipients certainly isn't advancing the cause of science on this subject.  [tm]

More on TelaDoc

The AP ran another story on TelaDoc on Dec. 3. Here's the gist:

Peter Beasley is a busy man who currently has no health insurance. He's also a customer of TelaDoc Medical Services, a setup that allows him to call an unknown doctor and get medicine prescribed sight unseen.

Within an hour or so of his call to an 800 number, he gets a call from a doctor who discusses his symptoms and will often write a prescription.

TelaDoc provides its members - which the company estimates at 30,000 - with access to a doctor 24 hours a day, seven days a week.

While members like Beasley praise the service as a convenient way to address nagging medical needs at odd hours, others in the health care industry say treating patients without seeing them in person is worrisome, perhaps dangerous. California's medical board is investigating TelaDoc's activities in that state.

Our previous posts on this company are here and here.  [tm]

Levinson and Balkin Debate Roe

The debate over at Legal Affairs is entitled, "Should Liberals Stop Defending Roe v. Wade?", and the discussants are Jack Balkin and Sandy Levinson.  Excellent reading.

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Commentary on Medical Marijuana Case (Raich)

From SSRN's listing of health-law publications and working drafts:

• Society Must Be [Regulated]: Biopolitics and the Commerce Clause in Gonzales v. Raich 
  JOHN T. PARRY, University of Pittsburgh School of Law
  9 Lewis & Clark L. Rev. 853 (2005)
  
  Abstract:      
  This article - part of a symposium on the recent Gonzales v. Raich decision - makes three points about the case. First, it suggests that Raich complicates the effort to define commerce clause doctrine. Although Raich employed the doctrinal structure created by the Lopez and Morrison decisions, the emphasis was entirely different, and perhaps the only clear doctrinal result of the decision is that pieces of comprehensive regulatory programs will be upheld precisely because they are part of a larger program. Put bluntly, the more Congress regulates, the more it can regulate.
  
  Second, this article contends that Raich exemplifies an idea of government power that assumes the rationality and desirability of regulation and that this assumption dovetails wtih Michel Foucault's theory of biopolitics, in which the power of the modern state turns on its ability to make live or let die. Specifically, this article explores what it means for constitutional law to accept the biopolitical nature of contemporary government power, particularly in the context of end of life decisions, as well as pain management.
  
  The third, concluding section briefly considers the possibility that biopolitics, while usually described in negative terms, has more complex normative implications.

Download paper here.  [tm]

Pass the Gravy

The AP has a story today that is just in time for the holidays: "Professor Loses Weight With No-Diet Diet." Health science prof Steven Hawks lost 50 pounds and kept it off by eating what he wanted, when he wanted, no more, no less:

Hawks calls his plan "intuitive eating" and thinks the rest of the country would be better off if people stopped counting calories, started paying attention to hunger pangs and ate whatever they wanted.

As part of intuitive eating, Hawks surrounds himself with unhealthy foods he especially craves. He says having an overabundance of what's taboo helps him lose his desire to gorge.

There is a catch to this no-diet diet, however: Intuitive eaters only eat when they're hungry and stop when they're full.

That means not eating a box of chocolates when you're feeling blue or digging into a big plate of nachos just because everyone else at the table is.

The trade-off is the opportunity to eat whatever your heart desires when you are actually hungry.

"One of the advantages of intuitive eating is you're always eating things that are most appealing to you, not out of emotional reasons, not because it's there and tastes good," he said. "Whenever you feel the physical urge to eat something, accept it and eat it. The cravings tend to subside. I don't have anywhere near the cravings I would as a 'restrained eater.'"

An outside expert cautiously concurs:

The one thing all diets have in common is that they restrict food, said Michael Goran, an obesity expert at the University of Southern California. Ultimately, that's why they usually fail, he said.

"At some point you want what you can't have," Goran said. Still, he said intuitive eating makes sense as a concept "if you know what you're doing."

Look for more deatils at http://www.intuitiveeating.com/ (currently content challenged).  [tm]