HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Friday, October 7, 2011


The Essential Health Benefits (EHB) report is now available from the IoM web site, here. Press reaction is here and here. An excellent summary from NEJM is here. A paragraph from the "Brief" that caught my eye follows:

One way to think about the EHB package is to compare HHS’s task to going grocery shopping. One option is to go shopping, fill up your cart with the groceries you want, and then find out what it costs. The other option is to walk into store with a firm idea of what you can spend and to fill the cart carefully, with only enough food to fit within your budget. The committee recommends that HHS take the latter approach to developing the EHB package and to keep in mind what small employers and their employees can afford. Employers who offer insurance packages make such choices now.

So, the slow journey to bending the cost curve continues! BTW, our colleague Amy Monahan, here, served on the IoM Committee.


October 7, 2011 | Permalink | Comments (0) | TrackBack (0)

Worth Reading This Week

Janet Dolgin & Katherine Rouse Dieterich, Social and Legal Debate About the Affordable Care Act, SSRN/UMKC L.Rev.

Richard Epstein, The Constitutional Protection of Trade Secrets and Patents Under the Biologics Price Competition and Innovation Act of 2009, SSRN/Food & Drug L.J.

Leslie Meltzer Henry & Maxwell Stearns, Commerce Games and the Individual Mandate, SSRN/Georgetown L.J. 

Neil Siegel, Four Constitutional Limits that the Minimum Coverage Provision Respects, SSRN/Constitutional Commentary

Mark Hall & Tim Jost, Not So Fast — Jurisdictional Barriers to the ACA Litigation, NEJM 



October 7, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, October 6, 2011

Guest Blogger Elizabeth Sepper: “Insuring” Conscience for Contraceptive Coverage

Sepperphoto Thanks so much to Katharine Van Tassel and the rest of the Health Law Profs for the opportunity to guest-blog here!  My posts for the next month will focus on issues of reproductive health, medical ethics, and moral objections in healthcare.


Human beings have consciences, but do businesses?  Does a hospital or insurance company act on conscience? The U.S. Conference of Catholic Bishops says they do—and that businesses should not have to pay for, and insurance companies should not have to cover, employee health insurance that includes procedures to which they object. 

On Friday, the U.S. Department of Health and Human Services received the last of public comments on preventive health services that must be covered, without co-pay, by insurance companies under the Patient Protection and Affordable Care Act.  As expected, the bishops—along with other public commentators—focused on the requirement of contraception coverage in employer-sponsored plans.  Under the proposed rule, only a non-profit, religious employer that has the purpose of inculcating religious values and primarily employs and serves people who share its religious tenets will be exempted.  Religiously affiliated healthcare facilities, like hospitals and nursing homes, by contrast, will have to purchase insurance that cover these services for their employees (if they provide insurance coverage).

The bishops contend that those insurers and employers “with moral or religious objection to contraceptives or sterilization . . . will experience burdens to conscience under this new mandate.”  Yet, at the same time, they argue the rule should protect conscience for all individuals.

Corporate or institutional “conscience,” however, is inherently in tension with the exercise of individual conscience, as I argue in a draft paper on conscientious refusal in medicine.  Religiously affiliated healthcare facilities bring together physicians and nurses of all creeds, and treat patients of all beliefs. Responding to an employer’s moral objection means impeding women from exercising their own moral judgments about family planning, sex, and health—as some public comments pointed out.

This conflict between institution and individual can be seen in the bishops’ arguments in favor of a wider religious employer exemption.  If employees shared the institutional position, there would be no need for an employer exemption, because no employee would use insurance to purchase contraception.  But employees in Catholic healthcare (or other social services) facilities do not in fact share their employers’ convictions.  They may in good conscience use contraception, as indeed 99 percent of women (and 98 percent of Catholic women) do during their lifetimes.

Given this tension, bald assertions of a need for conscience protection often obscure the real questions.  Is individual conscience actually protected?  Or are institutional interests preeminent?  Are these values absolute or should they be balanced against interests in public health, equality, and patient autonomy?  As the trend of corporate conscience continues (most recently with the so-called Respect for Rights of Conscience Act, H.R. 1179), we should seriously weigh these questions – and consider can an insurance company have a conscience?

The views expressed in this post are those of the author and should not be attributed to the Center for Reproductive Rights or the Health Law Prof Blog.

- Elizabeth Sepper


October 6, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 5, 2011

No Magic Cure for Health Care Costs

There is a very good piece by Sarah Kliff explaining "why ending the tax exemption for health insurance won’t contain health-care costs."  It "may reduce costs slightly," but it's no panacea.

October 5, 2011 | Permalink | Comments (0) | TrackBack (0)

More on SCOTUS and ACA

Good piece from Lester Feder in Politico on "What a health care ruling could mean to the Supreme Court", here.

October 5, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 4, 2011

Report: Institutions addressing Climate Change should look to Global Health Institutions

Professor Kenneth W. Abbott and Willard H. Pedrick, both of Arizona State University’s Global Institute of Sustainability, argue in a recent paper (available here) that the designers of climate financing mechanisms such as the Adaptation Fund should learn from the successes of recent global health institutions. The abstract reads:

“The process of designing the Green Climate Fund (GCF) will reshape the global architecture of climate change financing over the coming months. Yet the promise of the GCF is imperiled by its embrace of 20th century state-centric approaches to governance that fail to engage the resources and energies of non-state actors. Designers of the GCF - as well as the Adaptation Fund and other funds – should instead learn from the successes of the new generation of global health institutions, which integrate the capacities of stakeholders through direct participation in governance.”

The participative decisionmaking processes praised by the report include populations directly affected by health threats who participate directly in governing bodies, deliberation and decision-making. Health institutions proposed as models include UNAIDS (combats AIDS at national and global levels), the GAVI Alliance (finances vaccine purchases and immunization programs in developing countries, as well as conducts vaccine research) and the Global Fund to Fight AIDS, Tuberculosis and Malaria. The authors assert that the international climate programs are heading in the opposite direction.


October 4, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, October 3, 2011

Introducing Guest Blogger Elizabeth Sepper

The blogging team here at Health Law Prof Blog is pleased to welcome our guest blogger for the month of October, Elizabeth Sepper. Here is her short bio:

Sepperphoto Elizabeth Sepper is the 2010-2012 Center for Reproductive Rights fellow at Columbia Law School.  Her research focuses on health, medical ethics, and human rights.  Her current paper Whose Conscience Counts?,, critiques the conventional account of morality in medicine, which limits conscience to doctors and nurses who refuse to deliver controversial treatments, such as end-of-life care, abortion, and sterilization.  Her previous articles were published by Texas International Law Journal and University of Pennsylvania Journal of International Law.

Before coming to Columbia, Liz practiced at Human Rights Watch and the Center for Human Rights and Global Justice at NYU School of Law.  In both positions, she lobbied foreign diplomats and U.S. government officials on issues of human rights, gender, conflict, and humanitarian aid.  At NYU, she managed projects on sexual violence and access to adequate food, water, and sanitation in Haiti.  Prior to that, she clerked for the Honorable Marjorie Rendell of the U.S. Court of Appeals for the Third Circuit. 

Liz holds an LL.M. in International Legal Studies and a J.D., magna cum laude, from New York University School of Law, where she was an Institute for International Law and Justice Scholar, a Dean's Scholar, and a member of the Order of the Coif.  She received her B.A. in history, summa cum laude with distinction, from Boston University.


October 3, 2011 | Permalink | Comments (0) | TrackBack (0)