Friday, December 2, 2011
First, I want to thank Katharine Van Tassel and the other moderators of the HealthLawProfs Blog for inviting me back as a guest blogger this month. As I did in May, I hope to provide you with some much-needed distractions from your dreary grading duties this month.
As mentioned on this blog on December 2, in Flynn v. Holder the 9th Circuit Court of Appeals, apparently in a case of first impression in any court, decided that persons who undergo peripheral blood stem cell apheresis to allow for harvesting of hematopoietic stem cells can be paid for their donations. According to the Court in Flynn, hematopoietic stem cells are “seeds from which white blood cells, red blood cells, and platelets grow.” Most of these cells remain in the bone marrow cavity, but some escape into the blood stream before they mature, and can be harvested by the same technique as is used to collect plasma or platelets from a blood donor. The process is more like a traditional blood donation than like the older method used to collect bone marrow for donation, which required sticking a needle into the cavities of an anesthetized donor’s hip bones. This is apparently as painful as it sounds, and involves much higher risks to the donor.
The plaintiffs challenged the federal statutory ban on payment for bone marrow donations as a violation of the Equal Protection Clause, claiming that allowing compensation for blood, sperm, and egg donations, while disallowing compensation for bone marrow donations, had no rational basis. The Court avoided reaching the constitutional issue by interpreting the National Organ Transplant Act’s definition of organs for which compensation is prohibited, which includes “bone marrow,” to exclude peripheral blood stem cells. Therefore, it reasoned, neither the statute itself, nor the Department of Health and Human Services (through regulation), prohibits payment to people who undergo peripheral blood stem cell apheresis to allow for harvesting of hematopoietic stem cells. The Court in effect said that using the term “bone marrow transplant” as a synonym for “peripheral blood stem cell apheresis” is an “anachronism that will soon fade away,” and the Court is just ahead of the curve in this process.
In my opinion, this is an eminently sensible decision which interprets the law in such a way as to harmonize it with advances in medical science (a refreshing change from the way that law and science have interacted in past years). However, as a health law teacher and scholar, I think the more interesting part of the opinion is where the Court holds that prohibiting payment for bone marrow donations by the older “aspiration” method (still used in 1/3 of bone marrow donations, according to the Court) does not violate the Equal Protection Clause. In this section, the Court identifies “two classes of rational basis […] policy concerns and philosophical concerns.” After listing the kinds of policy concerns that most of us are familiar with (concern about the rich inducing the poor to sell their organs, or potential donors extracting every last cent from a sick patient needing a transplant), the Court goes into a rather lengthy discussion of the kinds of philosophical reasons that Congress may have had for prohibiting compensation for organ donations. Citing extensively from Dr. Leon Kass’ book Life, Liberty and the Defense of Dignity: The Challenge for Bioethics, the Court explores what it calls an “instinctive revulsion” of “commodification” of removal of flesh from a human being for use by another. The Court even cites Kass’ statement that organ transplantation can be viewed as “simply a noble form of cannibalism.” The Court concedes that these philosophical reasons for the law prohibiting compensation are “in some respects vague, in some speculative, and in some arguably misplaced.” Yet it then goes on to hold that Congress’ distinctions between body parts that can be bought and body parts that cannot be bought, apparently based (at least in part) on these vague, speculative, and possibly misplaced philosophical arguments, have a “rational basis.” I’m a little surprised to see the Court cite what it calls “taboos” as a “rational basis” for distinctions in what can and cannot be commercialized. What’s next, a holding that a traditional “taboo” on homosexual conduct constitutes a rational basis for the Defense of Marriage Act? But that argument is probably for a different blog.
There is really some good imagery in this opinion, including Judge Kleinfeld’s description of “marrow” as “what some people suck out of beef bones.” I think it’s time for lunch.
Associate Dean for Academic Affairs and Associate Professor of Law, Gonzaga University School of Law (Assistant Professor, 2003-2008). Adjunct lecturer, University of Washington School of Law (2000, 2003). Teaching areas: Health Care Law, Civil Procedure, Constitutional Law, Conflict of Laws, Federal Jurisdiction. Shareholder and associate, Bennett Bigelow & Leedom, P.S., Seattle, Washington (1995-2003). Associate, Perkins Coie, Seattle, Washington (1990-1995). Professor Williams was a board member, Secretary/Treasurer and then President of the Washington State Society of Healthcare Attorneys from 1997 through 2004. She is admitted to practice in the State of Washington, the Western District of Washington, the Eastern District of Washington, and the Ninth Circuit Court of Appeals. She is a member of the American Health Lawyers Association, the Health Law Section of Washington State Bar Association, the Washington State Society of Healthcare Attorneys. She publishes and speaks on topics related to Health Law, Civil Procedure, Constitutional Law, and the intersection of these areas.
Mark Zezza, The Final Rule for the Medicare Shared Savings Program, The Commonwealth Fund
Ilya Somin, A Mandate for Mandates: Is the Individual Health Insurance Mandate Case a Slippery Slope? SSRN/Law and Contemporary Problems
Marc Rodwin, French Medical Malpractice Law and Policy through American Eyes: What It Reflects about Public and Private Aspects of American Law, SSRN/Drexel L.Rev.
David Blumenthal, 2012 — A Watershed Election for Health Care, N Engl J Med
Federal law, 42 U.S.C § 274e, prohibits the payment of compensation to donors of kidneys, livers and other organs. The ban also applies to donors of bone marrow. The federal government took the position that since the ban on compensation includes bone marrow "or any subpart thereof," payments are not permitted for donations of peripheral blood stem cells, which have become a common substitute for donations of bone marrow.
In Flynn v. Holder, the U.S. Court of Appeals for the Ninth Circuit concluded that just as compensation is permittted for donations of other blood products, so compensation is permitted under federal law for donations of peripheral blood stem cells. In response to the government's argument that peripheral blood stem cell donations pose greater risk than do other donations of blood, the court observed that there are significant risks from egg donation, and the government permits payments to egg donors.(Thanks to Ben Hippen for highlighting the decision.)
Thursday, December 1, 2011
I highly recommend Mother Jones's shocking investigative report on the troubling impact of factory farming practices on animals, workers, and consumers. The piece focuses on Quality Pork Processors Inc. (QPP), in Austin, Minnesota. One worker alleged that the workers in the plant felt nearly as disposable as the animals:
"I feel thrown away," Miriam Angeles says. "Before, I worked hard and willingly for QPP, but after I got sick and needed restrictions, they threw me away like trash."
Sickness and exhaustion are apparently a common problem at the plant. As the article's author, Ted Genoways, noted, "The line speed at QPP had increased from 750 heads per hour in 1989 to 1,350 per hour in 2006, while the workforce barely grew." Few parts of the production process, from cutting and slicing legs and other parts to vaporizing swine brains, are easy. Health effects are dramatic:
Workers say nearly everyone suffered from carpal tunnel syndrome or some repetitive stress injury, but by October 2007, there were signs of something else. Workers from QPP's kill floor were coming to . . . the plant's occupational health nurse, with increasingly familiar complaints: numbness and tingling in their extremities, chronic fatigue, searing skin pain. Bower started noticing workers so tender that they struggled with the stairs to the top-floor locker rooms, high above the roar of the factory line.
Read the whole thing to find out what happens when a neurologist suspects a rare autoimmune disorder, and decides it's "time to contact the Minnesota Department of Health."
Wednesday, November 30, 2011
Position Announcement: Associate Director for the Center for Law, Health & Society at the College of Law at Georgia State University
The College of Law at Georgia State University seeks to fill the position of Associate Director for the Center for Law, Health & Society. Established in 2004, the Center’s mission is to advance the key role that law plays in promoting society’s health through research, education, and professional and community engagement at local, national, and international levels. The Center’s health law program is currently ranked 5th nationally by U.S. News and World Report.
This position is the primary professional administrative position for the Center for Law, Health & Society. The Associate Director reports directly to and works under the supervision of the Center Director to help meet Center goals and determine administrative priorities. Specific responsibilities include management of new and on-going Center programs, projects, and activities under the Center Director’s priorities, including academic programs; professional education programs and conferences; student advisement and coordination with the health law program; and other community-building and other outreach activities and events with Center constituencies. The Associate Director provides other administrative support to the Center Director, including background research and development of new Center initiatives and activities; researching, identifying, and developing opportunities for extramural funding; writing grant and funding proposals and reports; and facilitating long-term strategic planning. He or she manages Center communications, public relations, and outreach activities, including writing and production of Center newsletters, brochures, other collateral, and Web content; preparation of correspondence and reports for internal and external constituents; and developing media relations. He or she oversees the daily functions of the Center, including implementing Center policies, procedures, systems, timelines, and deadlines; coordinating meetings; reviewing budget and making purchasing decisions; and troubleshooting day-to-day administrative tasks.
We seek a motivated and confident self-starter with proactive problem-solving abilities. The position requires excellent and effective skills and abilities in the following areas: oral, listening, and written communication skills; interpersonal and teamwork skills; ability to respond effectively to, and collaborate and work well with, diverse internal and external Center constituencies, including University staff, students, faculty, external professionals, and others from diverse backgrounds; time management, project management, and organizational skills; ability to work efficiently and independently; flexibility and ability to multi-task; ability to be focused, detailed, and thorough while not losing sight of the big picture; ability to work within established timeframes and deadlines; ability to learn quickly and produce results efficiently; ability to conceive, plan, and strategize for new initiatives; and research skills. A Juris Doctor degree is preferred, and experience in applying for grants and external funding is desired.
To apply: To apply for this position, please visit the Georgia State University Human Resources Job site, found at: https://jobs.gsu.edu (job vacancy number 0602222). Application materials should include a cover letter addressed to Professor Charity Scott; résumé; writing sample demonstrating ability to be thoughtful, clear, and concise; and contact information for three references. While the position will remain open until filled, applications are strongly encouraged by Friday, December 23, 2011.
Georgia State University, a unit of the University System of Georgia, is an equal opportunity educational institution and is an equal opportunity/affirmative action employer.
Tuesday, November 29, 2011
Rather, I’d like to give a shout-out to Alicia Ouellette at Albany Law School. Ever since the hectic days during and after the Schiavo case, I, here, and others such as Anita Silvers and Leslie Francis, here, have pondered and resisted an argument various disability advocacy groups, including Not Dead Yet, advanced in the spectacle’s waning days. Specifically, as Congress and the federal courts considered the case, Not Dead Yet and others argued that removal of a PEG tube from Ms. Schiavo, who had lain in a persistent vegetative state for years without an advance directive requesting withdrawal, would violate the Americans With Disabilities Act.
In her (relatively) recent book Bioethics and Disability: Toward a Disability-Conscious Bioethics, Professor Ouellette offers one of the most thoughtful responses to that argument that I have read. The book displays Professor Ouellette’s great understanding of the viewpoints of persons with disabilities. Against that backdrop, Professor Ouellette nevertheless concludes that
Not Dead Yet’s argument turns the ADA on its head. Laws that give people with disabilities access to a choice of medically acceptable treatments protect the rights of people with disabilities – even if one of the choices is the termination of treatment. It is the denial of access to all available options that would violate the ADA. In fact, surrogacy laws ensure that the ADA’s demand for access is fulfilled. Substituted-judgment and best-interests-based statutes are reasonable accommodations. They give the people who lack competence to make their own health decisions access to the same options available to those who have competence. In this way, surrogacy statutes can be compared to access ramps installed by building owners after the passage of the ADA. Just as ramps were not the equivalent to stairs (e.g., they might be located in the back of the building and take longer to traverse than stairs), surrogacy laws are not the equivalent to an actual exercise of medical decision making by the disabled person. Nonetheless, both are reasonable accommodations. Just like ramps allow the person with the disability to get into a building, surrogacy laws allow the patient access to all appropriate treatment decisions, including no treatment at all.
So long as a surrogate is choosing between medically acceptable options, the ADA has no role in a medical decision-making case. . . . .
Thank you, Professor Ouellette, for your work.