HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Thursday, February 17, 2011

Most disagree with defunding of health care reform

According to a CBS News Poll 55 percent of Americans disapprove of the plan to cut off funding and 35 percent approve. "Among Republicans, approval rises to 57 percent. Forty-nine percent of independents disapprove, and 38 percent approve… Overall, Americans are wary of the new health care reform laws: 21 percent think the new law will make the system better, but 23 percent think the law will make the system worse."

Nic Terry

February 17, 2011 | Permalink | Comments (0) | TrackBack (0)

What Public Health Can Teach Internet Security Experts

The tech industry is always promising a "new Messiah" to cure what it sees as a backward health sector. I've tried to make the case that internet firms can learn something from health care (here and here). So I was happy to hear of this talk from Scott Charney, corporate vice president for trustworthy computing at Microsoft, on "parallels between real-life viral epidemics and internet viruses." According to an article on the topic:
[S]topping computer malware from spreading should mirror efforts to collectively protect people from public health risks, said Scott Charney. . . . He made the remarks in one of the opening keynotes at the RSA security conference in San Francisco . . . . That means companies, governments and other entities will have to collaborate to eliminate risks to everyone, rather than just look out for themselves.
Charney urged the government to create a bullet-proof identification system that creates online trust and preserves privacy. Companies should also keep making their defenses more secure. But greater effort should be put into the collective defense of the internet, Charney said.
Developing a "bullet-proof identification system" is a huge challenge today, as secondary (mis)uses of data become more pervasive. But I appreciate Charney's argument that no computer, like no person, is an island. - Frank Pasquale

February 17, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 16, 2011

Jennifer Prah Ruger: "Shared Health Governance"

Jennifer Prah Ruger, Associate Professor at Yale University School of Medicine, posted "Shared Health Governance" on SSRN:

Jennifer Prah Ruger In Health and Social Justice I developed the 'health capability paradigm,' a conception of justice and health in domestic societies. This idea undergirds an alternative framework of social cooperation I call 'shared health governance' (SHG). SHG puts forth a set of moral responsibilities, motivational aspirations and institutional arrangements, and apportions roles for implementation in striving for health justice. I now develop further the SHG framework and explain its importance and implications for governing health domestically.




February 16, 2011 | Permalink | Comments (0) | TrackBack (0)

Expansion of the Government Provision of Health Care and Individual Rights: Panacea or Pandora’s Box?

“The proposal that promoting and protecting human rights is inextricably linked to the challenge of promoting and protecting health derives in part from recognition that health and human rights are complementary approaches to the central problem of defending and advancing human well-being.”  Jonathan Mann.

The Patient Protection and Affordable Care Act will create a much needed expansion of government supported health programs which will improve access to health care for many Americans. However, under current jurisprudence, if the policy makers who craft these new programs fail to proceed with great caution, the expansion of the government provision of health care could come at a significant cost to individual rights. Our country sits at a crossroads with the choice to either proceed to promote the health and well-being of the population while promoting and protecting individual rights or to enhance public health at the expense of these rights.

The threat to individual rights which lurks within the expansion of government supported health care programs originates with the body of jurisprudence built around Rust v. Sullivan. In Rust, the Supreme Court upheld legislation that barred health care providers who accepted government funds from engaging in abortion counseling, referral and activities. The Court held that:

[t]he Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program, which seeks to deal with the problem in another way. A legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right. There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy.

This body of jurisprudence opens the door for programs like the one being pilot tested in West Virginia that I blogged on last week. In early 2007, the federal government approved the West Virginia Pilot Project which provides health care for low-income, Medicaid beneficiaries. This program, and ones like it, is an attempt to respond to the ‘obesity crisis’ and the overall rise in health care costs. The West Virginia Pilot Project punishes those who do not join, and religiously adhere to, weight-loss or anti-smoking programs, or who otherwise fail to strictly comply with doctor's orders or to comply with government mandates. The punishment for this failure to conform is the denial of important medical services. A recent study of the program indicates that it is, in fact, negatively impacting access to health care. This type of paternalistic program violates the harm principle as it reaches out to broadly regulate the behavior of low-income individuals that is self-regarding; in other words, conduct that impacts only the individual. It is the first step on a slippery slope of potentially ever-expanding limitations on freedom of choice and individual rights, all in the name of public health.

Advances in genetic testing and in the science of pharmacogenomics that presage a new world of individualized medicine elevate the seriousness of this concern. Will this mean, for example, that a person with a particular genetic code must take a medication that pharmacogenomics dictates as the recommended treatment to ameliorate the condition and the long-term costs associated with treatment of the condition in order to qualify for future treatment of that medical condition? Taking this to the hypothetical extreme, what about a woman who has a BRACA-1 or 2 mutation with a very high probability of the future development of breast/ovarian cancer? Will she be forced to undergo surgical removal of her breasts and ovaries in her 20s in order to maintain her  health care coverage and obtain treatment later in life if she contracts cancer? Is there a principled way to draw a line between what is acceptable regulation of self-regarding behavior with relation to health and what is not?

As we move forward to develop public health programs that deal with the rising cost of health care, it is hoped that we are able to design programs that seek to both promote public health while protecting individual rights.


February 16, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 15, 2011

Mark Rienzi: "The Constitutional Right to Refuse: Roe, Casey, and the Fourteenth Amendment Rights of Healthcare Providers"

Mark Rienzi, Assistant Professor at Catholic University of America - Columbus School of Law, posted "The Constitutional Right to Refuse: Roe, Casey, and the Fourteenth Amendment Rights of Healthcare Providers" on SSRN:

Mark Rienzi The Fourteenth Amendment rights of various parties in the abortion context – the pregnant woman, the fetus, the fetus’ father, the state – have been discussed at length by commentators and the courts. Surprisingly, the Fourteenth Amendment rights of the healthcare provider asked to provide the abortion have not. Roe and Casey establish a pregnant woman’s Fourteenth Amendment right to decide for herself whether to have an abortion. Do those same precedents also protect her doctor’s right to decide whether to participate in abortion procedures?

The Court’s substantive due process analysis typically looks for rights that are “deeply rooted” in our history and traditions. Accordingly, this article addresses the historical basis for finding that providers do indeed have a Fourteenth Amendment right to refuse to perform abortions. This historical analysis shows that the right to refuse passes the Court’s stated test for Fourteenth Amendment protection. In fact, the right to refuse actually has better historical support, and better satisfies the Court’s stated tests, than the abortion right itself.

Beyond this historical case, a healthcare provider’s right to make this decision also fits squarely within the zone of individual decision-making protected by the Court’s opinions in Casey and Lawrence v. Texas, and protects providers from the types of psychological harm that the Court recognized in Roe and Casey. For these reasons, under Roe and Casey, a healthcare provider has a Fourteenth Amendment right to refuse to participate in abortions.

February 15, 2011 | Permalink | Comments (0) | TrackBack (0)

Protecting Public Health and Welfare against Greenhouse Gases Hits a Snag

 Last week, Republican leaders made it clear that the Environmental Protection Agency (EPA) will not have an easy time with proposals to regulate carbon dioxide and other greenhouse gas (GHG) emissions. At a congressional hearing on Wednesday, EPA Administrator Lisa P. Jackson was assailed for her plans to begin setting emission limits, with a NY Times article reporting that she was accused of “putting the American economy in a straitjacket.” Rep. John Shimkus (R-Ill.), chair of the House Energy Committee was quoted in a Washington Post article saying that  EPA's "regulation will skyrocket costs that will destroy jobs."

On Friday, House Republicans introduced legislation that would strip U.S. EPA of its funding to regulate CO2 emissions, gut the State Department's climate aid programs and slash funding for energy and climate research across the federal government. It would also prevent the president from replacing departing climate and energy czar Carol Browner or creating "any substantially similar position." See description of the bill here. On January 31, 2011 Republican Senator John Barrasso of Wyoming introduced Senate Bill 228 that would prevent EPA from regulating GHGs without specific congressional authorization. Texas Rep. Ralph Hall, the new chairman of House Committee on Science and Technology, has called climate change a "massive international scientific fraud, quoted by the Miami Herald here


In 2009, the EPA issued a finding that  CO2 and other GHGs pose a danger to public health and welfare based on evaluations of the risks associated with changes in air quality, increases in temperatures, changes in extreme weather events, increases in food- and water-borne pathogens, and changes in aeroallergens. This GHG endangerment rule became effective a year ago. This was a major step in the struggle to regulate GG under the Clean Air Act, sparked off by the Supreme Court’s landmark decision in Massachusetts v. EPA that held that the agency has authority to regulate GHG emissions. In a December 2010 press release, the EPA announced that it was now working on GHG standards for fossil fuel power plants and petroleum refineries—two of the largest industrial sources, representing nearly 40 percent of the GHG pollution in the United States.

Even if the EPA is undermined, states are taking up the slack by launching their own programs to combat GG emissions, according to an article in USA Today.

- Mary Munson

February 15, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, February 14, 2011

Margaret Gilhooley: "Drug User Fees, Health Priorities, Politics, the Deficit and Reform Directions"

Margaret Gilhooley, Professor Emeritus at Seton Hall Law School, posted "Drug User Fees, Health Priorities, Politics, the Deficit and Reform Directions" on SSRN:

Margaret Gilhooley The Food and Drug Administration now depends on user fees paid by drug companies to support more than half the salaries of the medical reviewers who advise the agency on the appropriateness of approving a drug. The funding creates a substantial risk of "capture" of the agency by the industry. Under the program, which started in 1992, drug companies pay a fee that permits the agency to hire additional reviewers to make more timely reviews on whether a drug can be approved. Under the law, the agency seeks to meet performance goals for the timing of reviews, giving the program the appearance of having a fee-for-service basis.

The legislative authorization for the fees expires every five years, and the agency and the industry negotiate behind closed doors on the renewal and the performance goals for the reviews. The need for renewal creates an opportunity for the passage of laws that might not have been enacted separately. Some believe the Administration may accept measures of debatable merit to avoid having to layoff needed reviewers. Limiting the user fee support to half the Government appropriation for the program, and making the program permanent can alleviate the capture and linkage problems.

This paper maintains that reforms and changes in the policy rationale for the program are needed before locking-in a permanent funding commitment at a time of debate about growing budget shortfalls. Instead of a fee-for-service rationale, the program should be based on a health review rationale. A study is needed to identify better priority rankings and goals for drug reviews, rather than the simple categories and negotiations that now exist. To avoid the risk of capture, the revenues from the fees should not exceed the Government funding for the program. Making the fee program permanent would address the linkage problem but providing permanent funding can undercut Congress' responsibility to determine important budget allocations in a time of concern about deficits. If the program is made permanent, the law should make clear that Congress can reduce the funding level for the fees to deal equitably with funding cutbacks in other programs made in light deficit considerations. Congress should also have to approve any major increases in the fee levels. The significance of the user fee program and the reforms needed, before it is made permanent, warrant wide attention.

February 14, 2011 | Permalink | Comments (0) | TrackBack (0)

Where your health (and other) dollars go...

This week's candidate for the must-show graphic for your health law class. Available here is an excellent New York Times chart breaking down the proposed federal budget. The enormity of the health budget is dramatic, but you can also zoom in on the specifics of proposed health spending (and the proposed cuts).

Nic Terry

February 14, 2011 | Permalink | Comments (0) | TrackBack (0)

P.S.R. Murthy: "Health Care System in Tribal Areas – An Insight (With Reference to Andhra Pradesh State, India)"

P.S.R. Murthy has posted "Health Care System in Tribal Areas – An Insight (With Reference to Andhra Pradesh State, India)" on SSRN:

Indian Tribals are traditional, conservative and under-privileged people. They are socially and economically weaker and also under abject poverty and live in a subsistence economy and general backwardness. This is because of their ill-health which is a cause and consequence of poverty. The major impediments to good health are inequity in health system and radical poverty of the masses. Illness lowers learning ability, reduces productivity, income and savings and it leads to poor quality of life and thus perpetuating poverty. India has the largest tribal population in the world. There are about 427 recognized scheduled Tribal groups in India. As per 2001 Census' the tribal population of India is 84.3 million, larger than that of any other country in the world. Myanmar, with the tribal population of 44 million is the second largest. Tribes of Andhra Pradesh have added grandeur to the region with their rich heritage of culture, innocent lifestyle and age-old ethnicity. In other words, their customs, rituals, fairs, festivals have drawn the attraction of all the anthropologists of the country who have conducted surveys on them with enthusiasm and vigor. Presently there are 32 lakh tribals 50 lakh nomads and other backward people in Andhra Pradesh. The state of Andhra Pradesh has been chosen as Study area in view the congregation of larger number of tribal’s live in below poverty line without any basic medical facilities. There is an urgent need to concentrate on them for their survival. Failing which the race will be wiped out due to perpetual contaminated and dangerous diseases prevailing in the entire tribal areas due to non availability timely Medical assistance and Government sponsored Health Care Projects in spite of the budgetary allocation of scores of Public money for their welfare and well being. The basic training focused on hygiene, malaria prognosis and first aid. Community health workers were selected from among married women in their twenties and thirties, preferably with a modicum of education. Other major achievements included the provision of drugs, equipment and vehicles for 32 primary health centers and of vehicles for mobile medical units; matching grants for the construction of 181 subcentres; the establishment of a referral fund for medical emergencies; and the provision of training kits. 

February 14, 2011 | Permalink | Comments (0) | TrackBack (0)

As Montana Goes, So Goes the Country?

The Montana state legislature has taken up two important patient liberty questions this session.  May physicians provide aid in dying (also described as physician assisted suicide) to terminally ill persons?  May marijuana be used for medical purposes?

 In December 2009, the Montana Supreme Court held that under Montana law, "a terminally ill patient's consent to physician aid in dying constitutes a statutory defense to a charge of homicide against the aiding physician."  Baxter v State, 224 P.3d 1211 (Mont. 2009).  If Senate Bill 116  were to pass, Montana law would override the court’s ruling and make physician aid in dying illegal.

Last week, the Montana House of Representatives voted to repeal the state’s six-year old medical marijuana law (House Bill 161).  According to a report in the New York Times, the move to repeal reflects both a change in the partisan make-up of the legislature and a marijuana industry whose size has far exceeded expectations.

- David Orentlicher

February 14, 2011 | Permalink | Comments (0) | TrackBack (0)