HealthLawProf Blog

Editor: Katharine Van Tassel
Akron Univ. School of Law

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Wednesday, April 9, 2014

Guest Blogger Professor Mary Crossley: The Rankings are Here!

MaryCrossleyNo, not those rankings that law professors love to hate, the rankings published by the (former) magazine that shall not be named.  I’m talking about the County Health Rankings, released on March 26th.  For the fifth year, the Robert Wood Johnson Foundation has partnered with the University of Wisconsin Population Health Institute to crunch data from across 29 health-linked factors to give counties a snapshot of their residents’ health, relative to other counties in their state. They’ve included several new factors this year, including housing, transportation, and access to mental health providers.

The County Health Rankings differ markedly from the most well-known law school rankings.  The methodology and underlying data are transparent. Counties are not surveyed on their opinions of how healthy other counties are.  And counties are not ranked higher if they spend more per resident on health.

The Rankings reinforce several messages that seem just now to be sinking in with the American public. Social, economic and environmental factors are as important in determining health as insurance status and medical care received.  Where you live can matter as much to your health as how you live. While many of us are used to bemoaning the racial and ethnic health disparities that doggedly persist in the U.S., we may be less aware of striking geographic disparities that these rankings illuminate. According to the County-by-County Blog, “The Rankings show us that people living in the least healthy counties have twice the premature death rates than those living in the healthiest counties. There are also twice as many children living in poverty and teen births in the least healthy counties as in the healthiest counties.”  And while some counties have one mental health provider for every 72 residents, some have only one mental health provider per 55,989 residents. My jaw dropped when I read that.

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April 9, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 8, 2014

Will the Uninsured Become Healthier Once They Receive Health Care Coverage?

The Affordable Care Act might not bend the cost curve or improve the quality of health care, but it will save thousands of lives, as millions of uninsured persons receive the health care they need. At least that’s the conventional wisdom. But while observers assume that ACA will improve the health of the uninsured, the link between health insurance and health is not as clear as one may think. Partly because other factors have a bigger impact on health than does health care and partly because the uninsured can rely on the health care safety net, ACA’s impact on the health of the previously uninsured may be less than expected.

To be sure, the insured are healthier than the uninsured. According to one study, the uninsured have a mortality rate 40% higher than that of the insured. However, there are other differences between the insured and the uninsured besides their insurance status, including education, wealth, and other measures of socioeconomic status.

How much does health insurance improve the health of the uninsured? The empirical literature sends a mixed message. On one hand is an important Medicaid study. Researchers compared three states that had expanded their Medicaid programs to include childless adults with neighboring states that were similar demographically but had not undertaken similar expansions of their Medicaid programs. In the aggregate, the states with the expansions saw significant reductions in mortality rates compared to the neighboring states

On the other hand is another important Medicaid study. After Oregon added a limited number of slots to its Medicaid program and assigned the new slots by lottery, it effectively created a randomized controlled study of the benefits of Medicaid coverage. When researchers analyzed data from the first two years of the expansion, they found that the coverage resulted in greater utilization of the health care system. However, coverage did not lead to a reduction in levels of hypertension, high cholesterol or diabetes.

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April 8, 2014 in Affordable Care Act, Health Care, Health Care Reform, PPACA, Uninsured | Permalink | Comments (0) | TrackBack (0)

Monday, April 7, 2014

Thank You to March's Guest Bloggers

HealthLawProf Blog would like to thank our March guest bloggers Professor Jonathan Kahn and Associate Professor Ann Marie Marciarille. Here is a short recap of thier posts:

 Professor Jonathan Kahn posted the following: Privatizing Biomedical Citizenship, Race in a Bottle, Pills for Racism?!, and Regulating Direct-to-Consumer Genomics.

 Associate Professor Ann Marie Marciarille posted the following: The New Hampshire Solution, Who Is Wasting What?, Teeth-Whitening at the Supreme Court, and Five Hundred Word Book Review: REINVENTING AMERICAN HEALTH CARE by Ezekiel Emanuel.



April 7, 2014 | Permalink | Comments (0) | TrackBack (0)

Published This Week

Guest Blogger Professor Deborah L. Forman: Labor and Delivery: A Spectator Sport?

FormanAs abortion clinics close in Texas and the Supreme Court ponders whether the contraceptive mandate in the ACA infringes the religious freedom of Hobby Lobby, women’s reproductive rights have come under attack from another quarter—unwed fathers.  Last Fall, Olympic-champion skier Bode Miller succeeded in wresting custody of his infant child from the mother after a New York magistrate determined Sarah McKenna had engaged in “misconduct” by daring to move to New York to complete her education while pregnant with Miller’s child.  Although the decision was subsequently overturned, the mother lost custody for several months.  More recently, a New Jersey man sued for the right to attend his child’s birth after the mother, his estranged ex-fiancée, objected to his request to be notified when she went into labor and barred him from the delivery room.  (Plotnick v. DeLuccia, N.J. Super. Ct. Ch. Div., No. FD-16-00008-14, 11/19/13, released 3/10/14.)

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April 7, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 3, 2014

A Call out to the "Invicible" Young Adults--What You Don't Know About Childhood Diseases Could Prevent You From Having Any Children


One thing we’ve all heard during the discussion of the affordable care act is that young people don’t worry a lot about their health.  It’s therefore likely that few young adults ever think about whether or not they received adequate vaccination.

Perhaps if they better understood the consequences, they would do so.  What you've heard is true many childhood diseases are much more serious for adults than for children.    For a general overview look here.  Here’s some information about chickenpox.

Outbreaks of Mumps are being reported all over the country.  This week there are 116 cases in and near Ohio State University in Columbus. Fordham University in New York reported 11 in late February.   Just today, the NYC Board of Health reported 21 cases of Measels and Rubella (German Measels) isn't likely to be far behind.  These numbers may seem small—until you appreciate that Mumps used to be a very common childhood disease in the United States but is now very rare because of a highly effective vaccine. Unfortunately, many parents have chosen not to vaccinate their child against Mumps because of concerns about the MMR vaccine—that now turn out to be the result of fraudulent scientific data.       This piece put out by the Center for American Progress explains how states responding to political pressure from parents have been remarkably lax in enforcing mandatory vaccination laws for school children.  At this point, almost anyone with a concern to claim an exemption.  

So back to Mumps.  Few had heard of it, and no one knew what should really be the main attention grabber.   It can impair fertility—even to the extent of causing sterility.  There hasn't been a lot of research done recently and permanent sterility is rare- probably no more than 10%.  But why chance it when it can be prevented?  

And  that’s not the worst of it.   Measels and Rubella carry even greater risks for young adults.   A case of Rubella early in pregnancy caries with a 20% chance of serious birth defects.   The risk of permanent hearing loss after measels is highest in children under 5 and adults over 20

The good news on the public health front is that it’s never too late to be vaccinated.   And preventive vaccination (even for childhood diseases) is covered under the Affordable Act.  Young adults would be wise to look into their own vaccination status.  If pediatric records aren’t available, a blood test can measure antibodies that show the presence (or absence) of vaccination against many serious childhood diseases that are coming back to infect young adults.  But if vaccination laws continue to be lax, long after the reason for so many people's misgivings has turned out to be a fraud, we will not be able to get ahead of what should to everyone be a very frightening trend

April 3, 2014 in Affordable Care Act, CDC, Health Care, Policy, Politics, PPACA, Prescription Drugs, Prevention, Primary Care, Public Health | Permalink | Comments (0) | TrackBack (0)

Obesity and Taxes

Cigarette taxes have proved to be an effective strategy to reduce smoking, so one might think (as many experts do) that soda taxes would be an effective strategy to reduce obesity. Consumption of soft drinks seems to be an important risk factor for obesity, and people are sensitive to the price of their colas.

Moreover, soda taxes reflect the lessons of behavioral economics. People often over-indulge in activities that provide short-term gratification but impose significant harm in the long-term. Imposing a tax on unhealthy drinks supplies an immediate disincentive to the consumption of those drinks and can overcome the difficulty people have in postponing gratification. 

However, two new articles in Health Economics question the effectiveness of soda taxes. One study based on UK data, the other on US data, come to the same conclusion--we should not expect much of an impact from taxes on sugary soft drinks. It seems that raising taxes on some beverages simply results in consumers switching to other beverages and replacing the forgone calories with other calories. And to make things worse, beverage taxes often are regressive.

The news is disappointing and adds to a growing list of disappointing policies for weight loss. Under the Affordable Care Act, for example, restaurants must disclose calorie information to customers. With better information, diners would know which salads really are healthy and which others are not. But researchers have not found mandates for calorie disclosure by restaurants (as in New York and Seattle) to be effective.

Legislative fixes for obesity are tempting and probably necessary. But lawmakers need to take better account of medical understanding before they act.

[cross-posted at PrawfsBlawg and]

April 3, 2014 in Health Care Costs, Obesity, Public Health | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 2, 2014

Mobile Health Conference

This Friday at Drexel. More details are here.


April 2, 2014 | Permalink | Comments (0) | TrackBack (0)

Affordable Care and the Lessons of History

The Affordable Care Act (ACA) seems to be gaining steam. After a rocky start in October, the new health insurance exchanges reached the government's enrollment goal of 7 million. As ACA's provisions continue to take effect, its status should solidify and transform the U.S. health care system in important ways.

Yet there also are reasons to be cautious about ACA's long-term prospects. The Act's basic framework may not have taken sufficient account of the lessons from history. After watching health insurers torpedo the Clinton plan in 1994, President Obama took care to secure support for ACA from the insurance industry, as well as drug companies, physicians, and other important interest groups. But there may have been more important lessons from the country's history with other public benefit programs, including Medicare, Medicaid, and food stamps.

As NPR and the New York Times reminded us with their ACA updates last week, federal-state partnerships can have serious drawbacks compared to programs operated by the federal government. Some states effectively meet the needs of their residents, but others do not. Just as Texas had the highest percentage of uninsured people under pre-ACA health care, Texas continues to lag other states under ACA in terms of access to health care coverage. Similarly, when states were responsible for setting eligibility standards for food stamps, the program reached counties with only 59 percent of the U.S. population. After a decade of state oversight, Congress established uniform eligibility standards.

Benefit programs also fare better when they are perceived by the public as having been earned. Medicare and Social Security have enjoyed strong support because they are funded in part by payroll deductions. Medicaid, on the other hand, with its funding from general revenues, often is viewed as providing handouts.

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April 2, 2014 | Permalink | Comments (0) | TrackBack (0)

Guest Blogger Associate Professor Ann Marie Marciarille: Five Hundred Word Book Review: REINVENTING AMERICAN HEALTH CARE by Ezekiel Emanuel

MarciarilleThe best joke in Zeke Emanuel’s new book is told near the beginning but referenced throughout, which makes the joke yet richer and more multi-layered by the book’s dense 349 page end. It goes like this:  There are two people who actually understand the American health system, and both Victor Fuchs and Alain Enthoven are 90 and 83 years of age, respectively. I don’t care if Zeke Emanuel wrote the joke himself because what he did write is the book that should make all of us a little less fearful in light of these truths.

The best parts of Reinventing American Health Care might really be seen as two shorter books, intertwined. Several chapters, particularly the descriptive chapters in Part I on the American Health Care System could be a standalone book as a primer on the American health care system or what the anthropologist Clifford Geertz described as “thick description.”  More than an entry level overview of the status quo, these chapters (particularly Chapter Two on Financing Health Care) represent something I might assign to my health law students. The second book on the process of health care reform up to the present might be called “How the Sausage Got Made” and essentially offers a standalone account of the history of health care reform – real and attempted – in the United States.

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April 2, 2014 | Permalink | Comments (0) | TrackBack (0)

Welcome to Guest Blogger Professor Mary Crossley

HealthLawProf Blog is excited to welcome the third of our three guest bloggers for April, Professor Mary Crossley:

MaryCrossleyMary Crossley is a Professor of Law at the University of Pittsburgh School of Law, where she teaches courses on Bioethics, Health Law, Health Care & Civil Rights, Family Law, and Torts. Widely recognized for her scholarship in disability and health law, Professor Crossley has written broadly on issues of inequality in health care financing and delivery and has published articles in numerous law journals, including Columbia Law Review, Iowa Law Review, and Notre Dame Law Review.   Crossley was appointed Dean and Professor of Law at the University of Pittsburgh School of Law in 2005 and served as Dean from 2005-2012, focusing her leadership on initiatives relating to curricular reform, innovation programming, and promoting diversity.  In 2013 she was selected as a Robert Wood Johnson Foundation Public Health Law Scholar in Residence.


April 2, 2014 | Permalink | Comments (0) | TrackBack (0)

Welcome to Guest Blogger Professor Gaia Bernstein

HealthLawProf Blog extends a warm welcome to the second of our three guest bloggers for April, Professor Gaia Bernstein:


BernsteinProfessor Gaia Bernstein specializes in law and genetics, reproductive technologies, information privacy, intellectual property and family law. Her scholarship looks at the inter-relations between technology, law and society, examining the dissemination and adoption processes of new technologies, including both medical and communications technologies. Professor Bernstein's scholarship has been published in leading law reviews including the Vanderbilt Law Review, the Boston University Law Review, the Washington Law Review and the U.C. Davis Law Review. Her work has been selected to the Stanford-Yale Junior Faculty Forum and received extensive media coverage.

Professor Bernstein has joined the Seton Hall faculty in 2004 and in 2009 was named the Margaret Gilhooley Research Fellow. Prior to joining the Seton Hall faculty, Professor Bernstein was a fellow at the Engelberg Center of Innovation Law & Policy and at the Information Law Institute at the New York University School of Law. Her degrees include: a J.S.D. from the New York University School of Law, an LL.M. from Harvard Law School, a J.D. (Intellectual Property concentration with Honors) from the Boston University School of Law, and a B.A. in Psychology and Political Science (magna cum laude) from Tel Aviv University. Professor Bernstein practiced law at Skadden, Arps, Slate, Meagher & Flom LLP in New York and at S. Horowitz & Co. in Israel.


April 2, 2014 | Permalink | Comments (0) | TrackBack (0)

Welcome to Guest Blogger Professor Deborah L. Forman

HealthLawProf Blog is very pleased to welcome the first of our three guest bloggers for the month of April, Professor Deborah L. Forman:

FormanDeborah L. Forman is Professor of Law at Whittier Law School, in Costa Mesa, California, J. Allan Cook & Mary Schalling Cook Children’s Rights Scholar.  Professor Forman earned her J.D. from Stanford Law School.  She joined Whittier in 1990 and served as Director of the Whittier Law School Center for Children’s Rights from 1999-2007.  Her courses include Family Law, Contemporary Problems in Family Law, and Torts.  Professor Forman is the author of Every Parent’s Guide to the Law (Harcourt Brace 1997) and numerous articles.  Her scholarship today focuses primarily on assisted reproduction.  Professor Forman also serves as Of Counsel to the International Fertility Law Group, where she specializes in counseling physicians on informed consent issues and drafting forms that reflect the unique issues faced by fertility clinics and their patients.


April 2, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 1, 2014

Published This Week

Monday, March 31, 2014

Published This Week

Sunday, March 30, 2014

16th Annual SIH/SIU Health Policy Institute

The 16th annual Southern Illinois Healthcare/Southern Illinois University Health Policy Institute will be held on Friday, May 16, 2014. This year’s Institute is entitled “From Critical Shortage to Critical Mass: Addressing the Lack of Donor Organs.” The program, which runs from 8:30 am to 3:30 pm will be held at the SIU School of Law in Carbondale. It will also be video cast to Springfield and Chicago. Five hours of both CLE and CME credit are offered for attendees. More information can be found here. Online registration can be found here

March 30, 2014 | Permalink | Comments (0) | TrackBack (0)

Hamline Symposium Call for Papers: Health Care Reform: Implementation in Minnesota

With the help of Medica Health Plans, the Health Law Institute at Hamline University School of Law and the Hamline Law Review seek proposals for presentations and papers for our all-day CLE/CEU Symposium that will examine the outstanding challenges confronting the implementation of healthcare reform.  The Symposium will take place on Friday, October 24, 2014, at Hamline University’s main campus in Saint Paul, Minnesota.

Anyone interested in speaking at the Symposium and/or publishing in the Hamline Law Review's Symposium issue should submit both a CV and a 500-word abstract to by April 15, 2014.  While the primary focus of the presentation or paper need not be Minnesota-specific, please explain the regional relevance of your topic and thesis.

Additional information can be found here.

March 30, 2014 | Permalink | Comments (0) | TrackBack (0)

Guest Blogger Professor Jonathan Kahn: Race in a Bottle

KahnIn my recent book, Race in a Bottle:  The Story of BiDil and Racialized Medicine in a Post-Genomic Age (Columbia U. Press), I examine how law, science, and commerce converge in the field of biomedicine to produce distinctive understandings and uses of race as a central organizing concept in the development of pharmaceuticals and related medical practice in a post-genomic age. I take an interdisciplinary approach that builds out from a case study of BiDil, the first drug ever approved by the FDA with a race-specific label – for the treatment of heart failure in a “black patient”.  It extends this case study to illuminate the larger phenomenon of the emergence of race-based medicine and the continuing, indeed increasing, use of racial categories in biotechnological research and product development. It examines how the use of race in biomedicine is shaped by a complex interplay among commercial, legal, political and scientific forces.  The book argues that many people using race in biomedical research and product development are doing so with good intentions but without taking sufficient care to understand the potential of such use to reify race as genetic and/or reinforce stigmatizing racial stereotypes.  It considers, in particular, how commercial and legal imperatives have driven the rising use of race is a manner that distorts framing and presentation of underlying scientific information about the place of race in biomedical research and practice.

On June 23, 2005, the U.S. Food and Drug Administration formally approved the heart failure drug BiDil to treat heart failure in “self-identified black patients.”  Widely hailed throughout the media and professional journals as the first “ethnic” drug, it has also has been touted by the FDA and others as a significant step toward the promised era of personalized pharmacogenomic therapies.  Upon closer examination, however, BiDil’s story is far more complex. Race in a Bottle explores how its emergence as a racially marked drug reveals a multifaceted interplay of legal, commercial, and technoscientific interventions driving its framing as a racial drug. The book uses this story to provide a gateway to exploring much broader phenomena involving the strategic use of race as a genetic category to obtain patent protection and drug approval and a fuller consideration its implications for the politics of addressing race-based health disparities.

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March 30, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 26, 2014

Symposium: Race, Research, and Rights: The Legacy of the Tuskegee Syphilis Study


Details and registration are here.

March 26, 2014 | Permalink | Comments (0) | TrackBack (0)

Contraception, Corporations and Conscience

Do corporations have a right to religious expression? As the U.S. Supreme Court considers whether Hobby Lobby is exempted from the Affordable Care Act’s contraception mandate because of its religious beliefs, the Court first must decide whether for-profit corporations even have rights of religious freedom.

While the Supreme Court should impose appropriate limits on the First Amendment rights of corporations, there are important reasons to recognize corporate claims of religious freedom. We often call on corporations to act in ethically and socially responsible ways, and it is important that they do so. If we want corporations to inculcate an ethos of ethics, then we undercut that goal when we deny corporations their ability to act on the basis of conscience.

To be sure, there are nuances. It is much easier to speak of the religious freedom of a family-owned business such as Hobby Lobby than of a publicly-owned business such as General Electric. Moreover, we must draw a good balance between corporate rights and the public welfare (as I’ve argued about corporate speech and public health here).

Recognizing corporate rights of religious expression would not settle the Hobby Lobby case. We still would have to balance the public’s interest in access to contraception with the corporation’s interest in religious freedom. But that is where the debate should lie.

[cross-posted at]

March 26, 2014 in Affordable Care Act, Drug and Device, Health Care Reform, PPACA | Permalink | Comments (0) | TrackBack (0)