HealthLawProf Blog

A Very Special 'The Week in Health Law' Podcast

By Nicolas Terry

TWIHL presents its first Back to School Special. We asked some wonderful health lawyers what were the compelling additions to this Fall’s health law curriculum. The answers are diverse and fascinating. To hear their explanations look for episode 22 when you subscribe at iTunes, listen atStitcher Radio, Tunein and Podbean, or search for The Week in Health Law in your favorite podcast app.

We are extremely grateful to the following (with links to their recommended topics):
Micah Berman – PBS Unnatural Causes
Erin Fuse Brown – Physician Self-Referral Updates (STARK)
Glenn Cohen – Egg freezing and egg banking: empowerment and alienation in assisted reproduction
Brietta Clark – Pickup v. Brown
Nicole Huberfeld – Armstrong v Exceptional Child Center Inc. 
Elizabeth Weeks Leonard – King v. Burwell
Frank Pasquale – Narrow Networks
Ross Silverman – Should childhood vaccination against measles be a mandatory requirement for attending school? Yes
Norman G. Tabler, Jr.–  Can an Arbitrator Rule Against a Hospital for Not Violating the Anti-Kickback Statute?
Nicolas Terry – North Carolina State Board of Dental Examiners v. Federal Trade Commission

The Week in Health Law Podcast from Frank Pasquale and Nicolas Terry is a commuting-length discussion about some of the more thorny issues in Health Law & Policy.

Show notes and more are at TWIHL.com. If you have comments, an idea for a show or a topic to discuss you can find us on twitter @nicolasterry @FrankPasquale @WeekInHealthLaw

Abortion and the Fetal Personhood Fallacy

Marco Rubio, Mike Huckabee, and other politicians continue to assert a common fallacy about abortion—because human life begins at conception, fetuses are persons, and abortion must be prohibited. Indeed, Huckabee and Rubio claim that the U.S. Constitution requires such a result.

But they are wrong. And not just because people disagree about the beginning of personhood. The flaw in the Rubio/Huckabee logic was pointed out more than 40 years ago, even before the U.S. Supreme Court recognized a constitutional right to abortion in Roe v. Wade. In “A Defense of Abortion,” Professor Judith Jarvis Thomson correctly observed that even if we assume that personhood begins at conception, it does not follow that abortion must be banned before the fetus is viable. Indeed, as she wrote, a ban on abortion before fetal viability would be inconsistent with basic principles of law.

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Faculty Hiring--University of Tennessee College of Law

THE UNIVERSITY OF TENNESSEE COLLEGE OF LAW invites applications from both entry-level and lateral candidates for as many as two full-time, tenure-track faculty positions to commence in the Fall Semester 2016. The College is particularly interested in the subject areas of business law, including business associations and contracts; gratuitous transfers/trusts and estates; and health law. Other areas of interest include legal writing, torts, and property.

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The US 2020 HIV/AIDS Strategy and the Limits of ACA

On July 30, the White House announced the updated 2020 HIV/AIDS strategy.  The admirable vision of the strategy is that “The United States will become a place where new HIV infections are rare, and when they do occur, every person, regardless of age, gender, race/ethnicity, sexual orientation, gender identity, or socio-economic circumstance, will have unfettered access to high quality, life-extending care, free from stigma and discrimination.” 

This said, the strategy reflects continuing concerns about the numbers of people who do not know their HIV status, who do not have access to effective treatment, and who do not take advantage of preventive strategies.  Demographic groups especially at risk include men having sex with men, African American men and women, Latino men and women, people who inject drugs, youth age 13-24, people in the Southern United States, and transgender women.  The strategy emphasizes care coordination, coordination between health care and other social services such as housing, treatment as prevention, and pre-exposure prophylaxis.  Notable initiatives since the 2010 HIV/AIDS strategy include interagency efforts to address the intersection of HIV and violence against women, a DOJ and CDC collaboration to publish a comprehensive examination and best practices guide on the intersection between HIV and criminal laws, and demonstration projects funded through the HHS Minority AIDS Initiative Fund.

Another major improvement since the 2010 strategy is implementation of the Affordable Care Act.  The 2020 strategy takes due note of the coverage expansions the ACA has brought:  the end to pre-existing condition exclusions for people seeking coverage, Medicaid expansion, and access to marketplace plans.   Yet given the demographic groups at greatest risk, there is a far darker side:  what ACA has not yet achieved and possibly will not achieve.

In 2014, the Kaiser Family Foundation published a report estimating the impact of ACA on health insurance coverage for people with HIV.  The 2020 strategy relies on the estimates in this report: that of 70,000 persons with HIV who were uninsured, about 47,000 would become eligible for Medicaid if that program were expanded in all states and that another 23,000 would qualify for subsidized private coverage in the marketplaces.  These estimates, however, refer only to people with HIV who are uninsured and are already in care.  The KFF report (relying on CDC estimates) also guesses that about 700,000 people with HIV are not yet in care and that an additional 124,000 people in this group could gain new coverage were the ACA Medicaid expansion and marketplace subsidies to be in effect in all states.

By my calculation, this leaves out over 500,000 people who are not yet in care and who still would not gain coverage even with the full deployment of ACA.  Half a million—not a trivial figure in view of the importance of encouraging testing, treatment as prevention, and pre-exposure prophylaxis.  To be sure, Ryan White funds pay pick up some of the slack—but only for those who know their HIV status.  

Leslie Francis