HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Friday, February 12, 2021

A Virtuous Circle: How Health Solidarity Could Prompt Recalibration of Privacy and Improve Data and Research

Nicolas Terry (Indiana University), Christine Nero Coughlin (Wake Forest University), A Virtuous Circle: How Health Solidarity Could Prompt Recalibration of Privacy and Improve Data and Research, Ok. L. Rev. (Forthcoming):

While data laws were given a seat with older, relationship-based health law such as tort duties, they are not seen as a crucial part of the modern healthcare regulatory system and viewed only from a distance when healthcare history and policy are discussed. However, here we argue that our healthcare data laws have a closer relationship to the healthcare law mothership than often portrayed (and that is not necessarily a compliment). The core proposition that we advance is that there is (or should be) a hydraulic relationship between healthcare and health privacy. First, if health care continues to robustly prohibit health discrimination and continues to grow closer to universal access, the need for health data protection should decrease. This is not because privacy declines as a value but because exposures of health information will be less consequential. Second, it is broadly accepted that the U.S. imprudently spends a considerably larger percentage of its “health dollars” on clinical health rather than public health. The outsized role of social determinants, zip-code health, and institutionalized health inequities has been accentuated during the COVID-19 pandemic. Public health recognizes solidarity, social and health interdependence as a fundamental tenet. As the recovery from COVID-19 begins and we “rebuild better,” public health and hence solidarity likely will be strengthened. Third, the movements towards universal access and more vibrant public health are likely to be premised on a shift away from health individualism to solidarity. As this shift slowly develops, it is likely to engender more sharing of personal information in order to improve the overall health of the population.

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