Monday, January 6, 2020
An unusual monument to human rights sits in a corner of the Boston Public Garden in downtown Boston.
The 40-foot-tall Ether Monument,installed in 1868, is the oldest monument in the garden. It commemorates the first use of ether as an anesthetic, a pivotal moment in medical history. A few blocks away from the monument, across the Boston Common and downhill toward the Boston harbor, the first public demonstration of ether anesthesia was conducted in the Ether Dome at Massachusetts General Hospital in 1846. Boston dentist William Thomas Green Morton administered the ether, and doctor John Collins Warren then removed a tumor from an unconscious patient.
The Ether Monument depicts this breakthrough through the imagery of two connected figures: the Good Samaritan, holding in his arms an injured stranger he met on the road.
This past human rights day, December 2019, the World Federation of Societies of Anaesthesiologists invited its members to submit essays considering the question: Is anesthesia a human right?
The doctors who responded linked anesthesia not only to the human right to health but also to human dignity.
One doctor working in India wrote: "If healthcare is a human right does that mean anesthesia for surgery is also a human right?" She concluded that "[a]ll of us have the right to life, liberty, and security but we also have the right to safe surgery which is only possible with the provision of safe anesthesia." Another physician, practicing in Burkina Faso, observed that "[a]naesthesia makes it possible to eliminate pain, respect the patient’s dignity and facilitate adequate care."
In the U.S. today, many of us are accustomed to living with little or no pain, and if we do experience pain, we expect it to be addressed. Pain-relieving substances of all kinds are readily available, and medical personnel are often eager to help patients by offering prescriptions. Too much pain relief can be a bad thing if it's not needed, or if it has addictive qualities. But the Ether Monument reminds us how debilitating pain can be, what a momentous event it was when the pain-relieving properties of ether were successfully tested, and how lucky those of us with adequate health care are to have access to the human right to pain relief.
Tuesday, December 3, 2019
This week celebrated World Aids Day. We celebrate that for many HIV/AIDS is a chronic condition that will not result in death from the condition. And we celebrate the latest development that an Indian company has developed a strawberry flavored medicine that will provide infants with palatable, life-saving medication at the cost of only $1.00 per day.
But very real ongoing human costs of AIDS/HIV exist. Approximately 80,000 babies and toddlers die of AIDS yearly and 160,000 children are born with AIDS each year. 37.9 million people worldwide live with HIV or AIDS. 1.1 million of that number live in the United States.
We are fortunate that mortality rates are low and getting lower in the United States, particularly when compared with Africa. But we need to acknowledge the ongoing struggles of those living with HIV/AIDS. Approximately 37,000 new cases of HIV/AIDS diagnosed in 2018 in the US. The increase in opioid use is a particular source of new infections among younger people. AIDS Alabama has announced a planned project that will provide homeless youth with safe shelter in Birmingham. The residence will provide transitional housing, as well. Safe housing will be a powerful tool against opioid use and the spread of AIDS. Some living with HIV have no security of regular medical interventions. Rural America is experiencing an increase in diagnoses, as well, but it is there that helpful resources are fewest.
Stigma still exists for those living with HIV/AIDS and discrimination reveals itself in employment, housing and other areas that impact daily living. And criminalization of HIV/AIDS continues in many states. So while medical advances have improved the lives of those living with HIV/AIDS, in the US we must be mindful of the stressors that impact the day to lives of those living with HIV/AIDS.
We optimistically head toward the day where the conditions will be eliminated. AIDS United projects 2050 as the year for reaching that goal. Until that day we honor those who live with repercussions from discrimination that attaches to an HIV or AIDS diagnosis.
Tuesday, December 5, 2017
December 1st was world AIDS Day.
Over 37,000 people in the US are newly diagnosed with HIV each year. 37 million people world wide are living with HIV or AIDS. The opiod crisis has increased the number of new transmissions. Women in abusive relationships are at increased risk for HIV. Yet many perceive the problem as no longer a crisis in the US because of the effectiveness of treatment (Art). But not everyone has access to treatment. Transportation issues remain a huge barrier to treatment, particularly in rural areas. The gutting of the affordable care act exacerbates the problem. A high percentage of men who have sex with men die from HIV/AIDS.
Those living with HIV experience workplace and housing discrimination, typically following the disclosure of private medical information.
And criminally, those living with HIV are at risk for prosecution if they have sex without disclosing their medical condition to the partner, despite the fact that taking ART as prescribed virtually eliminates any risk of transmission. Arrests and prosecutions under these criminal disclosure statues are disproportionately against people of color.
While the public impression is that HIV and AIDS is no longer a critical problem, those living with HIV and AIDS tell very different stories. For additional information on living with HIV here are just a few sources of information: Positive Women's Network; Center for Disease Control; and AIDS United.
Wednesday, May 24, 2017
The assault on the press continues. Last week we posted about a reporter in North Carolina who was arrested after persistently asking questions about health care to Health Secretary Tom Price.
Health care seems to be a sensitive topic. On Wednesday, a Guardian reporter was body slammed by a Montana congressional candidate on the eve of the election. Ben Jacobs reported that having asked the candidate about the Congressional Budget Office's estimates of over twenty million people who would lack health insurance under Trumpcare, candidate Greg Gianforte slammed the reporter to the floor, breaking his glasses and injuring one of the reporter's elbows.
The lid is off of civil behavior. The press, those charged with the responsibility to seek truth, are one of the first public casualties. The Sheriff's office is investigating. The special election is happening now.
Warning: Reporting can be dangerous to your health.
UPDATE: On election morning Mr. Gianforte was charged with assault. Fox News reporters corroborated Mr. Jacob's account of events.
Tuesday, May 23, 2017
The Yogyakarta Principles for eliminating sexual identity and gender discrimination were written in 2006. In 2010, an Activists Guide to the principles was published. The target audience for the guide is LBGTQ activists, with a secondary audience being academics and others interested in human rights implementation. The principles themselves are directed toward the state, and in particular those creating and implementing policy.
Recently a global conference was held in Bangkok to discuss updating the principles by addressing any existing gaps.
Stephen Leonelli of the Men Who Have Sex with Men Global Forum, seeks to bring more awareness of HIV to the principles. At present, there are only two references to HIV contained in the principles. Leonelli, who was a representative at the Bangkok meeting, has written a critique of the principles from the perspective of what changes might be made in order to appropriately address HIV/AIDS.
One of Leonelli's goals is to bring awareness to the collateral consequences of having HIV. Often acknowledged are the public health concerns HIV raises. But less appreciated are the impacts of criminalization, discrimination, violence and stigma. To read more on Leonelli's suggestions for advancing HIV awareness through the Yogyakarta Principles, click here.
The revisions are scheduled to be completed this fall.
Wednesday, October 5, 2016
Flint Michigan is undergoing an outbreak of infectious disease. Shigellosis is a contagious disease that causes fever, stomach pain and diarrhea. Since the city of Flint and the state of Michigan began sending lead contaminated brown water through the city water pipes, the residents have taken measures to avoid using local water.
Clean water has been distributed at various points for city residents. Along with the water, residents were given "baby wipes". While the wipes have the ability to remove dirt, chlorinated water used with traditional soaps are more effective in eliminating harmful bacteria. The inability of residents to access clean municipal water is seen as the source of the infectious illness. But Flint residents, understandably, do not trust the water being provided by the city. While many residents have filters on their faucets and showers, hot water reduces the life of the filters. The residents' ability to afford frequent filter replacement is limited.
This is the second outbreak of infectious disease experienced in Flint. Two years ago, the residents saw an outbreak of Legionnaires' disease.
The human right to clean water, the most essential ingredient in human survival, remains a low priority in many US cities, with Flint evidencing the consequences.
Monday, July 18, 2016
The connection between domestic violence and mass public killings has not been overlooked. The New York Times published an article on the topic which opened the conversation. While the article could be read to say that the link is casual and not correlative, the connection is supported by FBI data that 57% of mass killings involved a current or former intimate partner or other family member.
Nashville saw a near elimination of domestic violence murders, when, under the leadership of Officer Mark Wynn, every domestic violence call was addressed through a SWAT team response. From the bottom up, our culture needs to shift its focus to take domestic violence as seriously Nashville did. But that is not our culture. For example, not every state requires the surrender of firearms when a restraining order enters against a defendant. Yet federal law makes it a crime for someone subject to a restraining order to be in possession of firearms. When federal gun laws go unenforced, the state is empowering violent men to do further harm. Violence prevention is not a valued path in the U.S.
The failure of civil society to aggressively and effectively address intimate partner violence does, not coincidentally, lead to broader societal violence. Failure to curb gender violence empowers those who are violent. Violent men often hate women, gays, those of different races and others who do not match their limited sex and identity characteristics. Confusion over what it means to be a "man" is a common thread for those who harm both women and those who are gender different. Think Orlando. Religion can be the disguise these men use to execute their hate. Think ISIS and its culture of sexual violence.
As a culture we do very little to intervene when we see concerning behaviors developing in our young men. Ending violence is directly related to how we raise our boys. Traumatized boys are at risk of becoming violent men. Traumatized men who are not given the medical, psycho-therapeutic and other supports they need become dangerous to themselves and many others. Think police killings. We need to rethink our notions of privacy when it comes to children. What is now considered intrusive will later be fundamental as preventative.
What if we organized the restorative and therapeutic equivalent of a SWAT team? Imagine how effective intervention might be if children were diverted from thoughts and conditions that lead to violence by a team of loving, skilled professionals and community members focused only on providing the specific needs of an at-risk child and the child's caregivers. This may sound Utopian, but until we alter our present system of crisis only intervention for children, we should expect violence to continue in more and more dangerous forms.
Thursday, July 7, 2016
On August 4th and 5th Vancouver will host the 18th International Conference on Justice, Security and Human Rights.
The conference has an impressive range of topics including science based presentations on Fish Stock Habitats, business enterprises addressed in Sustainable Entrepreneurship,and Creating Shared Values, medical approaches to Treating Diabetes; and political topics such as Rights of Refugees and Promoting Gender Equality.
For more information, click here.
Tuesday, February 16, 2016
Inga Winkler, a scholar in residence at NYU Law School, is a leading thinker and writer on the human right to water and sanitation. Her definitive book, The Human Right to Water, appeared in 2012. Now, she has contributed a companion analysis of the human right to sanitation: The Human Right to Sanitation, forthcoming in 37 U. Penn J. Int'l L. (2016). The article is currently available on SSRN. Here is the abstract:
The Article provides background on the lack of access to sanitation faced by billions of people and highlights, in particular, inequalities in access to sanitation. It discusses how sanitation has long been, and continues to be, a neglected issue and how it is slowly gaining more and more attention, including in the context of human rights. The Article traces the steps that led to the political recognition of the human right to sanitation, and then discusses the legal status of the right to sanitation: is sanitation a “new” human right? Or has it rather been an implicit component of existing human rights guarantees that has only recently started receiving increasing attention? The Article argues that sanitation has a legal basis in existing human rights law and is best understood as a distinct human right (also distinct from the human right to water) as a component of the human right to an adequate standard of living. It provides clarification on the definition and specification of the right to sanitation through the criteria of availability, accessibility, affordability, quality and hygiene, and acceptability.
Finally, the Article discusses the complexity of realizing the right to sanitation and related human rights combining the aspects of individual dignity and public health. It acknowledges that sanitation is largely a matter of individual responsibility, but argues that states have a significant role to play in creating the environment that enables individuals to practice adequate sanitation as well as in ensuring public health.
Monday, February 15, 2016
This series concludes with an appeal to consider the voices of the most vulnerable and politically powerless of those living with HIV: sex workers. Katherine Hanssens, Executive Director and Founder of the Center for HIV Law and Policy, has called for the inclusion of sex workers in the national discussion of HIV. Sex workers are stigmatized in ways that are usually not encountered by others living with HIV. The disdain and dismissiveness with which sex workers are treated in both U.S. law and culture compounds when HIV is added to the existing stigma experienced through the gender oppression of sex workers. Sex workers also are often poor and experience abuse, both in their personal relationships as well as professionally. In some cases, sex workers are dealing with addictions, as well.
Effective advocacy efforts must include sex workers. As the Center's website states: "Effective advocacy strategies seek to empower, rather than shame or punish, the sex worker community, and are often most successful when led by sex workers themselves."
One of the greatest health risks to sex workers is the policy of many police departments who arrest those in possession of an arbitrary number of condoms. This policy caused sex workers to reduce the number of condoms they carry and engaging in unprotected sex. The policy leaves sex workers as one of the populations left without significant choice in ways to protect themselves from HIV and other sexually transmitted health conditions. The condom possession is then used to make a case of prostitution.
Missing from the discussion of this policy targeted at an unpopular segment of our society are those targeted. But Human Rights Watch changed the discussion by conducting a 2012 study of the effect on condom restriction on sex workers. Most reported that the policy resulted in their having more unprotected sex presenting a serious health risk for them as well as a public health concern.
In 2014, influenced by the study, the New York City police department ended their condom carrying policy in response to pleas from public health advocates. In large part, changes in police policy resulted from the work of Human Rights Watch. Wer eit not for human rights advocates, criminalization of the marginalized expands, if only because those in the criminal justice system are not thinking holistically. In this case, police policy designed to enhance prosecution neglected the public health needs of the general population.
Organizations such as Human Rights Watch provide a service to the marginalized in providing data in order to effect policy change. The next step is, as Hanssens says, is to bring sex workers into the conversation thereby igniting the cultural shift from dismissing the marginalized to respecting their voices.
Thursday, February 11, 2016
According to the Center for HIV Law and Policy, women living with HIV statistically tend to be poor and women of color. These and other women living with HIV, face multiple societal and cultural barriers, and are further stigmatized because of their HIV status. Women face barriers that men with HIV do not.
The interplay of the triple stigma is no more evident than in family court. At least one half of women living with HIV report being in or having been in an abusive relationship. They experience partners controlling their medication. In some cases, their HIV positive partners consume the medication rather then seek medical help on their own. Women who seek civil protection orders must consider the likelihood of the partner's "outing" their medical condition in open court or through public documents. Often women choose not to reveal their HIV status, trading critical testimony for either privacy or the abusive partner's silence. Jane Stover addressed the difficulties of HIV positive battered women in her article Stories Absent from the Courtroom: Responding to Domestic Violence in the context of HIV-AIDS. But not all of the legal challenges originate with abusers.
Mothers living with HIV face challenges in custody matters that HIV positive fathers do not. When women are infected, particularly women of color, courts are concerned with the cause of infection. Consistent with the cultural expectation of the "perfect mother", presumptions are made around women's sexuality, including promiscuity and sex work. Reproductive rights can be impinged by physicians not understanding that for medically treated mothers, transmission between mother and fetus is nearly impossible.
Women also can be encouraged to take PrEP, the relatively new medication that has proven effective in preventing transmission. But the drug's testing was done largely with the men who have sex with men. The research leaves unanswered questions of how the drug will impact women's hormonal systems as well as bone density. Little has been done to ensure the safety of children breastfeeding from mothers who take PrEP. And transgender women need studies separate from other women.
Two organizations that focus exclusively on the needs of women living with HIV are creating change. Positive Women's Network has conducted research on the barriers faced by HIV positive women and SisterLove assists women living with HIV in resolving their health care challenges, including reproductive health. The greatest health care challenge may be how to make health care and research systems gender inclusive when addressing solutions for those living with HIV.
Wednesday, February 10, 2016
This is the first in a series of posts addressing the status of those in the US living with HIV/AIDS.
To varying degrees of culpability, over thirty states in the nation have laws criminalizing having sex while HIV positive. States vary from treating HIV the same as exposing a partner to any STI to intentional infection of a sexual partner. Many of the statutes are based upon outdated science.
Most criminalization statutes originated during the hysteria of the 1980's when thousands, primarily gay men, died of the virus because no stabilizing or preventive medication had been developed. The treatment world has changed. And while a few states amended or invalidated laws designed to punish those living with HIV for having sex without disclosing their status, overall the U.S. has done very little to update laws to reflect the limited likelihood of transmission.
No longer is HIV a terminal condition. Contemporary treatments are effective not only in extending life within normal range, but in prohibiting transmission. Viral loads can be undetectable, making transmission impossible. Aids.gov states that HIV cannot be transmitted through saliva. There is no known case of HIV transmission through spitting, yet many states enhance punishment for those who are HIV positive and spit on a police officer. Bad science makes bad laws.
In 2008, a man in Iowa, Nick Rhoades. was sentenced to 25 years after a one time sexual encounter during which he used a condom but did not disclose his positive status. His viral load was undetectable. After spending over five years in jail, his sentence was reduced to time served after Lambda Legal successfully assumed representation. Prison release happened only after Rhoades spent six weeks in solitary confinement, a traumatizing experience all its own.
While HIV is treatable, this does not diminish anguish felt by those who have been infected through a non-disclosing sexual partner. But the penalty for transmission, even intentional, is often as great or greater for crimes of where the victims are killed. The most recent conviction took place in Missouri last year. Twenty-three year old Michael Johnson was prosecuted for knowingly exposing sexual partners to HIV. Only one of the partners contracted HIV due to the encounter with Johnson. Johnson was sentenced to over 30 years in prison, a sentence far longer than most manslaughter sentences.
According to the Center for HIV Law and Policy nearly two hundred HIV prosecutions have occurred since 2008.
The Global Network of People Living with HIV calls the US one of the world's hotspots for HIV criminalization.
Tuesday, December 8, 2015
Has anti-choice propaganda led to an increase in violence and attacks on abortion clinics? Following last week’s tragic attack on the Colorado Springs Planned Parenthood, the news has focused on the impact of videos released by the Center for Medical Progress and political rhetoric targeting Planned Parenthood. Meanwhile, the New York Times and Washington Post have published pieces trying to figure out what motivated Robert Dear, Jr.
But, regardless of how the media depicts this latest act of violence, it’s clear that there’s a long and well-documented history of attacks on abortion clinics and providers. The Colorado shooting should remind us of the dedication and bravery of abortion providers who daily face intimidation, threats and harassment designed to prevent women from accessing health services and rob them of their right to make their own reproductive rights decisions. For their work, abortion providers are often stigmatized, but they should be acknowledged as human rights defenders.
In an op ed in the New York Times, Dr. Willie Parker describes how he gave up his OB practice in Chicago and moved to Alabama to provide abortions full-time. He explains “[i]n public health, you go where the crisis is. If there is an outbreak and you have the ability to relieve suffering, you rush to the site of the need. This is why, a year and a half ago, I returned to my hometown, Birmingham, Ala., to provide abortions.”
Despite physical threats and threats to their livelihood, abortion providers remain committed to providing care to women. A recent article in Rolling Stone profiled a doctor who was bombarded with harassing calls and “veiled threats online (‘I wonder if someone will shoot the new provider...’).” She eventually gave up her family medicine practice after anti-choice activists picketed her practice and pressured the building where the practice was located. “I wasn't about to let awful tactics like that work, because that would just encourage them to keep doing that to others. So the ultimate effect was that I became a full-time provider of abortion care.”
Mother Jones describes the heroic efforts of abortion providers to keep clinics open in the face of new and frequently arbitrary requirements and regulations imposed on them by anti-choice legislatures each year. And Pro Publica describes the constant barrage of personalized harassment providers face, including picketing of private homes and the targeting of families for harassment. To avoid harassment and threats of violence, providers register their homes in their spouses’ names; they change their path to work; they buy bullet-proof vests. All to ensure that women are able to make their own reproductive health decisions.
The international community has recognized that medial and health services professionals are human rights defenders when they provide services to ensure that women can exercise their reproductive health rights. In 2010 the Special Rapporteur on Human Rights Defenders, a U.N. human rights expert who monitors and speaks out about attacks on human rights defenders, stated that “[i]n certain countries . . . health professionals, as a result of their work, are regularly targeted and suffer harassment, intimidation and physical violence.” The report recognizes that attacks have led to “killings and attempted killings of medical professionals.”
Last month, the Special Rapporteur on Human Rights Defenders, joined by five other human rights experts, issued a statement emphasizing the need to protect sexual and reproductive rights defenders in the Americas. The statement recognized that sexual and reproductive rights defenders “face the same risks as many other activists, but they are further exposed to retaliation and violence because they challenge power structures based on patriarchy and deeply-held gender stereotypes about the role of women in society.”
For their commitment to women’s rights and the challenges that they face to provide services, abortion providers should be recognized as human rights defenders. Let’s change the dialogue and recognize them as the heroes they are.
Wednesday, October 14, 2015
Last week, the Nuestro Texas campaign—a joint project of the Center for Reproductive Rights and the National Latina Institute for Reproductive Health—issued a report documenting a women’s human rights hearing held last March in the Rio Grande Valley. Lately, Texas has made front-page headlines because a challenge to HB 2 a Texas abortion statute is making its way to the Supreme Court. Abortion access was very much an issue at the hearing, but the testimony made it clear that the human rights problems in the Valley are much broader and deeper.
I served as an expert, along with 6 other human rights experts from the U.S. and Mexico for the hearing. In addition to attending a community meeting in a colonia (an unincorporated area that lacks paved roads and other infrastructure) and touring the last remaining abortion clinic, the experts listened to a full day of women’s testimony. The testimony illustrated multiple human rights issues, including the historic lack of health care infrastructure and affordable services for poor and rural women, the profound barriers that immigrants face in accessing health care in Texas, and the impact of recent Texas laws and policies that have gutted family planning services through cuts in funding and the exclusion of Planned Parenthood from receiving state funds for preventive care. (Although the funding was reinstated during the most recent session of the Texas legislature, the facilities that served women in poor and rural communities—dozens of clinics across the state that were forced to close or severely cut back on services—will not receive this new funding).
During the hearing, women shared stories about being turned away from clinics that did not have appointments available or funding only to later learn they had cancer. They described fears about their families’ future as they live with the uncertainty of undiagnosed breast lumps. They described the lack of available and affordable family planning, and the difficulties that an unplanned pregnancy creates for a mother struggling to care for her family or a woman trying to pursue her education.
The women who took part in the hearing also conveyed their vision for Texas’s future, and their commitment to fight for change. As Lucy Felix, field coordinator for the Texas Latina Advocacy Network stated, “We are all fighting together for a different Texas—a just Texas. What we want is a Texas with human rights for all.”
Friday, July 31, 2015
The critical need for affordable, fresh drinking water has been the subject of several posts on this blog. Now the US Human Rights Network announced that on July 28th it, along with twenty other organizations and individuals, requested a hearing with the Inter-American Commission on Human Rights on the right to safe drinking water and sanitation in the U.S.
Among concerns, the letter requesting a hearing addressing water shutoffs in Detroit, Baltimore and Boston. The letter addresses concerns around contamination and lack of sanitation in rural areas as well, namely the San Joaquin and Salinas Valleys of California along with the Black Belt of Alabama. The disparate impact on African Americans and Indigenous peoples is documented for the Commission.
Rebecca Landy of the USHRN is the point of contact for the Commission. We look forward to her periodic updates on this important development.
Watch for more information on Northeastern Law's conference "Tapping into the Human Right for Water", being held on November 5 and 6.
Thursday, June 25, 2015
by Wendy Parmet, Northeastern University School of Law, guest contributor
With Chief Justice Roberts' remarkably strong decision today for the Supreme Court in King v. Burwell millions of Americans can now rest assured: affordable health insurance is here to stay. There may not be a constitutional right to health care in the U.S., and thanks to the Court’s 2012 decision regarding the Affordable Care Act’s Medicaid expansion, millions of citizens (not to mention non-citizens) remain uninsured; but the ACA’s promise of providing affordable coverage to millions of low income Americans is now secure.
The question before the Court in Burwell was whether individuals in the 34 states that rely on a federally-operated health insurance exchange, rather than a state-created exchange, are eligible for the federal tax credits. Without those credits, most people could not afford to buy insurance on the exchanges. Nor would they be subject to the ACA’s mandate to have coverage. As the Court recognized, as healthy people fled the exchanges, the insurance markets in states with federally-operated exchanges would experience a death spiral.
The challengers’ arguments were simple, if disingenuous. The provision in the ACA that calculates the amount of credits to which an individual is entitled is based in part on the period of time in which the individual is enrolled in a plan “through an Exchange established by the State.” According to the challengers and the dissenting justices, those words make it clear that tax credits are limited to individuals who purchase insurance through state-created exchanges. Conceding that their interpretation would effectively kill the exchanges in the 34 states that rely on a federal exchange, the challengers concocted the theory that Congress inserted a poison pill into the ACA to push states to create their own exchanges.
Fortunately for millions of Americans, 6 members of the Court disagreed. What is remarkable about the Court’s opinion, however, is not its conclusion. The challengers’ case was weak from the get-go. What’s most notable is the way the Court reached its conclusion.
The Obama Administration and supporting amici curiae offered the Court three different paths to saving the ACA. One was based on so-called Chevron deference. This holds that when statutes are not clear, courts should defer to the administrative agencies which interpret them, in this case the Internal Revenue Agency which had ruled that tax credits were available to individuals who purchase insurance through federally-created exchanges. If the Court had followed this path, the ACA would have lived for another day, but a future Administration could have reversed course. This can’t happen now because Chief Justice Roberts’ opinion expressly rejected Chevron deference, finding that the statute is not ambiguous. The statute, he determined, requires that subsidies be made available to people who buy insurance on a federally-created exchange.
A second path to upholding the statute was hinted at by Justice Kennedy during oral arguments when he asked whether the challengers’ interpretation of the Act would unconstitutionally coerce the states. Many commentators thought that Court might rely on that reasoning and construe the statute in the Obama Administration’s favor, while expressly stating it did so to prevent unconstitutional coercion of the states. Such an approach would have saved the ACA, but it might have planted new constitutional doubts about the scope of federal authority.
The third approach, and the one adopted by the Court, was to interpret the ACA as requiring that subsidies be available to people purchasing insurance on federally-established exchanges. The Court reached this conclusion by refusing to read the words “established by the State” out-of-context. Instead, the Court recognized that the interpretation offered by the challengers simply made no sense in light of the ACA taken as whole. Congress did not allow for federally-created exchanges only to make them collapse. When all of the provisions of the ACA are read together, the majority insisted, the meaning of the disputed words is crystal clear. Exchanges established by the state are exchanges created under the Act for a state, regardless of whether they are operated by the federal government or the states.
With that simple but declarative ruling, the Supreme Court provided the most decisive victory possible for the ACA, and for Americans who need health care. The statute is clear. Subsidies cannot be withdrawn by a future Administration. Nor are there any new constitutional concerns. Although some politicians will continue to insist otherwise, the existential debates over the ACA may finally be laid to rest; and so millions of Americans can rest easily.
Monday, May 18, 2015
The trial of Michael Johnson in Missouri has been watched by those living with HIV and their advocates. Johnson, 23, was charged with one count of recklessly infecting a person with HIV, one count of attempting to recklessly infecting a person with HIV and three counts of recklessly exposing partners to HIV. It is impossible to separate racism and homophobia from other motivations in the prosecution.
According to a statement issued by Aids United, Johnson is African American and his accusers are white. Only one of the 12 jurors was African American. The vast majority of jury pool members believed homosexuality is a sin. Half the jury pool believed that homosexuality is a choice.
Even more troubling were prosecution witnesses who called witnesses who referred to HIV as terminal. Thirty states have laws criminalizing exposure behavior. "Most states have not updated their laws to reflect our modern understanding of the effectiveness of today’s antiretroviral therapies and prevention strategies like consistent condom usage and pre-exposure prophylaxis (PrEP)" Some states have laws criminalizing spitting and scratching even though there is no evidence that either action is a method of infection.
Catherine Hansenns is Executive Director of The Center for HIV Law and Policy and has spoken extensively on the criminalization of HIV. In response to the verdict, which could carry a decades long sentence, she said: "Michael Johnson's conviction for exposing one of his sex partners to HIV and attempting to expose four others... reinforces public hysteria and misconceptions about HIV." Hansenns points out that those with human papilloma virus are not held to this criminal standard even though the virus is known cause cancers.
Dr. Wendy Armstrong of Emory University School of medicine noted that “HIV is no longer a death sentence. Like herpes, it is an incurable but treatable viral infection. With treatment, a person living with HIV will in all likelihood live a normal life span.”
Criminalization raises issues of autonomy. Absent an abusive relationship, each partner is determined to make his or her own choices around sex, including safe sex. American discomfort with sex as well as the refusal to accept science is implicated as well. But more concerning is that criminalization is punitive without regard to consequences. Fewer individuals are likely to be tested. Without knowledge, one cannot be criminally charged.
Wednesday, April 1, 2015
With high profile death of cancer patient Brittany Maynard who argued for the right to die; the touching account of Dr. Paul Kalinithi on how to continue life in face of an imminent death; and most recently, the Atlantic’s article on rising support for legalizing the doctor’s role in assisted suicide, I am wondering whether the so called right to die and attendant rights like those of physicians to assist might be productively cast as a human right.
While domestic legal fights have focused on constitutional issues and statutory prohibitions and protections, the questions underpinning a right to die might also be addressed by foundational principles in International Human Rights Law. As Jordan Paust’s thoughtful essay on this topic points out, International Human Rights Law recognizes the “general, fundamental, and enduring right of each person to human dignity” along with rights to privacy and liberty all of which are implicated by the right to die. The right to be free from torture, cruel, inhuman or degrading treatment, and the right to effective social and medical assistance might be implicated in individual cases as well.
Given the sensitive issues at stake and the polarized options, the right to death is hardly low hanging fruit for an international human rights movement and I wouldn’t expect this to emerge as a UN human rights treaty any time soon. But there may be advantages to framing this issue within a human rights narrative.
In so doing, I think domestic advocates need to think about whether it is worthwhile to compare those denied the means to control the timing and nature of their death to others who suffer violations of their human rights. Similarly, would it make sense to connect the stories of terminally and chronically ill patients who seek to make end of life decisions to hunger strikers and other political activists who use their health and the risk of death to express a political opinion? Should right to die advocates seek to find connections between poster child Brittany Maynard and hunger striker Shaker Aamer; between doctors that want to assist ALS patients and members of the military who refuse to force feed Guantanamo hunger strikers?
I think asking such questions now, when the issue is so salient, might be productive in thinking about how to generate wider acceptance of this social movement. I believe that human rights language and thinking can help inform this debate even if it doesn't directly shape much of the legal landscape. But these are just some early thoughts, so I welcome comments and suggestions.
Thursday, March 5, 2015
Yesterday's Supreme Court argument in King v. Burwell focused on the interpretation of just four words -- "established by the state" -- buried in the mega-statute that is the Affordable Care Act (ACA). Hanging on the Court's interpretation of this phrase is whether people in states where the federal government runs the health insurance marketplaces are eligible for subsidies that help them afford insurance. In short, the fate of the ACA -- and the health of millions -- is at stake.
While statutory interpretation seems like a quintessential issue for purely domestic legal analysis, it's worth remembering that U.S. health policy is scrutinized on the international stage as well as at home. This May, the U.S. will send a delegation to Geneva to participate in the Universal Periodic Review (UPR) of U.S. compliance with human rights obligations. In its February 6 , 2015, UPR submission, the U.S. touted the positive impacts of the ACA from a human rights perspective, as follows:
100. The United States has undertaken many initiatives domestically to promote food security and expand health care. The Affordable Care Act has increased health coverage options and quality through new consumer protections, the creation of the Health Insurance Marketplaces—a new means for uninsured people to enroll in health coverage—and additional support for state Medicaid and Children’s Health Insurance Programs. It requires most health plans to cover ten categories of essential health benefits, including preventive services, maternity and prenatal care, hospitalizations, and mental health and substance use disorder services. It also reauthorized the Indian Healthcare Improvement Act, to address some of the health care access concerns in indigenous communities.
101. We are committed to expanding access to health care to all our citizens and as such, have made efforts to strengthen and protect our social and health care programs: Medicare for the elderly and disabled, and Medicaid for low-income individuals and families. Under the ACA, Medicare beneficiaries have saved billions of dollars on prescription drugs and have seen no increase in rates since 2013. Additionally, Medicare beneficiaries no longer have to pay cost- sharing for preventive services, and nearly nine million individuals have enrolled in coverage in state-run Medicaid programs since October 2013.
This submission follows the federal government's many other representations in international fora concerning the benefits of the ACA -- a litany that was set out in a human rights amicus brief filed in the original Supreme Court ACA case.
While it certainly is not the gold standard of universal health care, the ACA at least represents a step toward progressive realization of the right to health in the U.S., and provides a response to international critics of the U.S. record on economic and social rights. A crabbed reading of the four words at issue in Burwell v. King will harm millions and set back the cause of more comprehensive health care; it will also expose the U.S. to international criticism, undermine U.S. ability to credibly critique other nations for their ESC rights violations, and hamper U.S. leadership efforts on ESC rights. It is hard to believe that was the drafters' intent in 2010.
Monday, February 23, 2015
Two health-related journals are seeking submissions addressing human rights issues. First, the influential Journal of the American Medical Association (JAMA) is planning a 2015 theme issue on trauma associated with violence and human rights. For the issue, which will be published in August 2015, JAMA is soliciting papers on trauma resulting from unintentional and intentional injury, from interpersonal and community-levels of violence, and from mass conflict, war, displacement, and natural disasters.
According to the JAMA announcement, "[a]uthors may submit manuscripts addressing any topic related to trauma, injury, violence, war, civil conflict, disaster, and human rights abuses. We are particularly interested in manuscripts reporting on studies of interventions to address the effects of trauma, new modes of management and treatment, and optimal systems of care in a variety of settings. Randomized clinical trials of preventive, therapeutic, or rehabilitative interventions are of primary interest, but we will also consider reports of observational studies and systematic reviews that address new and important findings as well as scholarly Viewpoints that address timely topics on clinical management, research, and policy related to trauma, violence, or human rights."
Manuscripts received by March 15, 2015, will have the best chance of consideration for publication in the JAMA theme issue. More information about submission procedures is here.
Second, the open access Health and Human Rights Journal, edited by Dr. Paul Farmer and Carmel Williams, is soliciting submissions for its special issue on Tuberculosis and human rights. According to the call for papers, TB and human rights is a neglected topic. Possible subjects to be addressed in the special issue, slated for June 2016, are:
-- The individual rights and entitlements of people living with and vulnerable to TB;
-- The obligations of States and non-state actors under human rights law to respect, protect and fulfill rights, including through prevention measures, and diagnosis and treatment;
-- The role of human rights in promoting the availability, accessibility and acceptability of good quality testing and treatment for TB;
-- The impact of stigma and discrimination in the lives of people living with and vulnerable to TB;
-- The situation of key affected populations;
--The State’s duty to protect against violations of human rights by non-state actors, such as pharmaceutical companies and private health providers.
Submissions should be received by September 20, 2015. Guidelines for submission are here.