Month: March 2014

CFP: CLE/CEU symposium on outstanding challenges in healthcare reform implementation

The Petrie-Flom Center Staff Leave a comment

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 healthlaw@hamline.edu 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. Please feel free to share this information with anyone you think may be interested.

Who’s the Boss? Why are our employers making our health insurance choices in the first place?

The Petrie-Flom Center Staff 2 Comments

This guest cross-post first appeared on Slate.com.

Margaux J. Hall is the Center for Reproductive Rights Fellow at Columbia Law School. All views expressed are the author’s own.

This week, the Supreme Court hears oral argument in two cases asking whether for-profit business corporations have religious liberty rights. Hobby Lobby, a group of craft stores with 13,000 employees, and Conestoga Wood, a small Mennonite furniture maker, want to be free of the Obamacare requirement that employer-provided health insurance plans need to provide certain forms of birth control. They argue that their religious convictions prohibit them from covering such items. Religious institutions, reproductive-rights advocates, and others have sparred over the conflicting rights claims, but one important part of the conversation has been missing almost completely: Why are American employers deciding the contents of our personal health insurance plans?

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TOMORROW: panel discussion, Current Legal Issues in HIV/AIDS Work

The Petrie-Flom Center Staff Leave a comment

Current Legal Issues in HIV/AIDS Work

Thursday, March 27, 2014, 12:00pm

Wasserstein Hall 1019, Harvard Law School, 1585 Massachusetts Ave., Cambridge, MA

More than 30 years have passed since AIDS first appeared in the United States. Today the CDC estimates that 1.1 million Americans are living with HIV/AIDS, and each year 50,000 Americans are newly diagnosed. Despite great strides in education, awareness, prevention, and treatment, people affected by HIV/AIDS still face significant discrimination, including unequal treatment under the law. This panel will explore some of the legal barriers faced by people living with HIV/AIDS in the United States, including FDA’s ban on men who have sex with men donating blood and laws criminalizing HIV transmission. Panelists include:

  • Felix Lopez, Director of the Legal Department, GMHC
  • Jason Cianciotto, Director of the Public Policy Department, GMHC
  • I. Glenn Cohen, Professor of Law and Faculty Co-Director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School
  • Moderator: Aziza Ahmed, Visiting Scholar, Petrie-Flom Center; Associate Professor of Law, Northeastern University School of Law

This event is free and open to the public. Lunch will be provided. For questions, contact petrie-flom@law.harvard.edu or 617-496-4662.

This event is cosponsored by Gay Men’s Health Crisis (GMHC). Founded in New York in 1981, GMHC is one of the world’s first and leading providers of HIV/AIDS prevention, care, and advocacy. 

NEJM Editorial on Murthy for Surgeon General (with some further editorial comments by me)

I. Glenn Cohen Leave a comment

Our friends at the New England Journal of Medicine have a great editorial chastising Congress and the White House for potentially bowing to the NRA’s pressure not to confirm Vivek Murthy for Surgeon General. The whole thing is worth a read but here are a couple of key paragraphs.

This is the first time that the NRA has flexed its political muscle over the appointment of a surgeon general. The NRA has taken this action even though the surgeon general has no authority over firearm regulation and even though Murthy made it clear in his testimony before the Senate HELP Committee that if he is confirmed, his principal focus will be on the important national problem of obesity prevention, not firearm policy. Still, 10 Senate Democrats are apparently prepared to vote against Murthy’s confirmation because of his personal views on firearms — a demonstration of just how much political power our legislators have ceded to the NRA.

The critical question is this: Should a special-interest organization like the NRA have veto power over the appointment of the nation’s top doctor? The very idea is unacceptable.

Despite the continuing American tragedy of mass shootings — Newtown, Aurora, Fort Hood, Virginia Tech — the NRA has redoubled its efforts to prevent enactment of stricter firearm regulations. Lawmakers who run afoul of the NRA face political retribution. By obstructing the President’s nomination of Vivek Murthy as surgeon general, the NRA is taking its single-issue political blackmail to a new level. With the record of past surgeons general as their guide, senators should do what is right for the health of our country by confronting the NRA and voting their own conscience. Dr. Murthy is an accomplished physician, policymaker, leader, and entrepreneur. He deserves the President’s continued backing and should be confirmed.

I think this is very well said and largely sympathetic. The one point on which I will slightly veer off course (disagree with is too strong) from NEJM has to do with the connection between gun safety and health. I do think it is legitimate to view gun safety and firearm deaths as a HEALTH issue, even if not particularly a HEALTH CARE issue. It is a staple part of public health regulatory studies, along with drugs, alcohol, obesity, and tobacco. While we have the CDC as a kind of public health federal executive power, as its name suggests communicable and non-communicable disease has always been its focus. I think it would be great if we understand the “top doc” of the United States’ role as being about HEALTH and not just HEALTH CARE, so I would not (and to be clear I don’t think NEJM has) draw too strong a line between these two in an attempt to salvage this nomination. Doctors (not exclusively of other actors in the system, of course) should view themselves as agents of HEALTH not just HEALTH CARE, and I would hate for Murthy or other doctors’ efforts in the broader sphere to be dismissed as “frolicks” or “extracurricular.”

 

Advance Directives, Rights, and Brain Death Pregnancies

jrobertson Leave a comment

By John A. Robertson

Dr. Jeffrey Ecker, a noted fetal medicine specialist, has an excellent piece on the Munoz case in Texas in a recent NEJM article (“Death in Pregnancy—An American Tragedy”).[1]   He shares the widespread view that brain dead pregnant women should not be maintained over the father or family’s objections.  He does, however, suggest that maintenance may occur with family consent to enable the fetus be born with the best chance of survival.

The burden of his comment is on legal issues and rights.  Because Texas recognizes brain death as legal death, the hospital had acted inappropriately when it relied on the Texas advance directive statute, which limits advance directives when a woman is pregnant, to maintain her over her husband’s wishes. The court ruled that since Ms Munoz was brain dead, the advance directive limitation which applies only to patients who are still alive, did not apply to a pregnant patient who was dead under cardiopulmonary or brain death criteria for death.  His comment deserves laurels for its clear presentation of the statutory conflict and its resolution.

Dr. Ecker, however, like many other commentators, runs into trouble when he says that the hospital’s actions in the Munoz case, even if supported by statute  are “a wrongful usurpation of the rights of individuals,  in this case  … women.”[2]  The problem is his the assumption that there is or should be a constitutional or legal right at Time 1 when competent to issue a legally binding directive at Time 2 when the maker is incompetent and indeed may have a different set of interests or none at all.

But there is no constitutional right to make a directive at Time 1 that binds at Time 2.  Justice Sandra O’Connor concurring in the outcome in Cruzan mentioned a possible 14th Amendment right to appoint a health care proxy to make a decision at Time 2, but no other justice joined her.[3]  Indeed, a constitutional right to make future directives that bind oneself directly or through an agent has no constitutional precedent and poses many problems.

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Awkward Company

jurrutia Leave a comment

I am often surprised when I discover the folk who are on the same side of an issue as me. I must say, it’s not always a pleasant surprise. In fact, I just as often regret having to share company with many people who are on “my side” of a cause.

I expect this is exactly what many of those who oppose abortion in this country would feel if they learned who the main champion of their cause is in Colombia: Inspector General Alejandro Ordoñez, who recently gained international notoriety after he deposed the left-leaning Mayor of Bogotá, Gustavo Petro and barred him from holding public office for 18 years. The official reason is related to his administration’s handling of waste management in Bogotá. However, many believe that the harshness of the sanctions were motivated due to Ordoñez’s repudiations of Petro’s positions regarding abortion and the rights of the LGBT community.

I very much believe that most opponents of abortion in the US would also strongly oppose most of the stringently misogynistic, homophobic and anti-Semitic views that are fundamental to Ordoñez’s political conception, which he defends in his writings, including: “Towards the Free Development of our Animalness” or “Gender Ideology: Tragic Utopia or Cultural Revolution.”

In case you’re curious, below are some translated excerpts from his Law School thesis, which he presented to the University of Saint Thomas in Bucaramanga, Colombia, in 1979.

“Fundamental Presuppositions of the Catholic State“

Dedication: To our lady the VIRGIN MARY, Mother of God and Mother of ours, co-redeemer of the human lineage… supplicating from her the restoration of the Christian order and the crushing of atheistic communism so that catholic faith my shine allover since without her there is no hope for societies or for men.”

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Evidence in Policy Innovation

Scott Burris 2 Comments

In the last few decades, there has been a broad effort to strengthen the use of evidence-based law as a tool for the promotion of population health. There are two major fronts in the campaign, each essential, and both largely successful, though much work also remains. One aims to increase the quantity and quality of empirical research on the health effects of existing policy choices. The other focuses on how best to get such knowledge into action in the form of policy and practice. In a new PHLR Theory Practice and Evidence paper, Evan Anderson and I draw attention to a third front: the formulation of new legal interventions. Though policy experimentation is inevitable, it has been the subject of relatively little systematic study. For proponents of evidence-based public health law, policy experimentation presents a paradox: if a legal intervention is truly innovative, there will not yet be direct evidence of its impact. Yet direct evidence from policy evaluations is never the only source of research knowledge relevant to a policy decision, even under conditions of novelty and uncertainty. And few interventions are truly new in a broad sense; in most instances, similarly designed laws have been deployed before, just not for the same specific purpose.

We use the case of youth sports concussion and Washington’s Lystedt Law as a case study of how even new legal strategies dealing with new problems can be built on evidence. We show  how evidence about the problem lawmakers are addressing, combined with widely-used analytic tools like the Haddon Matrix and an understanding of the generic mechanisms through which law influences behavior and outcomes, can bring existing research knowledge into the crafting of even very innovative legal interventions for newly perceived problems.  While we don’t expect the policy sausage factory to suddenly start looking like a research lab, there’s no question that legislators typically care about getting policy right and want evidence.  The point of our paper is to get the research world to think about ways we can help even when no one has yet studied the specific law at issue.

The other oral argument on Tuesday

koutterson Leave a comment

By Kevin Outterson

Cross posted from The Incidental Economist:

The opponents of the Affordable Care Act certainly know their way around a courtroom. Oral arguments in the contraception mandate case (Hobby Lobby) will be heard on Tuesday at the Supreme Court. That same day, another challenge will be heard in a federal courtroom nearby, in the Court of Appeals for the DC Circuit (the WSJ photo identifies the wrong court).

To the Cato Institute, the tax credit cases (Halbig v. Sebelius and a related case in the Fourth Circuit, King v. Sebelius) represent their last shot to cripple the four-year-old law by wiping out health insurance subsidies to millions of people in the 36 states that did not create state exchanges. (I’ve blogged about these cases before, and Cato folks have also posted summaries of the anti-ACA amicus briefs. Sunday’s WSJ ran an editorial following the Cato line).

Today, I wanted to highlight the amicus brief filed on Thursday March 20, 2014 by the Commonwealth of Virginia in King v. Sebelius (the 4th Circuit case, not the one up for oral argument on Tuesday). I appreciate the beauty of this argument, for it uses a conservative victory in federalism to support the federal government, and it comes from the newly-elected attorney general who replaced an early opponent of the ACA. (Mark Herring won by only 165 votes, but #electionsmatter).

I’m talking about the Pennhurst doctrine, which requires Congress to give states “clear notice” if conditions on states are attached to federal spending. So Virginia asks the very interesting question: Did Congress give “clear notice” that the penalty for failing to build a state exchange would be the loss of billions of dollars of health insurance subsidies?  When you put it that way, Cato’s argument collapses. From the brief:

For no one can reasonably claim that the federal government gave Virginia clear notice that its citizens would be denied premium tax-credit assistance as punishment for the Commonwealth’s decision to forgo building its own health insurance exchange.

And later:

 [The Plaintiffs argue] that everyone in Congress silently but mistakenly assumed that every State would create its own Exchange. (Appellants’ Br. 6, 42.) That claim finds no support in the record. The ACA was controversial when it was debated and adopted, and it was well known that numerous States objected to it and would not go along willingly.

The brief also notes that no Member of Congress expressed such a view and even the architects of this litigation (Cannon and Adler) were surprised by this “glitch” after the fact. The brief also reviews the official correspondence to and from the Governor on this issue; any notice whatsoever is lacking, much less “clear notice.”

What bothers me the most about this litigation is Cato’s willingness to try to hurt millions of vulnerable people in order to score political points, even after losing the 2012 Presidential election and the first bite of the Supreme Court apple in NFIB v. Sebelius. The Virginia brief puts the emphasis on the people:

Two sovereign interests compel the Commonwealth of Virginia to file this brief. First, the Commonwealth represents the interests of the hundreds of thousands of Virginians who depend on federal premium tax-credit assistance to afford the health insurance that is now available under the Patient Protection and Affordable Care Act of 2010 (the “Affordable Care Act” or “ACA”). Their interests are not represented by the Appellants here, four individual Virginians who do not want health insurance. Second, the Appellants’ legal theory contradicts the fundamental assumption on which the Commonwealth elected to forgo building its own health insurance exchange in favor of a federally-facilitated exchange: that doing so would not harm the interests of Virginians. The Appellants’ theory must be rejected under the Pennhurst doctrine, which prevents Spending Clause statutes like the ACA from being used to impose unusual conditions about which States were not provided “clear notice.” What is more, if Congress had actually done what Appellants claim — made State citizens financial hostages in a scheme to force State governments to adopt State-based exchanges —it would have violated the Tenth Amendment’s prohibition on coercing States to carry out federal policies. Accordingly, this Court should reject Appellants’ arguments and affirm the ruling of the District Court.

h/t Tim Jost

@kevinoutterson