Why Race-Based Health Disparities Have Little to do With Genetics

By Jonathan Kahn

In a recent article in Wired, science journalist Angela Saini discusses “the disturbing return of scientific racism.” The piece is drawn from her new book, “Superior: The Return of Race Science.” Scientific racism per se might be succinctly characterized as (mis)using science to assert essential biological bases for differences among socially defined racial groups. It has been used over 200 years to justify, and indeed promote, the subordination of certain racial groups as purportedly inferior to others.

Saini does an admirable job of tracing the roots of modern scientific racism and identifying its resurgence. Her story in the Wired piece, however, focuses primarily on the more obviously pernicious manifestations of scientific racism exemplified by Bruce Lahn’s work at the University of Chicago asserting a genetic basis for cognitive differences across socially defined racial groups. Saini effectively shows how other geneticists and socially scientists dismantled these claims but frames its appeal in the widely held mistaken belief that “races have natural genetic propensities.”

The dangers of scientific racism, however, manifest not only in pernicious attempts to show superiority of inferiority among races. It also emerges more subtly and complexly in the well-meaning work of biomedical professional seeking to explore broader racial differences, particularly in the field of health disparities. Read More

Image of a pile of contraceptive pills.

The Contraceptive Mandate Takes Another Hit  

By Elizabeth Sepper and John Aloysius Cogan, Jr.

Known for his national injunctions of federal legislation, district court judge Reed O’Connor is at it again. In DeOtte v. Azar [PDF], he issued a permanent injunction granting religious exemptions to two nationwide classes that object to the Affordable Care Act’s contraception mandate. Judge O’Connor’s decision is notable for both its expansion of religious exemptions—in contradiction of eight out of nine appellate courts to consider the issue—and its casual disregard for the realities of health insurance markets.

DeOtte is the latest in a series of lawsuits pitting the Religious Freedom Restoration Act, which bars the federal government from substantially burdening a person’s exercise of religion, against the ACA’s mandate that insurance plans cover FDA-approved contraceptives.

Initially, under the mandate, churches were exempt and religious non-profit employers—like hospitals and universities—received an accommodation. So long as non-profits gave notice of their objection, their plans could exclude contraception. Their employees then would receive contraception coverage through the insurance company or health plan administrator. In 2014, the Supreme Court extended the accommodation to closely held for-profit corporations in Burwell v. Hobby Lobby, Inc. Read More

When It Comes to Abortion Restrictions, State Legislatures Try Fighting Fire with Fire  

By Adrienne R. Ghorashi

After what seemed like a barrage of legislative attacks on abortion rights last monthsome states are hitting back by strengthening their laws to protect the right to an abortion. Illinois, Maine, Nevada, New Jersey, New York, Rhode Island, and Vermont have all passed legislation this year expanding access to abortion in various waysIn the current political climatewhere some fear that Roe v. Wade is in danger of being gutted or overturnedstate legislatures are a key battleground in the abortion fightLegislatures and courts alike have been testing the very limits of the constitutional protections cemented in RoeAs deference to Roe wavers in the courts, enacting proactive legislation is a strategy that advocates of abortion access are paying close attention to  Read More

Cover of the book "Transparency in health and health care in the US"

Order Now: “Transparency in Health and Health Care in the United States”

Transparency is a concept that is becoming increasingly lauded as a solution to a host of problems in the American health care system. Transparency initiatives show great promise, including empowering patients and other stakeholders to make more efficient decisions, improve resource allocation, and better regulate the health care industry.

Nevertheless, transparency is not a cure-all for the problems facing the modern health care system. The authors of this volume present a nuanced view of transparency, exploring ways in which transparency has succeeded and ways in which transparency initiatives have room for improvement. Read More

Laboratory IVF petri dish under a microscope.

Fertility Fraud: Major Developments in Texas, Idaho, and Indiana

By Jody Lyneé Madeira

Spring of 2019 brought flowers, showers…and many updates on the “fertility fraud” front.

Perhaps the biggest developments are on the legislative front. On May 5, Indiana Governor Eric Holcomb signed Senate Bill 174 into law, creating civil and criminal causes of action for fertility fraud for former patients and their offspring (and donors whose gametes were used in an unconsented-to manner).

Plaintiffs who sue in tort can be reimbursed for the costs of the fertility procedure and $10,000 in damages. The act makes it a level 6 felony to make a misrepresentation involving human reproductive material and a medical procedure, medical device, or drug. Read More

Are Wellness-Based Insurance Products Really a Win For Everyone?

By Anya Prince 

Insurers have long been in the business of selling a variety of life insurance products to their customers, but a new trend has them promoting wellness and encouraging customers to make healthy lifestyle choices through benefits programs. John Hancock’s Vitality program, for example, offers customers a free Fitbit, savings on annual life insurance premiums, and other discounts and perks for meeting fitness goals.

Other insurers are joining in this wellness game, offering their own versions of incentives and access to wearables in exchange for fitness goals. At first blush, these programs are a classic win-win situation similar to that behind workplace wellness programs. Customers/employees get free wearables. Win! Customers/employees (ideally) live longer due to healthy lifestyle choices. Win! Life insurers/employers have customers that pay premiums for more years before they die and a claim is paid out. Win!  Read More

Consumer Genetics: To Test or Not to Test?

By Marnie Gelbart and Nadine Vincenten

Direct-to-consumer (DTC) genetic testing has entered our world with a big splash and opened the flood gates of genetic information. For over a decade, we have been out talking with people from all walks of life and listening to their storiesWhether we are speaking with scientists or non-scientists, whear excitement, concerns, ambivalence  – sometimes all three at the same time  and not surprisingly, many many questions as people try to make sense of it all.   

Susan Domchek, executive director of the Basser Center for BRCA, recalls counseling a patient with a family history of breast, ovarian, and colon cancer. This patient had taken a DTC genetic test that looked at her BRCA genes, and the results led her to conclude that she was not at risk for the cancers that had burdened her family. However, the patient did not realize that the test only looked at 3 of the over 1,000 BRCA variants linked to an increased cancer risk. And because the test did not look at other genes implicated in cancer, the physician recognized that it may have underestimated her patient’s risk. What if the patient had seen a doctor who did not understand the limitations of the test? Might she have avoided taking potentially life-saving precautions?  Read More

Robot and human facing each other. silhouetted against lit background

Please and Thank You: Do we Have Moral Obligations Towards Emotionally Intelligent Machines?

By Sonia Sethi

Do you say “thank you” to Alexa (or your preferred AI assistant)?

A rapid polling among my social media revealed that out of 76 participants, 51 percent thank their artificial intelligence (AI) assistant some or every time. When asked why/why not people express thanks, a myriad of interesting—albeit, entertaining—responses were received. There were common themes: saying thanks because it’s polite or it’s a habit, not saying thanks because “it’s just a database and not a human,” and the ever-present paranoia of a robot apocalypse.

But do you owe Alexa your politeness? Do you owe any moral consideration whatsoever? Read More

A bottle of spilled prescription pills and bottle on a black background

Public Health Law Watch Files Amicus Brief in Opiate MDL

By Faith Khalik

On May 3, 2019, Public Health Law Watch and six other amici filed an amicus brief in the national prescription opiate litigation in the northern district of Ohio.

During the case’s first hearing in January 2018, Judge Dan Aaron Polster told lawyers that he expected to see a settlement that would reduce the adverse public health impact of the opioid crisis, instead of just “moving money around.” The amicus brief submitted by PHLW et al. proposes just that: a settlement that includes a framework for addressing the opioid crisis and has a meaningful positive impact on public health.

Specifically, the brief proposes the creation of a nonprofit foundation to monitor the settlement’s implementation, participate in development and implementation of evidence-based programmatic initiatives, and administer funding for local treatment and prevention resources.

Read More

DOJ’s New Guidance on Civil Cooperation Credit Provides Some Answers, but the Bigger Question Remains

By Jacob T. Elberg

The health care industry and the white-collar defense bar have eagerly awaited guidance from the Department of Justice regarding the impact of corporate cooperation and self-disclosure on the resolution of civil False Claims Act (FCA) cases, the primary tool for government action in response to corporate misconduct in the health care industry.

Statements from DOJ officials raised anticipation over the past several months that guidance would be forthcoming. The guidance arrived on May 7, 2019, and focuses on answering the question of what conduct will constitute cooperation in the eyes of DOJ.

Unfortunately, the announcement fails to answer the question industry and the defense bar have been asking: how much credit will be given for cooperation and self-disclosure? Read More