protesters carry signs that say "refugees welcome" in

Words Matter: How Refugees of Torture Became a “Migrant Caravan”

San Pedro Sula in Honduras was the murder capital of the world for decades, a title it lost only a few years ago to Caracas, Venezuela in 2016.

At its peak, there were an average of three murders a day, which is alarming for a city with a census population of around only 765,000. This violence is fueled by a booming drug and weapons trade, one-third of the population facing unemployment, the presence of violent gangs, and political strife that make living in Honduras a daily life or death struggle.

When framed this way, it is clear to see that the term “migrant caravan” doesn’t at all describe this group marching from Honduras, through Mexico to the United States border. Let’s not let politicos or the media brand them as anything else. Terminology is important here, and the term “migrant caravan” doesn’t even begin to describe this group.These people are victims of torture, fleeing a violent landscape to seek asylum for themselves and their families. Anything less than that is a disgraceful mischaracterization of who they actually are.

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elderly person's hand clasped in young person's hands

How Would You Like to be Treated if You Had Dementia?

The New Yorker just published an article full of ethical questions about the best health care treatment for dementia patients. It should make you think about which life you would choose. Larissa MacFarquhar’s piece is titled “The Comforting Fictions of Dementia Care.” Its subtitle suggests a sad story, noting “Many facilities are using nostalgic environments as a means of soothing the misery, panic, and rage their residents experience.” The article tells numerous powerful stories of dementia patients’ good and bad experiences.

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The Abortion Information Wars

by Clíodhna Ní Chéileachair

The Supreme Court is currently considering National Institute of Family and Life Advocates (NIFLA) v. Becerra, a challenge by abortion opponents to a California law that requires unlicensed centers in the state to inform potential patients about whether the center is medically licensed or not, and that requires clinics offering pregnancy-based care to give accurate information about the availability of low cost, or free government contraceptive and abortion care. The law is an attempt to target clinics which purport to offer comprehensive pre-natal care and pregnancy counselling, while in actuality pursuing an agenda that typically discourages women from availing of abortion care through biased counselling, false descriptions of the risks of abortions and descriptions of foetal development that are inaccurate. The number of these clinics nationwide is estimated at 4,000 – far outstripping the number of actual abortion clinics in the US – and are frequently taxpayer funded. NIFLA claims that the law targets the organisation’s free speech rights and unfairly targets the political beliefs of clinic owners and operators.

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Institutional Conscience, Individual Conscience

The debate over compulsory coverage for contraception rages on, with Notre Dame changing their policy on coverage for birth control again under Trump executive order allowing them to do so. The university had initially claimed that a requirement mandating them to provide contraceptive coverage was a burden on its exercise of religion, and discontinued coverage last October, before quickly reversing course after a protracted outcry from students, faculty and staff. Over 17,000 people are currently covered by the institution’s insurance plan. The university’s current position is to cut coverage for birth control that the university considers to be inconsistent with Catholic teachings; continuing coverage for ‘simple contraception’ while discontinuing coverage for contraception that ‘kills a fertilized egg’.  

The Affordable Care Act required that insurers cover the cost of contraception without any out-of-pocket costs by the claimant, with exemptions for houses of worships and closely-held for-profits, with the proviso that organisations that wished to avail of the exemption must notify the federal government, who would then contract directly with the insurer to provide unimpeded access to birth control for employees and their dependents. Under Trump administration rules, the exemption has been expanded to include non-profit organizations and for-profit companies, including public corporations, and a separate HHS rule allows similar moral objections for most institutions.

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Dystopian Memes on ‘The Week in Health Law’ Podcast

By Nicolas Terry and Frank Pasquale

Subscribe to TWIHL here!

It’s a stormy healthcare landscape out there, so this show is all lightning round. We cover several areas:

Litigation: Nic provides the Ariadne’s thread through a labyrinthine pharma-tort judgment out of California. The metal on metal hip litigation has resulted in a big judgment, but medical device regulation is still fundamentally broken. Disgruntled Centene enrollees are suing the ACA insurer of last resort for ultra-narrow networks (and Washington state is not happy, either). Washington may lead the way for future narrow network regulation or consent decrees. We followed up on the duodenoscope superbug litigation saga, focusing on duties to translate foreign language emails in discovery.

Regulation: We discussed a crisis in long-term care, following up on last week’s discussion with Paul Osterman. Medicare is not making it any easier for many who qualify for help. We reviewed the new priorities of HHS’s Conscience Rights, er, Civil Rights Division (and potential responses to conscience claims). The rise of Medicaid work requirements is a hot topic, as Kentucky Governor Bevin imposed them last week. Read More

Medical Abortions and the Internet

by Clíodhna Ní Chéileachair

Early last summer, Facebook removed Women on Web’s page for ‘promoting drug use’. The Amsterdam-based organization connects women with doctors who prescribe the pills necessary for medical abortions and provides information on taking abortion pills, on contraception and on accessing abortion services in states where access to safe abortions is restricted or illegal. This followed an earlier interaction in which Facebook removed a photo of the organization’s founder, Rebecca Romperts, superimposed with instructions on the use of the pills. Facebook later apologized and reinstated the Facebook page, claiming that the removal was an error, and that the page served Facebook’s function of allowing individuals to organize and campaign for the issues that matter most to them.

Leaving aside the question of whether it was indeed an error, WoW have never existed without controversy. In February of last year, their sister organization Women on Waves made headlines when their boat was detained by the Guatemalan authorities while campaigning in Guatemalan waters. Women on Waves provides medical abortions to women once they are in international waters and thus operating under Dutch law, which allows abortions up to 21 weeks. Both organizations will provide access to abortion services up to 9 weeks, using a combination of medicines – misoprostol and mifepristone – which together induce abortion. The WHO estimates that the drug combination is used by 26 million women globally per year and is recommended as an abortifacient up to 9 weeks of pregnancy. Women on Waves are one of many organizations that aim to allow women to access abortion services that are either explicitly illegal, or practically unavailable in their home countries. There are risks associated with taking the drug combination, but these are minimal, and far riskier is the danger of leaving women with access to illegal abortions which is often the reality of full abortion bans. In Guatemala, 65,000 women have illegal abortions every year, with a third of that number admitted to hospitals from complications associated with the backstreet procedure. A medical abortion before 10 weeks is safer than childbirth, and as safe as a natural miscarriage. Both drugs have been on the WHO’s list of essential medicines since 2005. Studies show a high level of effectiveness in self-sourced and administered abortion pills, such as the service offered by Women On Web, and outcomes generally compare favorably with in-clinic administration. Underscoring the importance of safe access to the drug combination, use of the pills is often studied as a self-administration method alongside getting punched in the stomach, taking herbs or homeopathic medicines, deliberately taking a high dose of hormonal pills, alcohol and illegal drugs.

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Morality, Maturity, and Abortion Access in the US

by Clíodhna Ní Chéileachair

In the complex web of restrictions on abortion access, parental consent laws and judicial bypass mechanisms play a small, but hugely significant part. States are entitled to enact parental consent and notification laws in relation to abortion care for minors, as long as they allow minors to ‘bypass’ this requirement judicially, an attempt to account for the myriad circumstances in which it will be impossible, difficult or dangerous for teens to tell their parents about their pregnancy and their wish to end it. Finding different justifications in different contexts, some laws appeal to the perceived immaturity of the individual in arriving at a decision without adult intervention; other legal schemes emphasize the critical importance of respecting the family unit, and by extension, the ability of parents to determine the medical treatment their child will receive. The exact stats, state by state, are available here.

The patchwork regime which governs the US rules on abortion access, administered by local courts presiding over the individual applications of pregnant teenagers, is a highly dysfunctional one, where standards of judgment can be entirely capricious. Judges are, after all, not medical professionals, nor are they therapists, health experts or developmental psychologists. The standard criteria pronounced upon by a judge at a bypass hearing is whether the minor is ‘mature enough, and well enough informed to make her abortion decision, in consultation with her physician, independent of her parents knowledge’ or that ‘even if she is not able to make this decision independently, the desired abortion would be in her best interests’. The gateway for unchecked judicial discretion is gaping. Markers of maturity are wholly subjective determinations, as are the metrics to determine whether a minor is sufficiently informed, or where her best interests lie. After all, for a staunchly anti-abortion judge, it is entirely possible that no-one could be informed about the process of abortion and yet rationally seek it, or that it could never be in an individual’s best interests to receive abortion care as a minor. The controlling law doesn’t foreclose on these possibilities.

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Book Launch: Law, Religion, and Health in the United States

Book Launch: Law, Religion, and Health in the United States
September 27, 2017 12:00 PM
Wasserstein Hall, Milstein West A (2019)
Harvard Law School, 1585 Massachusetts Ave., Cambridge, MA

In July 2017, Cambridge University Press will publish Law, Religion, and Health in the United States, co-edited by outgoing Petrie-Flom Center Executive Director Holly Fernandez Lynch, Faculty Director I. Glenn Cohen, and Elizabeth Sepper, Professor of Law at Washington University School of Law. This edited volume stems from the Center’s 2015 annual conference, which brought together leading experts to identify the various ways in which law intersects with religion and health care in the United States, examine the role of law in creating or mediating conflict between religion and health care, and explore potential legal solutions to allow religion and health care to simultaneously flourish in a culturally diverse nation.

About the book: While the law can create conflict between religion and health, it can also facilitate religious accommodation and protection of conscience. Finding this balance is critical to addressing the most pressing questions at the intersection of law, religion, and health in the United States: should physicians be required to disclose their religious beliefs to patients? How should we think about institutional conscience in the health care setting? How should health care providers deal with families with religious objections to withdrawing treatment? In this timely book, experts from a variety of perspectives and disciplines offer insight on these and other pressing questions, describing what the public discourse gets right and wrong, how policymakers might respond, and what potential conflicts may arise in the future. It should be read by academics, policymakers, and anyone else – patient or physician, secular or devout – interested in how US law interacts with health care and religion.

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LIVE ONLINE TODAY @ NOON: President-Elect Trump’s Health Policy Agenda: Priorities, Strategies, and Predictions

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Webinar: President-Elect Trump’s Health Policy Agenda: Priorities, Strategies, and Predictions

Monday, December 19, 2016, 12:00 – 1:00pm

WATCH LIVE ONLINE!: http://petrieflom.law.harvard.edu/events/details/president-elect-trumps-health-policy-agenda

Submit your questions to the panelists via Twitter @PetrieFlom.

Please join the Petrie-Flom Center for a live webinar to address what health care reform may look like under the new administration. Expert panelists will address the future of the Affordable Care Act under a “repeal and replace” strategy, alternative approaches to insurance coverage and access to care, the problem of high drug prices, innovation policy, support for scientific research, and other topics. The panel will discuss opportunities and obstacles relevant to President-elect Trump’s proposals, as well as hopes and concerns for health policy over the next four years. Webinar participants will have the opportunity to submit questions to the panelists for discussion.

Panelists

  • Joseph R. Antos, Wilson H. Taylor Scholar in Health Care and Retirement Policy, American Enterprise Institute
  • Lanhee J. Chen, David and Diane Steffy Research Fellow, Hoover Institution; Director of Domestic Policy Studies and Lecturer, Public Policy Program; affiliate, Freeman Spogli Institute for International Studies, Stanford University
  • Douglas Holtz-Eakin, President, American Action Forum
  • Moderator:Gregory Curfman, Editor-in-Chief, Harvard Health Publications

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Vaccinate Your Children (Says a Federal Judge)

Flickr Creative Commons-Dan Hatton
Flickr Creative Commons-Dan Hatton

By Gregory M. Lipper

After nearly four years fighting about whether and when employers may exclude contraceptive coverage from employee health plans (and even block others from providing that coverage), it’s perhaps refreshing to see less controversial cases. And few healthcare-exemption cases are less controversial than those brought by parents who object to vaccinating their children. Although the challenged laws are objectively more intrusive than the contraceptive regulations—vaccination laws require parents to get the offending treatment injected into their children—courts thus far have correctly dismissed these challenges with little fanfare.

This dynamic surfaced again in a recent federal trial-court decision in California, in which the court dismissed a federal and state constitutional challenge to California legislation repealing the “personal belief exemption” to requirements that those entering schools and child-care facilities get vaccinated against diseases—including diphtheria, measles, mumps, rubella, and other dreadful ailments. The court acknowledged that eliminating the personal-belief exemption “raises principled and spirited religious and conscientious objections by genuinely caring parents and concerned citizens,” but stated that “the wisdom of the Legislature’s decision is not for this Court to decide.” Because the legislature decided to scrap the personal-belief exemption, California now exempts only those children (1) with actual medical reasons for avoiding the vaccination, (2) who are home schooled, or (3) who qualify for an Individualized Education Program under federal disabilty law. That’s a much more limited and manageable group of exemptees.

Although quite a relief for those seeking to minimize gratuitous suffering from preventable diseases, the court’s decision implicates several knotty legal issues and is worth exploring further.

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