CHICAGO, ILLINOIS, USA - JUNE 8, 2019: First ever Medicare for All rally led by Bernie Sanders held in The Loop of Chicago. Crowd holds up a sign that says "Medicare for All Saves Lives".

Sustaining the Promise of Universal Access

By David Orentlicher

Should the United States achieve universal access to health care by adopting a single-payer, Medicare-for-All kind of system? Or should we build on the Affordable Care Act (ACA) and not disrupt the health care coverage of the 160 million Americans who have private health insurance?

Both reforms rely on important arguments about affordability, feasibility, and consumer choice. But there is one key reason to favor a single-payer system over an expansion of our current system. Experience with public benefit programs in the United States tells us that such programs thrive only when they serve all Americans.

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A photograph of miniature figures of people standing on top of piles of coins at different heights

Promoting Health, Not Just Health Care

By David Orentlicher

Once again this past Thursday, the Democratic presidential candidate debate began on the topic of health care reform, and moderator George Stephanopoulos quickly steered the discussion to what he termed “the heart” of the debate. Should the United States increase access to care by building on the Affordable Care Act (ACA) or by replacing ACA with a single-payer, Medicare-for-All system?

While this is an important question, there is an even more important question for the candidates to discuss. We need to hear them talk more about health than about health care.

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How the GOP Misread Public Anger over Obamacare

By David Orentlicher

In today’s New York Times, Kate Zernike reports on the lack of excitement among conservative activists for the Republican health care legislation. As Zernike observes, “President Trump and congressional leaders are getting little support from what were once the loudest anti-Obamacare voices.”

Some observers think that activists are disappointed in the failure of the GOP proposals to go far enough in repealing the Affordable Care Act. But that’s not the real story. In general, the public likes many of Obamacare’s key provisions, such as the protections for people with preexisting medical conditions or the ability of parents to insure their children up to age 26. Even among Republicans, there is majority support for the ban on higher premiums because of preexisting conditions and also for the mandate that insurers cover “essential health benefits.” And by 2014, Obamacare had faded as a campaign issue for Republican candidates for Congress.

So why don’t grassroots Republicans care so much about repealing the Affordable Care Act? Tea Party activists and other voters were genuinely mad about Obamacare, and they fueled the Republican wave in the 2010 House elections that saw Republicans gain 63 seats. But what made them angry was the feeling that President Obama cared more about health care than he did about the economy. In March 2010, when Obama signed the Affordable Care Act into law, the unemployment rate was 9.7 percent. The public cared much more about jobs than about health care insurance, and they saw their President focusing on health care. Remember how many times Obama promised to “pivot” back to the economy?

Voters elected President Trump and gave Republicans majorities in the House and Senate because they wanted more jobs at better pay. If the GOP lets health care distract it from economic stimulus, we may see another wave election in 2018.

Most-Cited Health Law Scholars (with an update on multiple authors)

By Mark A. Hall and I. Glenn Cohen

Based on the law faculty citation analysis done by Greg Sisk, Brian Leiter has compiled “most-cited” rankings of tenured law faculty in a number of different subject areas, but not health law.  Naturally, we would be curious to know how we and colleagues might show up in such a ranking, but more than this, we were curious how the field of Health Law as a whole would look, compared to other fields, and how well different component of health law might be reflected.  Health law (as many people conceive it) is a broad field that includes bioethics, biotechnology, medical malpractice, health care finance and regulation, health policy, and public health.

Using Leiter’s methods and the Sisk data (supplemented as noted below), we compiled a citation-count ranking of health law scholars over the five-year period 2010-2014 (which is the latest currently available from Sisk).  We classify faculty as health law scholars if publications in this field account for the bulk (roughly 2/3) of their more recent citations.  A research librarian at Wake Forest University supplemented the Sisk data by doing citation counts (using his same methods) for an additional two dozen prominent health law scholars who are not on the Sisk list because they are at lower-ranked schools (below the top 70) or are based at schools of medicine or public health.  To ensure maximum comparability between these rankings and those already existing for other legal fields we conformed to Leiter’s presentation, which entailed, among other things, rounding citations to the nearest ten and estimating the age of those ranked.  Read More

Is Mike Pence’s Medicaid Expansion a Blueprint for Donald Trump’s Health Care Reform?

By David Orentlicher

[cross-posted at orentlicher.tumblr.com]

Donald Trump’s pledge to repeal and replace the Affordable Care Act has looked much more like a plan for repeal than a plan to replace, especially in light of the kinds of reform proposals advanced by leading Republicans in Congress, including Trump’s designee for Secretary of HHS, U.S. Rep. Tom Price.

But Trump’s recent promise of “insurance for everybody,” suggests that he might actually have a serious replacement in mind. While we cannot automatically take Trump at his word, it may be the case that he is following the example of his Vice President-elect Mike Pence, who as Governor of Indiana defied Republican positioning in signing on to the Affordable Care Act’s Medicaid expansion. Read More

Surrogacy Contracts Directly Enforcible in Pennsylvania

By John A. Robertson

Surrogacy is legal in many states.  Some, like California, directly enforce gestational carrier contracts.  Others, like Texas, Illinois, and Virginia, enforce only those contracts that are entered into by a married couple who need a surrogate for medical reasons which a judge approves before embryo transfer occurs.  A Pennsylvania court has now shown why gestational surrogacy contract should be directly enforced in the absence of legislation.  Its well-reasoned opinion suggests that more states may be open to this approach to surrogacy.

The Pennsylvania case, In re Baby S., arose out of a gestational surrogacy agreement involving embryos created with donor eggs and husband sperm. The written agreement was indisputably clear that that the intended parents would be the legal rearing parents, their names would appear on the birth certificate, and the carrier would have no rearing rights or duties.  Unlike previous cases questioning the validity of a surrogacy contract, the challenge here came not from the carrier who now wished to assert rearing rights (see In re Baby M and Calvert v. Johnson) but from the wife (the intended rearing mother).  She had praised the carrier’s willingness to help her have a child, which she repeated both at the embryo transfer and at a 20 week ultrasound at 20 weeks of pregnancy, which both intended parents attended.  A month later she informed the parties that “irreconcilable marital difficulties” would make it difficult for her to co-parent the child with the intended father.  She also refused to complete the paperwork for her name to appear on the birth certificate as the mother.

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Fetal Personhood and the Constitution

By John A. Robertson

The Rubio-Huckabee claim that actual and legal personhood start at conception has drawn trenchant responses from Art Caplan on the medical uncertainty of such a claim and David Orentlicher, drawing on Judith Thomson’s famous article, that even if a fetus is a person, woman would not necessarily have a duty to keep it in her body.

Their debate claim that the fetus is already a legal person under the constitution also deserves a response, for it has no basis in positive law.  In Roe v. Wade all nine justices agreed that the use of “person” in the Constitution always assumed a born person, and therefore that the 14th Amendment’s mention of person did not confer constitutional rights until after a live birth.  In the years since Roe, when the make-up of the court has changed, no justice has ever disagreed with that conclusion, including those who would overturn Roe and Casey. Read More

Abortion and the Fetal Personhood Fallacy

By David Orentlicher

[cross-posted at HealthLawProfs blog and orentlicher.tumblr.com]

Marco Rubio, Mike Huckabee, and other politicians continue to assert a common fallacy about abortion—because human life begins at conception, fetuses are persons, and abortion must be prohibited. Indeed, Huckabee and Rubio claim that the U.S. Constitution requires such a result.

But they are wrong. And not just because people disagree about the beginning of personhood. The flaw in the Rubio/Huckabee logic was pointed out more than 40 years ago, even before the U.S. Supreme Court recognized a constitutional right to abortion in Roe v. Wade. In “A Defense of Abortion,” Professor Judith Jarvis Thomson correctly observed that even if we assume that personhood begins at conception, it does not follow that abortion must be banned before the fetus is viable. Indeed, as she wrote, a ban on abortion before fetal viability would be inconsistent with basic principles of law. Read More

Payments to Egg “Donors”

By David Orentlicher

[cross-posted at HealthLawProfs blog and orentlicher.tumblr.com]

Interesting article in today’s Wall Street Journal about a lawsuit over limits on payments by fertility clinics to women who supply eggs for infertile couples. Under influential, though not mandatory, guidelines issued by the American Society for Reproductive Medicine, payments to egg “donors” above $5,000 “require justification,” and payments greater than $10,000 “are not appropriate.” (When I was in the Indiana legislature, a statute was passed limiting payments to $4,000, plus out-of-pocket expenses.)

In one view, payment caps are needed to “prevent coercion and exploitation in the egg-donation process.” But one also can view the guidelines as an “illegal conspiracy to set prices in violation of antitrust laws.” More to come in a case that could go to trial next year.

In the meantime, there are other important concerns about payments for eggs and the costs to infertile persons. As with other assisted reproductive treatments, insurers generally do not cover those costs. This encourages the infertile to seek multiple births in one treatment cycle rather than single births over multiple treatment cycles, which puts mothers and their infants at greater risks to health. In addition, lack of coverage leaves treatment unaffordable for many of the infertile. As I have argued elsewhere (here and here), social policy treats infertile persons unfairly when coverage is denied for assisted reproductive services,

Hobby Lobby Fall Out

By David Orentlicher

[cross-posted at HealthLawProfs blog and orentlicher.tumblr.com]

For those who feared that the Supreme Court’s Hobby Lobby decision would open the door for employers to block contraceptive access for women in the workplace, welcome reassurance has come this week from the U.S. Court of Appeals for the Fifth Circuit. According to the Fifth Circuit, when the Affordable Care Act requires that contraception coverage be available for workers at religiously-affiliated institutions, the Act also accommodates the scruples of employers who have religiously-based objections to contraceptive use.

As the Fifth Circuit observed, employers with religious objections to contraception can shift the responsibility for coverage to their insurers or the federal government. Hence, there is no unlawful burden on those employers from the mandate that health care plans cover the costs of contraception. Read More