Join us at Northeastern University School of Law at 1 p.m. on April 25, 2014 as leading academics and practitioners discuss the tensions between free speech and reproductive rights.
For more information, see https://www.northeastern.edu/law/academics/institutes/health-law/events/clashing-rights/
Please join us for our second annual Health Law Year in P/Review event, co-sponsored by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School and the New England Journal of Medicine. The conference will be held in Wasserstein Hall, Milstein East C at Harvard Law School on Friday, January 31, 2014, from 8:30am to 5:00pm.
This year we will welcome experts discussing major developments over the past year and what to watch out for in areas including the Affordable Care Act, medical malpractice, FDA regulatory policy, abortion, contraception, intellectual property in the life sciences industry, public health policy, and human subjects research.
The full agenda is available on our website. Speakers are: Read More
Please join us for our second annual Health Law Year in P/Review event, co-sponsored by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School and the New England Journal of Medicine. The conference will be held in Wasserstein Hall, Milstein East C at Harvard Law School on Friday, January 31, 2014, from 8:30am to 5:00pm.
This year we will welcome experts discussing major developments over the past year and what to watch out for in areas including the Affordable Care Act, medical malpractice, FDA regulatory policy, abortion, contraception, intellectual property in the life sciences industry, public health policy, and human subjects research.
The full agenda is available on our website. Speakers are: Read More
Please join us for our second annual Health Law Year in P/Review event, co-sponsored by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School and the New England Journal of Medicine. The conference will be held in Wasserstein Hall, Milstein East C at Harvard Law School on Friday, January 31, 2014, from 8:30am to 5:00pm.
This year we will welcome experts discussing major developments over the past year and what to watch out for in areas including the Affordable Care Act, medical malpractice, FDA regulatory policy, abortion, contraception, intellectual property in the life sciences industry, public health policy, and human subjects research.
The full agenda is available on our website. Speakers are: Read More
By Wendy Parmet
Public health law took another hit this week. In a unanimous decision (starting on p. 22), the Appellate Division of the New York Supreme Court affirmed a trial court’s earlier ruling striking down the New York City Board of Health’s ban on the sale of large sugary drinks.
In an opinion authored by Justice Dianne T. Renwick, the appeals court ruled that the Board of Health had “failed to act within the bounds of its lawfully delegated authority” in promulgating the so-called soda ban. Relying primarily on the Court of Appeals’ decision in Boreali v. Axelrod, the Appellate Division concluded that the soda ban was unlawful because 1) in framing the regulation, the board took into account factors other than public health; 2) the regulation was not an act of interstitial rule making; 3) the regulation concerned an issue that the legislature had considered and had failed to reach a decision; and 4) the regulations did not require expertise in the field of public health.
Although the Appeals Court did not repeat the trial court’s spurious suggestion that the board’s powers were greater when applied to infectious diseases than chronic diseases, it reiterated the erroneous belief in a binary distinction between public health factors and social and economic factors. In the court’s view, the only factors a health department should consider are “health factors,” which seem to exist totally apart from the social and economic environment. Any consideration of social and economic factors, including as the court noted, consideration of behavioral economics, is outside the scope and beyond the expertise of public health.
This dichotomization of public health and “non-health factors” relies on a false understanding of public health expertise. Read More
By Wendy Parmet
Sometimes it seems as if the First Amendment is the leading legal threat to public health. Not today. In Agency for International Development v. Alliance for Open Society International the Supreme Court in a 6-2 decision struck down on First Amendment ground the so-called “anti-prostitution pledge” imposed by § 7631(f) of the Leadership Act which prohibited the award of anti-HIV grants to groups or organizations that do “not have a policy explicitly opposing prostitution and sex trafficking” constituted an unconstitutional condition. Critical to the Chief Justice Roberts’ opinion was the fact that § 7631(f) did not simply limit grantees’ ability to use federal funds to support prostitution. Rather, it compelled a “grant recipient to adopt a particular belief as a condition of funding.” According to the Court, the government can limit what grantees do with federal funds, but it cannot restrict what they believe.
Although the Court ‘s opinion focused on core First Amendment issues, rather than the public health impact of the anti-prostitution pledge, its decision should remind us of the complex and sometimes ambivalent relationship between public health and the First Amendment. Since the early years of the HIV epidemic, the First Amendment has been a crucial public health ally, limiting government’s ability to censor controversial but critical public health information. In many other cases, however, such as those challenging regulations aimed at tobacco or pharmaceutical advertising, a robust interpretation of the First Amendment seems to hinder public health protection. For public health law advocates, a key question is whether the First Amendment can be interpreted so as to protect health in both sets of circumstances. Equally critical is understanding how we can achieve public health goals without relying on the regulation of speech. Alliance for Open Society may offer some clues, but it clearly does not provide the answers.
By Wendy Parmet
New York State Supreme Court’s Justice Milton A. Tingling’s decision last night in New York Statewide Coalition of Hispanic Chambers of Commerce v. New York City Dpeartment of Health and Mental Hygiene, to enjoin New York City’s controversial ban on the sale of large sugary beverages should not have been surprising. As Scott Burris has noted here, “the public health side has been getting killed wherever law is made.” Defeats for new public health regulations, especially new regulations that impinge against powerful economic interests, are becoming the norm.
Still, there were some surprising and troubling, from a public health perspective, notes in Justice Tingling’s opinion, which relied heavily on Boreali v. Axelrod, a 1987 opinion by the New York Court of Appeals striking down a ban on indoor smoking, to find that the Department lacked authority to issue the regulation.
According to Justice Tingling, Boreali required the court to consider four factors including whether the regulation was based on matters beyond its stated purpose, and whether the regulation was “created on a clean slate thereby creating its own comprehensive set of rules without the benefit of legislative guidance.” In looking to whether the ban on sugary sodas was based on factors other than its stated purpose, Justice Tingle noted among other things that the Department had cited the “enormous toll” that obesity places on the “economic health” of New Yorkers. To Justice Tingle any regard for the economic consequences of obesity demonstrated that the Department based its regulation “on economic and political concerns” outside the scope of its authority. Thus the very fact that the Department considered the economic consequences of the issue it addressed, a consideration that many scholars would claim is a critical component of sound regulatory policy, helped to doom the ban on large sodas. Would the Court, one wonders, have been more approving of the regulation if the Department had failed to show that obesity had significant economic consequences? Somehow I suspect not.
If you couldn’t make it to our inaugural session on Health Law Year in P/Review, co-hosted by the Petrie-Flom Center and the New England Journal of Medicine, you’re in luck! You can watch the video here:
https://www.law.harvard.edu/media/2013/02/01_pf.mov
Topics and speakers included:
By Wendy Parmet
I was amused but not surprised to read that in announcing her support for expanding Arizona’s Medicaid program, Governor Jan Brewer pointed to the fact that without the expansion, only non-citizens with incomes under the poverty level would be eligible for insurance under the ACA. What Brewer didn’t say, was that the ACA’s apparent preference for non-citizens results from precisely the type of anti-immigrant laws with which Gov. Brewer is usually associated.
In 1996, shortly after California passed the notorious Proposition 187 which denied state public benefits to undocumented immigrants, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act, better known as the Welfare Reform Act. Among other things, this law imposes a 5 year waiting period before most legal permanent residents can enroll in the federal Medicaid program. The law also barred many other immigrants who are lawfully residing within the U.S. from Medicaid altogether.
The ACA did not repeal the provisions in the Welfare Reform Act limiting immigrants’ access to Medicaid. Instead, Congress sought to provide coverage to lawfully residing immigrants by permitting those with incomes under 100% of the Federal Poverty Level to receive subsidies to purchase insurance on the exchanges. Those subsidies were not necessary for citizens with such low incomes because Congress assumed that they would be brought into the Medicaid program.
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