Category: Wendy Parmet

Public Health and The First Amendment – AID v. Alliance for Open Society

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By Wendy Parmet

The Supreme Court’s decision last week to grant cert in AID v. Alliance for Open Society International, demonstrates anew the importance of First Amendment jurisprudence to public health protection. In recent years, it has sometimes seemed as if the First Amendment has become the most significant legal obstacle to effective public health protection through law. In cases such as Lorillard Tobacco, Thompson v. Western States Medical Center (the compounding pharmacy case), and Sorrell v. IMS Health, Inc., the Supreme Court has found that First Amendment protections for commercial speech trump public health protection, a view that the D.C. Circuit seemed to endorse when it ruled last summer in R.J. Reynolds that the graphic warning labels required by the Tobacco Control Act violated the First Amendment Rights of cigarette companies.

Yet sometimes the First Amendment helps to advance the cause of public health, particularly by limiting the reach of laws that are designed to restrict an open and informed approach to sexual and reproductive. US AIDS offers one such example. In that case, plaintiff NGOs challenged a provision in the federal Leadership Act, 22 U.S.C. § 7631(f),  that required them to adopt a policy explicitly opposing prostitution in order to receive federal funds available to fight HIV/AIDs, tuberculosis, and malaria.  The plaintiffs argued that the Act constituted an unconstitutional condition and violated their First Amendment rights by compelling them to adopt the government’s viewpoint regarding prostitution. The Second Circuit, in an opinion by Judge Parker, concluded that the plaintiffs were likely to prevail on the merits and granted them a preliminary injunction.

Now the Supreme Court will reconsider the issue. Public health advocates are likely to weigh in and argue for the widest possible protection for their own advocacy.  In doing so, they might want to keep in mind the threat that the First Amendment poses for public health in other contexts, especially in commercial speech cases.  And they will certainly want to think about how they can convince courts to value public health when deciding First Amendment cases. Figuring out how to do that — how to develop a First Amendment jurisprudence that is respectful of public health — just may be the most pressing challenge facing public health lawyers today.

Dreams Deferred

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By Wendy Parmet

After the November election, President Obama’s executive order implementing parts of the so-called “Dream Act” was widely credited with shoring up his support within the Latino community.  Less often noted was his Administration’s decision to exclude the “Dreamers” from the benefits afforded by the Affordable Care Act.

Last August, the Center for Medicare Services (CMS) issued an interim final regulation stating that individuals who benefitted from the President’s program, more formally known as “Deferred Action for Childhood Arrivals” or DACA, would not be considered “lawfully present” for purposes of eligibility to health benefits established by the Affordable Care Act, including the Pre-Existing Condition Insurance Plan and the subsidies and credits that will be available in 2014 to purchase insurance through the health insurance exchanges. Pre-Existing Condition Insurance Plan Program, 77 Fed. Reg. 52614-01 (Aug. 30, 2012) (to be codified 45 C.F.R. § 152.2), https://www.gpo.gov/fdsys/pkg/FR-2012-08-30/html/2012-21519.htm.

The impact of this little noticed determination is quite significant. Although most of the estimated 1.7 million DACA immigrants are healthy, because of their age (under 30), many lack access to employer-provided health insurance. Moreover, if as expected, employers begin to shift their health insurance programs to the ACA-created exchanges, DACA immigrants may find themselves barred from employer-provided plans, even though under the President’s executive order they have a legal right to work in the United States.

The insurance gap created by CMS’ determination that the DACA immigrants are not “lawfully present” in the U.S., a decision that is inconsistent with the Administration’s conclusion that other deferred action recipients are eligible for benefits established under the ACA, illuminates the critical relationship between immigration policy and health policy.  To a surprising degree, the health insurance access problem in the U.S. results from laws that bar immigrants (including many with Green Cards) from many government-supported health insurance programs, including Medicaid. In 2010, over 45 % of non-citizens were uninsured, as compared to less than 14 % of native-born Americans. Approximately 65 % of undocumented immigrants are believed to lack health insurance. The ACA is unlikely to reduce those rates, especially regarding undocumented immigrants. Neither, it is now seems, is DACA.

Reminder, TODAY – The Guatemala STD Inoculation Studies: What Should We Do Now?

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TODAY
12:30-2:00
Wasserstein Hall, Classroom 3019
Harvard Law School

In the late 1940s, US and Guatemalan researchers conducted a host of experiments on vulnerable Guatemalan subjects, purposefully exposing them to, and infecting them with a number of STDs without their consent.  The experiments were kept hidden for more than half a century, until they were discovered and exposed only recently by historian Susan Reverby.  The US government has since apologized for what happened, but a class action suit brought on behalf of the Guatemalan subjects was dismissed in June and efforts to directly compensate the victims have not been forthcoming.   Please join Harvard Law School’s Petrie-Flom Center and Human Rights Program for a panel discussion of the study and possible legal and political responses that may be available now, both domestically and from an international human rights perspective.  Panelists will include:

  • Susan Reverby, Marion Butler McLean Professor in the History of Ideas, Professor of Women’s and Gender Studies, Wellesley College
  • I. Glenn Cohen, Assistant Professor of Law, Faculty Co-Director, Petrie-Flom Center, Harvard Law School
  • Holly Fernandez Lynch, Executive Director, Petrie-Flom Center, Lecturer on Law, Harvard Law School
  • Wendy Parmet,  George J. and Kathleen Waters Matthews Distinguished University Professor of Law, Northeastern University School of Law
  • Fernando Ribeiro Delgado, Clinical Instructor and Lecturer on Law, Human Rights Program, Harvard Law School

This event is free and open to the public.  Lunch and refreshments will be served.

Upcoming Event – The Guatemala STD Inoculation Studies: What Should We Do Now?

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Tuesday, November 13, 2012
12:30-2:00
Wasserstein Hall, Classroom 3019
Harvard Law School

In the late 1940s, US and Guatemalan researchers conducted a host of experiments on vulnerable Guatemalan subjects, purposefully exposing them to and infecting them with a number of STDs without their consent.  The experiments were kept hidden for more than half a century, until they were discovered and exposed only recently by historian Susan Reverby.  The US government has since apologized for what happened, but a class action suit brought on behalf of the Guatemalan subjects was dismissed in June and efforts to directly compensate the victims have not been forthcoming.   Please join Harvard Law School’s Petrie-Flom Center and Human Rights Program for a panel discussion of the study and possible legal and political responses that may be available now, both domestically and from an international human rights perspective.  Panelists will include:

  • Susan Reverby, Marion Butler McLean Professor in the History of Ideas, Professor of Women’s and Gender Studies, Wellesley College
  • I. Glenn Cohen, Assistant Professor of Law, Faculty Co-Director, Petrie-Flom Center, Harvard Law School
  • Holly Fernandez Lynch, Executive Director, Petrie-Flom Center, Lecturer on Law, Harvard Law School
  • Wendy Parmet,  George J. and Kathleen Waters Matthews Distinguished University Professor of Law, Northeastern University School of Law
  • Fernando Ribeiro Delgado, Clinical Instructor and Lecturer on Law, Human Rights Program, Harvard Law School

This event is free and open to the public.  Lunch and refreshments will be served.

 

Upcoming Event: Human Rights and the Social Determinants of Health, November 1-2, 2012 at Northeastern University

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Human Rights and the Social Determinants of Health
Thursday, November 1, 2012, 1-5:30pm
Friday, November 2, 2012, 12-1:30pm
Northeastern University School of Law
Dockster Hall
65 Forsyth Street, Boston

The Program on Human Rights and the Global Economy (PHRGE) and the Program on Health Policy and Law at Northeastern University School of Law are hosting an event entitled “Human Rights and the Social Determinants of Health” on November  1 and November 2, 2012. The keynote speaker will be Dr. Ichiro Kawachi, from the Harvard School of Public Health. The event will also feature a special presentation by Sir Michael Marmot of University College London. Marmot is known internationally as a pioneer in the field of the social determinants of health.  For further information, please contact Sasha Varasano

 

Needing a Lawyer on the Team

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by Wendy Parmet

It’s easy to see the value of including scientists in public health law research teams; most public health lawyers lack the training to conduct rigorous empirical research.  It may be harder to see the need for adding lawyers to the research team, but their presence is no less critical. Sometimes scientists have as much trouble understanding the law as the lawyers have understanding the science.

The value of involving lawyers in public health law research became clear to me recently as I was working on a project relating to health policies affecting immigrants. One question I wanted to know was how the 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) affected immigrants’ access to health insurance in the United States.  So I decided to review the scientific literature. The results were dismaying.

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