Hands with blue protective nitride gloves holding N95 respirator.

A Patient’s Right to Masked Health Care Providers

By Katherine A. Macfarlane

In May 2023, Mass General Brigham instructed its patients that they “cannot ask staff members to wear a mask because our policies no longer require it.”

Following patient protests, the hospital updated its policies with an imperfect fix, announcing that “patients can ask, but providers determine when and if masking in a particular situation is clinically necessary.”

This episode highlights the uneasy circumstances that people with disabilities face in the U.S. while accessing essential care: On the one hand, the law surrounding reasonable modifications in health care is well-settled. On the other, the practical reality of U.S. health care leaves little room for individualized accommodation and self-advocating patients vulnerable to retaliation.

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young african american woman suffering from abdominal pain while sitting on bed

‘Below the Belt’ Exposes the Silent Crisis of Endometriosis Care

By Timothy Bonis

Premiering tonight on PBS, the film Below the Belt sheds light on endometriosis by documenting four women’s experiences with the disease.

Endometriosis is a silent crisis. One in ten women have it, yet, on average, people with the condition see seven doctors before they get diagnosed. Many experience severe pain, and the disease costs the American economy $80 billion annually in lost productivity, but the standard treatments are outdated and ineffectual.

Below the Belt exposes the failures in practice and policy that have led to the poor state of endometriosis care. Medical students usually don’t learn about endometriosis in medical school, and as a result, most general practitioners can’t recognize it. The majority of gynecologists treat endometriosis with hormones — which have serious side effects and bring little relief — and an ineffective surgery called ablation. Others continue to recommend the 20th-century approach, a hysterectomy. This dismal selection of treatments reflects the state of endometriosis research; historically, the disease has received less than $10 million in research funding per year (compared to $1 billion for diabetes, an equally common condition among women).

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white pills spilling out of orange plastic pill bottle onto hundred dollar bills.

Merck Price Negotiation Lawsuit May Face Same Obstacles as 340B Takings Claims

By Laura Dolbow

Merck recently filed a lawsuit that challenges the constitutionality of the Medicare price negotiation program created by the Inflation Reduction Act. Under this program, HHS will select a small number of single source drugs for price negotiation. Merck alleges that the price negotiation program operates as a price control because it effectively requires manufacturers to accept the maximum fair price as a condition of participation in Medicare and Medicaid. Merck argues that this form of price regulation charts a “radical new course” for Medicare that violates the Takings Clause of the Fifth Amendment.

But the price negotiation program is not the first time that Congress has placed a restriction on the prices that Medicare program participants can charge. And Merck’s lawsuit is not the first suit that has alleged that such price regulations are unconstitutional takings. Drug manufacturers recently made similar claims in litigation involving the 340B Drug Pricing Program. Two district courts rejected those claims, highlighting several obstacles that Merck’s takings claim may face as well.

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Close-up - barista prepares espresso in coffee shop.

The Infertility Shift

By Valarie K. Blake and Elizabeth Y. McCuskey

In vitro fertilization (IVF), like most medical care in the U.S., costs far more than most people can afford out-of-pocket: over $12,500 per cycle, with multiple cycles typically required. But, unlike most other expensive medical care, IVF rarely has insurance coverage to defray the cost.

In 2020, only 27% of employers with 500+ employees and 42% of employers with 20,000+ employees covered IVF in their employer plans. Companies like Starbucks and Amazon know this and use it to draw in employees at low (or essentially neutral) wages.

Recent reports reveal women working second shifts for these corporations solely to qualify for employer health benefits that cover infertility treatments. Starbucks, for example, covers IVF for employees who work 240 hours over three months, or roughly 20 hours per week. Frequently, in these low-wage positions, workers earn just enough to pay for their health insurance premiums and sometimes the associated cost-sharing requirements.

How did we get to a place where women must work an “infertility shift” beyond their full-time jobs to access medical care?

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Photo of doctor's exam room.

Three Reactions to Braidwood v. Becerra

Last week, a federal judge in Texas dealt a blow to the Affordable Care Act’s preventative care requirements that private insurers cover services such as behavioral counseling, HPV vaccination, and pre-exposure prophylaxis for HIV/AIDS (PrEP). In Braidwood Management Inc. v. Becerra, Judge Reed O’Connor enjoined the enforcement of the preventative care coverage mandate.

Led by Braidwood Management Inc., the plaintiffs claimed that the preventive services requirements were unconstitutional, violating the Appointments Clause and the Nondelegation Doctrine. Further, they argued that requiring coverage of PrEP violates the Religious Freedom Restoration Act.

In siding with the plaintiffs, Judge O’Connor has jeopardized access to critical health care services, potentially affecting over 150 million insured Americans. The Biden administration was quick to challenge the ruling; on Friday, attorneys for the Department of Health and Human Services filed a notice of appeal.

To make sense of these developments, leading experts in health law policy analyze Judge O’Connor’s ruling below.
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President Joe Biden at desk in Oval Office.

Federalizing Public Health

By Elizabeth Weeks

The most promising path forward in public health is to continue recognizing federal authority and responsibility in this space. I carefully choose “recognizing,” rather than “expanding” or “moving” because it is critical to the argument that federal authority for public health already exists within the federalist structure and that employing federal authority to address public health problems does not represent a dimunition of state authority. Rather than a pie, of which pieces consumed at the federal level necessarily reduce pieces consumable at the state level, we should envision the relationship as a Venn diagram, where increasing overlap strengthens authority for promoting and protecting public health broadly.

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The United States Capitol building at sunset at night in Washington DC, USA

The End of Public Health? It’s Not Dead Yet

By Nicole Huberfeld

Once again, health law has become a vehicle for constitutional change, with courts hollowing federal and state public health authority while also generating new challenges. In part, this pattern is occurring because the New Roberts Court — the post-Ruth Bader Ginsburg composition of U.S. Supreme Court justices — is led by jurists who rely on “clear statement rules.” This statutory interpretation canon demands Congress draft textually unambiguous laws and contains a presumption against broadly-worded statutes that are meant to be adaptable over time. In effect, Congress should leave nothing to the imagination of those responsible for implementing federal laws, i.e., executive agencies and state officials, so everything a statute covers must be specified, with no room for legislative history or other non-textual sources.

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person walking away from a surgical mask lying on the ground.

Personal Crusades for Public Health

By Katherine Macfarlane 

Public health in the U.S. has collapsed. In its place, we are left with an insufficient, impoverished alternative: personal crusades. This essay describes the cost of casting aside what is best for the public’s health in favor of individual choice, especially to those who are high-risk for serious illness or death from COVID-19. It explores how they must negotiate public health measures on their own.

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Rome - statue of Cicero from facade of Palazzo di Giustizia.

Reclaiming Salus Populi

By Wendy E. Parmet and Elaine Marshall

I. Introduction: The Threat to Public Health

As we reach the COVID-19 pandemic’s third anniversary, the warning signs for the future of public health law are everywhere. In the past three years, courts, led by the Supreme Court, have endangered reproductive health and handcuffed governments’ capacity to meet a wide array of public health challenges. Along the way, courts have displayed an alarming disinterest in science or the impact of their decisions on the public’s health.

At the same time, many state legislatures have rushed to introduce bills to limit health officials’ ability to act to protect the community’s health. Between January 1, 2021, and May 20, 2022, at least 185 of such laws have been enacted.

In this climate, public health law needs introspection, imagination, and regrouping.

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simple black childish hand drawing lines lightbulbs on yellow background.

Failures of Imagination in Public Health Policy

By Daniel Swartzman

If public health is to prosper, we will need to overcome the after-effects of several failures of imagination.

  • Failing to recognize the threat to liberal democracy from the last 50 years of coordinated conservative political and policy actions.
  • Failing to use litigation against inadequate public health actions, as did the early civil rights and environmental movements.
  • Failing to anticipate litigation that challenges our efforts, such as with the ACA or the upcoming attempt to “codify Roe v. Wade.”
  • Failing to demand moral leadership of governmental actors.
  • Failing to make political action and advocacy an integral part of professional education in public health.

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