Texas, Abortion, and the Supreme Court

[cross-posted at Prawfsblawg]

By Jessie Hill

Several Texas abortion providers have filed a petition for certiorari in Whole Women’s Health v. Cole, asking the U.S. Supreme Court to decide on the constitutionality of a Texas state law requiring abortion providers to have admitting privileges at a local hospital and requiring all abortion clinics to qualify as ambulatory surgical centers (ASCs), including requirements that are more demanding than those that apply to other, similar facilities that do not provide abortions. Here is my brief analysis of the legal issues in that case. (Note that this analysis is only of the “undue-burden” issues; there is also a res judicata issue in that case, which I will not analyze.)

The plaintiffs in Whole Women’s Health claim that the admitting-privileges and ASC requirements are unconstitutional because, under the standard identified in Planned Parenthood v. Casey, they impose an undue burden on the right to abortion. There are basically two ways in which these requirements can be seen to impose an undue burden.

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Monday, 9/21, HLS Health Law Workshop with Jessica Roberts

HLS Health Law Workshop: Jessica Roberts

September 21, 2015 5:00 PM
Hauser Hall, Room 102
Harvard Law School, 1575 Massachusetts Ave, Cambridge MA

Download the paper: “Theories of Genetic Ownership”

Jessica L. Roberts is the Director of the Health Law and Policy Institute and an Associate Professor of Law at the University of Houston Law Center. She specializes in health law, disability law, and genetics and the law. Prior to UH, Professor Roberts was an Associate-in-Law at Columbia Law School and an Adjunct Professor of Disability Studies at the City University of New York. Immediately after law school, she clerked for the Honorable Dale Wainwright of the Texas Supreme Court and the Honorable Roger L. Gregory of the Fourth Circuit Court of Appeals.

Professor Roberts’ research operates at the intersection of health law and antidiscrimination law. Her scholarship has appeared, or is forthcoming, in the Indiana Law Journal, the William and Mary Law Review, the Iowa Law Review, the Minnesota Law Review, the University of Illinois Law Review, the Notre Dame Law Review, the Vanderbilt Law Review, the University of Colorado Law Review, the American Journal of Law and Medicine and the Journal of Law and the Biosciences, among others. Professor Roberts teaches, or has taught, Contracts, Disabilities and the Law, Genetics and the Law, and Health Law Survey. In 2015, she received the university-wide Teaching Excellence Award and the Provost’s Certificate of Excellence. Professor Roberts was named a 2018 Greenwall Faculty Scholar in Bioethics.

Introducing New Contributor Jessie Hill

jessie_hill_peopleJessie Hill is joining Bill of Health as a regular contributor.

Jessie Hill is the Judge Ben C. Green Professor of Law and Associate Dean for Academic Affairs at Case Western Reserve University School of Law. She teaches and writes in the fields of constitutional law, health law, and law and religion. Her scholarship has been published in the Michigan Law Review, Duke Law Journal, Columbia Journal of Gender and Law, and the Texas Law Review, among others. Prior to teaching, Professor Hill worked at the Reproductive Freedom Project of the national ACLU office in New York, litigating challenges to state-law restrictions on reproductive rights, and then practiced First Amendment and civil rights law with a small law firm in Cleveland. She is a member of the Academic Advisory Board of Law Students for Reproductive Justice and is a frequent lecturer and consultant on reproductive rights issues.

Managing Diabetes: Is Silicon Valley the Solution?

By Emma Sandoe

According to a new study in JAMA, half of American adults either have diabetes or are pre-diabetic. The chronic condition costs the nation $245 billion annually in health care costs and lost wages. The diabetes technology industry has grown exponentially over the last several years, as the use of measuring and regulating devices has become the norm for monitoring and treating diabetes.

Last week, NPR examined how Google’s Life Sciences division is investing in the management of diabetes. Google’s Life Sciences division is part of its renamed company, Alphabet, and stems out of Google X — the same side of the company working on technology such as driverless cars and tracking the spread of disease outbreaks.

One of Google’s most anticipated products coming out of the new diabetes campaign is a contact lens that would be able to monitor glucose levels from water in the eye. This joint venture with Novartis was announced in January 2014 and is currently slated for research and developmental reviews.

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Tennessee: The Next State to Require Involuntary Outpatient Commitment?

By Bryan Kozusko, JD (Expected graduation: May 2016)

How will Tennessee address involuntary outpatient commitment hereon out? Currently, Tennessee is one of seven states that does not provide for direct involuntary outpatient commitment, pending a final disposition by a court with jurisdiction. According to general involuntary outpatient commitment law, whenever an individual is believed to require such commitment, a final hearing must be held allowing an adjudication on the merits and the establishment of grounds by clear and convincing evidence. The other states that do not allow for this process are Alaska, Connecticut, Kentucky, Maryland, Massachusetts, and New Mexico.

For six years Tennessee legislators have tried, but failed, to successfully implement a permanent statute authorizing direct involuntary outpatient commitment following the disposition of a final commitment hearing. In 2009, Bill H.R. 0297 of the 106th General Assembly passed through the Senate unanimously. Once received by the House, no further action was taken and the bill was never voted on. In 2012, the 107th General Assembly authorized the creation of an involuntary outpatient pilot program to operate two years in Knox County, Tennessee. In 2014, the 108th General Assembly amended their law to terminate the pilot program on June 30, 2015, citing the public welfare of their citizens.

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Fiduciary Duty and the Payer-Provider Relationship

By Zack Buck

Even though the Centers for Medicare and Medicaid Services (CMS) has set an ambitious goal to move the reimbursement paradigm away from a fee-for-service model for half of all Medicare services by 2018, incentives built into the delivery of American health care that encourage and result in overtreatment remain. One recent illustration of the reimbursement incentives facing physicians to administer either more care, or more expensive care, is the Lucentis-Avastin example I blogged about here earlier this year.

My newest article, forthcoming in the California Law Review in 2016, examines another legal tool that could be employed to recalibrate the incentives in Medicare: fiduciary duty. Others have characterized the patient-physician relationship as being fiduciary in nature; this piece advocates for the extension of the metaphor to the payer-physician relationship. This move would introduce much-needed pressures on providers to limit or avoid excessive or expensive care by placing a duty of loyalty on providers owed to the payers of Medicare’s services–American taxpayers. This move would respect provider autonomy but provide remedies for overtreatment without substantially growing the regulatory scheme or expanding oversight costs. The abstract is available here.

I Concur with the Dissent (or, More on Little Sisters)

On September 3, the 10th Circuit declined to rehear en banc several challenges to the contraceptives coverage mandate filed by non-profit organizations, including Little Sisters of the Poor. As SCOTUSBlog explains, these organizations had not themselves asked for en banc review, having already moved on to SCOTUS, but the judges have the option of calling for a vote themselves, which one or more of them must have done.  The vote came down 7-5 in favor of refusal, with the dissenting judges (i.e., those who wanted en banc review) issuing an explanation of their position.  On this issue, I concur with the dissent.  But I still don’t think the objecting non-profits should be off the hook.

When it comes to the contraceptives coverage mandate, non-profits, and now certain for-profits, are accommodated such that they may be relieved of the responsibility to contract, arrange, pay, or refer for contraceptives coverage if they notify the government or their health insurer of their objection to doing so, such that their insurer (or third party administrator of self-insured plans) can provide free contraceptives to their employees, at no cost to and without the involvement of the employer (all further explained here by Greg Lipper).  However, many organizations continue to argue that the accommodation fails to relieve them of complicity in providing contraceptives against their religious beliefs.  They want flat out exemption from the mandate. Read More

UPCOMING EVENTS (9/28/15): From Troubled Teens to Tsarnaev Panel, followed by PFC Open House

 

Promises and Perils of Adolescent Neuroscience and Law
September 28, 2015, 4:00 – 5:30 PM
Wasserstein Hall, Room 1015
Harvard Law School, 1585 Massachusetts Ave., Cambridge, MA [Map]


Followed by the Petrie-Flom Center’s 2015 Open House reception in the HLS Pub (more information below)!

Description:

The neuroscience of adolescent brain development has had increasing impact on American jurisprudence. The U.S. Supreme Court relied on this neuroscience in Roper v. Simmons (2005) in barring execution for capital crimes committed as a juvenile and in Miller v. Alabama (2012) in holding that mandatory life without possibility of parole for juveniles is also unconstitutional. This panel will examine the implications of developmental neuroscience for law in specific domains including death penalty mitigation for young adults over age 18 such as the Tsarnaev case, a developmentally informed view of Miranda and Competence to Stand Trial for juveniles, trial of youth as adults, and conditions of confinement in juvenile and adult incarceration. The panel will also discuss the promises and perils for constitutional jurisprudence, legal and public policy reform, and trial practice of relying upon a complex body of science as it emerges.

Panelists: Read More

Wednesday Webcast: “Gene Patenting, Innovation Incentives, and the Future of Intellectual Property” by Derek Bambauer

By Christopher Robertson

This week, my colleague Derek Bambauer will speak as part of the Regulatory Science series at the University of Arizona.  Free CLE attendance form and readings are available.

Tune in at 12:00pm (Pacific) / 3:00pm (Eastern) on Wed Sept 16.

https://streaming.biocom.arizona.edu/event/?id=26071

The talk will also be archived at the same link.