Taking Liberties (and Libertarians) Seriously

By Abby Moncrieff

First, an uncontroversial statement: Despite academics’ resistance, libertarian arguments played a huge role in the Supreme Court’s Obamacare decision. That seems obvious. Chief Justice Roberts and the four dissenters based their Commerce Clause analyses largely on notions of individual freedom, asserting that the federal government should not be allowed to force individuals to purchase private products.

But to heath scholars, that line of analysis is incredibly irksome and even a bit dissonant. Health insurance isn’t like ordinary private products, we cry; it is intimately connected to health care regulation, and forcing people to have health insurance, unlike forcing them to buy (or even eat) broccoli, will make them healthier! Congress made this point explicitly, finding that “[t]he economy loses up to $207[ billion] a year because of the poorer health and shorter lifespan of the uninsured”! Failing to eat broccoli doesn’t make you unhealthy the same way that failing to carry insurance does, especially if you’re substituting broccoli with green beans instead of donuts. And eating broccoli doesn’t make you healthy the same way that carrying insurance does, especially if you’re also eating steaks (or eating more than 2000 calories a day of pure broccoli). So, Supreme Court, you just got it wrong. The individual mandate isn’t a crass attempt to get people to buy something. It is, like countless other uncontroversial provisions of the U.S. Code, an attempt to improve the health and longevity of the American people. If you don’t think Medicare (or a Certificate of Need law) infringes liberty, you shouldn’t think the individual mandate does.

Here’s the problem: The Solicitor General didn’t make that argument.

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NEJM: Cutting Family Planning in Texas (and more)

Our friends over at the New England Journal of Medicine just alerted us to a new perspectives piece addressing the impact of cutting family planning funds in Texas (the piece was also picked up by Politico).  The authors interviewed 56 leaders of organizations throughout the state that provided reproductive health services using public funding before cuts went into effect, and what they found was disturbing:

  • Most clinics have restricted access to the most effective contraceptive methods because of their higher up-front costs (choosing pills over IUDs or subdermal implants).
  • Clinics have started to turn away those who canot pay, when previously their visits would have been covered by public funds, and women who can pay the newly instated fees are choosing less effective methods and fewer tests to save money.
  • A number of clinics have lost their exemption from Texas’ law requiring parental consent for teens under 18 who seek contraceptives.

Overall, the authors conclude that laws intended to defund Planned Parenthood in an attempt to limit access to abortion (even though federal and state funding cannot be used for abortion anyway) have resulted in policies limiting women’s access to range of preventative reproductive health services and screenings.

Alta Charo weighs in via a NEJM podcast, discussing the future of reproductive health care for women in the US, particularly in light of upcoming elections (as well as the article we discussed last week on conscientious action, and other general issues in reproductive health policy).  Take a listen!

And one more NEJM plug for now: our Bill of Health blogger Kevin Outterson also has a podcast online discussing the record-breaking settlements of pharmaceutical fraud cases and the need for further regulation.

Needing a Lawyer on the Team

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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New Book on Conscientious Objection in Health Care

Related to the conversations we’ve been having lately on conscience, I wanted to point you to a relatively new book on the topic by Mark WicclairConscientious Objection in Health Care: An Ethical Analysis, Cambridge University Press, 2011.

From Amazon: “Historically associated with military service, conscientious objection has become a significant phenomenon in health care. Mark Wicclair offers a comprehensive ethical analysis of conscientious objection in three representative health care professions: medicine, nursing and pharmacy. He critically examines two extreme positions: the ‘incompatibility thesis’, that it is contrary to the professional obligations of practitioners to refuse provision of any service within the scope of their professional competence; and ‘conscience absolutism’, that they should be exempted from performing any action contrary to their conscience. He argues for a compromise approach that accommodates conscience-based refusals within the limits of specified ethical constraints. He also explores conscientious objection by students in each of the three professions, discusses conscience protection legislation and conscience-based refusals by pharmacies and hospitals, and analyzes several cases. His book is a valuable resource for scholars, professionals, trainees, students, and anyone interested in this increasingly important aspect of health care.”

Larry McCullough writes a glowing review over at Notre Dame Philosophical Reviews.

Mark’s book is broader than mine (Conflicts of Conscience in Health Care: An Institutional Compromise) in that he addresses conscientious objection as it arises in a variety of health care professions, as well as institutional objections, whereas I focus exclusively on objection by individual physicians.  However, Mark focuses on the ethics and ethical limits of conscientious objection, and does not consider means to enforce those limits or ensure patient access.  Such practical details are a major focus of my book.  So check them both out!

[H/T Glenn Cohen, via John Goldberg]

Reminder, TODAY – Health Care Reform: A View from Both Sides

Today’s the day!
12:00-1:30pm
Austin Hall, Classroom 111
Harvard Law School

Please join us for a special off-the-record debate on American health care reform, moderated by the Petrie-Flom Center’s Founding Faculty Director,  Einer Elhauge.  John McDonough, official surrogate of the Obama campaign and director of the Center for Public Health Leadership at the Harvard School of Public Health, and Oren Cass, domestic policy director for the Romney campaign, will discuss what each candidate would mean for the future of US health policy.

This event is free and open to the public.  No reporting will be permitted without the express permission of the speakers. Lunch and refreshments will be served.

Co-sponsored by the Petrie-Flom Center, HLS Democrats, HLS Republicans, and HLS American Constitution Society.

Refusals and Reasons: Is the Best Interests Principle the Best Standard?

By Erin Talati

In my last post, I puzzled over the boundaries of the state’s right to step in to protect the interests of children over the religious wishes of their parents, prompted by the question of whether it would be appropriate to prophylactically transfuse the child of a Jehovah’s Witness in order to minimize the risk of future harm.   As I continue to think about this question, I remain convinced that the boundaries are exceedingly fuzzy and do not necessarily seem to distinguish circumstances in a way that favors action “in the best interests of the child.” Rather, in looking at another situation in which the interests of the child may come into conflict with the religious or other interests of the parent, on the whole, it seems that the decision to intervene rests more on the legal basis for intervention rather than overall promotion of the best interests principle.

Take, for example, the general approach to vaccine refusals by parents.  The rights of parents to refuse vaccines for their children, generally, can be grounded in medical, philosophical, or religious objections.  Medical exemptions, based on medical contraindications to vaccination, remain the most robust mechanism of parental refusal. All states permit exemption from mandatory vaccination on the basis of medical exemptions.  Exemption for medical contraindication is consistent with the best interests principle as vaccination in these cases arguably is not in the best interests of the child.  Fewer states permit vaccine refusal on the basis of moral or philosophical objections. In almost all states, excepting Mississippi and West Virginia, parents can refuse vaccines for religious reasons, with states requiring varying levels of support for refusals grounded in religious objection.  It seems reasonable that, from the standpoint of protection of individual liberties, states would preference religious beliefs of parents in allowing refusals. Still, when either a religious or philosophical objection are not concurrently accompanied by a medical contraindication to vaccination, neither justification for refusal promotes action in the best interests of the child.

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Reproductive Politics

By Michele Goodwin

In recent months, women’s reproduction has been in the spotlight.  A few weeks ago, the Republican Party adopted an anti-abortion platform calling for a constitutional amendment outlawing abortion and making no exception for victims in cases of incest, rape, or to save the woman’s life.  Ironically, some of the very same party leaders responsible for drafting the amendment issued demands for the Missouri Congressman, Todd Akin, to resign or step aside in a hotly contested Senate race after he made controversial claims that “legitimate” rapes rarely result in pregnancies.

As the gender war plays out in high profile ways, we should be aware that abortion politics is not the only area in which women’s reproductive rights are closely scrutinized and under threat of political attack.  Relatively little attention has focused on the pernicious on-the-ground forms of criminal policing targeted at pregnant women across America.

Since the late 1980s, state legislatures have enacted criminal feticide laws that now ensnare women for a broad range of activities, including falling down steps, suffering drug addiction, refusing cesarean sections, or attempting suicide. For example, in 2010 Utah Governor Gary Herbert signed into law the “Criminal Homicide and Abortion Revisions Act,” which specifically applies to miscarriages and other fetal harms that result from “knowing acts” committed by women.  A prior version of the bill drafted by state legislator Carl Wimmer authorized life imprisonment for pregnant women who engage in reckless behavior during pregnancy that could result in miscarriage and stillbirth.  Arkansas, Florida, Minnesota, and some other states define child abuse as intentional or neglectful harm to the fetus.

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Rationing, Irrelevant Utilities, and Inter vs. Intrapersonal distribution

This blog post was prompted by discussions with Frances Kamm, Jonathan Wolff,  and others after a great presentation Jonathan gave on the Valuation of Life and Health in Government Policies.

To return to an issue I have discussed briefly in other work, the question is how we should count very small gains in health for large numbers of people, a sub-set of the aggregation problem.  As I put the problem in a footnote in my Article Beyond Best Interests, 96 Minn. L. Rev. 1187 (2012):

Utilitarians typically aggregate small harms to many people and count the sum. See, e.g., John Rawls, A Theory of Justice 23-24 (1971) (discussing the societal balance of present and future gains against present and future losses). The deontologist Frances Kamm has instead suggested that not all harms and benefits are equal, under what she calls the “Principle of Irrelevant Utility”: Suppose two almost identical individuals A and B are mortally ill and we have only enough serum to save one, but because of tiny differences in how much serum they need if we save A there will be enough serum left over to also cure person C’s sore throat, but if we save B there will not be. Kamm argues that it would be unjust in this circumstance to allocate the serum to A rather than B on this basis as opposed to holding a straight lottery between the two. If the sore throat is not enough to justify giving A preference over B when everything is equal, says Kamm, it is an “irrelevant utility” such that even if we could save not only C’s sore throat but a million such sore throats, for example, it would not matter; the utility bonus is irrelevant and therefore even aggregated in large quantities cannot count. Quite different, she claims, would be a case where in fact the serum enables us to save C’s leg, which would be a relevant utility. See F.M. Kamm, Morality, Mortality: Death and Whom to Save from It 144-63 (1993); Frances M. Kamm, To Whom?, 24 Hasting Ctr. Rep. 29, 31-32 (1994).

On the other hand, this principle may have counter-intuitive implications. To use an example suggested by John Broome, the National Health Service (the U.K.’s universal health care system) gives out millions of analgesics for headaches; at some level, due to health care rationing and fixed budgets, that means that someone’s life will not be saved.  John Broome, All Goods are Relevant, in WHO, Summary Measures of Population Health: Concepts, Ethics, Measurement and Applications 727, 727-28 (Christopher J.L. Murray et al. eds., 2002).

What came up over dinner, and I thought was particularly interesting, was the following question:

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“Overcriminalization” and HIV

By Scott Burris

The concept of “overcriminalization” is gaining traction across the political spectrum.

The Heritage Foundation, which has a website devoted to the phenomenon, defines it as “the trend in America – and particularly in Congress – to use the criminal law to ‘solve’ every problem, punish every mistake (instead of making proper use of civil penalties), and coerce Americans into conforming their behavior to satisfy social engineering objectives.”   Others, like Michelle Alexander, drop the Ayn Rand tones and focus on mass incarceration as racialized social control. (My colleagues and I once calculated that African American males can expect to spend on average 3.09 years in prison or jail over their lifetime.) Douglas Husak argues that we need a theory of criminalization to help us get less of it.

One of the best examples of criminal law rushing in where angels fear to tread is the criminalization of HIV exposure. From the start, there was reason to fear that these laws would not reduce HIV transmission, and might exacerbate stigma and social hostility towards people with HIV. There was concern they might be used selectively, or just randomly.

This summer, the UN’s Global Commission on HIV and the Law advised states to repeal or abstain from enacting such laws.  The Commission drew on a set of background papers that reviewed the extent of the phenomenon globally and addressed the argument that these laws are justified by moral values even if they are ineffective.

In this country, the President’s National AIDS Strategy suggested states reconsider these laws, but no laws have been repealed and prosecutions continue.  Fortunately, so does research, and it continues to show that these laws are not promoting public health. This week, the American Journal of Public Health published a new PHLR-funded study by Carol Galletley. This video sums up her findings:

Law Professors Organize

By Scott Burris

Over the past fifty years, law has become an important tool for promoting public health – and a site of dramatic social and political contests.  Public health law has been an integral part of “great achievements” in public health that have saved, or enhanced, millions of lives. Increasingly, however, the public health interventions – and the legal theories and values they stand on – have been under steady, sustained and systematic attack.   Further progress is imperiled, and past gains may be rolled back.

Over the Summer, Wendy Parmet and Leo Beletsky of Northeastern University convened a one-day workshop in Boston, called Advancing Public Health through the Law: The Role of Legal Academics.  A lot of smart people in and out of legal academia participated, and it did not take long to get a consensus  that legal academics, alone and in partnership with practitioners in law and public health, need to be more effective and better coordinated in our work.  Part of this has to do with better understanding the forces lined up against effective health laws, and there was enthusiasm for the idea of moving forward on a coordinated strategy to increase our influence and effectiveness as public health law scholars and advocates.

It is vital to be strategic in the face of well-funded and well-organized political efforts to turn back interventions that can save lives. But our long-term success also requires some looking inward.  As people working in public health, we have to ask whether our division into unconnected silos – er, I mean, pillars of excellence – is sustainable. Are tobacco advocates, and harm reductionists, and obesity fighters cooperating, or competing?  As a broad movement, are we effectively focusing our limited resources, or allowing ourselves to be divided and conquered?  Are we right to assume that the public trusts us and accepts our mission as legitimate?  Is our language, our framing, getting tired?

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