Category: Supreme Court

Supreme Court of the United States.

What the Supreme Court’s Expected Ruling on Affirmative Action Might Mean for US Health Care

The Petrie-Flom Center Staff Leave a comment

By Gregory Curfman

Affirmative action in higher education may soon be abolished by the Supreme Court, resulting from its review of Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina.

The consequences for the physician workforce may be dire. Diversity among physicians is a compelling interest in our increasingly diverse society. Without affirmative action in higher education, our physician workforce may become less diverse, and the quality of health care may suffer.

This article explains the history of affirmative action in the U.S., past Supreme Court decisions, and the key arguments being considered in the two cases currently under review.

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File folders containing medical records.

How Dobbs Threatens Health Privacy

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By Wendy A. Bach and Nicolas Terry

Post-Dobbs, the fear is visceral. What was once personal, private, and one hoped, protected within the presumptively confidential space of the doctor-patient relationship, feels exposed. In response to all this fear, the Internet exploded – delete your period tracker; use encrypted apps; don’t take a pregnancy test. The Biden administration too, chimed in, just days after the Supreme Court’s decision, issuing guidance seeking to reassure both doctors and patients that the federal Health Privacy Rule (HIPAA) was robust and that reproductive health information would remain private. Given the history of women being prosecuted for their reproductive choices and the enormous holes in HIPAA that have long allowed prosecutors to rely on healthcare information as the basis for criminal charges, these assurances rang hollow (as detailed at length in our forthcoming article, HIPAA v. Dobbs). From a health care policy perspective, what is different now is not what might happen. All of this has been happening for decades. The only difference today is the sheer number of people affected and paying attention.

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privacy curtain around hospital bed.

Lessons in Health Data Privacy from the Partial-Birth Abortion Ban Act

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By Katie Gu

The past may hold important lessons for our uncertain future of health privacy for patients, physicians, and hospitals in the face of abortion subpoenas post-Dobbs. 

In returning the legality of abortion back to states, the Supreme Court’s decision has paved the path towards greater surveillance of sensitive health data contained in patient medical records. This stark increase in privacy risks for individuals seeking reproductive care resembles the shifts in patient privacy protections nearly twenty years ago following the Partial-Birth Abortion Ban Act (PBAB). 

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Stethoscope with blue suitcase on a table with American flag as background.

Is a Federal Medical License Constitutional?

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By Timothy Bonis

Although three in four doctors support scrapping state medical boards in favor of a single federal license, such sweeping reform is likely far off. It is not just state boards’ political obstructionism standing in the way. Basic constitutional federalism limits Congress’s ability to assume powers traditionally held by the states, leaving medical licensure (a state matter since its 19th-century inception) difficult to federalize.

This post will explore potential constitutional arguments for and against federal licensure, investigate the constitutionality of more moderate legislative approaches, and speculate on how the late Roberts Court might respond to reform attempts.

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Boston, MA, US-June 25, 2022: Protests holding pro-abortion signs at demonstration in response to the Supreme Court ruling overturning Roe v. Wade.

Physician-Led Advocacy for the Future of Reproductive Health Care

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By Katie Gu

The American Medical Association (AMA) recently adopted new policies aimed at protecting access to reproductive health care and reducing government interference in medical practice. As the nation’s most prominent professional medical association, the AMA’s unified stance brings a stronger physician-led voice in reproductive health care advocacy in the aftermath of Dobbs v. Jackson Women’s Health Care Organization.   

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U.S. Capitol Building at Night

Is Preemption the Cure for Healthcare Federalism’s Restrictions on Medication Abortion?

The Petrie-Flom Center Staff Leave a comment

This post is an adaptation of an article published in the Harvard Social Impact Review.

By Allison M. Whelan

On June 24, 2022, the U.S. Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, overruling almost fifty years of precedent established by Roe v. Wade and reaffirmed by Planned Parenthood v. Casey. The tragic consequences of Dobbs are many, and all require urgent attention.

Post-Dobbs, states have complete control over the regulation of abortion, including medication abortion. Now more than ever, a person’s access to abortion and other essential reproductive health care services depends on their state of residence and whether they have the means to travel to a state that protects access to abortion care. As a result, the question of whether states can restrict or ban pharmaceuticals approved by the U.S. Food and Drug Administration (FDA) is now top of mind for lawyers, scholars, policymakers, and the public

The consequences that result from state bans and restrictions on medication abortion reverberate across the U.S. healthcare system, representing just one example of “healthcare federalism” — the division of power between the federal and state governments in the regulation of health care.

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Lima, Peru - March 8 2019: Group of Peruvian woman supporting the movement girls not mothers (niñas, no madres). A social campaign for abortion rights for underaged raped girls.

Grassroots Mobilization Needed to Defend Abortion Access

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By Camila Gianella

On August 3, Kansas voters spurned the recent decision in Dobbs v. Jackson Women’s Health Organization by rejecting a proposed constitutional amendment that, in line with the ruling, aimed to ban abortion in the state.

What happened in Kansas shows the central role of social and political mobilization in securing abortion rights. In Kansas, Dobbs caused an unprecedented mobilization of women voters.

On the other hand, without such mobilization, access to abortion can suffer – even if the law protects sexual and reproductive health and rights (SRHR). In the case of Peru, my country, which is often cited as an example of the internationalization of SRHR norms through supranational litigation, internationally recognized legal victories have often fallen short of the high expectations they created. Despite the success of international bodies, abortion rights in Peru have not been expanded. Further, there are attempts at the legislative level to advance a total ban on abortion.

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Los Angeles, California / USA - May 1, 2020: People in front of Los Angeles’ City Hall protest the state’s COVID-19 stay at home orders in a “Fully Open California” protest.

The Supreme Court Threatens to Undermine Vaccination Decisions Entrusted to the States

The Petrie-Flom Center Staff Leave a comment

By Donna Gitter

In 2021, the Supreme Court articulated in Tandon v. Newsom a legal principle that threatens to upend over a century of legal precedent recognizing the authority of state governments to ensure public health by mandating vaccines.

The ruling lays the groundwork for courts to force states to include religious exemptions to mandatory vaccines whenever they include secular exemptions, such as medical ones.

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Vintage history book and magnifying glass on wooden background.

The New Search for Reproductive Justice in Old Laws

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By Katie Gu

In the post-Dobbs fight to safeguard reproductive healthcare, a new spotlight has been placed on two existing federal laws: the Health Insurance Portability and Accountability Act (HIPAA) and the Emergency Medical Treatment and Active Labor Act (EMTALA). 

Guidance documents issued over the summer by federal agencies emphasize how these laws can be used to protect reproductive health privacy and access.

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New Delhi, India-May 4 2018: Supreme court of India building in New Delhi, India.

The Supreme Court of India’s Landmark Abortion Ruling, Explained

Aparajita Lath Leave a comment

By Aparajita Lath

The Supreme Court of India recently ruled that all women, whether married or not, have equal rights to access abortion up to 24 weeks of gestation, in compliance with the provisions of the Medical Termination of Pregnancy Act, 1971 (MTP Act).

Prior to this ruling, the MTP Act was understood to permit abortions up to 20 weeks (on the advice of one medical practitioner), and up to 24 weeks in certain specific cases, e.g., minors, pregnancies resulting from rape, women experiencing changes in marital status, women with certain mental / physical disabilities, fetal malformation, or pregnancies in emergency situations. The Supreme Court has now expanded the law to ensure access to abortion for all women, regardless of marital status, up to 24 weeks gestation.

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