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Category: Health Law

Gluck on Halbig

The tough luck constitutionalists are pushing another line of attack on the Affordable Care Act.  As Abbe Gluck recently observed,

Health care reform won a big victory in court on January 15, when a federal judge in Washington, D.C., rejected a challenge to the new health insurance marketplaces, or exchanges, created under the Affordable Care Act (ACA). . . . [T]he court rejected as unsupported by the ACA’s history the argument that Congress viewed the subsidies as a “carrot” to induce the states to run the exchanges (and so had no need to provide them on the federal exchanges). Although today there is great “red state” resistance to the exchanges, when the ACA was drafted, congressional advocates for states’ rights clamored to let the states run them, and no one assumed that they wouldn’t. The fact that Congress failed to foresee today’s political environment doesn’t change what it originally intended.

For those interested in the appeal, Gluck has posted today on the challengers’ farrago of “kitchen-sink arguments, many of which are incompatible with the basic principles of statutory construction on which their briefs purport to rely and which evince a misunderstanding of the ACA’s procedural history.”  

Infinite Punishment

Can a society that pours ever more resources into “guard labor” be truly innovative? It turns out that yes, we can:

Philosopher Rebecca Roache is in charge of a team of scholars focused upon the ways futuristic technologies might transform punishment. Dr Roache claims the prison sentence of serious criminals could be made worse by extending their lives. Speaking to Aeon magazine, Dr. Roache said drugs could be developed to distort prisoners’ minds into thinking time was passing more slowly. “There are a number of psychoactive drugs that distort people’s sense of time, so you could imagine developing a pill or a liquid that made someone feel like they were serving a 1,000-year sentence,” she said.

Manipulating the subjective experience of punishment used to depend primarily on external factors, like cell size, terms of socialization, or lighting. An emerging pharma-prison complex could bring a whole new level of efficiency to the guard labor sector. Would our courts recognize such a drug as “cruel and unusual?” Considering the terms of confinement now routinely accepted in the American prison system, that’s anyone’s guess.

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Health as a Bottleneck

In his thoughtful and path-breaking book, Bottlenecks: A New Theory of Equal Opportunity, Joey Fishkin challenges the common conception of equal opportunity as providing a level playing field.  He explains that merely equalizing opportunity at critical points in a person’s life, such when she applies for a desirable job or college program, is often not enough. By then, social inequities and previous limited opportunities may have already taken their toll on the affected individuals, perhaps leaving them underprepared and ill-equipped to meaningfully compete—let alone succeed—even when given the chance.  Fishkin explains that this line of reasoning puts us in a vicious cycle: To achieve true equal opportunity, interventions must happen earlier.  But when is earlier?  The disadvantaged job applicant could have benefited from a better college education.  Yet the disadvantaged college student could also have benefited from a better high school education.  And the disadvantaged high school student could have benefited from a better primary school education. And the disadvantaged primary school student could have benefited from having parents with higher incomes and more time to devote to parenting, which just takes us back to the disadvantaged job applicant.  Hence, Fishkin identifies a key flaw in the traditional construction of equal opportunity: We are all the products of our opportunities, and those opportunities can never be truly “equal.”  To that end, he endorses “opportunity pluralism,” which he defines as making more opportunities available to more people.  Thus, in a society that limits educational or job opportunities based on a particular standardized test, we can move away from asking whether the test is a fair metric and instead ask why the opportunity structure depends upon its results.

Fishkin christens these opportunity-limiting factors “bottlenecks” and pushes us to understand traditional antidiscrimination protections through that lens.  Thus, well-known protected statuses, such as race and sex, can be understood as bottlenecks because certain opportunities have been construed to require whiteness or maleness.  But legally recognized antidiscrimination categories, such as race and sex, are not the only bottlenecks we have to contend with.  Employers also restrict opportunities based on other factors, such as college education, credit history, criminal convictions, or unemployment.  My own scholarship has dealt extensively with yet another employer bottleneck: health.

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To Define the Beginning of Human Life or Not, That Is the Question

Twice a month I meet with some of my students for a critical reading.  In our last January meeting, we decided to commemorate Roe by re-exploring Judith Jarvis Thomson’s  seminal article A Defense of Abortion. Thomson’s defense of induced abortion by exploring our moral duties in the unrealistic case one found oneself kidnapped and plugged in to a virtuous violinist who is sick and needs one’s kidneys for nine months in order to heal has been highly criticized. Nonetheless, every time I read it or discuss it, I find how enlightening her thought experiment still is, as it confronts us with our set of moral beliefs and its incongruences with our policy stances. Moreover, it makes me always ponder about our lack of a well-thought and coherent abortion regulating scheme.  But that is a topic for a different post. Today, I would like to concentrate on a related matter that stemmed from my discussion of Thomson’s article with my students.

By the end of our conversation my students and I were inquiring whether it was possible to assert a defense of stem cell research/therapy even taking for granted the right of life of the embryos, as Thomson did in her paper. It seemed obvious for almost all of us that using embryos for those purposes would be considered a blatant deprivation of the embryo’s right to life and an impermissible use of another person’s body; and thus, could not be sustained under Thomson’s argument. So we decided to try to come up with a scenario similar to Thomson’s violinist that could aid us in exploring the moral adequacy of stem cell research/therapy.

An appropriate thought experiment eluded our not so brilliant minds. We did not want to come up with a fallacious and common place thought experiment such as the one of the burning building test  in which one is forced to decide who to rescue first: twenty 8-cell embryos kept in a freezer or a baby in peril. We were not looking to formulate an experiment tilted to one side like the burning building test, in which the “incomplete human character” of the embryo is made self-evident by the “inescapable instinct” to rescue the “actual” human being. However, the truth is that it is quite difficult to come up, in a couple of minutes, with a reasonable possible scenario in which all the circumstances of stem cell research/therapy are replicated in a way that could sensibly help us assess our moral agency.

First, we would need to come up with a scenario in which we have a “human being” in a permanent frozen state (e.g. a cryogenized virtuous violinist) in which the conditions necessary for a successful life require a willing human host that is either related to the cryogenized violinist or has the authorization of his guardian to serve as a host for nine months.  Second, we must come up with a particular circumstance (e.g. a military operation) that would force the guardian of the cryogenized violinist to choose between using the frozen body to help in the recovery of a sick non-cryogenized human being (e.g. a  young Science Nobel laureate) whose only real, feasible and cost efficient chance to a healthy life is using that frozen body at the expense of eliminating all possible chances of an uncertain future life for the cryogenized violinist or leaving the cryogenized violinist frozen for an indefinite period of time and allowing for the sick non-cryogenized Nobel laureate to die. Finally, we would need to come up with the circumstances that led the cryogenized violinist to be treated as a surplus human being and at the same time be treated as the raw materials for the creation of future equally virtuous violinists (e.g. the practice of cloning virtuous musicians).  Furthermore, the example would need to consider the possibility of making the cryogenized violinist for the sole purpose of healing the sick non-cryogenized laureate (e.g. the possibility of the world coming to an end if the Nobel laureate does not find a solution to the problem before he dies from her sickness).

The end result is a very absurd, unrealistic and perhaps too intricate thought experiment.  Yet, exploring the limits of such an experiment may be a possible way to coming up with a defense of stem cell research/therapy even when one grants the right of life of the embryos.  Nonetheless, I would like to pose that the absurdity and illusory nature of these thought experiments suggest that we should face the inevitable: we must delimit when human life begins if we truly would like to come up with a moral/ethical regulation of stem cell research/therapy. This inescapable moral question is more evident when we contrast our legal stances and nation’s practices on issues like torture, war, death penalty, abortion, euthanasia and justification and necessity defenses.  The system is manifestly incoherent.

I do believe that a sensible answer will only come when we legally embrace the fact that life – and by extension human life – exists in a continuum. Law should echo that reality. A coherent and ethical sound system can only arise after we legally recognize that there is a point in that continuum in which life becomes human and that there are different stages before that point in which life is a subject of certain rights but not the same rights a human life is a subject thereof. Laws should define that moment and those stages. There is no moral reason to avoid doing so. As there is no ethical rationale either to treat totipotent, pluripotent, multipotent, oligopotent, unipotent cells, fully developed human beings not capable of living on their own, and born human beings in the same way.  Furthermore, our history and legal system have always made distinctions on how we treat the right to life of human beings based on particular deontological assumptions.

Our inquiry into how to regulate stem cell research/therapy should not be made under the assumption that embryos are in fact human beings and subjects of the same rights. A valid answer to this recent human reality must be based on a rigorous analysis of moral questions such as: 1. When does a life become a human life?; 2. Which type of rights is a non-human life entitled to?; 3. Are there different stages of a non-human life?; 4. Are those stages deserving of a differentiated right treatment?; 5. What are our moral duties to a human life?; 6.  What are our moral duties to a non-human life and it corresponding stages?; and 7. Under which circumstances are we relieved from those duties to human and non-human lives? These questions should be guiding our legislative process regarding scientific inquiries and not biased assumptions as to what constitutes human life.

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Neurocriminology: The Monsters are in the Molecules

Is the brain indeed the prime suspect when it comes to horrific crimes? Does our molecular structure or DNA determine our destiny, for the benevolent best or the malovent worst?

Such questions and others are explored in Dr. Adrian Raine’s book titled The Anatomy of Violence: The Biological Roots of Crime (Pantheon, 2013). This mind-opening book by a University of Pennsylvania professor of psychiatry and chairman of the department of criminology is the focus of an online symposium just posted on the Washington Independent Review of Books Gb4yObYARcACwebsite.

To help flesh out some of the instructive and provocative points raised in Dr. Raine’s illuminating book, NYU professor of Clinical Psychiatry Laurence R. Tancredi (who holds MD and JD degrees) and a University of Minnesota law professor Francis Shen (who specializes in neuroscience and the law) wrote commentaries. In the spirit of a free exchange of ideas, Dr. Raine authored a reply. I wrote the foreword to the symposium.

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UCLA Law Review Vol. 61, Issue 1

Volume 61, Issue 1 (December 2013)
Articles

Against Endowment Theory: Experimental Economics and Legal Scholarship Gregory Klass & Kathryn Zeiler 2
Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Case Mark D. Rosen & Christopher W. Schmidt 66

 

Comments

“Let’s Have a Look, Shall We?” A Model for Evaluating Suspicionless Border Searches of Portable Electronic Devices Sid Nadkarni 148
An Article III Divided Against Itself Cannot Stand: A Critical Race Perspective on the U.S. Supreme Court’s Standing Jurisprudence Raj Shah 198

 

 

 

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Why is Reproductive Technology a Battleground in the Abortion Debate?

Caitlin Borgmann has made the convincing argument that incrementalism in the anti-abortion movement developed from the failure of the movement’s initial post-Roe strategy to win the hearts and minds of the undecided. The strategy of equating abortion with murder and vilifying women who have abortions was far too strident to be persuasive and too off-putting to have emotional appeal. The strategy was eventually abandoned in favor of chipping away at Roe by degrees. Incrementalism takes the long view toward outlawing abortion in any form, but its progress, ironically, is asymptotic, 120px-Icsitending toward prohibition without ever achieving it. This is because incrementalism’s objective is to render access to abortion illusory. Even if Roe remains in place, rendering abortion inaccessible will mean that it is legal in theory but not in practice. Although alternatives to incrementalism have appeared in recent years as certain factions within the movement have grown restive, incrementalism remains the primary strategy of the anti-abortion movement today.

The incrementalist strategy now includes arguments for limiting assisted reproduction by raising concerns about its use at all four stages of the cycle of human reproduction: pre-conception, pre-implantation, post-implantation, and even post-birth. Although seemingly an odd direction for the anti-abortion movement to take, it should not come as a complete surprise; after all, the moral status of the embryo has played a major role in the development of the legal regimes that regulate assisted reproduction in other countries, particularly those with strong commitments to Roman Catholicism. Costa Rica, for example, banned IVF entirely for this reason in a law later struck down by the Inter-American Court of Human Rights. Although their connection may not be immediately obvious, then, abortion and assisted reproduction have a history of intertwinement in the policymaking arena.

An important question remains, though, about what is achievable in bringing anti-abortion sentiments to bear on issues in assisted reproduction. On the surface, there appears to be no clear connection between terminating a pregnancy and pursuing one. Of course, abortion and assisted reproduction are both techniques for managing reproductive life, and it is true that, in some applications, assisted reproduction may result in embryo loss. Hence, calls to regulate embryo disposition (called “adoption” in this context) and embryonic stem cell research make a certain amount of sense. But the claim that embryos have a moral status is not a good explanation for why other areas of assisted reproduction have become attractive battlegrounds for pursuing an anti-abortion agenda: egg donation, sex selection, and intentional parenthood.

It is obvious why the movement decries sex-selective embryo discarding or sex-selective abortion. Less clear is the reason for the movement’s opposition to pre-conception sex-selective techniques. Furthermore, anti-abortion advocates have claimed, respectively, that egg donation harms women and that intentional parenthood in the absence of a genetic connection harms children. Neither of these positions has much to do with abortion. If it is safe to assume that the stances assumed by the anti-abortion movement against assisted reproduction have more to do with banning abortion than with regulating reproduction, it is important for us to inquire into why the movement believes its resources are well spent in this area and what the implications of its activities might be for law and policy.

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Regulating Assisted Reproduction

06fertilizadoAnxiety arises from technological advances in the life sciences, and there is often uncertainty about what societal response is appropriate. Are we more likely to condone euthanasia as technology for prolonging life improves? Should we support the cloning of human embryos for research purposes even if we reject reproductive cloning? It is a common sentiment that legal regulation is a useful tool for fashioning rules about scientific activities and medical interventions. But in legal circles, we are not shy about questioning the limits of our discipline. The bulk of the literature examining law’s limitations explains that these limitations are most salient in times of crisis or upheaval, e.g., war, terrorism, or epidemic disease. All of these are phenomena with a significant public dimension. Although less theorized, law’s limitations are also evident in the more quotidian realms of human experience that have a significant private dimension—sexuality, substance abuse, prejudice, just to name a few. Fantasies of thought control aside, some scholars have theorized that law is uniquely unsuited to channelling attitudinal and libidinal expression, e.g., prostitution, and invidious discrimination. We know from vast experience that attempts to regulate these activities out of existence only drive them further underground, often with troubling consequences.

In the context of biotechnology, assisted reproduction is perhaps the area that inspires the widest range of voices calling for regulation and thus provides the most suitable subject matter for an exploration of the limits of the law in the regulation of technological advancement in the life sciences. Unlike the clashing interests of doctors and their patients or scientists and their research subjects, the creation of children through technological means triggers a wider range of responses by social groups and the political actors who serve them than do other applications of biotechnology. This may explain the wide range of regulatory responses to assisted reproduction around the world, from the “hands-off” approach of the United States to the prohibitive approach of countries in Europe, Asia and South America. What makes regulating reproductive technology difficult is that it exists somewhere between the extremes of public and private. On the one hand, it is dramatic and transformative in a public way, demanding the expenditure of public health and judicial resources; on the other hand, it transforms within a realm considered deeply private—the creation of families. The resulting tension is one that counsels some form of response but that simultaneously shies from intruding in a realm deemed sacrosanct—the choice whether to have a child. Thus, the question is not whether to regulate reproductive technology, but how.

 

A Strange New Front in the Medicalization of Penality

The headline says it all: “Cops Subject Man To Rectal Searches, Enemas And A Colonoscopy In Futile Effort To Find Drugs They Swear He Was Hiding.” We can at least hope that Rochin has some applicability to colonoscopies.

But the Supreme Court has “upheld invasive strip searches even for those charged with the most minor crimes—–including unpaid traffic fines.” Perhaps the drug war will lead to new job opportunities for medical professionals willing to ensure that various police or military interventions don’t cross the line into Rochin territory.

A Very Smart Take on PPACA

The narrative of President Obama’s quest for universal health care reminds me of Hemingway’s Old Man and the Sea: the prize catch of March, 2010 has been nipped and nicked for over 3 years, as SCOTUS, House Republicans, neoliberal regulators, and various other opponents degrade parts of it. Some of Obama’s political opponents are celebrating the botched rollout of HealthCare.gov. But as Mike Konczal observes, they should be careful what they wish for:

[T]his failed rollout is a significant problem for conservatives. Because if all the problems are driven by means-testing, state-level decisions and privatization of social insurance, the fact that the core conservative plan for social insurance is focused like a laser beam on means-testing, block-granting and privatization is a rather large problem. As Ezra Klein notes, “Paul Ryan’s health-care plan — and his Medicare plan — would also require the government to run online insurance marketplaces.” Additionally, the Medicaid expansion is working well where it is being implemented, and the ACA is perhaps even bending the cost curve of Medicare, the two paths forward that conservatives don’t want to take.

On the other hand, some aren’t chicken about bolder visions of health reform.