Articles Posted in Health Law

Cornell Law professor Michael C. Dorf discusses a topic that came up in the recent debate between Donald Trump and Kamala Harris, focusing on Trump’s remarks about healthcare and a legal challenge to a key provision of the Affordable Care Act (ACA) in the Supreme Court. Professor Dorf argues that while Trump lacks a clear plan to replace the ACA, Republican officials and their allies are systematically attempting to dismantle the law through litigation, not because they have a better alternative, but because they ideologically oppose government involvement in healthcare and resent the ACA’s success as a Democratic initiative.

Cornell Law professor Michael C. Dorf discusses a federal judge’s ruling that enjoins New York’s attorney general from enforcing state laws against crisis pregnancy centers promoting “abortion pill reversal” (APR) on First Amendment grounds. Professor Dorf argues that the ruling misunderstands the state’s interest in protecting citizens’ health and safety, asserting that the government should be able to regulate potentially false or dangerous medical claims even when they are made without commercial motive.

Surgeon and bioethicist Charles E. Binkley discusses the ethical implications and potential harms of using artificial intelligence (AI) in healthcare decision-making, particularly focusing on informed consent and physician responsibility. Dr. Binkley argues that patients should be informed when AI is used in their care, and that healthcare providers have a duty not only to inform patients of potential risks but also to mitigate those risks, emphasizing that the use of AI does not absolve physicians of their responsibilities to patients.

Surgeon and bioethicist Charles E. Binkley discusses the ethical implications of using artificial intelligence (AI) models in clinical decision-making, particularly focusing on patient informed consent. Dr. Binkley argues that patients should be fully informed about the use of AI in their healthcare, not only as patients but also as data donors and potential research subjects, to maintain autonomy, transparency, and trust in the physician-patient relationship.

Stanford Law visiting professor Joanna L. Grossman, SMU Law professor Nathan Cortez, and SMU Law professor Seema Mohapatra critique the ruling last week by federal judge Matthew Kacsmaryk issuing a preliminary injunction to “delay” the FDA’s approval of mifepristone, one of the two drugs used in medication abortion. Professors Grossman, Cortez, and Mohapatra explore some of the deepest flaws in Judge Kacsmaryk’s opinion and the ways he manipulated law, science, and language to hew closely to the anti-abortion playbook.

Cornell Law professor Michael C. Dorf considers whether the Biden administration’s announcement that it would end the COVID states of emergency in May affect pending Supreme Court cases involving immigration policy and student debt forgiveness. Professor Dorf explains why the news is unlikely to affect the outcome of the immigration case and, conversely, why it might affect the student debt forgiveness case.

SMU Dedman School of Law professor Joanna L. Grossman describes the American child welfare system and argues that Texas Governor Greg Abbott’s attempt to weaponize state child abuse law against trans children and their parents is grossly unconstitutional. Professor Grossman points out that the child welfare system gives parents broad discretion to make medical decisions for their children, and a state cannot simply decide that a particular type of medical treatment constitutes child abuse because it is politically opposed to it.

Illinois Law professor Lesley M. Wexler argues that a just society should not punish unvaccinated persons in the allocation of even scarce medical care and resources, despite the exceptional circumstances of a global pandemic. In support of this position, Professor Wexler analogizes to the exceptional circumstances of war, pointing out that the laws of war also emphatically reject status discrimination in medical decision-making.

Elena J. Voss, associate general counsel at The Metropolitan Museum of Art, and NYU Law professor Samuel Estreicher, dissect an opinion by the Office of Legal Counsel that squarely answers in the negative the question whether the Emergency Use Authorization status of COVID-19 vaccines precludes public or private entities from mandating those vaccines. Ms. Voss and Professor Estreicher point out that while the OLC opinion is neither binding nor authoritative, it is well-reasoned and indicative of the Biden administration’s view on this topic and can provide some assurance to employers who wish to implement a vaccine mandate.

University of Pennsylvania professor Marci A. Hamilton calls on local, state, and federal officials to require COVID-19 vaccination in order to effectively address the acute health crisis the virus’s variants imminently pose. Professor Hamilton argues that we should treat those who refuse to get vaccinated, without sound medical reasons for doing so, the same way we treat drunk drivers: civilly and criminally liable.

In light of the U.S. Supreme Court’s decision last week rejecting a third legal challenge to the Affordable Care Act, Cornell Law professor Michael C. Dorf considers whether challengers could bring (and succeed on) a fourth. Professor Dorf explains why subsequent challenges are unlikely to succeed, pointing out that a nonexistent obligation (as the so-called individual mandate now is) cannot be unconstitutional.

Illinois Law Dean Vikram David Amar comments on an unusual move by the U.S. Solicitor General’s office, sending a letter to the U.S. Supreme Court amending the position of the federal government in a case currently pending before the Court challenging the Affordable Care Act. Dean Amar explains why the arrival of a new administration should generally not trigger such position reversals, but he argues that the unusual circumstances—specifically the “exceptional implausibility” of the government’s prior filings—may justify the government’s action in this instance.

Charles E. Binkley, director of bioethics at Santa Clara University’s Markkula Center for Applied Ethics, describes some critical ethical issues raised by the use of artificial intelligence (AI) and machine learning (ML) systems for clinical decision support in medicine. Dr. Binkley calls for resolution of these issues before these emerging technologies are widely implemented.

In this fifth of a series of columns examining the California v. Texas case challenging the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone discuss severability in a larger context and explain why, in their view the majority and minority positions are partly right and partly wrong. The authors conclude that if the Court invalidates and enjoins the individual mandate, it should reject the challengers’ substantive express inseverability claim that the entire ACA remainder should be enjoined.

In light of recent news that Pfizer and Moderna have apparently created safe and effective vaccines against COVID-19, Cornell law professor Michael C. Dorf considers whether the government can mandate vaccination for people who lack a valid medical reason not to get vaccinated. Dorf briefly addresses issues of federalism and religious objections to vaccination and then addresses the question whether mandatory vaccination might be inconsistent with a right to abortion.

Cornell law professor Sherry F. Colb considers one aspect of the oral argument in California v. Texas, the latest challenge to the Affordable Care Act to come before the U.S. Supreme Court. Specifically, Colb considers the way in which some of the Justices talked during the oral argument about the doctrine of judicial standing, and she calls out those Justices’ hypocrisy as to that issue.

Cornell law professor Michael C. Dorf comments on the third challenge to the Affordable Care Act (ACA) that has made it before the U.S. Supreme Court, and considers how the case will play in the upcoming Georgia runoff elections. Dorf argues that absent a dramatic and highly unusual development—like a Supreme Court decision rejecting the ACA challenge in the next few weeks—that should help the Democratic candidates in Georgia’s runoff elections.

In this fourth of a series of columns examining the California v. Texas case challenging the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone consider what the appropriate remedy should be if the challengers prevail on the merits of the case. The authors explain why enjoining the 2017 amendment, which zeroed out the potential tax penalty for failure to maintain the specified health insurance coverage, is a more appropriate remedy than striking down the entire ACA.

SMU Dedman School of Law professor Joanna L. Grossman and Boston University law professor Linda C. McClain comment on COVID-19, toxic masculinity, and the state of national politics today. Grossman and McClain contrast President Trump’s reckless bravado that endangers the lives of Americans with the empathy of Democratic presidential nominee former Vice President Joe Biden’s in asking people to be patriotic by doing their part by wearing masks to protect other Americans.

Marci A. Hamilton—a professor at the University of Pennsylvania and one of the country’s leading church-state scholars—argues that the biggest threats to herd immunity against COVID-19 are federal and state religious liberty statutes and religious/philosophical exemptions. Hamilton describes how the federal Religious Freedom Restoration Act (RFRA) and its state-law equivalents came to be in the United States, and she calls upon legislators at all levels to amend RFRA so that once we have developed an effective and safe vaccine, we might as a country develop herd immunity and prevent more unnecessary deaths.