Articles Posted in Health Law

Justia columnist and Cardozo law professor Marci Hamilton comments on two significant threats to New York State’s children. Hamilton begins by noting the recent, tragic death of an infant from herpes. She notes that the infant likely contracted the disease from a mohel who performed “oral suction” on the infant after Orthodox Jewish ritual circumcision. (Oral suction is a controversial practice in the Jewish community, and has fallen out of favor with many. In ancient times, the practice was thought to contribute to hygiene, but as it was learned that it could spread disease, it was mostly abandoned. Those who still practice it typically employ a glass tube to avoid direct contact and disease transmission.) Noting that this is not the first such death to likely be associated with oral suction, Hamilton argues that this risky procedure should be banned, and notes that its religious nature provides no legal defense for those who follow the procedure. She also warns that not only the mohel, but also the parents, could be held responsible for the death, depending on what they knew about the procedure’s risks. In addition, Hamilton covers a second ongoing threat to the well-being of New York’s children: clergy child sex abuse. Hamilton contends that New York ought to follow the example of Philadelphia, when it comes to the reporting of clergy child abuse—for there, District Attorney Lynne Abraham eventually enabled justice to be done due to her grand jury investigation into the cover-up of abuse.

Justia columnist and Cornell law professor Sherry Colb comments on a recent practice that has made a larger number of compatible kidneys available to those who need them: the “donor chain.” As Colb explains, donor chains allow pairs of people—one person who is willing to donate a kidney, and another who is in need of a kidney (but not immunologically compatible with the intended donor)—to become links in a chain of such pairs, and thus to each receive compatible kidneys. Indeed, through such a chain, willing and compatible donors may be found for each would-be recipient on the chain. There is no question that these chains save lives, but Colb notes that many more lives would be saved if, in addition to allowing donor chains, we also allowed people to sell their kidneys to those who need them. Thus, she considers the rationales for banning kidney sales—while pointing out that people with one kidney typically live as long as those with two. In the end, Colb asks whether it really makes sense for federal law to allow donor chains, but not to allow kidney sales—using a hypothetical where the would-be kidney seller himself needs the money urgently to cover a loved one’s health care needs.

Justia columnist Vikram David Amar and Justia guest columnist Alan Brownstein, both U.C., Davis law professors, comment on the recent controversy regarding Department of Health and Human Services regulations regarding the extent to which employees of religious organizations must be provided with insurance coverage for contraceptive services, as part of the insurance they obtain through their employment; and on President Obama’s proposed compromise. With Obama’s proposal drawing fire from both sides, Amar and Brownstein describe the framework in which they contend that the issue should be analyzed. Acknowledging both the serious religious liberty interest here and the value to many women of insurance that provides contraceptive access, Amar and Brownstein note that often, acknowledging such an interest also confers a benefit on the religious organization or person. (For instance, a true conscientious objector gains the benefit of not having to go to war, despite his sincerity and despite his not seeking out that benefit.) Here, if a religious institution does not have to cover contraceptive services, it not only vindicates its beliefs, but also saves money. Amar and Brownstein contend that part of the ideal approach to such questions would minimize such secular benefits of religious observance. They also note that another part of the ideal approach would be mitigate or spread the costs of honoring religious liberty, so that they do not fall disproportionately or heavily on an individual or group. Finally, they apply their ideal approach to the controversy over the HHS regulations, suggesting that religious organizations that are exempted from the regulations be asked to provide some kind of alternative to compliance—just as a conscientious objector in wartime would.

Justia columnist and Hofstra law professor Joanna Grossman comments on the legal consequences of different forms of free, non-anonymous sperm donation. As she explains, some of these donations are connected to the online Free Sperm Donor Registry. Grossman, relying in part on previous reportage by 20/20, comments on situations such as that of a man who has given away so much sperm that the government has told him to stop its “manufacture,” and men who donate sperm via what is called “natural insemination”—that is, sex. Grossman explains why in-person sperm donation, especially via “natural insemination” raises complex questions about the legal rights and obligations of the sperm donor—with donors potentially liable for child support, and potentially able to seek visitation or even co-parent status. She also notes that in-person sperm donation may be governed by—and may, in some instances, violate—FDA regulations pertaining to the donation of human cells and tissue. Among other legal sources, Grossman covers the original and revised Uniform Parentage Act (UPA) in the column.

Justia columnist and Cornell law professor Michael C. Dorf, and Justia guest columnist and Duke law and political science professor Neil S. Siegel comment on an interesting but less often discussed aspect of the controversial 2010 federal health care law. As Dorf and Siegel explain, before the Supreme Court reaches the merits of the case involving the health care law, it must first consider the federal Anti-Injunction Act, which became law in 1867. Dorf and Siegel note that the Anti-Injunction Act requires taxpayers who object to the federal government’s assessment or collection of a tax to first pay up, and only then sue for a refund. With respect to the federal health care law, Dorf and Siegel explain, that would delay even the very beginning of federal litigation until 2015. Yet both the law's fans and its detractors want a decision from the Supreme Court much earlier than that. Some would opt to simply ignore the Anti-Injunction Act, but as Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit commented, “There is no ‘early-bird special’ exception to the Anti-Injunction Act.” Fortunately, Dorf and Siegel offer an ingenious solution to this dilemma that combines a reasonable interpretation of the Anti-Injunction Act with the passage of a new federal stature.

Justia columnist and Cornell law professor Michael C. Dorf comments on a case in which the Supreme Court heard oral argument last week. As Dorf explains, while the case may seem technical, it will have some very substantive consequences for the judicial enforcement of federal rights. The question the case directly raises is whether private parties (specifically, Medicaid patients and providers) can sue states to demand that they comply with the requirements of the federal Medicaid law. Interestingly, the Obama Administration's view is that they cannot, while the right-leaning U.S. Chamber of Commerce’s view is that they can—even though Democrats traditionally favor court access, and Republicans traditionally are more likely to oppose such access. Dorf explains why the Democrats’ decision to oppose court access here, while favoring it generally, is a high-risk strategy that might backfire, depending on the Court’s resolution of the case.

Justia columnist and Cornell law professor Michael C. Dorf comments on the potential impact of the resolution of the legal battle over the PPACA, also known by its critics as “Obamacare.” Various PPACA cases have caused a split among federal appellate courts, such that Dorf predicts that the Supreme Court will likely grant review this Term in a PPACA case. The case would raise the question of the constitutionality of the “individual mandate,” which requires individual Americans to purchase health insurance or pay a penalty for not doing so. Dorf argues that in the end, the Court’s PPACA decision—like Bush v. Gore before it—will have little effect as a legal precedent, but a very large political effect, as many Americans will likely see the Court’s decision, depending on how it comes out, as either a vindication or a repudiation of President Obama’s policy, and perhaps even the President himself.

Justia columnist and U.C. Davis law professor Vikram David Amar comments on the recent decision by a divided three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit, striking down Obamacare’s “individual mandate” provision, which requires each person to obtain health insurance coverage or pay a sum of money to the U.S. Treasury. Amar considers and responds to the most important Commerce Clause arguments that the panel majority invoked: (1) the unprecedented nature of the mandate in federal law; (2) the lack of a requirement in the mandate provision that each regulated individual be doing anything that affects the economy; (3) the related problem that if Congress could mandate purchase of healthcare, there would be no stopping point to federal power; and (4) the fact that insurance and healthcare are matters of traditional state concern.