Analysis and Commentary on Health Law
The Significance of the New “Pain Capable Abortion” Laws

Justia columnist and Cornell law professor Sherry Colb comments on recent laws enacted by several states banning abortion procedures at 20 weeks post-fertilization (or 22 weeks after a pregnant woman’s last menstrual period or “LMP”), and a similar federal measure passed by the House of Representatives, the “Pain-Capable Unborn Child Protection Act (PCUCPA), which would—in the unlikely event that it passed—yield a national prohibition against abortion at 20 weeks post-fertilization (with various exceptions). Some see such laws as a way to subtly advance a pro-life agenda, but Colb notes that an emphasis on the importance of pain, sentience, and suffering in morality surely should, especially, make us ask why we ignore the terrible suffering of the animals we use for food, when we should, instead, Colb contends—focusing on pain—choose to become vegan.

Sexual Surrogacy: Better Than Prostitution?

Justia columnist and Cornell law professor Sherry Colb compares and contrasts the use of a prostitute with that of a sexual surrogate. One impetus for Colb’s column was the recent determination of France’s National Ethics Committee that sexual surrogacy is unethical because it uses the human body for commercial purposes. In light of that determination, Colb considers the arguments for and against considering sexual surrogacy to be ethically distinct from and superior to, prostitution. In the course of her analysis, Colb also considers two novel ways of thinking about sexual surrogacy: as (1) sexual harassment of the therapist, and as (2) sexual harassment of the patient.

Doctors and Lawyers and Such: A Pediatric Lung Transplant Case Illustrates the Complex Relationship Between the Government and Medical Providers

Justia columnist and attorney David Kemp comments on a recent case in which a child received a much-needed pediatric lung transplant as the result of a federal lawsuit that triggered a policy change. He discusses the policy and the arguments the parents of the child put forth for changing it. He argues that the case illustrates a function relationship among experts, legislators, and judges—but only in ideal circumstances. He critiques the community of medical experts as failing to review and update policies to keep up with the latest scientific knowledge, particularly on such crucial issues like eligibility for donated organs.

Changing Our Attitudes Toward Health Policies

Justia columnist and attorney David Kemp discusses two recent issues that have come up in recent news related to health and health policy. The first issue Kemp discusses is that of breast cancer prevention and treatment, in light of a New York Times op-ed written by actress and director Angelina Jolie. The second issue is the recent and alarming outbreak of bacterial meningitis in New York City, particularly among gay and bisexual men. Kemp compares and contrasts the two issues, arguing that there is no place for moral approbation or judgment in the prevention and treatment of these diseases or any others.

The Need for Discussion of End-of-Life Care Plans

Justia columnist and attorney David Kemp discusses a story that illustrates the need for every individual to clearly express his or her instructions for end-of-life care. He first considers why this particular story captured national audiences and then discusses what people should take away from the story. He argues that everyone should have an advance medical directive or similar document to guide friends and loved ones as to end-of-life wishes.

When Conscience and Duty Conflict: A Health Care Provider’s Moral Dilemma

Justia columnist and attorney David Kemp discusses the moral dilemma presented when a health provider’s duty conflicts with his or her conscience. To illustrate this dilemma, he uses the example of a Jehovah’s Witness physician faced with a patient who needs a life-sustaining blood transfusion. Kemp notes that conflicts between conscience and duty arise in other settings, such as the case of conscientious objectors to military conscription. Kemp concludes that the ideal solution is for the institution and the individual to take steps to prevent these types of conflicts from occurring at all.

A Federal Judge Upholds the Women’s Health Regulations of the Affordable Care Act Against a Free Exercise of Religion Challenge

Justia columnist and Cardozo law professor Marci Hamilton comments on a recent decision from a federal district judge regarding employers’ duties under the Affordable Care Act (ACA). The case arose when the Chairman of a for-profit company, who is Catholic, objected to the ACA’s requirements that his employee health plan must cover contraception and sterilization. Specifically, the Chairman claims, among other things, that his constitutional right to the free exercise of religion has been violated by the requirement. Hamilton, citing several U.S. Supreme Court cases, argues that the Chairman is wrong, and that if his position were to be accepted by the courts, then we would be on a dangerous slippery slope, for even minimal burdens on religious exercise could then lead to important consequences for those who are of other religions, or no religion at all. In addition to addressing these constitutional issues, Hamilton also discusses the issues raised in this area by the Religious Freedom Restoration Act (RFRA).

The States Can Afford to Expand Medicaid, and the Federal Government Can, Too: Governors Would Be Foolish and Cruel to Opt Out of the Affordable Care Act’s Medicaid Expansion

Justia columnist, George Washington law professor, and economist Neil Buchanan argues that, in the wake of the Supreme Court’s Affordable Care Act (ACA) decision, states should not opt out of the ACA’s Medicaid expansion, as they are allowed to do, and as many Republican governors have suggested that they will do. Buchanan argues—providing many specifics—that the states can easily afford the Medicaid expansion, especially as the states are being offered a generous deal by Congress; and that the federal government can afford it too. Overall, Buchanan concludes that the case for states’ opting for the expansion is overwhelmingly strong. In addition to being the right thing to do with respect to health care for states’ poor and near-poor citizens, he contends, choosing the Medicaid expansion proves to be fiscally responsible as well.

The Top 10 Things to Take Away From Last Week’s Supreme Court Obamacare Ruling

Justia columnist and U.C., Davis law professor Vikram David Amar comments on the ten key takeaways from last week’s Obamacare opinion. Some of the lessons Amar suggests that the opinion teaches are not just about the Supreme Court, but, interestingly, also about the media, and about Intrade users. Moreover, when it comes to the Court and its Justices, Amar points out lessons that we might learn about Justice Kennedy and Chief Justice Roberts, respectively, from the opinion. Amar also points out lessons that we might learn from the opinion about Commerce Clause doctrine and doctrines regarding constitutional federalism.

Why Chief Justice Roberts Dared Not Overturn President Obama’s Healthcare Plan

Justia columnist and former counsel to the president John Dean comments on Chief Judge John Roberts’s role in the Supreme Court ruling upholding Obamacare. Dean anticipated that Roberts would vote, as he did, to uphold the healthcare statute, and Dean notes some other learned commentators who had also anticipated Roberts’s stance. A major factor in Dean’s prediction as to where Roberts would come down was Robert’s own testimony in the confirmation hearings that led him to join the Court. Describing himself in those hearings as an “umpire,” Roberts made clear that he would apply pre-existing, well-grounded legal rules, and not create new ones out of whole cloth. To show how Roberts did just that, Dean sums up the various Commerce Clause precedents that were relevant in the Obamacare case, and explains how Roberts dutifully followed them.

What’s Wrong With “Doping” to Get A’s In High School?

Justia columnist and Cornell law professor Sherry Colb comments on the recent phenomenon of high school students’ using stimulants such as Adderall and Ritalin to attempt to improve their academic performance, often getting the stimulants by faking Attention Deficit Hyperactivity Disorder (ADHD). Colb notes that for those who do not have ADHD, the drugs act as a stimulant, allowing the user to better concentrate and focus. Colb compares and contrasts the issues raised by steroids scandals in professional sports to illustrate what, exactly, is wrong with this kind of use of Adderall and Ritalin. Among other points, Colb expresses concern that students’ use of such drugs will become the “new normal”—which is especially worrisome as the drugs carry side effects and serious risks. She also suggests that we, as a society, reconsider the competitive model of high school studying, and instead focus on students’ learning about subjects that interest and inspire them individually.

Obamacare and the Misguided Criticism of “Liberal Law Professors” Who Defend It

Justia columnist and U.C. Davis law professor Vikram Amar takes issue with Stanford law professor Michael McConnell’s critique of the arguments of liberal law professors who defend the constitutionality of Obamacare. In a recent Wall Street Journal Op-Ed, McConnell took aim at such professors. In particular, McConnell argued that liberal law professors have failed to make “actual legal arguments, based on text, history, structure and precedent” to support Obamacare. Moreover, McConnell claimed that liberal law professors’ definition of judicial activism is one-sided—a charge that they only believe to be true when it applies to the conservative Justices. Amar counters McConnell’s arguments on both of these points, providing a very specific description of the constitutional-law basis for their view that Obamacare is constitutional.

Iowa Passes an “Ag-gag” Law: The Power and Limits of Free Speech

Justia columnist and Cornell law professor Sherry Colb comments on “ag-gag” laws, which prohibit people from gaining entry into, or employment in, an agricultural production facility, including an animal agriculture facility, under false pretenses. Colb notes that Iowa recently passed such a law, and that North Dakota, Montana, and Kansas also have such laws. Colb argues that the laws are aimed at concealing the true facts about how animals are treated in such facilities, because of the fear that if consumers knew the truth of the cruelty that is perpetrated there, they might change their eating habits. Supporters of that view see those who enter these facilities knowing they will convey information about them to the outside world as undercover reporters and whistleblowers, while the animal industries see them merely as trespassers. Colb details ways in which consumers are misled or misinformed about animal agriculture, suggesting that there is a need for undercover reportage so that the truth can be known. For instance, she explains how milk production entails slaughter, contrary to popular opinion, and not just on factory farms. Colb questions, though, whether consumers really want to know a truth that could complicate their lives with new ethical questions leading to possible dietary changes, and whether if consumers do learn that truth, they will really change their behavior. Colb also examines why humans may not feel empathy for animals, citing the coping strategies that often accompany humans’ acceptance of systematic violence, including violence toward other humans.

The High Court Needn’t Worry About Sliding Downhill: An Evaluation of the “Slippery Slope” Concerns Expressed at the Oral Argument in the Challenge to the Mandate Provision of the Affordable Care Act (Obamacare)

Justia columnist and U.C., Davis law professor Vikram David Amar focuses in on a particular—and very significant—aspect of the Supreme Court’s recent oral argument regarding the Affordable Care Act, also known as “Obamacare”: Certain Justices seemed concerned that if Obamacare’s “individual mandate”—that is, its placing responsibility on individuals to purchase health insurance themselves—were to be upheld, then a slippery slope would follow. In particular, numerous conservative Justices asked, If the feds can require each person to buy health insurance, what can’t they force people to purchase? Amar contends that this “slippery slope” doesn’t really slip—pointing out that a very similar danger has existed in Commerce Clause jurisprudence for 50 years, and that the Court has proven more than able to address it. Thus, the individual mandate, he suggests, makes the slope no more slippery than it has been for quite a while now. Amar also cites the tools the Court has for limiting government powers in settings where mandates are already accepted, and contends that similar tools could be used in the context of Obamacare’s individual mandate.

Severability May Hold the Key to Obamacare’s Future: How Much of the Law Will Survive the Supreme Court’s Review?

Justia columnist and Cornell law professor Michael Dorf comments on a less often discussed but highly significant issue regarding the Supreme Court’s upcoming decision on Obamacare: If a majority of the Court finds that the minimum coverage provision is unconstitutional, how much of the rest of the law should—and will—also be invalidated by the Court? As Dorf notes, the Court heard from three attorneys who addressed this question, on the third day of oral argument in the case. The plaintiffs in the case contended that none of Obamacare should survive, but Dorf contends to the contrary that, if the minimum coverage provision is struck down, most of Obamacare should still be left standing. Dorf explains the root of the presumption that various parts of a law are severable from each other, and critiques the plaintiffs’ argument that Obamacare should be struck down in its entirety—setting forth three important respects in which he argues that that argument was wrong. One key point Dorf makes is that the statute as issue would work better if the minimum coverage provision were to be left standing, but it would still work if that provision were to be struck down.

The “Other” Case This Term Testing Congress’ Enumerated Powers to Pass a Healthcare Law: Coleman v. Court of Appeals of Maryland and FMLA

Justia columnist and U.C., Davis law professor Vikram David Amar comments on a Supreme Court case from this Term that involves health care, but does not involve the PPACA (also nicknamed “Obamacare”). The case is Coleman v. Court of Appeals of Maryland, and the Court handed down its decision in that case last week. As Amar explains, in Coleman, the Court, by a 5-4 vote, struck down the provision in the Family and Medical Leave Act (FMLA) that subjects state-level government employers to damage liability if they fail to provide the legally-required unpaid leave to employees for self-care for a serious medical condition. Amar contends that Coleman is noteworthy not only because FMLA is a significant federal statute, but also because the Court’s decision gives us insight regarding the judicial doctrines that govern the scope of federal powers.

Three Key Exchanges in the Obamacare Oral Argument

Justia columnist and Cornell law professor Michael Dorf comments on three important exchanges among the Supreme Court’s Justices that occurred during the Obamacare oral argument. As Dorf explains, the first exchange tested whether the government could constitutionally require Americans to buy things other than healthcare, such as burial insurance, mobile phones, or American cars. The second exchange involved a hypothetical regarding the government’s power to institute mandatory inoculation. And finally, the third exchange involved the Constitution's limits on “direct taxes.” Having discussed these important exchanges among the Justices, Dorf also describes what he believes to be the basis for the government’s best hope of winning the case.

Children in Peril in New York: Another Infant Dies Due to a Risky Circumcision Practice, and More Needs to Be Done Regarding Child Sex Abuse

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.

Donor Chains and the Legality of Compensating Kidney Donors: Critically Assessing Our Moral Intuitions

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.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Fels Institute of Government Professor of Practice, and Fox Family... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of... more

Austin Sarat
Austin Sarat

Austin Sarat is Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more