With the Supreme Court’s rejection of a constitutional right to abortion in the United States, it is instructive to look overseas for lessons from other countries that have restricted abortion rights. In a fascinating account, How Abortion Laws Do and Don’t Work, Michelle Oberman considers the Israeli experience and what we might learn from a nation that enacted a criminal ban on abortion in 1977.
In Israel, abortion is a crime unless it is approved by a “pregnancy termination committee.” Each three-person committee must include two doctors and a nurse or social worker, at least one member of the committee must be a woman, and the law specifies grounds upon which the committee may approve an abortion. Such an approach is similar to state laws in the pre-Roe era, and in the new post-Dobbs world, many states have decided to criminalize abortions, with different approaches on exceptions and the process to decide whether a pregnant patient can invoke an exception.
As Oberman is quick to observe, we cannot deduce from one other country’s experience with an abortion ban what will happen in the United States. One important limitation is that laws in some states will be more restrictive than the Israeli law. On a spectrum of abortion laws that runs from least restrictive to most restrictive, Oberman places the Israeli law in the middle. (Oberman has previously written about a country at the most restrictive end of the spectrum, El Salvador.)
Still, we can learn valuable lessons from the comparative exercise. Oberman organizes these lessons in terms of six functions of abortion law—criminal sanction, market-structuring force, informal adjudicatory process, shame sanction, expressive function, and truce—and this review touches on some of these functions.
As mentioned, Israel specifies exceptions to its ban on abortion. Abortion is permitted when (1) the patient is younger than the marriage age (currently 18) or older than 40; (2) the pregnancy is the result of criminal, non-marital, or incestuous relations; (3) the fetus is likely to have a physical or mental defect; or (4) the continuation of the pregnancy is likely to endanger the patient’s life or cause physical or mental harm. As one might expect, this last ground allows considerable freedom for a committee to authorize an abortion, and in fact, committees approve 98-99% of requests overall. Yet, the law is well settled and uncontroversial, which takes us to the truce function of abortion law.
While it is often thought that abortion provokes persistent controversy in the United States because of the strong and irreconcilable views on the issue, Israel demonstrates otherwise. As Oberman writes, “there is no abortion war in Israel. Israel’s law represents an enduring truce; no one is happy about it, but everyone is willing to live with it,” even in the ultra-religious community. A key reason for the truce lies in the observations of a former legislator from Israel’s Communist Party,
There are many, many issues shaping the left-right continuum in the Israeli polity. But the whole political arena is concentrated on one axis, which involves security, war, peace, Jews, Arabs, settlements, and occupation. These are the issues that organize politics in Israel; there is no real place for an issue like abortion.
Whether abortion is a major part of the left-right continuum in a country, then, is not simply the result of the highly charged nature of the issue, but the political context. In the United States in the 1970’s and 80’s, abortion became an effective wedge issue for the Republican Party to split socially conservative voters from the Democratic Party, and it has since remained a potent vehicle for mobilizing voters.
The Israel-United States comparison also is instructive in terms of the expressive function of abortion law. As Oberman notes, a law’s expressive function depends on its context and how well the law’s message aligns with other messages that the government sends its citizenry. In Israel, a ban on abortion lines up quite well with the country’s efforts to promote procreation. Israel guarantees paid maternity leave for 26 weeks (compared to our 12 weeks of unpaid leave), parents can easily find high-quality, subsidized day care, and the “government pays everyone — rich and poor alike — a small monthly allowance for each child under 18.” In the United States, the law does very little to help prospective parents deal with the costs of childrearing that they cannot afford. It’s difficult to promote respect for the unborn when one doesn’t also try to promote respect for the born.
As mentioned, pregnancy termination committee approval rates are very high. Perhaps the existence of the law discourages some patients from seeking an exception, and others may not make it past the pre-committee screening. But while Israel’s law may have a limited impact on preventing abortions, it may do more in terms of the shaming function of law. Patients must explain why they want an abortion multiple times to multiple people—their physician, the secretary for the committee, the social worker or nurse on the committee who screens requests for abortion, and in some cases, the full committee. For a number of patients, committee members may respond in a judgmental way to the request for an abortion. As one social worker said,
when it’s a 16-year-old girl that says, ‘You know, I was at a party, and I drank something, and I wasn’t thinking, and I did it.’ You know, I can understand her. I can’t understand a married woman, 35 years old, has her three children that she planned. You’re a grown up? Why didn’t you go to your doctor and put in an IUD, or take some pills! You’re not a little child. I will help her because she needs it, and she wants it, . . . but sometimes, it gets me to be angry with them.
There are other important points in Oberman’s article. Making abortion a crime doesn’t mean there will be prosecutions for violations of the law. Despite the fact that thousands of abortions are performed each year in Israel without committee approval, no one has been prosecuted in the 45 years that the abortion ban has been on the books. Indeed, abortion prosecutions generally are rare, whether one looks at El Salvador today or the United States before Roe. And Texas wants to use lawsuits by private parties to punish those who provide, or facilitate the provision of, abortions.
While we won’t have a complete sense of the impact of Dobbs for some time, Oberman tells us much about the kinds of factors that will matter.
The genomic age showed that race is not genetic; it is only a social construct. More specifically, the genome between humans is 99.5%-99.9% identical; the 0.1%-0.5% variation between any two unrelated individuals is greatest between individuals in the same local population; and there are no identifiable continental or racial genomic clusters. Thus, the connection of disease and race is not about science; rather it is a way to support a system of racial hierarchy that devalues the lives of racial and ethnic minority individuals.
The racialization of disease to support a racial hierarchy is not new, as Professor Matiangai Sirleaf discusses in her article, Racial Valuation of Diseases, and does not happen in a vacuum. The United States government and colonial forces have long used laws to limit the rights of racial and ethnic minority individuals based on the racialization of disease. As one example, Professor Sirleaf cites the 1882 Chinese Exclusion Act, which “prevented Chinese laborers from immigrating to the United States in part based on biases and stereotypes that they were more likely to carry cholera and smallpox.” Similarly, Haitian people seeking refuge in the United States were linked to having HIV/AIDS and denied access in 2021.
In this article, Professor Sirleaf uses the Covid-19 pandemic to develop a theoretical framework for racial valuation, building on sociological literature, Critical Race Theory, and Third World Approaches to International Law. The article is significant because it develops the theoretical framework of racial valuation, distinguishing it from the “racial empathy gap” and racism (i.e. illegal racial discrimination). Furthermore, it discusses how this problem is not simply an American problem, but a global problem.
According to sociological literature, “racial valuation” is the value placed on individuals or groups “based on cognitive biases and stereotypes that relate directly to their racial status and position within social hierarchy that this status implies.’” In this article, Professor Sirleaf submits that racial valuation is about “the relative worth, utility, or importance assigned to race in social systems,” and “violates justice at the most fundamental level because it demonstrates that institutions, individuals, and societies have a ‘morally inappropriate disposition’ toward the worth of people of color.”
Within Professor Sirleaf’s theoretical framework, racial valuation goes beyond the “racial empathy gap” that occurs when people show an ingroup bias in empathy that restricts its application to those in the outgroup, because racial valuation determines who deserves empathy, care, and concern. The theory of racial valuation also expands the current notions of racism because it notes that racism is embedded into society. In the United States, Black-owned real estate is often valued less than White-owned real estate. Under the law this is linked to the actions of individual bad actors, instead of connecting it to the social systems and structures that devalue racial and ethnic minority individuals. “By drawing attention to societal structures,” Professor Sirleaf highlights, “racial valuation does not require the explicit or overt deployment of norms” required by racism.
Racial valuation also incorporates the theory of racial capitalism and the global impact of the devaluation of racial and ethnic minority individuals. According to Professor Sirleaf, “the current historical and social construction of racial valuation emerged because of European capitalists’ practice of differentiating and exaggerating ‘regional, subcultural, and dialectical difference amongst peoples into ‘racial’ ones’” as a means to dominate and exploit Black, Indigenous, and other people of color to make money. Under American capitalism, Black people have been treated as property during slavery and the Jim Crow era.
Scientific racism that characterizes racial and ethnic minorities as inferior has been used to support racial valuation. Research has shown that many medical students still believe that “Black people’s nerve endings are less sensitive, and that Black skin is thicker than White skin.” This is further illustrated by the Covid-19 pandemic. Three years ago, the Covid-19 virus was racialized by former President Trump, who labeled it as a “Chinese” disease. As a result, those of Asian descent have been subject to physical attacks from London to New York and individuals that present as Asian are being racially profiled and discriminated against.
Furthermore, during the pandemic, governmental officials have blamed racial and ethnic minority individuals for their higher rates of infection and death, while limiting their equal access to vaccines and treatment. For example, Senate Republicans in Michigan submitted a plan that would have barred the state from using a resident’s race and socioeconomic status to guide the distribution of the Covid-19 vaccine in February 2021, one day after the state released data that White Michigan residents were twice as likely to receive the vaccine compared to Black Michigan residents. Thus, even though White residents were already disproportionately receiving vaccine doses, the government officials wanted to make sure to limit the poor and racial and ethnic minority individual’s access to the vaccine. This is best explained by Professor Sirleaf’s theoretical framework of racial valuation. Because the lives of racial and ethnic minority individuals are not valued, anything that would provide them with access to vaccines or treatment violates the social hierarchy where White individuals are superior and deserve unfettered access to all lifesaving resources.
Professor Sirleaf’s theoretical framework of racial valuation also explains the global failure to provide countries that are disproportionately filled with racial and ethnic minority individuals with equal access to Covid-19 vaccines. Johnson & Johnson sent vaccine doses produced in South Africa to high income countries, like Spain and Germany, while African countries were still waiting to receive their doses of the vaccine. This was compounded by Moderna’s unwillingness to share its technology with African scientists to manufacture its mRNA Covid-19 vaccine, even as mutant strains of Covid-19 spread in large part due to Africa’s lack of equal access to vaccines. Moderna and other companies have made billions of dollars in profit from the vaccine as racial and ethnic minority individuals have lacked access to the vaccine. This article, which includes Professor Sirleaf’s theoretical framework of racial valuation, explains why companies and governments continue to devalue the lives of racial and ethnic minority individuals, which has resulted in the unnecessary loss of life for racial and ethnic minority individuals.
Every field of law has some comparative law studies, including health law. A search in the legal databases gives several hits using the keyword comparative health law; in other words, comparative law is ‘hot’. However, the comparison is often limited to a single topic (medical negligence, euthanasia, patients’ rights, etc.) and a limited number of jurisdictions. The added value of the Oxford Handbook of Comparative Health Law is the comprehensive nature of the study: a wide range of related topics within contemporary health law is addressed (regulating public health, health financing, health services and facilities, pharmaceuticals, the patient-provider relationship, new medical technologies, and end-of-life decision making). The editors opted for a so-called transatlantic approach, specifically comparing the United States and Europe. This choice is justified by the differences and similarities between the legal frameworks of health law in these regions. All in all, this is an ambitious project, partly because the legal rules can differ considerably between states and at the country level.
It is precisely the scope and quality of the legal comparison conducted that allows this Handbook to make a valuable contribution to the understanding and resolution of contemporary issues within health law. Mistakenly, health law issues are often approached exclusively as unique to the legal system in question, but the difference in manifestation does not make the issue any different in other jurisdictions. The question that needs to be asked first is why a particular legal rule is shaped differently in form and substance in different national jurisdictions. With respect to such explanatory research, as described by Dannemann: “Generally speaking, the (comparative) analysis should seek to explain differences and similarities as they arise from the description of the legal systems under consideration, so that whoever has predominantly found similarity, will predominantly have to explain similarity, whereas those who have predominantly found differences, will predominantly have to explain differences”.
Viewed in this way, the legal comparative analysis must ultimately lead to an explanation of how the various jurisdictions relate to one another. This is by no means an easy task, because the health law framework ‘is sensitive to its local environment’ (P. 3), and cannot operate without acknowledging political, cultural, economic and historical considerations. The ideal model is to explain legal phenomena without ignoring the multidisciplinary factors that distinguish countries. In this way, statements can be made about the relationship between legal systems, and about which legal arguments or ‘best practices’ can be adopted with a view to ‘making things better.’ (P. 50.) This functional approach within contemporary comparative law underlies this Handbook. (Pp. 4-5.)
The Handbook is structured according to five themes: a general conversation on paradigms of health care systems, such as individual liberty and solidarity in health care, market competition, state vs. self-regulation, etc. (part One); followed by the law preventing ill health (part Two); treating ill health (part Three); regulating the development and use of medical treatments (part Four); and finally, healthcare at the beginning and end of life (part Five). The choice of this format is determined by the definition of health law and reflects the ongoing discussion on the object of research: health or healthcare? Here, the editors have opted for what they call a combination of ‘pragmatism and principlism.’ (P. 8.) As a consequence, the topics addressed reflect endogenous legal principles (such as human rights) when discussing topics such as public health law, inequalities in health care access, quality of care, information and consent, privacy and medical confidentiality, medical research with human beings, organ donation, procreation, abortion, and end-of-life decision-making.
The Handbook’s approach seems more principlism-driven than pragmatic, however. The pragmatic approach – covering topics affecting healthcare systems, such as antitrust law and regulated competition, health care fraud, regulation of medical devices, and medical malpractice – is incomplete and therefore less convincing. In a way, the editors have struggled with the pragmatic approach, as there are many other branches of law and socioeconomic factors that influence health and healthcare. A more conceptual approach structured according to the patient-provider-financier triangle might have been more helpful in that respect. But one cannot criticize the editors for that choice. What matters is that the Handbook discusses almost all of the most important themes within health law on both sides of the Atlantic Ocean.
Finally, the question: what can we learn from the comparative analysis? Common introductions by topic challenged the authors to think critically about whether there are lessons to be learned from the diverse contexts in which health law is situated and practiced. One of the unsurprising conclusions is that there is no universal concept of health law, but rather a “field of health laws.” (P. 13.) Moreover, there are a number of common principles/values, approaches, and areas of convergence, apart from the differences in jurisdictions. These differences do not so much indicate a conceptual distinction between the US and Europe. Rather, they are mostly explained by the interpretation of state sovereignty and federal unity — i.e. the division of powers at the federal and state levels, respectively, between the EU/Council of Europe and member states. (P. 13.) These lessons confirm that we cannot simply transplant health law concepts to another societal context, but must respect the contextual differences when bringing good ideas home. That is perhaps the most valuable contribution of this voluminous Handbook.
Contemporary discussions of the law and ethics of informed consent to medical treatment tend to focus on the process of information communication, including the scope of the disclosures physicians are required to make, and the ability of patients to truly understand those disclosures and integrate them into their medical decision-making. Without dismissing the importance of communication and understanding in securing consent to treatment, Prof. Megan Wright’s article, Resuscitating Consent, directs the reader’s attention to a fundamental concept that seems to have been overlooked as the law and practice of informed consent have developed. Namely, that the principle of patient autonomy upon which informed consent doctrine is based has a corporeal – not just cognitive – component.
Prof. Wright wisely reminds readers that respect for bodily integrity was a foundational principle in the development of autonomy-based legal protections for patients. However, evidence suggests that health care providers in acute care hospitals are willing to violate this principle by imposing medical treatment against contemporaneous patient objections. Prof. Wright argues that all patients – not just those deemed to have decision-making capacity – have an absolute right to refuse treatment as a matter of bodily autonomy. “[P]atients,” according to Prof. Wright, “continue to have bodily integrity interests that should be respected even if they acquire decisional impairments and are deemed incapable of autonomy understood as capacity for rationality.” Contemporary U.S. law, however, fails to adequately protect these interests, and this article offers several compelling recommendations for addressing this issue.
By re-centering bodily integrity at the core of consent to treatment, Prof. Wright challenges the idea that the corollary to “informed consent” must be “informed refusal.” She supports her argument by discussing the theoretical basis for autonomy as a foundational principle of medical ethics; the historical development of informed consent doctrine; the negative impact that treatment over objection has on patients, providers, and the rule of law; and contemporary legal developments in the field of supportive decision-making for patients with cognitive impairments. While recognizing and reinforcing the importance of information and cognition to decisions to proceed with treatment, Prof. Wright argues that the right to maintain one’s bodily integrity by refusing treatment is not conditional on cognitive capacity or understanding. Thus, physicians who require formal or informal competency assessments when patients refuse care are improperly acting as gatekeepers to a right that should be unconditional.
Prof. Wright’s primary recommendation in this article is that any gatekeeping role be left to the judiciary, rather than to individual health care providers. As a model, she points to the New York Family Health Care Decisions Act, which establishes “absolute legal capacity to refuse medical treatment” that can only be overridden if “a court judges the patient to be incompetent.” She also proposes that surrogate decision-makers and agents acting pursuant to health care powers of attorney have similarly limited authority to override a contemporaneous treatment refusal. To provide additional protections for patients, she recommends that health care providers who question a refusing patient’s decisional capacity first prioritize restoring decisional capacity if the patient is amenable, providing assistive communication technology, and inviting family members to engage in persuasive discussion with the patient. However, if these attempts fail, the patient refusal must be respected unless the health care team seeks and secures court approval. Failure to do so, under the model Prof. Wright proposes, would lead to tort liability.
Prof. Wright acknowledges and aptly addresses several challenges to this proposed approach, including arguments about the prioritization of health at all costs, concerns about provider autonomy, potential harms to third parties, and the value of existing exceptions to consent requirements. The one counterargument I believe deserves further discussion is about patient refusals in the context of medical emergencies and time-sensitive decisions. Prof. Wright recognizes the importance of the emergency exception to informed consent in cases where there is no time to secure consent, but argues that in the case of “treatment over objection, it would be perverse to allow providers to lawfully rely on the emergency exception to override their patient’s prior treatment refusal” (as in cases like Werth v. Taylor (Mich. App. 1991), where a pregnant woman’s consistent refusals to accept blood products for religious reasons was overridden when a medical emergency arose). Prof. Wright argues for making the emergency exception “stricter,” but it would be helpful to further explore the practical implications of such a proposal. For example, Prof. Wright advocates for a clearer path for emergency court petitions, a suggestion that would be bolstered by exploration of the timeliness and efficacy of emergency petitions in other contexts, like guardianship.
The issue of tort liability is an essential piece of this puzzle, and Prof. Wright offers valuable insights into how policymakers could best take advantage of tort law’s deterrent effect in these situations. As Prof. Wright acknowledges, it is only recently that courts have started to consistently recognize that unwanted treatment that improves a patient’s condition or extends their life qualifies as a legally cognizable harm. Prof. Wright’s proposal for tort liability when physicians override contemporaneous treatment refusals without a court order is consistent with this developing trend. Notably, she also acknowledges the ongoing challenges of bringing civil actions in such cases, including the difficulty in finding an attorney to take a dignitary harm case on a contingency fee basis. She suggests several ways in which legislation could address this problem, such as by allowing for statutory damages, attorney’s fees, and punitive damages.
Overall, the article reminds us of the importance of bodily integrity as an element of autonomy-based doctrines like informed consent, at a time when much academic discussion focuses primarily on disclosure and understanding. In doing so, Prof. Wright brings informed consent doctrine back to its roots, so to speak, and asks important questions about how it has developed in the context of treatment refusals.
Law and Legacy in Medical Jurisprudence: Essays in Honour of Graeme Laurie, edited by Edward Dove and Niamh Nic Shuibhne, includes 18 essays that explore legacy in its various forms, and in various contexts, drawing on the many impacts and innovations to date of medical jurisprudence pioneer, Graeme Laurie.
The volume does three things particularly well. Firstly, it serves as a Festschrift honouring a great scholar. Laurie recently stepped down from the Chair of Medical Jurisprudence at the University of Edinburgh to pursue other projects. His intellectual legacy is profound, and whilst he has written on almost every medical law issue he is particularly well known for his work on liminality, human tissue, genetic privacy and information governance, and his co-authored text book on medical law. His contribution to the next generation of scholars is equally impressive, and fortunately is set to continue in his role of Professorial Fellow.
Secondly, the volume offers insightful commentary on wide-ranging medico-legal issues. The chapters focus on medical research, biobanking, tissue, ectogenesis, surrogacy, assisted suicide and other substantive issues. This is evidence of the breadth of Laurie’s engagement, and the impressive list of contributors, each renowned in their field, is testament to how well Laurie is respected and admired. The insights are original and far ranging and they are insightfully assimilated by the editors in the Introduction.
Thirdly, the book offers a conceptual analysis of the many dimensions of legacy and uses this as an analytical lens on the evolution of medical jurisprudence. Health law and medical law programmes are flourishing around the world, but their scope and nomenclature is often debated. Laurie championed the importance of interdisciplinarity through engagement with ethics, medicine, humanities and the social sciences, as well as with social, political and economic contexts. The book also sets out some of the limits of medical law, wherein the jurisprudential issue at play is almost always part of a bigger picture. In an Afterword to the book, Lawrence Gostin says:
The field of ‘medical jurisprudence’, to use the University of Edinburgh parlance, has come a long way. It is not just about medicine and what happens in the clinic; it also explores health systems, including public health systems. It is not just about health systems, but also upstream social and commercial determinants of health. And it is not just all-of-government, but also all-of-society.
The volume charts an expansion of medical jurisprudence from a focus on doctors to a focus on health systems, driven in part by an increasingly interdisciplinary focus but also by events such as medical scandals and the COVID-19 pandemic. The volume notes that negative jurisprudential legacies can flow from incremental legal decision-making or event-focused reforms. These, in turn, can encumber medical jurisprudence, preventing its development in line with changing societal values.
Laurie’s work on liminality challenges the regulations that keep the boundaries in place. Where a regulatory provision is no longer fit for purpose, recognition of liminal spaces allows the landscape to be reimagined, the spaces between boundaries explored ,and boundaries to be broken down. A good example is found in laws governing 16–18-year-olds. Recasting them in a shared ‘liminal’ space between adulthood and childhood can help to explain laws that allow them to consent but not necessarily to refuse life-sustaining medical treatment.
Legacy is collective as well as individual; negative as well as positive. The reader is left with an appreciation of Laurie’s individual legacy and his contribution to the collective legacy of medical jurisprudence. Particularly importantly for me, the collection of essays provides valuable insight into how that legacy might be positively developed through Laurie’s example of interdisciplinarity, innovation, collaboration, and boldness.
Cite as: Emma Cave, Laurie’s Legacy
(April 26, 2022) (reviewing Edward Dove and Niamh Nic Shuibhne (Eds), Law and Legacy in Medical Jurisprudence: Essays in Honour of Graeme Laurie
Fraud is a major problem in American health care. It costs American taxpayers and patients from about $70 to $234 billion annually, which accounts for between three and ten percent of total health spending in the United States. It is an area that would be benefited by serious legal scholarly focus and inquiry, and well served by well-supported and implementable policy suggestions based on empirical data. Professor Jacob Elberg, through his serious and important work in this space, has provided just that in his most recently-published piece Health Care Fraud Means Never Having to Say You’re Sorry. Here, Elberg again shows why he is a leading voice in health care fraud and abuse scholarship.
The piece focuses on the civil federal False Claims Act (FCA), a major tool for the federal government that imposes major civil penalties against health care fraud defendants. As has been argued before, use of the FCA and its draconian penalties overwhelmingly leads to settlement, which—without courts’ review of the government’s theory of liability—can stunt the development of the FCA itself. In addition to the lack of meaningful judicial review in these matters, defendants often deny any wrongdoing as they settle FCA allegations, leaving the public and other defendants in the dark about whether the allegations had merit or drew a settlement simply because of expediency or the risk or cost of litigation. As Professor Elberg says, this has “fueled a cost-of-doing-business narrative in which health care entities are required periodically to pay inconsequential settlements to the government regardless of their conduct.”
The basis of Professor Elberg’s article is a review of 195 settlements that resolve FCA allegations between early 2018 and the spring of 2020, and he examines them specifically for whether the FCA defendants publicly admitted responsibility for the government’s loss. Professor Elberg finds that 92 percent of settlements did not include defendants’ acceptance of responsibility, and that 37 percent of defendants actively denied responsibility. Relatedly, he powerfully asks why the Department of Justice (DOJ) does not require defendants to admit responsibility as part of a health care settlement, especially because it requires admissions in virtually all cases in which it settles criminal claims.
In addition to noting the inconsistency in the DOJ’s current practice between civil and criminal resolutions, Professor Elberg also observes (1) recent changes to the DOJ’s FCA policy that seem to indicate that it will reward an acceptance of responsibility, (2) the history and development of the Security and Exchange Commission’s (SEC)’s admission standard (which requires admissions in some cases), and (3) other enforcement goals that seem to be undermined by the DOJ’s failure to require an admission of responsibility. In so doing, Professor Elberg shines a light—through his collection and presentation of hard data—on an area of legal enforcement that suffers from glaring inconsistencies.
Most importantly, Professor Elberg is concerned about kind of behavior the enforcement regime is incentivizing. Indeed, he argues that not requiring an admission of wrongdoing could hamper the DOJ’s main goals, like deterring bad behavior, incentivizing cooperation, and rewarding a culture of compliance in the industry. Given the lack of credit they receive for an admission of responsibility, this could prompt even more health care industry defendants to refuse to cooperate with investigations or to invest in compliance programs altogether, as Elberg observes.
Professor Elberg powerfully identifies some barriers to the DOJ in requiring the admission of responsibility, from a concern over resources to increased litigation risk, and also makes a persuasive case for how the DOJ may want to take a nuanced or targeted approach to requiring settlement admissions. Indeed, one may wonder if, from a fairness perspective, it makes sense to require settling defendants to admit responsibility absent proof at trial, but that question does not detract from Professor Elberg’s main goal, which is injecting some order and consistency into a mysterious enforcement regime that seems to currently lack it.
Ultimately, Professor Elberg is concerned that the DOJ’s enforcement regime may be at risk of losing legitimacy because of how the settlement-dependent mechanism is deployed and how its cases are settled. His findings seem to suggest, as he argues, that the “DOJ pursues, illegitimately, weak cases it cannot prove at trial” and it “lends credence to the widespread belief that civil health care fraud settlements simply do not signal wrongdoing.” Given the scourge of health care fraud and abuse on this country’s health care system, that is a powerful and damning concern, and raises even deeper questions about faith in a fair enforcement mechanism and the rule of law itself.
Both legal and ethical frameworks governing the practice of medicine typically emphasize the importance of “putting patients first.” In a thoughtful new article, Richard Saver shows how this often-unquestioned maxim has allowed the medical profession to “too easily discount community health considerations.” (P. 926.) After identifying a variety of ways in which physicians’ patient-centered ethos has led to the “externalization of health risks to the general public” (P. 928), he offers suggestions for “making community physicians’ public health duties more cognizable and influential.” (P. 929.)
As Saver demonstrates, physicians sometimes use the mantra of putting patients first as a justification for actions that threaten community welfare. For example, when the COVID-19 pandemic worsened in March 2020, some physicians continued to perform elective surgical procedures, citing their duties to patients as a justification for ignoring public health advice to conserve hospital resources. Similarly, physicians have appealed to patient interests as a justification for ignoring public health guidance to limit the prescription of broad-spectrum antibiotics and, until recently, for prescribing large amounts of opioids despite the foreseeable risk that leftover pills would be diverted to non-patients. Physicians’ patient-centered orientation has also led them to resist calls to use medical encounters as an opportunity to promote public health messages. For example, while many medical groups have urged physicians to play a greater role in combatting gun violence, most physicians rarely talk to patients about firearms, perceiving such discussions “as beyond their professional scope of practice” and potentially damaging to the physician-patient relationship. (P. 964.)
Saver attributes these attitudes to both legal influences and the culture and ethics of the medical profession. On the legal side, he notes that physicians’ duties to patients are typically not triggered absent the formation of a treatment relationship with an individual patient, and once triggered, these duties are often characterized in fiduciary terms. While some courts have recognized circumstances in which physicians have duties to non-patients, those duties have been carefully circumscribed. For example, courts that have recognized a duty to warn third parties at risk of contracting an infectious disease from a patient have limited the duty to household members or other specific persons with a very close nexus to the patient. In addition to judicial reluctance to recognize public health duties, most licensing statutes focus exclusively on physicians’ patient care obligations. While a few statutes mention physicians’ duties to comply with disease reporting obligations, and a handful even incorporate more open-ended duties to avoid “harm to the public,” Saver notes that these broader public health obligations are rarely enforced.
The law’s conception of physicians’ duties largely mirrors the medical profession’s understanding of its own responsibilities. Even though the American Medical Association (AMA) revised its Code of Ethics in 2016 to emphasize that physicians have certain public health obligations, Saver argues that “much of this guidance pays mere lip service to physicians’ public health role.” (P. 944.) For example, while the AMA recognizes physicians’ obligation to participate in routine universal patient screening for HIV, it advises physicians that their “primary ethical obligation is to their individual patients.” In light of this obligation, the AMA cautions, screening programs must include a mechanism for patients to opt out of being tested. Saver points out that no AMA ethics opinion provides “any indication when physicians’ public health duties will ever eclipse and outweigh their obligations to individual patients.” (P. 945.)
The profession’s “seeming enfeeblement of [public health] duties by obfuscation” should not be surprising, Saver argues, as appeals to public health conflict with medical ethics’ “strong concern with individual autonomy and patient beneficence.” (P. 945.) He also suggests that a focus on public health could also be seen as a threat to physicians’ autonomy and potentially their economic welfare. For example, when physicians refused to postpone elective surgeries in the early months of the COVID-19 pandemic, “the ‘patients first’ rationale was so broad and seemingly beyond reproach that it could obscure financial incentives and other questionable reasons at odds with community health protection.” (P. 952.)
Saver cogently explains the costs of viewing physicians’ responsibilities primarily in terms of individual patients. The public health system, he argues, “cannot effectively operate without broad, engaged participation of private physicians.” (P. 972.) For example, physicians are the first to observe warning signs of community health threats and are often in the best position to act on those threats in a timely manner. Similarly, physicians’ role as gatekeepers to health care products and services “makes them uniquely positioned to direct the use of limited societal resources for safeguarding the health of the community.” (P. 974.) Because physicians are trusted community members, they also can play an important role in communicating public health messages, both to their own patients and members of the community.
Saver recognizes that efforts to reconceptualize physicians’ duties to incorporate public health interests are likely to face resistance. In addition to challenging the dominant patient-first attitude, a legal duty to promote public health could be seen as conflicting with the common law’s reluctance to impose affirmative duties. It could also raise fears about exposing physicians to potentially unlimited liability or undermining physicians’ fiduciary duty of loyalty to patients. However, he convincingly argues that none of these potential objections raises insurmountable problems. Moreover, “from the ex ante perspective, before knowing what their particular circumstances will be, most individuals would likely prefer a regime where physicians have more robust public health duties that sometimes trump patient welfare concerns.” (P. 980.)
Saver concludes with recommendations for legal and policy reform. As a starting point, he urges stronger enforcement of the minimal public health obligations the law already imposes on physicians, such as statutes requiring physicians to report certain communicable diseases, and stepped-up enforcement of public health obligations by medical licensing boards. He also calls on lawmakers to consider adding financial incentives under Medicare and other government health care programs to encourage physicians to meet targeted public health goals, such as prescribing antibiotics according to public health guidelines or engaging in a particular number of gun-violence screenings with patients. Recognizing concerns about exposing physicians to unbounded liability, he suggests that enforcement of public health duties might be delegated to “intermediaries and proxies for the public, such as state attorneys general or state medical boards,” rather than expanding tort-law causes of action.
Saver’s analysis demonstrates that, while “putting patients first” is often an admirable attitude, physicians who focus exclusively on their individual patients can undermine community well-being. While the legal changes he recommends are relatively modest, they could lay the groundwork for an important shift in physicians’ self-conception of their professional responsibilities. The article is an important contribution that deserves the attention of anyone interested in health law, bioethics, and the medical profession.
Lindsay F. Wiley, Elizabeth Y. McCuskey, Matthew B. Lawrence, and Erin C. Fuse Brown, Health Reform Reconstruction
, __ U.C. Davis L. Rev.
__ (forthcoming, 2022), available at SSRN
Since the 1960s, debates over health reform in the United States have focused on expanding access to health care, improving its quality, and lowering its costs. In their forthcoming article, Health Reform Reconstruction, Professors Lindsay Wiley, Elizabeth McCuskey, Matthew Lawrence, and Erin Fuse Brown argue that this so-called “iron triangle” framework has led to an unjust health care system by marginalizing equity, solidarity, and public health concerns. Building on their prior work, the authors call for a new set of principles to guide health care reform that centers around health justice. The Article also identifies legally and logistically entrenched fixtures of the U.S. health system and shows how they have structurally constrained health reform and undermined social justice goals. This provocative Article is a must-read for those interested in health reform, and the authors’ reframing of the issues pushes stakeholders to ask whether reform proposals will reinforce these problematic fixtures or dismantle them (albeit partially), thereby moving us closer to a more just health care system.
The Article is organized around four lessons that the authors pull from the U.S. health care system’s deficient and inequitable response to the COVID-19 pandemic. Part I presents the first lesson ─ “that health care reform requires new principles rooted in solidarity, equity, and justice.” (P. 5.) The authors argue that the pandemic has revealed weaknesses in our health care system that have increased COVID-19’s public health and economic harms, such as failing to fairly allocate, adequately supply, and constrain prices for COVID testing, treatment, and vaccines. The pandemic’s disproportionate impact on low-income, Black and Brown communities also has made highly visible the health care system’s failure to reduce long-standing disparities in health. In addition, the pandemic highlighted our interdependence across racial and socio-economic lines. The authors argue that evaluations of future health reforms therefore should be guided by three core criteria ─ anti-subordination, equitable distribution, and community empowerment ─ criteria often overlooked or marginalized by the iron triangle framework. Specifically, they believe we should ask whether reforms (1) dismantle or reinforce structural racism, economic injustice, and other forces of social subordination; (2) ensure the just distribution of the burdens and benefits of public investments in health care and public health; and (3) allow for decision-making processes that give recognition to and empower subordinated groups that too often are excluded from collective self-determination.
Part II focuses on the second lesson the authors pull from the pandemic ─ that health reform has been structurally constrained by four fixtures of the U.S. health care system that impede solidarity and egalitarian justice ─ namely, individualism, fiscal fragmentation, federalism, and privatization. The authors provide a detailed discussion of how each of these fixtures is legally and logistically entrenched in our health care system and the ways in which they have undermined our COVID-19 public health response. For example, given the health care system’s orientation toward treating individual patients, coronavirus testing was used simply as a diagnostic tool in caring for individuals rather than also supporting disease surveillance programs. The authors also explain how fiscal fragmentation that spreads costs and benefits across patients, employers, public and private payors, and providers impeded the public health response by producing a mismatch between those who would benefit from public health interventions and those asked to pay for them.
The Article’s third lesson is that these four fixtures contribute to racial and socioeconomic disparities in the burden of disease. Part III describes the fixtures’ racists foundations and how they continue to perpetuate socioeconomic inequality. In linking key structural components of our health care system to racism and subordination, the authors remind us that health reforms that reinforce these fixtures further cement structural inequalities in health care. A key illustrative example discussed by the authors is the Affordable Care Act (ACA). While many have hailed the ACA for expanding access ─ a pillar of the iron triangle ─ the authors explain how Medicaid expansion further entrenched the country’s two-tiered health care system, with reduced access to care for Medicaid’s disproportionately minority and low-income beneficiaries given the program’s lower payment rates to providers.
In Part IV, the authors discuss their final lesson ─ that health reforms needs “a reconstruction in ethos, centered on health justice criteria.” (P. 56.) The authors believe a single-payer health care system would advance health justice and population health by disassembling the four fixtures. However, they rightly recognize that these fixtures are structural impediments to far-reaching reforms. In deference to this reality, they argue for confrontational incrementalism, or incremental reforms that lay the groundwork for future transformation of the health care system by displacing the fixtures. Accordingly, evaluations of proposed reforms would not simply consider their impact on cost, quality, and access, but would primarily focus on whether they further health justice by confronting the entrenched fixtures. Policymakers and scholars committed to a more just health care system should consider adopting confrontational incrementalism as a method for achieving this goal.
Cite as: Jessica Lind Mantel, Charting a New Path for Health Care Reform
(January 14, 2022) (reviewing Lindsay F. Wiley, Elizabeth Y. McCuskey, Matthew B. Lawrence, and Erin C. Fuse Brown, Health Reform Reconstruction
, __ U.C. Davis L. Rev.
__ (forthcoming, 2022), available at SSRN), https://health.jotwell.com/charting-a-new-path-for-health-care-reform/
Amy B. Monahan and Daniel Schwarcz, Rules of Medical Necessity
, 107 Iowa L. Rev. ___ (forthcoming, 2022), available at SSRN
In a must-read article, Amy Monahan and Daniel Schwarcz have teamed up to undertake, in their own words, an “exhaustive review of caselaw and publicly filed health insurance policies,” and report back on what health insurers have been doing with their contract terms to try to control their claims spend-out. The results are riveting. Monahan & Schwarcz document a shift twenty years in the making. The nature of what they see is a switch from insurers defining the scope of coverage using the broad standard-like term of “medically necessity” within each benefit category, to the use of highly particularized rules embodied in clinical policies or guidelines that are directly or indirectly fixed by reference in the insurance policy terms.
Their piece is a reply of sorts in a conversation across the decades with another colossus of an article, Mark A. Hall & Gerard F. Anderson, Health Insurers’ Assessment of Medical Necessity, 140 U. Pa. L. Rev. 1637 (1992). Each article, Monahan & Schwarcz’s and Hall & Anderson’s, stands and grapples with the fundamental and enduring crosswinds of the health coverage conundrum and renders them into a coherent historical narrative of sweeping momentum.
If you wanted to understand private health insurance coverage and its discontents over the last half century, you could do a lot worse than simply reading these two articles. A more conventional history would survey the political epiphenomena of the underlying forces that Monahan and Schwarcz document—phenomena such as the impact of ERISA and the fraying employer-based system of coverage, the managed care revolution and its expression as the prevailing ethos of the Jackson Hole Group and Clinton Health reform era, the subsequent managed care backlash and Patients’ Bill of Rights campaigns followed by the evidence-based medicine movement, and then the passage of the ACA. But Monahan and Schwarcz follow a rarer model of scholarship that peels back the surface events to reveal the corresponding hydraulics beneath, and we as readers are all the wiser for it.
I found the rules versus standards framework to be a handy organizing tool in their endeavor, one that clicks satisfyingly into place. It lends a conceptual handle and plausibility to the story they tell of change over time, specifically of ever greater “rulification” in the way coverage decisions get made. The framework goes on to deliver a pay-off in the form of a prediction that bears out: that courts will be ever more disempowered in health insurance decisions. But the rules versus standards frame stops short of answering the question of who should be empowered instead. The inherent limitation of this theoretical frame shows a bit toward the end of the article, which fractures into an array of different proposals about which I will say more in a moment.
Meanwhile, Monahan & Schwarcz add an interesting twist in the application of the frame. They argue that the rulification not only diminishes judges’ role; it also disrupts a delicate balance of other forces keeping insurers in check, such as administratively-required internal and external review as well as legislatively mandated benefits, all of whose mechanisms assume a standard-based regime.
While Monahan & Schwarcz and Hall & Anderson may disagree on whether the U.S. health system at the time of their respective articles suffered from a state of excessive rulification (the former’s view) or excessively discretionary standards (the latter’s), I think that their posture of disagreement is otherwise overstated. It is notable that neither pair thinks that the answer lies in judges deciding what gets covered. Nor does it lie with doctors or insurers deciding, never mind legislators. True, Monahan & Schwarcz chafe more at the notion of judges being pinned down by rulification, even if they wouldn’t vest judges with the substantive decisions either. And Hall & Anderson trust a utilization review entity more than Monahan & Schwarcz do. Indeed, I wonder if that is the main axis of distinction between the positions that these articles stake out. Monahan & Schwarcz’s account is suffused with doubt over whether the evidence will ever be sufficient for the technocrats to definitively and legitimately decide what life-saving care is warranted. The decision of what care is appropriate will always push the ever-elusive frontier of knowledge, will always harbor residual unknowns, particular to the individual. To me, their hard-earned caution may represent as great a sea-change over the decades as the rulification they document; it speaks to an epochal chastening of our (or at least my) optimism about evidence-based medicine and its close corollary, value-based payment. To imprison the judgments about appropriate care too tightly in a matrix of decision rules now feels procrustean. Monahan & Schwarcz insist upon an institutionalized release valve—and here is where they offer a smorgasbord of answers.
Some I feel are no-goes, like their third option, proposing to mandate that plans use a particular set of medical necessity determinations such as Medicare’s. The authors themselves also voice doubts about the political viability of the second proposal, which would involve legislating strong substantive standards for utilization review into ERISA with a private cause of action. But I particularly liked the first proposal, whereby state and federal insurance regulation, following Minnesota’s lead, would prohibit plan reliance on rules of medical necessity after internal appeals, ensuring that external appeals and any ensuing litigation remain open fora for challenging an insurer’s rules of medical necessity for substantive error as applied to a specific patients’ circumstances. And their final proposal of greater transparency is a no-brainer. Every one of us should call our Congressional delegations to press for this as soon as possible, pausing only to read what I whole-heartedly recommend as a most thought-provoking contribution on the core problems defining our field.
At the time of this writing, there is widespread public consciousness of both racial health disparities, owing to the COVID-19 pandemic, and the problems of racialized policing in the United States, owing to a wave of protests of police killings of Black people. In a timely new article, Professor Ji Seon Song masterfully explores the relationship between inequitable access to health care and policing by analyzing whether and how criminal procedure doctrine protects patients in hospital emergency rooms (ERs) from harmful police practices.
Professor Song’s primary field of interest is criminal law, not health law—but that, I suggest, is one of the reasons why health law scholars and others interested in health policy should give it a read. This, an article primarily analyzing a criminal law issue, provides new and valuable insights about primary interests and status relationships in health care. Though debates about the coherency and scope of health law as a field are ongoing, most health law scholars are concerned with a fairly discrete set of primary interests and status relationships. Among these are the unique vulnerability of patients during a therapeutic transition, the duty of care that medical professionals owe to vulnerable patients, and the persistence of inequities in access to health care by race and class. Professor Song touches on each of these interests in her analysis of the criminal procedure doctrine governing police investigations. As someone who seeks to provide valuable insights about the intersection of health and immigration laws to the community of health law scholars, this type of scholarship is of particular interest to me, and I appreciated the opportunity to review this piece and provide feedback to Professor Song before it was published.
In the article, Professor Song explains how the current doctrine of criminal procedure does not account for the medical vulnerability of patients in the ER; rather, it views ERs as “an extension of the street.” She also explores the ways in which medical professionals become enlisted in policing-related tasks and explains how this involvement both enhances policing and may contradict medical professional norms and responsibilities. Finally, she describes how ERs serve as safety net providers for disproportionately poor and minority (not to mention, immigrant) populations. Therefore, policing the ER “can have a net-widening effect” on police surveillance of historically marginalized groups. Professor Song’s analysis of criminal procedure doctrine reveals that far from accounting for the multiple vulnerabilities of ER patients, the doctrine intensifies them. She outlines a new doctrinal approach rooted in the concept of immigration sanctuary, proposing a revision of the Fourth Amendment reasonable expectation of privacy standard based on medical privacy. She also proposes hospital-based institutional practices and local policies to safeguard ER patients’ privacy and dignity based on harm reduction principles.
The article’s major descriptive contribution is its analysis of how criminal procedure doctrine has failed to protect the privacy rights and dignity of patients in the ER, and how this relates to primary interests in health law such as ethical considerations of medical vulnerability, medical professional duties to patients, and the eradication of health care access inequities. Its normative contribution is its proposal to conceptualize ERs as patient sanctuaries through constitutional doctrine, local policymaking, and institutional practices.
As police reform proposals are actively debated, Professor Song offers valuable insight into their salience for health law and policy. Social and political pressure may soon reach a tipping point for doctrinal, legislative, and institutional shifts that would provide some measure of privacy and dignity to patients in the ER, restore patients’ trust in medical professionals in the ER, and eliminate a discrete barrier to health care access based in criminal law.