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Articles 1 - 19 of 19

Full-Text Articles in Health Law and Policy

On The Judicialization Of Health, Ana Santos Rutschman Jan 2019

On The Judicialization Of Health, Ana Santos Rutschman

Washington University Global Studies Law Review

The provision of health care has long been at the forefront of domestic and international debates, philosophical inquiries, and political agendas. A growing body of legal scholarship has added to the debate by examining the role of judicial review in the context of health-related litigation. What role, if any, should courts play in compelling the provision of health care or in furthering access to potentially life-saving medicines?

This question intersects with multiple strands of the law. For instance, it has an institutional component that interrogates the function(s) of courts within systems of checks and balances. It ties into constitutional ...


Nfib V. Sebelius At 5, Nicole Huberfeld Jun 2018

Nfib V. Sebelius At 5, Nicole Huberfeld

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


The Affordable Care Act And The Chronic Challenge Of Cost Control, Isaac D. Buck Feb 2018

The Affordable Care Act And The Chronic Challenge Of Cost Control, Isaac D. Buck

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


Tax Constitutional Questions In Obamacare Continued: Nfib V. Sebelius In Light Of Citizens United V. Fec, Speiser V. Randall, Windsor V. United States, Lawrence V. Texas, Et Al., John R. Dorocak Feb 2018

Tax Constitutional Questions In Obamacare Continued: Nfib V. Sebelius In Light Of Citizens United V. Fec, Speiser V. Randall, Windsor V. United States, Lawrence V. Texas, Et Al., John R. Dorocak

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


The Saving Construction At 5 Years, Josh Blackman Feb 2018

The Saving Construction At 5 Years, Josh Blackman

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


Unbefriended And Unrepresented: Better Medical Decision Making For Incapacitated Patients Without Healthcare Surrogates, Thaddeus Mason Pope Jul 2017

Unbefriended And Unrepresented: Better Medical Decision Making For Incapacitated Patients Without Healthcare Surrogates, Thaddeus Mason Pope

Georgia State University Law Review

The purpose of this Article is to help improve the quality of healthcare decision making for the unbefriended. I hope that this comprehensive and systematic explanation of both the problem and the available solutions will empower both public and clinical policymakers to develop more informed and more circumspect policies and procedures


Informed Consent As Compelled Professional Speech: Fictions, Facts, And Open Questions, Nadia N. Sawicki Jan 2016

Informed Consent As Compelled Professional Speech: Fictions, Facts, And Open Questions, Nadia N. Sawicki

Washington University Journal of Law & Policy

This article explores the relationship between a physician’s First Amendment right to free speech and state informed consent mandates. Sawicki details the convoluted jurisprudence surrounding consent mandates, focusing on one-sided and controversial subject matter that many states require physicians to disclose. Sawicki then offers a legal framework for how a physician-challenged consent mandate may pass through the court system based on existing Supreme Court jurisprudence.


Unenumerated Rights And The Limits Of Analogy: A Critque Of The Right To Medical Self-Defense, O. Carter Snead Oct 2015

Unenumerated Rights And The Limits Of Analogy: A Critque Of The Right To Medical Self-Defense, O. Carter Snead

O. Carter Snead

Volokh’s project stands or falls with the claim that the entitlement he proposes is of constitutional dimension. If there is no fundamental right to medical self-defense, the individual must, for better or worse, yield to the regulation of this domain in the name of the values agreed to by the political branches of government. Indeed, the government routinely restricts the instrumentalities of self-help (including self-defense) in the name of avoiding what it takes to be more significant harms. This same rationale accounts for current governmental limitations on access to unapproved drugs and the current ban on organ sales. The ...


State (Un)Separated Powers And Commandeering, Aaron P. Brecher Jan 2015

State (Un)Separated Powers And Commandeering, Aaron P. Brecher

Res Gestae

This Essay argues that the Court’s line between state judges and other state officials is not as clean as the case law suggests. Specifically, early state constitutions, as well as the British constitutional order prevailing before the U.S. Constitution was enacted—which did not separate powers as rigidly as the U.S. Constitution—combine to undermine the distinction. Taking this line of analysis seriously is not to deny that commandeering state executive or legislative officials raises federalism concerns. But paying more careful attention to early state conceptions of the separation of powers furthers federalist goals in another way ...


Segregation In United States Healthcare: From Reconstruction To Deluxe Jim Crow, Kerri L. Hunkele Jan 2014

Segregation In United States Healthcare: From Reconstruction To Deluxe Jim Crow, Kerri L. Hunkele

Honors Theses and Capstones

During the time period between Reconstruction and the Deluxe Jim Crow era, African Americans were legally oppressed, which hindered their ability to live fully and equally in society with whites. This was especially true in terms of healthcare. Segregation laws were implemented to separate blacks from the rest of society in everyday life; the worst of these laws affected the ability of African Americans to gain access to medical care that was equal to whites. This inequality prevented blacks from being accepted into society and from living quality lives that stem from adequate healthcare. Although the federal and state governments ...


Taxation Without Limitation: The Prohibited Pretext Doctrine V. The Sebelius Theory, Brett W. Hastings Oct 2013

Taxation Without Limitation: The Prohibited Pretext Doctrine V. The Sebelius Theory, Brett W. Hastings

Brett W Hastings

The Article posits that the Supreme Court erred in its ruling regarding the Affordable Care Act by overlooking a well established constitutional principle, dubbed the Prohibited Pretext Doctrine. This doctrine, which prohibits the exercise of a prohibited power through the pretextual use of a power granted, faded from memory due to the post Lochner era expansion of the Commerce Clause. Nevertheless, the doctrine remains valid law. In overlooking the Prohibited Pretext Doctrine, the Supreme Court established a new and contradictory doctrine, dubbed the Sebelius Theory. The Sebelius Theory turns the Prohibited Pretext Doctrine on its head by explicitly allowing the ...


Advocacy In Health Proceedings In New York State, Kia C. Franklin Apr 2013

Advocacy In Health Proceedings In New York State, Kia C. Franklin

Touro Law Review

Individuals and communities navigating the healthcare system without an advocate often experience devastating outcomes and become burdened with unnecessary costs. These negative outcomes undermine the very utility of our healthcare system. The creation of a legal right to counsel for individuals with critical health related claims would meet an important and unmet need in our health and legal systems by empowering patients, improving the quality of health for many, and preventing unnecessary costs to the health care system.

A dedicated group of healthcare advocates, lawyers, public policy analysts, and other concerned individuals gathered together at Touro Law Center to strategize ...


Is The Doctor In? The Contemptible Condition Of Immigrant Detainee Healthcare In The U.S. And The Need For A Constitutional Remedy, Kate Bowles Mar 2013

Is The Doctor In? The Contemptible Condition Of Immigrant Detainee Healthcare In The U.S. And The Need For A Constitutional Remedy, Kate Bowles

Journal of the National Association of Administrative Law Judiciary

No abstract provided.


The Commerce Clause Implications Of The Individual Mandate Under The Patient Protection And Affordable Care Act , L. Darnell Weeden Jan 2013

The Commerce Clause Implications Of The Individual Mandate Under The Patient Protection And Affordable Care Act , L. Darnell Weeden

Journal of Law and Health

The fundamental focus of this Article is whether the decision not to buy individual health insurance as required by Congress also qualifies as valid economic activity under the Commerce Clause. This question before the Court continues the modern battle regarding the scope of Congress’s power under the Commerce Clause, and the battle regarding the regulation of economic activity continues, irrespective of the Supreme Court decision regarding PPACA, because of the continuing impact of the Supreme Court’s holding in United States v. Lopez. Part II of this Article contends that the decision not to purchase health insurance is not ...


The Policy Against Federal Funding For Abortions Extends Into The Realm Of Free Speech After Rust V. Sullivan, Loye M. Barton Nov 2012

The Policy Against Federal Funding For Abortions Extends Into The Realm Of Free Speech After Rust V. Sullivan, Loye M. Barton

Pepperdine Law Review

No abstract provided.


Health Care Providers Meet Erisa: Are Provider Claims For Misrepresentation Of Coverage Preempted, Jeffrey A. Brauch Nov 2012

Health Care Providers Meet Erisa: Are Provider Claims For Misrepresentation Of Coverage Preempted, Jeffrey A. Brauch

Pepperdine Law Review

No abstract provided.


The Individual Mandate, Commerce Clause, And Supreme Court: Predicting The Court's Ruling In Hhs V. Florida, Nicholas Medling Jan 2012

The Individual Mandate, Commerce Clause, And Supreme Court: Predicting The Court's Ruling In Hhs V. Florida, Nicholas Medling

CMC Senior Theses

An analysis of the evolution of the Commerce Clause, the Justices on the Supreme Court, and the arguments presented in this case indicate that the minimum coverage provision of the Patient Protection and Affordable Care Act will be struck down. Although the Court will likely be split 5 to 4 along ideological lines, each of the justices will have a unique rationale behind their decision. Chief Justice Roberts, Justice Scalia, and Justice Kennedy were heavily targeted by both parties’ oral and written arguments because there was speculation that any one of these traditionally conservative justices could be the fifth vote ...


Medical Malpractice Mediation: Benefits Gained, Opportunities Lost, Carol B. Liebman Jan 2011

Medical Malpractice Mediation: Benefits Gained, Opportunities Lost, Carol B. Liebman

Faculty Scholarship

In the past decade, the United States healthcare system has begun to use mediation to facilitate communication between patients and physicians after an adverse medical event, to ease tensions among members of care-giving teams, to resolve medical malpractice claims, and to help family members and medical professionals make awesome and wrenching decisions at the end of life. Implementation of the Patient Protection and Affordable Care Act of 2010 will produce new controversies and increase the need for mediation. Patients, families, physicians, nurses, other healthcare professionals, and administrators will require help managing the disagreements that arise as they adapt to the ...


Unenumerated Rights And The Limits Of Analogy: A Critque Of The Right To Medical Self-Defense, O. Carter Snead Jan 2007

Unenumerated Rights And The Limits Of Analogy: A Critque Of The Right To Medical Self-Defense, O. Carter Snead

Journal Articles

Volokh’s project stands or falls with the claim that the entitlement he proposes is of constitutional dimension. If there is no fundamental right to medical self-defense, the individual must, for better or worse, yield to the regulation of this domain in the name of the values agreed to by the political branches of government. Indeed, the government routinely restricts the instrumentalities of self-help (including self-defense) in the name of avoiding what it takes to be more significant harms. This same rationale accounts for current governmental limitations on access to unapproved drugs and the current ban on organ sales. The ...