Bioethics and the Law

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Final Review (part 2 of the course)

Substantive Due Process Basics (14th Amendment)

There are certain fundamental rights that cannot be subject to government intervention. These are: 1) implicit in the concept of ordered liberty, and; 2) deeply rooted in American society (Glucksberg).

Some examples: teaching a child your native language; right to privacy implied in the Bill of rights.

If it is decided that a right is a fundamental right, the court applies strict scrutiny (i.e. violating right must serve compelling state interest) to the challenged law. If there is no fundamental right, the rational basis test is utilized.

Equal Protection Clause (14th Amendment)

Holds that no person should be denied equal protection of the law (either federal or state) - the law must treat individuals who are in the same condition/circumstances in the same manner.

In order to determine if a classification is unconstitutional, the Supreme Court employs various levels of scrutiny:

1) Strict scrutiny (if law classifies on basis of race, national origin, or if it interferes with "fundamental rights") - law is unconstitutional unless it is narrowly tailored to serve a compelling state interest.

2) Intermediate scrutiny (if law classifies on basis of gender) - law must be substantially related to an important government interest

3) Rational basis (if law categorizes on some other basis) - law is constitutional if it is reasonably related to some government interests

In the Matter of Karen Ann Quinlan

* Competent person's right to refuse treatment. Withdrawal from treatment permitted.

* Quinlan in PVS. Father wants ventilator removed
* Court finds privacy right in the "penumbra" of Bill of Rights. Finds that if Quinlan were competent, state could not compel her to endure treatment with no chance of recovery.
* State's interest in life weakens and a patient's privacy right increases as: 1) treatment invasiveness increases; 2) prognosis dims.

In Re Conroy (for competent people)

* With no consideration of prognosis, a competent individual's right to self-determination outweighs state interests - unless a third party is implicated.

Cruzan v. Director, Missouri Department of Health (for competent people)

* A competent person has a fundamental right to refuse treatment that is constitutionally protected by the 14th Amendment. Substantive due process right.
* Framed as a liberty interest rather than a privacy right - part of the right to make important personal decisions.

Superintendent of Belchertown School v. Saikewicz

* Incompetent person's right to refuse treatment. Withdrawal from treatment permitted.

* Saikewicz, incompetent, has leukemia. The question: whether court can order him into chemo.
* Extends the right to refuse medical treatment to patients who have always been incompetent - if Saikewicz momentarily became competent and saw his condition, what would he do?
* Court employs best interest approach in deciding that chemo is not in Saikewicz's best interest. Factors against treatment include: age, side effects, low chance of success, suffering/pain.

In Re Conroy (for incompetent people)

* Established rules for treating cases involving incompetent patients, life-sustaining treatment.

* Conroy, elderly woman, once competent. Court holds that the right to refuse treatment remains intact in incompetence. The goal is to try to best represent the decision a patient would have made if competent.

* Treatment can be withheld if it satisfies one of several tests:
1) Subjective - clear evidence of patient's wishes (i.e. advance directive, living will, durable power of attorney)
2) Limited objective - some evidence of patient's wishes, but a best-interests approach is also utilized.
3) Pure objective - best-interests approach.

State interests (outlined in In Re Conroy)

1) Preventing suicide
- Ending life-sustaining treatment is not suicide; intention
is not death, but rather an intent to be free of intervention.
2) Preserving life
- Because the life in question is that of the patient wanting
to make the choice to end treatment, the patient's self
determination outweighs interest in life
3) Maintaining integrity of medical profession
- Medical profession doesn't require that the incurable be
treated as if they could be cured.
4) Protecting innocent third parties

In Re Jobes

* Develops substituted judgment protocol.

* Non-elderly woman, PVS after car accident.
* Friends tell the court that Jobes has expressed that, in this situation, she would withdraw life-maintaining treatment. Court finds this evidence unreliable.
* So court establishes a substituted judgment test in which the court turns to the patient's value system for guidance.
* Substituted judgment can be exercised by family, close friends.

* Some problems - do family members or friends really know what a patient would want?

Cruzan v. Director, Missouri Department of Health

* Holds that it is not unconstitutional for states to develop evidentiary standards for when a substituted judgment is permitted/appropriate. It is related to a state's goal of preserving life, protecting against abuse of surrogate decision-making.

* Gave states great leeway in determining when substituted judgment can be used.
* O'Connor concurrence - suggests that a surrogate can decide on an incompetent patient's behalf.

Terri Schiavo case

* Another example of how the government has wanted to keep bioethics a state-level issue. Some issues that it introduces:

- How do we deal with ambiguity when determining what a patient would have wanted? Important using subjective test or substituted judgment
- What does PVS mean?
- Is withdrawing artificial nutrition/hydration different than removing a ventilator?
- Linkage between abortion and the right to die?

Washington v. Glucksberg

* Is there a "right" to physician assisted suicide as protected by substantive due process (fundamental liberty interest)? Court rules no.

* Glucksberg argues that competent, terminally ill adults have a fundamental liberty interest in electing physician-assisted suicide.
* Court introduces test for "fundamental rights," which must:
1) Be deeply rooted in American tradition, and
2) Be implicit in the concept of ordered liberty.
* The court finds that neither of these are true, as common law tradition has historically forbidden assisted suicide.
* Therefore, because the law is related to a state interest (preserving life + preventing suicide), it is constitutional.
* Does not prohibit physician-assisted suicide. It is up to the states to determine the legality of physician-assisted suicide.

Lawrence v. Texas

* Cast doubt over the relevance of the Glucksberg "fundamental liberties" test.

* Overturned bans against sodomy that were constitutionally upheld in Bowers v. Hardwick.
* Court found that homosexual couples have a protected liberty interest in consensual sexual activity, per a right to privacy.
* Kennedy's opinion does not mention Glucksberg test, so its relevance is under question.

Vacco v. Quill

* Is there a "right" to physician-assisted suicide by merit of the equal protection clause?

* Dr. Quill notes that terminally-ill HIV patients on life support can refuse treatment, but terminally-ill HIV patients who are not on life support cannot elect physician assisted suicide. Argues that this is a violation of the equal protection clause, and that there is no rational basis for this differential treatment.
* The court finds that these two acts are not the same:
1) When withdrawing treatment, the cause of death is natural, and the intent is not to die but to be free of intervention.
2) With assisted suicide, the intent is to die from medication.
* Because both groups are not similarly situated, the court finds that the state has a rational basis for treating the groups differently

Other issues with physician assisted suicide

* An issue: exploitation of disadvantaged groups.
- The cost issue - suicide is cheaper than care. Would patients be coerced into the assisted suicide option if either doctors or families wanted to save money?
* Alternatives for easing suffering: palliative sedation
* How do you define "terminally ill"?

Oregon's Assisted Suicide Law

Requirements:
1) Patients must be terminally ill (6 months left to live) and competent (to limit risk of coercion, potential for abuse)
2) Patients must express both orally and in writing their intention to use assisted suicide; this wish must be re-expressed after a certain number of days. (to prevent impulsive decisions)
3) Patient cannot be suffering from depression or another psychiatric disorder.
4) Patient must commit the suicide himself/herself. (sometimes patients change their mind - to prevent abuse)
5) Patient must have been an Oregon resident for a year. (to prevent "suicide tourism")

Some issues:
- Ambiguity in whether the patient is suffering depressing
- Sometimes suicide does not work

In Re Baby K

* Is a hospital obligated to treat an anencephalic infant when it believes the treatments to be ultimately futile? Under EMTALA, if the baby is presented in an emergent condition, the hospital is required to if it receives federal funding.

* Under EMTALA, a hospital is required to stabilize/transfer the patient.

Futility - additional notes

* In general, courts side with the doctors if the patient has died, and the family if the patient is still alive. But most cases are settled within the hospital setting; doctors, out of feared of being sued, will generally acquiesce to the wishes of the family.

Reproductive Rights - current events

* Virginia ultrasound law passed in April - requires women to obtain an ultrasound prior to abortion. Women have the option to opt out of the trans-vaginal ultrasound and instead elect an abdominal ultrasound. The idea - to help women make a more informed decision. Unduly burdensome?
* Virginia fetal personhood bill (similar to that of Mississippi, that ultimately failed)
* Mississippi passed a recent law requiring that all abortions be performed by physicians who are "board certified" and have hospital admitting privileges.

Buck v. Bell

* The right to procreate (in context of incompetent patients). Court decides that the state has a compelling interest in public health (i.e. police power) to justify infringing upon a right to procreate in certain cases.

* Buck, incompetent. Virginia statute authorizes the sterilization of "feeble-minded" people. Buck argues that the statute violates Due Process and Equal Protection.
* Court finds that:
1) Due process of law has been upheld, as Buck's rights have been considered during all steps in the process.
2) The state has sufficient grounds (citing Jacobson) to sterilize "feeble-minded" persons in order to prevent society from being swamped with incompetence (the belief: feeble-mindedness is an inheritable trait)
* The Court also finds that equal protection is not violated if the statute applies to all feeble-minded persons, not only those that are institutionalized.

Skinner v. Oklahoma

* Whether the state can mandate that individuals conducting multiple felonies can be sterilized. Equal protection argument.

* Oklahoma statute mandates that individuals committing a felony two or more times will be sterilized. Exceptions for embezzlement, political offenses, or revenue fraud (i.e. white-collar crimes). Skinner argues that this violates the fundamental right to procreate and the 14th Amendment (substantive due process argument)
* Court finds that the statute violates the equal protection clause. People convicted of larceny and embezzlement have committed crimes of a similar nature (i.e. theft of money). But only the former group is sterilized.
- Similarly situated groups are treated differently by law in this case, rendering the statute unconstitutional.

Some Issues in Abortion

* What is the moral status of a fetus? Is a fetus a person?
* What are the public health implications of abortion regulations? If it will happen regardless of legality, should abortion be permitted solely to ensure that the government can regulate it?
* What is the liberty interest of the woman? Does she have completely right to her body, or does she have a special obligation to the fetus that she has elected to carry?

Privacy rights

* Griswold v. Connecticut infers a privacy right from the "penumbra" of the Bill of Rights, claiming that this is a "fundamental right" protected under the theory of substantive due process.

Griswold v. Connecticut

* The right of married couples to use contraception, the right of physicians to provide contraception to married couples.

* Griswold challenges a Connecticut statute that prohibits the use or provision of contraception to married couples.
* The court finds a privacy right in the Bill of Rights, that it encompasses privacy within marital relationships, consultations with a physician, within the marital bedroom. It rules that the Connecticut statute violates the right to privacy, declaring it unconstitutional.

Eisenstadt v. Baird

* Extends the right to use contraception (established in Griswold v. Connecticut) to single adults, unmarried couples.

Roe v. Wade

* The issue: whether abortion is a fundamental liberty interest and is protected under the 14th amendment (substantive due process).

* Wade challenges a Texas statute that prohibits abortion except in cases where it is necessary to preserve a mother's health.
* Court finds that the privacy right (citing Griswold v. Connecticut) encompasses the right to have an abortion, but that the state also has relevant interests, which become stronger as pregnancy progresses. So the court establishes the trimester framework (arbitrary):
1) First trimester: the state effectively cannot regulate/interfere during this period (strict scrutiny). It is only after the end of the first trimester where state interests become compelling.
2) Second trimester: the state can only regulate in order to protect the mother's health (e.g. require that abortions be performed in hospitals, not clinics).
3) Third trimester: After viability, the state can prohibit abortion except where necessary to save the life of the mother.

Webster v. Reproductive Health Services (Missouri)

* The question: whether a state is required to fund abortion procedures, and whether a mandatory fetal viability test is constitutional. Court requires no, yes (respectively).

* Missouri passes a statute holding, among other provisions, that no government funds go toward abortion, and that a mandatory fetal viability test be done 20 or more weeks into pregnancy.
* Court finds:
1) State is not constitutionally required to fund abortion (the difference between positive and negative liberties)
2) Mandatory fetal viability test is constitutional (reasonably addresses a state interest in preserving life).

Planned Parenthood of Southeastern Pennsylvania v. Casey

* The question: whether five provisions of a Pennsylvania abortion control statute are constitutional. Other issues addressed: the trimester framework in Roe, the undue burden standard.

* The Court upheld the principle of Roe that individuals have a fundamental liberty interest in abortion.
* But the state rejected the trimester framework, instead focusing on previability and postviability periods:
1) Previability: states can impose regulations as long as they don't constitute an undue burden on a woman's freedom to choose an abortion. (replaces strict scrutiny with a rational basis standard)
2) Postviability: state interest in preserving fetal life is compelling enough to outweigh a woman's liberty interest; can prohibit abortion except when necessary to preserve the health/life of the mother.
* Under the "undue burden" standard, the court ruled unconstitutional a provision in the statute that required women to notify their spouses before obtaining an abortion.

Stenberg v. Carhart

* The question: whether a Nebraska ban on partial-birth abortions is unconstitutional. The court says yes.

* Court rules the Nebraska ban unconstitutional because there is no exception where the procedure might be necessary to preserve the health of the mother.
- Argues that this poses an undue burden because doctors who were looking to use this procedure to save a mother's life could be prosecuted.
* Moreover, the act was vague and did not adequately define what procedures could be prosecuted, and what procedures could not.

Gonzales v. Carhart

* The question: whether a federal ban on partial-birth abortions is unconstitutional. The court says no.

* Federal ban did not have an exception in cases where the procedure would be necessary to save the life of the mother.
* Congress had previously found that partial-birth abortions are never necessary to preserve the health of the mother.
* The court thus rules that, because there are alternatives to partial-birth abortions, a maternal health exception is not needed. Therefore, the act is not unconstitutional.
* Court also emphasizes that the ethical and moral concerns about the act are legitimate state interests.
* A note: the court found that the act was not void for vagueness.

Abortion tourism

* Can occur because states have different regulations related to abortion practices. Patients travel to different states to make it easier to procure an abortion, as there is no residency requirement.

The "Infant Born Alive" act

* Physicians must treat/stabilize any infant that is born alive after an unsuccessful abortion attempt.
* This law, however, is widely ignored in ICUs.

In Re A.C.

* Can courts force medical treatment on a competent patient to promote state interests? The court says no.

* A.C. was pregnant, had cancer, was going to die soon. Courts wanted to save the baby, ordered emergency C-section despite A.C. saying that she did not want the treatment.
* The court finds that treatment cannot be ordered on a patient without his/her consent. If this consent cannot be procured, a substituted judgment test must be applied; a best-interests test should not be used. State interests do not outweigh the individual's liberty.
* The question: does a woman really have complete autonomy over her body if she willingly chooses to carry a baby to term?

Whitner v. South Carolina

* Does the term "child" as used in the South Carolina Children's Code include fetuses? The court says yes.

* South Carolina is looking to convict Whitner of child abuse, for using cocaine during pregnancy and causing baby to have cocaine metabolites.
* The court says that there is a rational basis for including fetuses in the term "child"; because damage inflicted when a child is a fetus will likely have long-lasting effects.
* Can criminalize acts that would otherwise be legal (e.g. drinking)

* An example of how family law is changing due to reproductive rights issues.

Ferguson v. City of Charleston

* Is it constitutional to test pregnant mothers for drug use for law-enforcement purposes? The court says no.

* State hospital has pregnant mothers undergo mandatory drug testing. If a mother tests positive for drugs twice, then the results are given to local law enforcement for prosecution.
* It is argued that this policy is an unreasonable search and seizure absent patient consent.
* The court finds that warrantless searches are only justified if the state has a special, non-law enforcement purpose (e.g. public health, police power). In this case, however, the searches had the ultimate goal of providing information to law enforcement, and the testing policy was therefore declared unconstitutional, assuming that informed consent was not given.
* If consent had been given, however, the policy could be constitutional.

Social vs. Medical Definitions of Infertility

* Medical: the ability to physically have a child
- Can be fixed by, for example, opening up the Fallopian tubes. The National Health Service in the UK covers these services.
* Social: the ability to become a parent.
- Can be fixed by IVF. But, at the end of the day, you still are physically unable to have a child. The NHS does not cover this.
* Has implications related to insurance plans.

Insurability Issues Related to IVF

* Insurance companies are interested in covering IVF, as the demographic seeking these services are usually young, healthy, low-risk.
* If IVF is not covered, or if only one procedure is covered, multiple embryos are generally implanted at once to increase the chance of success.
- The issue here is the birth of twins, or the increasing prevalence of selective abortion to limit the number of children born.

Assisted Reproduction Techniques - Notes about Eugenics

* PGD - pre-implantation genetic analysis. Can analyze the embryo prior to implantation to select for disease/enhancement/physical traits.
* Donor gametes - screening potential donors for certain, desirable traits. This is a very flawed approach though, unless the aim is to have a child to look a certain way; parental success does not guarantee child success.
* Selective abortion with IVF, post-implantation.

Frozen Embryos Practice

* How frozen embryos are disposed of is usually held as a contractual matter settled prior to the IVF process. Clinics usually have a consent form specifying method of disposal (provided embryos aren't defined as "people")

Family Law issues

* Common Law: the woman giving birth to the child is the biological mother, and her husband is the father provided that he does not disown the child.
- The intent: to ensure that children aren't born out of wedlock.
- Runs into problems with gestational surrogacy (see R.R. v. M.H.)

* Under the Uniform Parentage Act of 2004:
1) Gamete donors do not have parental rights (unless they donate with the intention of being the legal parent.)
2) Sperm donors remain anonymous.

* What if sperm donors did not remain anonymous? Like adoption law, where adopted children can learn of biological parents after age 18.
- You might see a changing demographic of sperm donors: from poor college students wanting to make same money, to older men who are looking to help others out.

J.B. v. M.B. and C.C.

* Question: whether a pre-IVF contract should be enforced, how the right to not procreate weighs against the right to procreate?

* J.B. and M.B. proceeded through IVF, got divorced. Dispute over how to dispose of leftover embryos.
* Court found that the pre-IVF contract was unclear about how to dispose of embryos in case of divorce.
* Court also declared that, in general, J.B.'s right not to procreate is greater than M.B.'s right to procreate. M.B. can always procreate later, while J.B.'s right not to procreate cannot be salvaged in the case where the embryos are donated.
- The idea: cannot force somebody into becoming a biological parent.

* The court then suggested that contracts can be enforced from the initiation of the IVF process, until one of the parties changes their mind about how the embryos should be disposed of. In that case, the contract is void.

R.R. v. M.H.

* The question: whether to enforce a surrogacy agreement created before birth and involving payment.

* Surrogate and intended genetic parents entered into a surrogacy agreement. Surrogate decided mid-term that she wanted to keep the child, in which case the contract stipulated that she return all financial compensation that she received for the pregnancy.
* Court found that the agreement is invalid, citing adoption law:
1) Contract cannot be established before 4 days after birth, because mother does not fully understand her bond with the child
2) Payment cannot be offered in exchange for surrogacy, as there is a fear that this could lead to exploitation, could pressure surrogate to give up baby. Because the surrogate was contractually required to return the money, it cannot be argued that the compensation was merely for expenses.

Culliton v. Beth Israel Deaconness Medical Center

* Whether a court can name genetic parents as the legal parents of a child born through gestational surrogacy. The court says yes.

* The court finds that the common law (i.e. biological parent + husband are legal parents) is inadequate in the era of reproductive technology.
* If the court had to wait four days to do so, there would be a four-day period in which the surrogate would be the official "parent," during which she could legally give the child up for adoption - impractical.

Stem Cell Funding - Dickey-Wicker Amendment

* A rider tacked onto the Federal Appropriations Committee bill during the Clinton administration. Prohibits federal funding from being used to fund the creation of human embryos for research purposes, as well as the destruction of human embryos.

Stem Cell Funding - Bush scheme

* The government would fund stem cell research only on existing stem cell lines (i.e. created before passage of the bill) created from leftover embryos in IVF clinics. Would not fund research on newly created stem cell lines, nor the destruction of embryos.
* Based on a theory of complicity, inspired by the Catholic Church's policy on vaccines made with fetal tissue.

Stem Cell Funding - Obama scheme

* Government would fund stem cell research on existing AND newly created stem cell lines, created from leftover embryos in IVF clinics. But, to comply with the Dickey-Wicker Amendment, the physical destruction of embryos would not be funded.
* No limits on private funding of stem cell research.

Stem Cell Techniques notes

* Therapeutic cloning
* Induced pluripotent stem cells
* Debate over stem cells is not over legality, but rather over funding.

Stem Cell Research Oversight

* ESCRO (Embryonic Stem Cell Research Oversight) committees
* Approve all research related to the use of stem cells.
* Politically motivated: creation of ESCROs was inspired by popular fear that embryo destruction would be taken lightly, that research related to chimeras, reproductive cloning would be conducted.

Diamond v. Chakrabarty

* Whether a microorganism is "matter" or a "composition of matter," and thus patentable under 35 U.S.C. S101. Court says yes.

* Chakrabarty created a microorganism that can break down crude oil. His effort to patent the bacteria was initially denied on grounds that living organisms are not patentable (Plant Patent Act)
* The court rules that the microorganism is indeed a "composition of matter" that can be patentable; the bacterium and its functions are not naturally occurring, but rather a product of human ingenuity. Doesn't matter that the patented material is "alive."
- Falls under the legislative intent of 35 U.S.C. S101, which looks to encourage innovation.

Harvard College v. Canada (Commissioner of Patents)

* Whether a higher-order life form (Harvard oncomouse) is patentable as a "composition of matter." Court says no.

*Court rules that higher-order life forms are not mere compositions of matter, but have intrinsic qualities that are greater than mere "matter."
* Just because the mouse is genetically altered doesn't mean that it is not a mouse.
* The court therefore declares that the oncomouse cannot be patented.

Public Health Introduction

* A balance between a state's police power and individual liberties
* General shift in public health: focus has shifted from infectious to chronic diseases

American Dental Association v. Martin

* Question: are new OSHA requirements unduly burdensome on health workers? Court says yes.

* OSHA passed a rule requiring various workplace changes designed to protect health workers from contracting HIV or AIDS (e.g. use of gloves, positioning of sinks, disposal of sharps, etc.)
* Court finds that, in creating the new policies, OSHA underestimated the costs of implementing the policies and overestimated the benefits/lives saved from implementing the policies.
* Nevertheless, the court states that the rule doesn't cross the boundaries of reasonableness, and is related to the state interest of promoting workplace health.
* Whether the rule is effective is up to the legislature.

Jacobson v. Commonwealth of Massachusetts

* Question: whether the state can mandate that individuals be vaccinated for smallpox. Court says yes.

* Jacobson - jailed/fined for not complying with a mandatory smallpox vaccination program. Says that the statute violates his right to bodily sanctity and is thus unconstitutional.
* Court says that compulsory vaccination program is justified because it is an exercise in the state's police power to promote the public health and welfare.
* Court further finds that it could only intervene if the statute:
1) Was arbitrary and fulfilled no clear state objective, or
2) Inflicted lasting damage/harm on the individual.

School Board of Nassau County v. Arline

* Question: whether a woman with TB can be considered "disabled" under S504 of the Rehab Act, and whether she can be terminated for her illness.

* Teacher who had three recurrences of TB was fired and not given financial relief.
* S504 defines "handicapped person" as a person with a physical impairment that...etc.
* The court found that the contagious effects of TB cannot be separated from the disease's physical effects on the individual - therefore, the teacher would be considered handicapped for the purposes of S504.

*The court does not pass judgment on whether the teacher was otherwise qualified to work, however, and remands the case for further deliberation.

United States v. Rutherford

* Question: whether terminally ill patients are permitted to take Laetrile, though the drug has not been classified as "safe" and "effective" by the FDA. Court says no.

* Court says that to exempt the "safe/effective" requirement for drugs for terminally ill patients would:
1) Eliminate the requirement for ALL drugs, opening the door for exploitation of terminally ill patients with wacko remedies.
2) Cause needless death/suffering of patients who would benefit from real treatments.
* Because of this, the court does not permit patients to purchase Laetrile.

* Makes exceptions for preclinical trials/testing.
* Patient does not have a right to choose treatment.

People v. Adams

* Question: whether the state can mandate that convicted prostitutes be tested for HIV. Court says yes.

* Adams, convicted prostitute, claims that a statute requiring convicted prostitutes be tested for HIV is: 1) illegal search and seizure, and; 2) violation of equal protection clause.
* Court finds that the nonconsensual, warrantless search is nevertheless legal because it serves the special, non-law enforcement purpose of promoting the public health/welfare in addressing the spread of HIV/AIDS (police power).
* There is no equal protection violation in singling out sex workers because there is a rational basis for doing so (i.e. a group at high risk for aids). Because a fundamental right is not implicated and there is no historically suspect classification, strict scrutiny not required.

Whalen v. Roe

* Question: whether the state can keep on record the names and addresses of patients who are prescribed/use certain drugs. Court says yes.

* Court identifies two components of the privacy right:
1) Controlling disclosure of personal matters
2) Ability to make personal decisions w/o gov't interference.
* The Court agrees that both interests might be affected by the statute, but also states that the risk is not significantly different compared to prior law.
* The Court finds that it is within the state's police power to collect information to stop illegal drug distribution. Just because a law is unnecessary doesn't mean its unconstitutional.

Middlebrooks v. State Board of Health

* Question: whether a state reporting policy was an equal protection violation and thus unconstitutional. Court says no.

* Dr. Middlebrooks argued that a state policy requiring him (but not HIV kit venders) to report the names/addresses of his HIV patients violated Equal Protection Clause.
* Court found that the doctor has a responsibility to promote the state's interest in preserving the health of the community, whereas the kit venders do not.
- Both groups are NOT similarly situated and are therefore not equal under the Equal Protection Clause.
* Court also rules that the state's police power and interest in promoting the public health outweigh an individual's right to privacy (nondisclosure of private information) - permissible invasion.

Wong Wai v. Williamson

* Question: whether a San Francisco statute requiring Chinese people to either be vaccinated against plague or be quarantined within city limits is valid/constitutional. Court says no.

* Court ruled that:
1) Adopted regulations appeared to have been without legislative authority; no evidence that the city's Board of Supervisors has passed legislation that provides rules/regulations for public health measures.
2) The regulations are directed against Asians as a class without evidence that the ethnicity is more susceptible to the plague.

Addington v. Texas

* Question: what standard of proof is required by the 14th Amendment in a civil proceeding to commit an individual involuntarily for an indefinite period in a state mental hospital. Court says "clear and convincing evidence"

* Mother wants child institutionalized.
* Court states that a "clear and convincing evidence" rather than a reasonable doubt (i.e. highest standard, normally reserved for criminal law) standard should be adopted.
* It is therefore easier to institutionalized individuals with mental illnesses - state asserting its interest in protecting the public health by ensuring that individuals with mental disabilities don't harm others.

In the Interest of JAD

* Question: what are the standards by which an individual with mental disabilities can be institutionalized?

* County court wants to institutionalize homeless man J.A.D.
* Requirements for institutionalization:
1) Person must be mentally ill
2) Person must pose serious risk of harm to himself, others, or property.
* Court finds that J.A.D. has mental illness but does not pose harm to others or property.
* Doctor argues that J.A.D. poses a risk to himself because he will likely not seek shelter during wintertime.
* Court rules that it cannot assume that J.A.D. will not be able to take care of himself or his needs during the winter months.

Gov't Tools to Encourage Healthy Behavior - Tobacco

* Success story
* Public education (e.g. PSA's)
* Ad regulation
* Warning labels
* Place/time/person restrictions (e.g. public smoking bans, minimum age to purchase)
* Product control (e.g. no flavored cigarettes)
* "Sin" taxes
* Lawsuits
- State attorney generals filed class-action lawsuits against tobacco companies for mis-representation of smoking risks. Tobacco companies would once fund research to cast doubt on the risks. This led to a multimillion dollar settlement in which new regulations were adopted, tobacco companies had to fund research and public information campaigns, etc.

Gov't Tools to Encourage Healthy Behavior - Obestiy

* Education campaigns
* Labeling food packages, restaurant menus with nutritional information
* Regulating snacks, food sold in school vending machines and cafeterias.
* Product control: trans fats, high fructose corn syrup.
* Representation:
- Labeling things as organic (regulated) v. free-range/natural (not regulated)
- Labeling things as "not genetically modified" is illegal because it creates the misconception that genetically modified food is bad.
- Risks of high-fructose corn syrup.

Affordable Care Act - Provisions/Reforms

* Kids can stay on parents' plans until age 26
* Fund/plan created for people with pre-existing conditions.
* Federal government gives states money in exchange for expansion of Medicaid programs.
* Creation of health exchanges, which create a centralized market in which health policies/plans can be bought, compared.
* Community rating - people of the same age/location receive the same premium regardless of preexisting condition.
* Individual mandate - people are required to purchase health insurance, or else must pay a tax.
* Accountable care organizations

* States have passed many of these provisions on their own so that they have the power to interpret/enforce/address the law without intervention from the federal government.

Affordable Care Act - Individual Mandate Debate

* Addresses the "adverse selection death spiral"
* Debate over whether it is constitutional or not:

- Arguments against: the individual mandate does not regulate interstate commerce, it forces people to buy into commerce by imposing a penalty on people who don't buy health insurance.

- Response to this argument: people are already consumers of health care, insured or not, as everyone is "covered" by EMTALA. Therefore, the commerce already exists and people are not being forced into buying it.
- Another response: the penalty is a tax, which the Constitutional allows the federal government to impose.

Affordable Care Act - Severability

* If the Supreme Court strikes down the individual mandate but maintains other provisions, there is a chance that adverse selection could occur.
* Other issues:
- Medicaid/Medicare reimbursement schemes were created under the assumption that the ACA would pass. If struck down, the schemes would have to be reformulated.
- States have already taken the federal money given in exchange for Medicaid expansion. How will this be paid back?
- States could perhaps implement an individual mandate on their own; then, adverse selection could occur in some states, but not others.

* A single-payer system is constitutional because the federal government is permitted to tax for public benefits.

Markovitz on Quarantines + Latham Response

* Markovitz believes that quarantines, in grouping together the exposed and the infected, places the burden of disease on a select few people (the exposed) in order to greatly minimize the burden for others. He believes this is unjust.
* He proposes instead policies of vaccination, or nothing; as the risk gets diluted among a larger pool of people.

* Latham response - Markovitz's view of quarantine practice is outdated.
- Modern quarantine practice: either home quarantine, or specialized quarantine centers where the isolated are physically separated from the exposed; the exposed therefore do not face a significantly greater risk of disease

Justice in Health Care Finance: John Rawls

* Rawls' veil of ignorance - if none of us were aware of social positioning, we would make the position of the least well off as good as possible.
* Rawls' difference principle - inequality is justified only when it benefits the least well-off (e.g. justifies paying doctors, health care workers above-average)
- Establishes two fundamental principles:
1) Equality of rights
2) Fair equality of opportunity.

Justice in Health Care Finance: Norm Daniels

* Addresses the Rawlsian idea of fair equality of opportunity, applies it to the health care realm.
* Argues that not having equal access to health care limits people's abilities to compete for offices in society (i.e. equality of opportunity)
* Problem with this philosophy: people want health care not only for equal opportunity, but also because disease is scary/uncomfortable.

Justice in Health Care Finance: Russell Korobkin

* Says that everybody would want health care to be funded by taxation under the veil of ignorance

Justice in Health Care Finance: Nozick

* Gov't control of health care leads to inefficiency; competitive marketplace keeps costs down and encourages innovation.
* Redistribution is akin to stealing from people.

*Responses:
- Even an efficient health care system is insufficient to meet demand; there will always be people who suffer.
- Our wealth is not completely ours, but is partly socially created (Woody Allen analogy)

Justice in Health Care Finance: Tristram Engelhardt

* A government-controlled health care plan will not satisfy the moral positions of everybody to whom it is subjected (e.g. some money will fund abortions, vaccinations, other controversial procedures.)

*Responses:
- This is an impossible condition to fulfill. You can't meet everyone's moral demands.

Justice in Health Care Finance: Amartya Sen

* Proposes a capabilities approach, where we measure the impact of a program by whether it increases the capabilities of a community's members
- Capabilities: a function that a person could potentially achieve (e.g. if someone has the ability to go to school)

Justice in Health Care Finance: Martha Nussbaum

* Looks to create a theory of justice from Sen's capabilities approach. Proposes a "minimum basket" of capabilities that all people are entitled to.
* Inspired by Aristotle's "natural capabilities" idea, which included:
- good relationship with environment, animals; reproductive freedom; bodily freedom; freedom to participate in politics; access to medical care and good health

* Problems: doesn't answer who has the obligation to provide these capabilities, or whether people need all of these capabilities

Justice in Health Care Finance: Utilitarianism

* Utilitarianism - the morally obligatory option is that that provides the greatest net benefits (welfare gains outweigh losses of welfare)
* Utilitarian argument for universal health care: the pain of being taxed is less than that of being sick.

* Problems:
- Can justify imposing large burden on the individual for a small benefit for everyone in a large group of people.
- Doesn't distinguish between sources of utility; we could easily justify forgoing health care for reality television.

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