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Back Issues and Articles

Table of Contents
Table Of Contents
AJLM - [PDF] (Free Download)
American Journal of Law & Medicine Volume 37, Number 4 * 2011 Articles: 469 Disability, Ambivalence, and the Law John F. Muller 522 Comparative Effectiveness Research Under the Patient Protection and Affordable Care Act: Can New Bottles Accommodate Old Wine? Eleanor D. Kinney 567 Reproductive Choices and Informed Consent: Fetal Interests, Women's Identity, and Relational Autonomy Pamela Laufer-Ukeles Notes and Comments: 624 Religious Exemptions to the PPACA's Health Insurance Mandate Samuel T. Grover 652 Access to Elective Abortions for Female Prisoners Under the Eighth and Fourteenth Amendments Avalon Johnson 684 Recent Case Developments
Disability, Ambivalence, and the Law
John F. Muller - [PDF]

In this Article, I advance a new frame through which to organize discourse on disability and the law: the notion of ambivalence. I make two claims, one descriptive and one normative. Descriptively, I argue that ambivalence pervades encounters with disability. Disability attracts because it is a force that makes us human and disability repels because it is a force that threatens our humanity. The tension between these sentiments is not easily tolerated and tends to prompt denials of ambivalence; we embrace a conscious view of disability that belies our mixed sentiments and we suppress reactions to disability that conflict with this conscious view. Normatively, I argue that the law should express and expose ambivalence about disability. When we deny ambivalence, I argue, we cannot account for our genuine sentiments and we cannot prevent suppressed sentiments from emerging, intensified, in harmful and unanticipated forms. To avoid these dangers, the law should prevent the embrace of unequivocal views of disability as valued, devalued, or neutral, and seek to expose ambivalence about disability to the public. This prescription calls into question the prevailing orthodoxies of disability law.
Comparative Effectiveness Research Under the Patient Protection and Affordable Care Act: Can New Bottles Accommodate Old Wine?
Eleanor D. Kinney - [PDF]

The Patient Protection and Affordable Care Act (PPACA), as amended by the Health Care and Education Reconciliation Act of 2010, initiated comprehensive health reform for the healthcare sector of the United States. PPACA includes strategies to make the American healthcare sector more efficient and effective. PPACA's comparative effectiveness research initiative and the establishment of the Patient-Centered Outcomes Research Institute are major strategies in this regard. PPACA's comparative effectiveness research initiative is one in a long line of federal initiatives to address the rising costs of healthcare as well as to obtain better value for healthcare expenditures. The key question is whether the governance and design features of the institute that will oversee the initiative will enable it to succeed where other federal efforts have faltered. This Article analyzes the federal government's quest to ensure value for money expended in publically funded healthcare programs and the health sector generally. This Article will also analyze what factors contribute to the possible success or failure of the comparative effectiveness research initiative. Success can be defined as the use of the findings of comparative effectiveness to make medical practice less costly, more efficient and effective, and ultimately, to bend the cost curve.
Reproductive Choices and Informed Consent: Fetal Interests, Women's Identity, and Relational Autonomy
Pamela Laufer-Ukeles - [PDF]

In this Article, I describe and examine the severe shortcomings in women's autonomy in the context of reproductive choices in the medical arena. The reproductive choices I explore are those choices that involve gestation: abortion, fertility treatments, and interventions during pregnancy. Due to state and medical interests in the fetus, I describe how information conveyed to patients making reproductive choices is biased towards fetal interests, relies on female stereotypes, and is still conveyed with the objective authority of the medical profession. Moreover, reproductive choices implicate women's values and identity interests that reach beyond medical concerns, which are not part of the informed consent doctrine at all. The narrow, individualistic informed consent torts doctrine intended to protect patient autonomy does not do enough in this context to balance bias nor does it mandate discussion of important identity interests and values. Accordingly, I argue that when faced with reproductive choices, women are not provided the balanced and comprehensive information needed to promote their autonomy. In response to the breakdown in patient autonomy I describe, instead of leaving women alone to make choices or regulating in order to protect them from their choices, a broader framework for supporting reproductive choices should be established. In light of the interdependence of woman and fetus, as well as the broader social context shaping these decisions, I argue that a more contextual, relational perspective of autonomy should be the goal of informed consent in the context of reproductive choices. I suggest a number of reforms that aim to optimize patient autonomy from a relational perspective. I suggest a broad, deliberative doctor-patient consultation and legal reforms that create more balance between the pull towards intervention and fetal protection on the one hand, and non-intervention and protection of women's personal identity interests on the other.
Notes and Comments
Religious Exemptions to the PPACA's Health Insurance Mandate
Samuel T. Grover - [PDF]

Arguably the most controversial change to the U.S. healthcare system written into the Patient Protection and Affordable Care Act ("PPACA" or the "Act") is what has been colorfully termed the Act's "individual mandate," the provision that establishes tax penalties for those who do not maintain health insurance in 2014 and beyond. Though the health insurance mandate does not go into effect until 2014, it has already faced numerous constitutional challenges in district and circuit courts, with entirely inconsistent results. Conflicting decisions regarding the Act's constitutionality at the circuit court level cry out for Supreme Court review. But while the individual mandate's validity under either the Commerce Clause or Congress's taxing power has been the focal point of litigation thus far, another aspect of the individual mandate may undermine the goal of establishing universal, affordable healthcare coverage for all Americans. As currently written, the religious conscience exemption from the PPACA's individual mandate threatens the efficacy of the Act and potentially exposes it to legal challenges under the Constitution's Religion Clauses. In addition to establishing tax penalties for those who do not maintain "minimum essential coverage," section 1501 of the PPACA also creates exemptions from those penalties. Under the heading "religious exemptions," the Act sets out two distinct categories of individuals who are exempt from the tax: those with a "religious conscience" objection to insurance and those who are members of a "health care sharing ministry."
Access to Elective Abortions for Female Prisoners Under the Eighth and Fourteenth Amendments
Avalon Johnson - [PDF]

Currently, there is no clear national policy regarding access to elective abortions for pregnant inmates. The federal courts have split on the issue of whether female inmates have a right to elective abortions and disagree about what that right substantively entails. A national standard is necessary to protect pregnant inmates' rights to elective abortions. Given the current political climate, which is particularly hostile towards abortion rights, it is the United States Supreme Court that can most effectively accomplish the goal of establishing a clear national policy regarding the rights of female prisoners to have elective abortions. This Note will examine the likely outcome should the Supreme Court hear a case to resolve the current circuit split. In light of the Court's recent decisions relating to abortion rights under the Fourteenth Amendment in Planned Parenthood v. Casey and Gonzalez v. Carhart, the Court will likely rule that pregnant inmates must have meaningful access to elective abortions under the Fourteenth Amendment. The rationales expressed by the Sixth, Third, Fifth, and Eighth Circuits in deciding the relevant cases likewise suggest this result. The Court, however, will likely find that denying pregnant inmates access to elective abortions does not constitute cruel and unusual punishment under the Eighth Amendment.
Recent Court Decisions
Ninth Circuit Rules that State Certificate of Need Laws May Unconstitutionally Burden Interstate Commerce
Anna Oh - [PDF]

The United States Court of Appeals for the Ninth Circuit recently held that Washington State Department of Health's ("Department") certificate of need ("CON") regulations, which restrict the number of hospitals performing elective percutaneous coronary interventions (PCIs), may be unconstitutional as an unreasonable burden on interstate commerce. Yakima Valley Memorial Hospital ("Memorial"), the plaintiff, operates a nonprofit hospital in Yakima, Washington. Memorial currently performs PCIs, procedures used to treat diseased arteries of the heart, only in emergency situations. Additionally, Memorial seeks to perform elective PCIs. Memorial, however, must be licensed under Washington's CON regulations before offering elective PCIs to patients.
Ninth Circuit Dismisses Pharmacy Benefit Managers' First Amendment Challenge to California Statute Mandating Disclosure of Pharmacies' Retail Drug Pricing Plan
William Pezzolo - [PDF]

The United States Court of Appeals for the Ninth Circuit held that a California statute, which requires pharmacy benefit managers (PBMs) to disclose the findings of a biannual drug pricing study to insurers, did not violate the First Amendment. PBMs are business entities that act as intermediaries between pharmacies and insurers. They reimburse pharmacies for submitted claims according to a networkwide rate that is lower than the rate generally paid by the pharmacies' uninsured, cash-paying customers. California Civil Code section 2527 compels PBMs to report pharmacies' pricing for private uninsured customers to insurers. This allows insurers to compare the PBMs' reimbursement rates against the prices that pharmacies actually charge customers.
Supreme Court Hears Whether Medicaid Recipients and Physician Providers May Invoke the Supremacy Clause to Sue California for Reducing Reimbursement Rates Without Adhering to Medicaid's Statutory Procedures
Michael J. Rugnetta - [PDF]

On October 3, 2011, the Supreme Court heard a consolidated appeal by the current Director of California's Department of Health Care Services ("Director"), the defendant appellant in three Ninth Circuit cases. The appeal focuses on whether individuals have a cause of action under the Supremacy Clause to enjoin California from implementing a Medicaid rate reduction, which does not comply with the Federal Medicaid Act's procedures.