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Describe the meaning and importance of the “no-duty” principle

By the end of this chapter, you will be able to:

Describe the meaning and importance of the “no-duty” principle

o Explain generally how the U.S. approach to health rights differs from that of other high-income countries

o Describe the types and limitations of individual legal rights associated with health care

Describe the balancing approach taken when weighing individual rights against the public’s health

Atthe turn of the 20th century, an Indiana physician named George Eddingfield repeatedly refused to come to the aid of Charlotte Burk, who was in labor, even though he was Mrs. Burk’s family physician. Doctor Eddingfield conceded at trial that he made this decision for no particular reason, and desplte the facts that he had been ~ffered monetary ~­ compensation in advance of his performing any medical services and that he was a·ware that no Other physician was available to provide care to Mrs .. Burk.. Unattehded by any medical providers, Mrs. Burk eventually fell gravely ill, and both she and her unborn child died. After a trial and subsequent appeals, Dr. Eddingfield was found to not have wrongfully caused either death.

in Health Health

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INTRODUCTION

The real-life scenarios in the vignette touch upon the key

issues you will confront in this chapter: namely, the ways in

which the law creates, protects, and restricts individual rights

in the contexts of health care and public health. Individuals

in society are deeply impacted by law on a daily basis, and

this fact is no less true when individuals navigate the health­

care system, or when an individual’s actions are measured against the broader interests ofthe public’s health. Over many

decades, legal principles have been rejected, developed, and

refined as the law continually struggles to define the appropri­

ate relationship between individuals and the physicians, hos­

pitals, managed care companies, and others they encounter in

the healthcare delivery system, and between individuals and

governmental sectors charged with protecting public health

..

· in Health Care and Public Health

and welfare. These balancing acts are made all the more dif­ ficult as the legal system bumps up against the quick pace of technological advancements in medicine and against amor­ phous, potentially deadly risks to the public’s health, such as bioterrorism and fast-spreading influenzas.

After a background section, this chapter considers indi­ viduallegal rights in health care, beginning with a brief over­ view of health rights under international and foreign law. This sets up a much lengthier discussion ofhealthcare rights in the United States, which for purposes ofthis chapter are classified according to an important distinction: legal rights to health care, and rights that individuals can claim only within the context ofthe healthcare system-that is, only once they have fuund a way to access needed care.’ Examples ofthe latter type of rights include the right to refuse unwanted treatment, the right to autonomy in making personal healthcare decisions,

and the right to be free from wrongful discrimination when receiving care. Finally, the chapter turns to a discussion of individual rights in the context ofgovernment-initiated public health efforts. This topic is dominated by the role and scope of government “police powers,” which permit governments, when acting to promote or protect public health, to curtail individual freedoms and liberties.

BACKGROUND Lurking behind any discussion ofindividual rights in a health context is one of the most basic principles in U.S. health law: Generally speaking, individuals have no legal right to healthcare services (or to public health insurance) and, cor­ respondingly, there exists on the part ofhealthcare providers no general, legal dnty to provide care. This is referred to as the “no-duty” or “no-duty-to-treat” principle, which is aptly described by the Indiana Supreme Court in the well-known case of Hurley v. Eddingfie/d,1 the facts of which we referred to in the first vignette at the opening of this chapter. In its decision, the court wrote that the state law permitting the granting of a medical license

provides for … standards of qualification … and penalties for practicing without a license. The [state licensing] act is preventive, not a com­

pulsive, measure. In obtaining the state’s license

{permission) to practice medicine, the state does

not require, and the licensee does not engage,

that he will practice at all or on other terms than he may choose to accept.2

In other words, obtaining a license to practice medicine

does not obligate an individual to actually practice, or to prac­ tice in a particular fashion or with a particular clientele; the

licensure requirement exists instead to filter out individuals

who may not have the requisite knowledge or skills to practice medicine. The same can be said for obtaining a law license, or

even a driver’s license: the former does not obligate a lawyer to

practice, or to choose certain types ofclients or cases; the latter

does not require that a person actually drive, or drive a certain

make of car. As with a medical license, the point of a law or

driver’s license is to guarantee that should the licensee choose to practice law or operate a motor vehicle, she is qualified to

do so. Furthermore, you will recall from the facts provided in the vignette that Dr. Eddingfield was Mrs. Burk’s family physician, and may ~elieve that this fact is enough to establish a sufficient legal relationship between the two to hold Dr. Ed­ dingfield accountable for the death of Mrs. Burk. However, the general legal rule is that physician-patient relationships are specific to “spells of illness” and that past treatment is not tantamount to an existingphysician-patient relationship.

Put another way, under the law a physician-patient relation­ ship does not exist as a general, continuous matter-even

with one’s family physician, internist, primary care physician,

etc.-but rather it exists for a specific period oftime and must

be established (or renewed) accordingly. Note that this basic premise-that there is no fundamen­

tal right to healthcare services in the United States-was not altered by the passage in 2010 of the Patient Protection and Affordable Care Act/ACA). While it is arguable that the ACA moves the country in a direction that makes a legal right to health care more plausible down the road,’ and there can be no arguing that it makes health care more accessible to mil­

lions of people by virtue of its health insurance reforms (as discussed later in this chapter and in greater detail elsewhere), it does not create a right to care.

As you begin to think through the significance and im­ plications of the no-duty principle, it is important to under­ stand that there are many other legal principles and health laws that define the relationship between an individual and another health system stakeholder (e.g., a physician, hospital, or government program). In fact, there are several federal and state laws that narrow the scope of the no-duty principle. For example, a federal law called the Examination and Treatment

for Emergency Medical Conditions and Women in Labor Act enables all individuals to access needed hospital care in medi­

cal emergencies, irrespective ofthe individual’s ability to pay

for that care or a hospital’s willingness to treat the individual. Also, both federal and state laws that generally prohibit cer­ tain forms of discrimination (say, based on race or disabil­

ity) apply with equal force in the context of health care, and might force an accessibility to health services that otherwise would. not exist. Furthermore, some public health insurance

programs-Medicaid and Medicare, most prominently­ create entitlements (a legal concept denoting a legal claim to something) to services for individuals who meet the programs’ eligibility criteria,” and some health insurance products obli­ gate physicians participating in the plan’s networks to extend care to plan members. Finally, some states have implemented universal healthcare coverage programs, such as Maine’s Di­ rigo Health Reform Act, which is designed to provide access to health coverage to every person in Maine.

When thinking about the law’s no-duty principle, you must also take into account the role of medical ethics, which might require more ofa healthcare professional than does the law. For example, no law mandates that licensed physicians aid a stranger in medical distress, but many believe an ethical obligation ex­

ists in this instance. And although legally the no-duty principle would dictate otherwise, many healthcare providers consider themselves ethically obligated to furnish at least some level of care to those who cannot pay for it. In short, although there is no universal legal right to health care in the United States, certain situations give rise to healthcare rights, and specific populations

may be entitled to health care or receive it purely through the magnanimity of ethics-conscious providers.

Perhaps because of the federal and state laws that chip away at the no-duty-to-treat principle, many students new to the study of health law erroneously assume that the principle is a legal anomaly, borne solely of the incredible historical power and autonomy ofthe medical profession and without modern precedent. In this case, it is instructive to place the principle in a broader “welfare rights” context. During the 1960s, public interest lawyers, social reform activists, and others pressed

for an interpretation of the federal Constitution that would have created an individual right to welfare. Under this view, the government must provide individuals with minimally adequate levels of education, food, housing, health care, and so on. 5 But in a series of cases, the Supr.eme Court rejected

the notion ofa constitutional right to welfare. Consider the right to education. Even though every state

provides free public schools and makes education for minors compulsory, there is no national, generalized legal right to education. In the case of San Antonio Independent School District v. Rodriguez,6 the Supreme Court ruled that educatio~ is not a fundamental right under the federal Constitution’s Equal Protection Clause. The plaintiffs in the Rodriguez case were Mexican-American parents whose children attended

elementary and secondary schools in an urban San Antonio school district. They had attacked as unconstitutional Texas’ system offinancing public education and filed the suit on be­ halfofschoolchildren throughout the state who were membe1~ of minority groups or who resided in relatively poor school

districts. But the Court turned the plaintiffs’ argument away, noting that although education is one of the most important services states perform, «it is not among the rights afforded explicit protection under our Federal Constitution. Nor do

we find any basis for saying it is implicitly so protected …. [T]he undisputed importance of education will not alone cause this Court to depart from the usual standard for review­ ing a State’s social and economic legislation:’ 7

In the wake of the Rodriguez decision, several states in­ terpreted their own constitutions as prohibiting inequitable methods of financing public education, thereby recognizing on some level a right to a minimally “meaningful” education. Subsequently, lawyers and social activists seeking to promote equal access to all manner of critical services seized on these

state determinations, arguing that an egalitarian approach to constitutional interpretation should not be limited to edu­ cation.8 Note, for example, how easily one author’s writings about the right to education could just as well have been writ­ ten with respect to health care:

Requiring an adequate education will help to fulfill our nation’s promise, articulated in Brown [v. Board of Education], that an individual be free to achieve her full potential. Ensuring edu­ cational adequacy will promote children’s emo­ tionalandintellectual development, their career path and earning potential and thus their suc­ cess throughout life. A meaningful education offers the hope that children can escape the deg­ radation of poverty and its lack of opportunity, and attain pride, participation in this country’s economic and political life, and financial and emotional success.9(P825)

However, efforts around ensuring adequate education have not been emulated in other social policy areas, such as health care. In fact, health care is treated not as a right, but as a commodity (like televisions or vacuum cleaners) subject to private market forces and socioeconomic status. During the public debate in 1993 over President Bill Clinton’s failed attempt at national health reform, U.S. Representative Dick Armey (R-TX) stated that “health care is just a commodity, just like bread, and just like housing and everything else.”1°CP102l But why should this be the case, particularly when the private health insurance market has presumably found equilibrium at a point that continually leaves tens of millions of Americans uninsured, and particularly because health care (like educa­ tion) is d~fferent from vacuum cleaners and other everyday goods in that it has “a fundamental bearing on the range of one’s opportunities to realize one’s life plans”?8<pso)

… in Health Care and Public Health

There is no single answer to the question of why health care is generally treated in this country as something less than an individual legal right. Many factors beyond the scope of this chapter are implicated: the nature and interpretation of the federal Constitution, politics, a weak labor movement,

powerful interest groups, the nation’s free market philoso­ phies, the public’s often negative view ofthe governm~nt, and more.U In this chapter, we limit the discussion to describing

the kinds ofhealth rights that do exist, how they operate in the context ofthe healthcare delivery system and when considered against government-initiated public health efforts. Before we explore in depth the scope of individual health-related rights under U.S. law, however, we briefly describe these same types of rights under international law and under the law of other countries. Through this-examination, we provide a backdrop

for understanding this country’s approach to legal rights in the context ofhealth.

INDIVIDUAL RIGHTS AND HEALTH CARE: A GLOBAL PERSPECTIVE Despite being the world leader in terms of the development ofmedical technologies and the quantity of medical services, the United States is one ofthe only high-income nations that does not guarantee health care as a fundamental right, and

it is the only developed nation that has not implemented a system for insuring at least all but the wealthiest segment of its population against healthcare costs.4CP3l In essence, other high-income nations with social democracies treat the provi­

sion ofhealth care as a social goodb (i.e., something that could be supported through private enterprise but is instead sup­ ported by the government and financed from public funds). And, it is worth noting that nations that provide universal healthcare entitlements have not been bankrupted as a re­

sult. In fact, according to Professor Timothy )ost, “all of the other developed nations spend less on health care than does the U.S., in terms of both dollars per capita and proportion of gross domestic product.”4(P3)

A foreign nation’s universal healthcare rights-whether an unlimited right to health, a right to medical care generally or to a basic package of services, a right to healthcare insur­

ance, or something else-exist under international human

rights principles or under its national constitution. When

recognized by governments, human rights accrue to all in­

dividuals because the rights are based upon the dignity and worth of the human being; thus, technically, a human right exists regardless of whether positive law (a constitution, a

statute) has given it expression. 12 Examples ofpositive expres­

sions ofhealth as a human right include Article 25 ofthe 1948 Universal Declaration of Human Rights, which states that “[e]

veryone has the right to a standard ofliving adequate for the health and well-being of himself and of his family, including … medical care … and the right to security in the event of . ..

sickness, disability,” and the Constitution of the World Health Organization, which says that “The enjoyment of the highest attainable standard of health is one of the fundamental rights qf every human being without distinction of race, religion,

political belief, economic or social condition.”

In terms ofnational constitutions, a 2004 survey reported

that some two-thirds ofconstitutions worldwide address health or health care, and that almost all of these do so in universal terms, rather than being limited to certain populations.13 For

example, consider the health-related constitutional aspects of four politically and culturally diverse countries-Italy, the Netherlands, South Africa, and Poland-that have some type of “right to health”: Italy’s Constitution guarantees a right to health; under the Dutch Constitution, the government is man­

dated “to promote the health of the population”; the Constitu­ tion of South Africa imposes on governmentthe obligation to provide access to health services; and under Polish constitu­

tional law, citizens are guaranteed “the right to health protec­ tion” and access to publicly financed healthcare services.14

Ofcourse, including language respecting health rights in a legal document-even one as profound as a national consti­

tution-does not guarantee that the right will be recognized or enforced. As in the United States, multiple factors might lead a foreign court or other tribunal to Construe rights-creating

language narrowly or to refuse to force implementation of

what is properly considered a right. Examples of these factors include the relative strength of a country’s judicial branch vis-a-vis other branches in its national governance structure

and a foreign court’s view of its country’s ability to provide

services and benefits inherent in the health right.

INDII!WUAL RIGHTS AND THE HEAlTHCARE SYSTEM

The “global perspective” you just read was brief for two rea­ sons. First, a full treatment ofinternational and foreign health rights is well beyond tbe scope of this chapter, and second, historically speaking, international law has played a limited role in influencing this nation’s domestic legal principles. As one author commented, “Historically the United States has

been uniquely averse to accepting international human rights standards and conforming national laws to meet them.”15(pli56)

This fact is no less true in the area ofhealth rights than in any other major area oflaw. As described earlier in this chapter, universal rights to health care are virtually nonexistent in the United States, even though this stance renders it almost solitary among industrialized nations of the world.

This is not to say that this country has not contemplated health care as a universal, basic right. For instance, in 1952, a presidential commission stated that “access to the means for attainment and preservation of health is a basic human right.”16CP4) Medicaid and Medicare were the fruits of a na­

tionwide debate about universal healthcare coverage. And during the 1960s and 1970s, the claim that health care was not a matter ofprivilege, but rather of right, was “so widely acknowledged as almost to be uncontroversial.”17(P389l Nor is it to say that certain populations do not enjoy healthcare

rights beyond those of the general public. Prisoners and others under the control of state governments have a right to minimal health care,18 some state constitutions expressly recognize a right to health or healthcare benefits (for ex­ ample, Montana includes an affirmative right to health in its constitution’s section on inalienable rights), and individuals

covered by Medicaid have unique legal entitlements. Finally, it would be inaccurate in describing healthcare rights to only cover rights to obtain health care in the first instance, be­ cause many important healthcare rights attach to individu­

als once they manage to gain access to needed healthcare services.

The remainder of this section describes more fully the various types of individual rights associated with the health­ care system. We categorize these rights as follows:

1. Rights related to receiving services explicitly provided under healthcare, health financing, or health insurance laws; for example, the Examination and Treatment for E~ergency Medical Conditions and Women in Labor Act, Medicaid, and the Affordable Care Act.

2. Rights concerning freedom of choice and freedom from govern1nent interference when making healthcare deci­ sions; for example, choosing to have an abortion.

Individual Rights and the Healthiar;Sy~F~DtiJ

3. The right to be free from unlawful discrimination when accessing or receiving health care; for example, Title VI of the federal Civil Rights Act of 1964, which prohibits discrimination on the basis ofrace, color, or national ori­ gin by entities that receive federal funding.I2(pi2),I9

Rights Under Health care and Health Financing laws

We begin this discussion of rights-creating health laws with the Examination and Treatment for Emergency Medical Conditions and Women in Labor Act (also referred to as EMTALA, which is the acronym for the law’s original name­ the E1nergency Medical Treatment and Active Labor Act-or, for reasons soon to become clear, the “patient anti-dumping statute”). We then briefly discuss the federal Medicaid pro­ gram in a rights-creating context and wrap up this section with a brief discussion ofthe ACA.

Rights Under Health Care Laws: Examination and Treatment for Emergency Medical Conditions and Women in Labor Act

Because EMTALA represents the only truly universal legal right to health care in this country-the right to access emergency hospital services-it is often described as one of the building blocks of health rights. EMTALA was en­ acted by Congress in 1986 to prevent the practice of “patient dumping”-that is, the turning away of poor or uninsured

persons in need ofhospital care. Patient dumping was a com­ mon strategy among private hospitals aiming to shield them­ selves from the potentially uncompensated costs associated with treating poor and/or uninsured patients. By refusing to treat these individuals and instead “dumping” them on

public hospitals, private institutions were effectively limiting their patients to those whose treatment costs would likely be covered out-of-pocket or by insurers. Note that the no-duty principle made this type of strategy possible.

EMTALA was a conscious effort on the part of elected federal officials to chip away at the no-duty principle: By

creating legally enforceable rights to emergency hospital care for all individuals regardless of their income or health insur­

ance status, Congress created a corresponding legal duty of care on the part of hospitals. At its core, EMTALA includes two related duties, which technically attach only to hospitals that participate in the Medicare program (but then again, nearly every hospital in the country participates). The first duty requires covered hospitals to provide an “appropriate” screening examination to all individuals who present at a hos­ pital’s emergency department seeking care for an “emergency

medical condition.” Under the law, an appropriate medical

G’llfc~¥f1:;/6 I~diyidu;l Rightsin Health Care and Public Health

screening is one that is nondiscriminatory and that adheres to a hospital’s established emergency care guidelines. EMTALA defines an emergency medical condition as a

medical condition manifesting itself by acute symptoms of sufficient severity (including se­ vere pain) such that the absence of immediate medical attention could reasonably be expected to result in (i) placing the health of the indi­ vidual (or, with respect to a pregnant woman,

the health of the woman or her unborn child) in serious jeopardy, (ii) serious impairment to

bodily functions, or (iii) serious dysfunction of any bodily organ or part; or with respect to a pregnant womap who is having contractions, that there is inadequate time to effect a safe transfer to another hospital before delivery, or that transfer may pose a threat to the health or safety of the woman or the unborn child.20

The second key duty required ofhospitals under EMTALA is to either stabilize any condition that meets the above defini­

tion or, in the case of a hospital without the capability to treat the emergency condition, undertake to transfer the patient to

another facility in a medically appropriate fashion. A proper transfer is effectuated when, among other things, the trans­

ferring hospital minimizes the risks to the patient’s health by providing as much treatment as is within its capability, when a receiving medical facility has agreed to accept the transferred patient, and when the transferring hospital provides the re­ ceiving facility all relevant medical records.

The legal rights established under EMTALA are accom­ panied by heavy penalties for their violation. The federal gov­ ernment, individual patients, and ”dumped on” hospitals can all initiate actions against a hospital alleged to have violated EMTALA, and the federal government can also file a claim for civil money penalties against individual physicians who negligently violate an EMTALA requirement.

Rights Under Healthcare Financing Laws: Medicaid

Many laws fund programs that aim to expand access to health care, such as state laws authorizing the establishment of public hospitals or health agencies, and the federal law establishing the vast network ofcommunity health clinics that serve medi­ cally underserved communities and populations. However,

the legal obligations created by these financing laws are gener­ ally enforceable only by public agencies, not by individuals.

The Medicaid program is different in this respect. (Med­ icaid has been covered elsewhere in greater depth, but because

of its importance in the area of individual healthcare rights,

we mention it also in this context.) Although most certainly a law concerning healthcare financing, Medicaid is unlike

most other health financing laws in that it confers the right to individually enforce program obligations through the courts.21(PP419-42<1) This right ofindividual enforcement is one

ofthe reasons why Medicaid, nearly 50 years after its creation, remains a hotly debated public program. This is because the legal entitlements to benefits under Medicaid are viewed as

a key contributor to the program’s high cost. Yet whether Medicaid’s legal entitlements are any more of a factor in the program’s overall costs than, say, the generally high cost of health care, is not clearly established.

Rights Under Health Insurance Laws: The Affordable Care Act

As you will learn in subsequent chapters, the ACA is far more than a law that just concerns health insurance; in fact, it is a sweeping set of reforms that touch on healthcare quality, public health practice, health disparities, community health centers, healthcare fraud and abuse, comparative effectiveness research, the health workforce, health information technol­ ogy, long-term care, and more. However, for purposes ofthis

chapter, we mention it briefly it in terms of its impact on the rights of individuals to access health insurance and to equitable treatment by their insurer. Details concerning the ACks effect on the public and private insurance markets are

discussed elsewhere.

Through a series ofmajor reforms to existing policies, the ACA reshapes the private health insurance market, transform­ ing private health insurance from a commodity that regularly classified (and rejected) individuals based on their health sta­ tus, age, disability status, and more into a social good whose availability is essential to individual and population health. 22

The key elements ofthis shift include: a ban on exclusion and discrimination based on health status or pre-existing health conditions; new protections that ensure that, once covered by insurance, individuals will have access to necessary care without regard to artificial annual or lifetime expenditure caps; a guarantee that once insurance coverage is in place, it cannot be rescinded except in cases of applicant fraud; a ban

on additional fees for out-of-network emergency services; the

provision (by 2019) offinancial subsidies for an estimated 19 million low- and moderate-income individuals and for some

4 million small businesses; the inclusion> in the individual

and small group insurance markets, of a package of “essen­

tial health benefits” that must be covered; and the creation of state health insurance “exchanges” through which individuals and small employer groups can purchase high-quality health

insurance in a virtual marketplace that is substantially regu­ lated and that simplifies the job oflearning about, selecting, and enrolling in insurance plans.

The ACA also reforms the public health insurance mar­ ket, primarily through an expansion ofMedicaid eligibility to cover all non-elderly low-income persons who are legal resi­ dents or citizens. This reform essentially closes Medicaid’s last remaining coverage gap for the poor-namely, the program’s

historical denial of coverage for non-pregnant, working-age adults without minor children-and in so doing promises in­ surance coverage (and the resulting access to health care that often follows coverage) to an additional16 million people.

Rights Related to Freedom of Choice and Freedom from Government Interference

EMTALA and Medicaid are remarkable in terms ofthe rights to health care that they each provide, though as mentioned earlier in this chapter, individual rights that attach within the context ofhealthcare provision can be equally important. Important individual rights within health care include the right to make informed healthcare decisions and the right to personal privacy and autonomy.

The Right to Make Informed Healthcare Decisions

One ofthe most important healthcare rights is the right ofin­ dividual patients to make informed decisions about the scope and course oftheir own care. This includes the right to refuse treatment, regardless of the treatment’s nature or urgency: The right to refuse treatment exists whether the patient is considering ingesting prescribed medication for minor pain,

to undergo a minimally invasive test or procedure, or to con­ sent to a major, potentially life-sustaining operation like the removal of a brain tumor. However, the right pertaining to informed decision making does not come without qualifiers and exceptions, as described below.

Modern notions ofinformed consent have their roots in the Nuremberg Code, which derived from the Nuremberg trials in the late 1940s ofGerman physicians who performed horrendous experiments on prisoners in Nazi concentratiqn camps during the Second World War. The code spells out principles of research ethics, including the need to secure in advance the voluntary consent of the research subject. These principles have been codified and expanded in American federal statutory and regulatory law concerning federally funded biomedical research. 23 But if the Nuremberg Code can be thought of as the roots of U.S. informed consent law, then the decision in Canterbury v. Spence24 can be thought of as the trunk.

In 1959, jerry Canterbury was a 19-year old suffering from severe back pain. His neurosurgeon, Dr. William Spence, informed him that he would need a laminectomy-a surgical procedure where the roof of spinal vertebrae are removed or trimmed to relieve pressure on the spinal cord-to correct

what the doctor believed was a herniated disc. However, Dr. Spence did not inform Canterbury of any risks associated with the surgery. The day after the operation, while appear­ ing to recuperate normally, Canterbury fell from his hospital bed while no attendant was on hand and a few hours later began suffering paralysis from the waist down. This led to a second spinal surgery, but Canterbury never fully recovered; years later, he needed crutches to walk and he suffered from paralysis of the bowels.

Canterbury sued Dr. Spence, alleging negligence in both the performance ofthe laminectomy and the doctor’s failure to disclose risks inherent in the operation. The federal trial judge ruled in Dr. Spence’s favor and Canterbury appealed, setting the stage for the now-famous decision in 1972 by the federal Court ofAppeals for the District ofColumbia Circuit (considered second in national importance to the Supreme Court).c The decision includes two important determina­ tions pertinent to this chapter. The first is that “as a part of the physician’s overall obligation to the patient, [there exists a] duty ofreasonable disclosure ofthe choices with respect to proposed therapy and the dangers inherently and potentially involved.”25 The court viewed this duty as a logical and modest extension ofa physician’s existing general duty to his patients. Importantly, the court discarded the notion that “the patient should ask for information before the physician is required to disclose.”26 In other words, the duty to disclose requires more than just answering patient questions; it demands voluntary disclosure on the part of the physic1an of pertinent medical information.

The Canterbwy court’s second key determination con­ cerns the actual scope of the disclosure required-in other words, once the physician’s duty to disclose is triggered, what information satisfies the legal requirement? On this matter the court made several observations: that the patient’s right of”self-decision” is paramount, that the right to consent can be properly exercised only if the patient has sufficient infor­ mation to make an “intelligent choice,” that the sufficiency test is met when all information “material to the decision” is disclosed, and that the disclosure’s legality should be mea­ sured objectively, not subjectively from the perspective of a particular physician or patient. From these observations, the court settled on three required pieces of disclosed informa­ tion: a proposed treatment’s inherent and potential risks, any alternatives to a proposed treatment, and the likely outcome

~f’~¥J~t~~·~.}il~clivi<l~al Rights in Health Care and Public Health

of not being treated at all. Applying these criteria, the court ruled that Dr. Spence’s failure to disclose even the tiniest risk ofparalysis resulting from the laminectomy entitled Canter­ bury to a new trial.

As mentioned earlier, the right to make informed health­ care decisions is not boundless. For example, the court in Canterbwy wrote that where disclosure of a treatment’s risks would pose a threat ofharm to the patient (for example, because it would severely complicate treatment or psycho­ logically damage the patient) as to become “unfeasible or contraindicated from a medical point ofview,” the physician’s duty to disclose could be set aside. Furthermore, a patient’s competency from a legal vantage point plays a major role in her ability to consent to treatment.

The Canterbury decision, and subsequent decisions based on it, have over the years been interpreted expansively, and today the right to make informed healthcare decisions has many facets beyond a clear explanation of proposed treat­ ments, potential risks and complications, and the like. For example, patients have the right to know whether outside factors, like research interests or financial considerations, are coloring a physician’s thinking about a proposed course of treatment; patients whose first language is not English have the right to an interpreter; and patients have the right to des­ ignate in advance their treatment wishes, whether through written advance directives or another individual.

The Right to Personal Privacy

Another right related to freedom of choice/freedom from government interference is the constitutional right to per­ sonal privacy. Although the federal Constitution makes no

explicit mention of the right to privacy, the Supreme Court has recognized some form ofit since the 1890s.d The Court has taken a more or less two-pronged approach to the right. The first defines the protected personal interest as “informational privacy,” meaning the limiting of others’ access to and use of an individual’s private information.e The second approach is ~;oncerned with individual autonomy and freedom from gov­ ernmental interference in making basic personal decisions, and is the type of privacy right focused on in this section. This right is one of the most debated in law, both because of its implicit nature (constitutionally speaking) and because it has served as the legal underpinning ofseveral divisive social issues, including abortion, intimate associations, and the deci­ sions as to whether, when, and how to end one’s life.

The right to privacy achieved prominence beginning with the Supreme Court’s landmark 1965 decision in Griswold v. Connecticut,27 in which the Court considered the constitution­ ality ofa state law criminalizing the provision ofcontraception to married couples. In the early 1960s, Estelle Griswold, the Executive Director ofthe Planned Parenthood League ofCon­ necticut, and one of her colleagues were convicted of aiding and abetting “the use of a drug, medicinal article, or instru­ ment for the purpose ofpreventing conception” by providing contraceptives to a married couple in violation ofConnecticut law. The Court determined that although the Constitution does not explicitly protect a general right to privacy, certain provisions in the Bill ofRights create “penumbras,” or zones, ofguaranteed privacy, and that Connecticut’s law constituted an undue intrusion into one of these zones (i.e., marriage).28

After the Griswold decision, advocates of the constitu­ tional right to privacy flooded the federal courts with cases de­ signed to expand the scope ofthe right. Quickly, laws banning interracial marriage were struck down, 29 as were laws prohibit­ ing unmarried individuals from using contraception.30 At the same time, federal courts were confronted with cases asking them to determine how the right to privacy applied in the context of abortion. The remainder of this section analyzes the courts’ response to this particular issue. We selected the constitutional right to abortion as the focal point of the right to privacy discussion because it is not only one of the most contested rights in a health context, but also one of the most contested areas of public policy generally.

The Roe v. Wade Decision Few judicial decisions have affected this country’s legal, political, and social landscape as much as Roe v. Wade. 31 In 1970, an unmarried pregnant woman filed a lawsuit under the pseudonym “Roe” challenging the constitutionality of a Texas criminal law that prohibited procuring or attempting an abortion at any stage ofpregnancy,

Individual Rights and the Health:C:ilf~sf:#:~~ JllliD

exceptfor the purpose of saving the pregnant woman’s life. Roe was joined in the lawsuit by a doctor who performed abortions in violation of the law. They argued that the constitutional right to privacy articulated in Griswold and its progeny included a woman’s right to choose to obtain an abortion. Texas, through district attorney Henry Wade, claimed that the law was permissible because the state had a compelling interest in protecting women from an unsafe medical procedure and in protecting prenatal life. The federal trial court agreed with Roe and declared the law unconstitutional, and Texas immediately appealed to the U.S. Supreme Court, which agreed to hear the case (in rare circumstances, the Supreme Court will hear a

case without an intermediate appellate court ruling.).

At the Supreme Court, the work of drafting the majority opinion in Roe v. Wade fell to Justice Harry Blackmun, who earlier in his legal career had been counsel to a well-known

and highly regarded medical clinic. By a 7-2 margin, the Court ruled that the constitutional right to privacy, which in its view most strongly emanates from the Fourteenth Amend­

ment’s due process protections, is broad enough to encompass a woman’s decision to terminate her pregnancy.

Once the Court established that a woman has a consti­ tutional right to obtain an abortion, it went on to discuss the

limits ofthat right. Roe had argued that the right to obtain an abortion is absolute, and that no state or federallaw abridging the right could be enacted. The Court did not agree. Justice Blackmun wrote that states have both an interest in protecting

the welfare ofits citizens and a duty to protect them, and that the dnty extends to the unborn. According to the Court, “a State may properly assert important interests in safeguarding

health, in maintaining medical standards, and in protecting

potential life. At some point in pregnancy, these respective

interests become sufficiently compelling to sustain regulation

ofthe factors .that govern the abortion decision.”” The Court then linked both a woman’s “right to choose” and states’ inter­ est in protecting potential life to the viability of the fetus, set­ ting forth the following “trimester framework” that enhances state power to regulate the abortion decision and restricts a

pregnant woman’s right as the fetus grows older:

a. For the stage prior to approximately the end of the fir;! trimester, the abortion decision and its effectuation must

be left to the medical judgment ofthe pregnant woman’s attending physician.

b. For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in

the health of the mother, may, if it chooses, regulate the abortion pro~edure in ways that are reasonably related

to maternal health.

c. For the stage subsequent to viability, the State, in promot­ ing its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except

where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. 33

As a matter of both policy and law, the Roe decision has been vigorously criticized. 34- 37 For example, detractors claim

that the Court improperly made social policy by “finding” an expansive constitutional right to privacy (one broad enough

to include the right to terminate a pregnancy) where one did not expressly exist. As a legal matter, many have argued that the decision relied too heavily on medical concepts that would be rendered obsolete as medical technology advanced and that would, in turn, result in a narrowing ofthe constitutional right advanced in the decision.f

Regardless ofthese and other criticisms, the Roe decision was monumental beyond its legal implications. It galvanized political forces opposed to abortion and prompted a move­

ment to create ways to discourage the practice through state

policies designed to regulate the factors involved in the abor­ tion decision. For example, as described next, Pennsylvania

enacted a law that imposed a series ofrequirements on women

seeking abortion services, and it was this law that nearly 20

years after Roe set the stage for another battle at the Supreme Court over abortion and the right to privacy.

The Planned Parenthood of Southeastern Pennsylvania v. Casey Decision At issue in the 1992 case of Planned Parenthood of Southeastern Pennsylvania v. Casey38 were several amendments to Pennsylvania’s Abortion Control Act

that made it more difficult for a pregnant woman to obtain an abortion: one provision required that a woman seeking

an abortion be provided with certain information at least 24

hours in advance ofthe abortion; a second stated that a minor

seeking an abortion had to secure the informed consent ofone

ofher parents, but included a “judicial bypass” option if the minor did not wish to or could not obtain parental consent; a

third amendment required that a married woman seeking an

abortion had to submit a signed statement indicating that she

had notified her husband of her intent to have an abortion,

though certain exceptions were included; and a final provision

imposed new reporting requirements on facilities that offered

abortion services. The revised law exempted compliance with these requirements in the event of a “medical emergency.”

Before any of the new. provisions took effect, they were challenged by five Pennsylvania abortion clinics and a group of physicians who performed abortions. The federal trial court struck down all of the provisions as unconstitutional

@Mi~£ij~~}ftlp Indivldual Rights i.n Health Care and Public Health

violations under Roe. On appeal, the Third Circuit Court of Appeals reversed and upheld all of the provisions, except for the husband notification requirement, as constitutional. The

plaintiffs appealed to the Supreme Court, which agreed to hear the case.

The Court’s 5-4 decision in favor ofthe plaintiffs in Casey expressly acknowledged the widespread confusion over the meaning and reach of Roe, and it used its opinion in Casey to provide better guidance to legislatures seeking to regulate

abortion as a constitutionally protected right. Specifically, the Court in Casey sought to define more precisely both the constitutional rights of pregnant women and the legitimate authority of states to regulate some aspects of the abortion decision. The deeply divided Court wrote:

It must be stated at the outset and with clar­ ity that Roe’s essential holding, the holding we reaffirm, has three parts. First is a recognition

of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viabil­ ity, the State’s interests are not strong enough to support a prohibition of abortion or the impo­

sition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, ifthe law contains exceptions for pregnancies which endanger the

woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contra­ dict one another; and we adhere to each.39

Notice how, in interpreting Roe, the Court in Casey makes some remarkable alterations to the contours of the

right to choose to have an abortion. First, trimesters were re­

placed by fetal viability as the regulatory touchstone. Second, the pregnant woman, not her attending physician, effectuates

the abortion decision. Third, a state’s interest in protecting

pregnant women and fetuses now attaches “from the outset of

the pregnancy,» not at the beginning ofthe second trimester.

Fourth, and perhaps most important, the Court’s invalidation ofthe trimester framework enabled the establishment of a new “undue burden” standard for assessing the constitutionality

ofstate abortion regulations. Under this new standard, a state

may not prohibit abortion prior to fetal viability, but it may promulgate abortion regulations as long as they do not pose a <<substantial obstacle” to a woman seeking to terminate a

pregnancy. The Court did not, however, alter its decision in

Roe that, po~t-viability, a state may proscribe abortion except when pregna:Q-cies endanger a woman’s life or health. Taken

together, these alterations both maintain a pregnant woman’s

basic constitutional right to obtain an abortion pre-viability,

and enhance state interest in protecting the potentiality for

,human life. Once the Court established the undue burden standard

for assessing the constitutionality of state abortion regula­

tions, it applied the standard to each constitutionally ques­ tionable amendment to Pennsylvania’s Abortion Control Act.

In the end, only the spousal notification provision was struck

down as an unconstitutional burden; the Court determined

that some pregnant women may have sound reasons for not

wishing to inform their husbands oftheir decision to obtain an abortion, including fear ofabuse, threats offuture violence,

and withdrawal of financial support. As a result, the Court equated the spousal notification requirement to a substantial

obstacle because it was likely to prevent women from obtain­

ing abortions.

The Court majority in Casey provided a new template for lower courts to use in deciding the constitutionality of state

abortion regulations. Likewise, the opinion offered guidance

to state legislatures as to what kinds of abortion restrictions

were likely to withstand a constitutional attack. Nonetheless, some state legislatures have tested the boundaries ofCasey by enacting bans on a procedure known as “partial birth” abor­

tion, an issue to which we now turn.

The Stenbergv. Carhart Decision The undue burden standard articulated in Casey for assessing the constitutionality of abortion regulations was put to the test in Stenbag v. Carhart.40

At issue in the case was a Nebraska criminal law banning

«an abortion procedure in which the person performing the

abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery.” It further defined “partially delivers vaginally a living unborn child before killing the unborn child” to mean “deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such

procedure knows will kill the unborn child and does kill the unborn child.” The Nebraska law penalized physicians who performed a banned abortion procedure with a prison term

of up to 20 years, a fine of up to $25,000, and the automatic revocation of the doctor’s license to practice medicine in

Nebraska. Dr. Leroy Carhart, a Nebraska physician who per­

formed abortions, filed a lawsuit seeking a declaration that

the Nebraska law violated the constitutional principles set forth in Roe and Casey. After a lengthy trial, a federal district court agreed with Dr. Carhart and declared the Nebraska law unconstitutional. The Court ofAppeals for the Eighth Circuit agreed, concluding that Nebraska’s statute violated the Con­ stitution as interpreted by the Supreme Court in Casey. The Supreme Court then granted review.

The Court was unequivocal in its opinion in Stenberg that the case was not a forum for a discussion on the propri­

ety of Roe and Casey, but rather an application of the rules stated in those cases. In applying the undue burden standard to pre-viability abortions, the Court considered trial court testimony from expert witnesses regarding several different

abortion procedures then-current in medical practice to flesh

out the procedures’ technical distinctions and to determine whether the procedures fell within Nebraska’s definition of “partial birth” abortion. The Court determined that two dis­ tinct abortion procedures were relevant-dilation and evacu­

ation (D&E), and dilation and extraction (D&X)-and that the Nebraska law’s vague definition of”partial birth” abortion effectively banned both procedures.

Again by a 5-4 majority, the Supreme Court struck down the Nebraska law as unconstitutional on two separate grounds. First, the Court concluded that the statute created an undue burden on women seeking pre-viability abortions.

The Court reasoned that banning the most commonly used method for pre-viability second trimester abortions-the D&E procedure-unconstitutionally burdened a woman’s

ability to choose to have an abortion. Second, the Court in­ validated the state law because it lacked an exception for the preservation ofthe-h£a!th of the pregnant woman. The Court rejected Nebraska’s claim that the banned procedures were never necessary to maintain the health ofthe pregnant woman

and held that “significant medical authority” indicated that the D&X procedure is in some cases the .$afest abortion pro­

cedure availableY

At the time Stenberg was decided, nearly 30 states had laws restricting D&E- and D&X-type abortions in some man­ ner. Attempts to enact bans on these abortion procedures,

however, have not been made only by state legislatures. Con­ gress has tried numerous times to promulgate a federal ba~, and after Stenbergwas handed down, congressional opponents

to abortion vowed to craft a ban that would pass constitutional

muster. This effort culminated in the Partial Birth Abortion Ban Act of2003 (PBABA).

Partial Birth Abortion Ban Act of2003 PBABA represents Congress’s tbird attempt since 1996 to ban “partial birth” abortions. Previous bills were vetoed by President Bill Clinton

Individual Rights and the HealthcareS~~t~rnJAfM

in 1996 and 1997, but in late 2003, PBABA easily passed both houses of Congress and was signed into law by President George W. Bush. Immediately, the constitutionality ofPBABA was challenged in federal court, and the Supreme Court ultimately decided the law’s fate in 2007, as described below.

PBABA establishes criminal penalties for “[a]ny physi­ cian who … knowingly performs a partial birth abortion and thereby kills a human fetus.”42 Attempting to avoid the definitional vagueness that affected the Nebraska law’s con­ stitutionality, the drafters ofthe federallaw used more precise language in an effort to ban only D&X procedures, although PBABA does not specifically refer to any medical procedure by name. Instead, the law defines a “partial birth” abortion as:

An abortion in which the person performing the abortion deliberately and intentionally vagi­ nally delivers a living fetus until, in the case of a headfirst presentation, the entire fetal head is outside the body of the mother, or, in the case of a breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose ofperforming an overt act that the person knows will kill the partially delivered living fetus.43

Furthermore, PBABA contains an exception allowing for

these otherwise illegal abortions when necessary to protect a pregnant woman’s life, but not health. The law’s authors claim that the banned procedure is never necessary to protect

the health of a pregnant woman and thus that an exception is not required.

Separate lawsuits challenging PBABA were filed in federal courts in California, Nebraska, and New York. All three fed­ eral trial courts concluded that the lack of a health exception necessarily rendered the law unconstitutional under Supreme

Court precedent. With enforcement of PBABA halted, the federal government appealed all three cases. The appellate courts that examined PBABA all found that substantial medi­ cal authority exists supporting the necessity of the banned procedure and declared PBABA unconstitutional because of its lack ofa healtb exception. As noted, the fate ofPBABA was then decided by the Supreme Court.

The Gonzales v. Carhart Decision The Supreme Court upheld the constitutionality of the PBABA in Gonzales v. Carhart another 5-4 decision. The Court rejected the reasoning of the appellate courts and found that the PBABA was not on its face vo!d for vagueness and did not pose an undue burden

on the right to receive an abortion under Casey. Although the Court reaffirmed again the various basic principles of

Roe and Casey-that women have an unfettered right to an abortion pre-viability, that the government has the power to restrict abortions post-viability, and that the government has

an interest from the outset of pregnancy in protecting the health of the woman and the fetus-the Court in Carhart focused on the latter and held that the government’s legitimate interest in promoting fetal life would be hindered if the act was invalidated.

The Court first ruled that the PBABA was not void for vagueness simply because the law prohibits performing intact D&Es. According to the Court, the law puts doctors on notice ofthe prohibited conduct by adequately describing the intact D&E procedure and requiring that the doctor have knowl­ edge that he is performing the intact D&E for the purpose of destroying the fetus. The Court also found that the PBABA did not impose an undue burden for being overly broad. To distinguish it from the Nebraska law in Stenberg, the Court majority stated that the PBABA targets extraction of the en­ tire fetus, as opposed to the removal of fetal pieces beyond a specific anatomical point in the pregnant woman.

The Court then held thatthe PBABA did not pose a “sub­ stantial obstacle, to obtaining an abortion under Casey’s undue burden test. According to the Court, the ban on partial · birth abortions furthers the governn1ent’s interest in protect­

ing fetal life and the government has the ability to prohibit practices ending fetallife that are similarto condemned prac­ tices. Finally, in a major shift that received relatively little attention by the Court majority, the Court ruled that the fact that the PBABA did not contain language protecting the health of the woman did not render the law unconstitutional. Deferring to Congress because there are other safe procedures

besides intact D&E that a doctor may use to perform an abor­ lion and because according to the Court the PBABA promotes fetal life, the Court simply declared the law constitutional notwithstanding the missing language.

The Right to Be Free from Wrongful Discrimination

We now transition to the final topic in the discussion ofindi­ viduallegal rights to and within health care, namely, the topic ofhealthcare discrimination.g Like discrimination generally, healthcare discrimination has a lurid and lengthy history in this country. Prior to the Brown v. Board ofEducation deci­ sion in 1954 and the Civil Rights Movement of the 1960s, healthcare injustice and exclusion based on race and other

factors were commonplace, dating to slavery times and plan­

tation-based racially segregated health care. After the end of the First Reconstruction, states passed so-called Jim Crow

laws, cementing in place legally segregated health care. As a

result, hospitals, physician practices, medical/nursing/dental schools, and professional medical societies were all separated

based on race. In places where Jim Crow laws had not been passed, corporate bylaws and contracts between private par­

ties often had the same discriminatory effect, and these ‘(Jim

Crow substitutes” were generally honored and enforced by t)le courts that interpreted them.

Federal law also played a role in perpetuating racially segregated health care. For example, the Hospital Survey and Construction Act of 1946 (more commonly known as the Hill-Burton Act, after the key congressional sponsors of the measure) provided federal money to states to build and refur­ bish hospitals after World War II, but explicitly sanctioned the construction of segregated facilities:

A hospital will be made available to all persons residing in [its] territorial area … without dis­ crimination on account ofrace, creed, ‘or color,

but an exception shall be made in cases where separate hospital facilities are provided for separate population groups, if the plan makes equitable provision on the basis of need for fa­ cilities and services oflike quality for each such group.44

This provision was not ruled unconstitutional until the

1963 case of Simkins v. Moses H. Cone Memorial Hospital, which has been referred to as the “Brown v. Board ofEducation of health care.'”‘ Simkins also helped fuel the passage of the Civil Rights Act of 1964, this country’s most important civil rights legislation of the 20th century. For purposes of health care, Title VI ofthe 1964 Act was ofspecific importance. Title VI is discussed in more depth later in this chapter; in sum, this

portion of the Civil Rights Act makes it illegal for programs and activities that receive federal funding to discriminate on

the basis ofrace, color, or national origin.

Notwithstanding the healthcare rewards brought about by the civil rights movement-Title VI, the passage of Med­ icaid and Medicare, the establishment of federally financed community health centers-the focus on healthcare civil

rights was waning as early as 1968. Several factors led to this decline, but what is most striking is that compared to the progress made by public and private civil rights efforts over the past 45 years in education, employment, and housing, civil rights enforcement in the healthcare field has been anything but sustained.

Of course, even an enduring and well-funded enforce­ ment effort is no guarantee ofwiping out discrimination, re­

gardless ofits social context. There are, unfortunately, vestiges of discrimination in many important aspects of American society, including the healthcare system. Moreover, although historically healthcare discrimination on the basis ofrace and ethnicity has received the most attention, the existence of discrimination in health care on the basis of socioeconomic

status, disability, age, and gender also raise troubling ques­ tions. The remainder of this section touches briefly on each of these areas, describing laws (where applicable) or legal theories used to combat the particular healthcare discrimi­ nation at issue.

RacejEthnicity Discrimination

The fact that healthcare discrimination premised on race or ethnicity has dominated the healthcare civil rights land­

scape should not be surprising, because racist beliefs and customs have infected health care no less so than other areas of life, such as education, employment, and housing. This fact is chronicled to a staggering degree by W. Michael Byrd

and Linda A. Clayton,46•47 two physician-researchers at the Harvard School of Public Health. Byrd and Clayton paint a complex and disturbing picture of a healthcare system that itself perpetuates racism in health care in three distinct ways: by not destroying the myth that minority Americans should be expected to experience poorer health relative to Cauca­ sians; by organizing itself as a private, for-profit system that marginalizes the indigent and minorities; and by refusing to acknowledge the historical and ongoing problem of racial exclusion in health care.

One key problem that in part results from the design of the healthcare system is that of racial and ethnic health disparities-differences in healthcare access, treatment, and outcomes between populations of color and Caucasians. In 2003, the Institute ofMedicine (!OM) released an influential

report that included overwhelming evidence of racial and ethnic health disparities and documented that these dispari­ ties could not be explained solely by the relative amount of health care needed by populations of color and nonminority populations.48 For example, the report concluded that African Americans are relatively less likely to receive treatment for

early-stage lung cancer, publicly insured Latinos and African

Americans do not receive coronary artery bypass surgery at rates comparable to publicly-insured nonminorities, and La­ tino and African-American children on Medicaid experience relatively higher rates of hospitalization.

Furthermore, the !OM study revealed that even when relevant patient characteristics are controlled for, racial and ethnic differences arise not only in terms of accessing care

initially, but also after individuals have entered the healthcare system, a finding that supports the notion thatboth the system itself and physician practice style contribute to disparities. This notion is, of course, quite controversial, because it sug­ gests that physician decision making and clinical practice can increase the likelihood of racially disparate outcomes.

The key law used to combat race and ethnicity discrimi­

nation in health care is Title VI of the 1964 Civil Rights Act,49

which states that “[n]o person in the United States shall, on the ground ofrace, color, or national origin, be excluded frmn participation in, be denied the benefits of, or be subjected

to discrimination under any program or activity receiving federal financial assistance.”50 Because it only attaches to recipients of federal funding, Title VI does not reach, for ex­ ample, health professionals who do not directly participate in government-sponsored health programs (nor does it reach

physicians whose only participation in federal assistance pro­ grams is under Medicare Part B; the basis for this exemption is historical and purely political, and the exemption is not codified in Title VI statutory or regulatory law”(ppl15-t2B)).

Nonetheless, Title VI has long had the potential to greatly impact the field ofhealth care, because an enormous amount

offederal funding has been poured into the healthcare enter­ prise over the past 40-plus years.

The concept of”discrimination” under Title VI applies both to intentional acts and to actions or policies that unin­ tentionally have the effect of discriminating against racial and ethnic minorities. This is so because federal regulations

implementing the Title VI statute (which explicitly only pro­ hibits intentional discrimination) reach actions that, even if neutral on their face, have a disproportionate adverse impact (or effect) on members of minority groups. In the case of healthcare access and delivery, you can imagine several types of conduct that might potentially violate the Title VI dispro­ portionate impact regulations. For example, were a hospital to segregate patients by source ofpayment-say, bymaintain­ ing a ward or floor that only treated patients covered under Medicaid-this might have the effect of adversely impacting racial and ethnic minorities, given the overall makeup ofthe Medicaid population. Similarly, the Title VI regulations could

be violated if a managed care organization enrolled both pri­ vately and publicly insured persons, but allowed participating

Care and Public Health

providers to refuse to accept as patients those i~dividuals covered by Medicaid.

The disproportionate impact regulations are critically im­ portant to realizing Title VI’s full force, because much of the racism in post-1954 America does not take the form of overt, intentional acts. However, as a result of the 2001 Supreme

Court decision in Alexander v. Sandoval, 51 these regulations were severely undercut. Under Sandoval, private individuals were barred from bringing a lawsuit under the disparate im­ pact regulations, leaving the federal government as the sole enforcer when racial or ethnic minorities allege a violation of the regulations.h

Physical and Mental Disability Discrimination

Like discrimination based on race or ethnicity, healthcare discrimination premised on disability has a long, sad history

in this country and, as with race, the health system itself is partly to blame for its perpetuation. For instance, historically, persons with mental disabilities were viewed from a medical standpoint as having little to offer to society, and they were,

as a matter of practice, shipped to mental asylums isolated from communities. Those with physical disabilities were not spared discriminatory practices, either; because individuals with Down syndrome were viewed by medical practitioners as “Mongoloid idiots” and children with cerebral palsy or other

serious physical limitations were regularly viewed as unable to contribute to society, they were all simply institutionalized. These historical practices and perspectives resonate even in the modern health care system, in which treatment opportu­ nities for the disabled are skewed toward institutional, rather than community, settings, and disease-specific limitations in

health insurance are commonplace. However, passage ofthe Americans with Disabilities Act

(ADA)52 in 1990 alleviated at least some of the problems as­ sociated with disability discrimination in health care. Like Title VI, the ADA is not specifically a “health law”-its intent is to extend to the disabled the maximum opportunity for

community integration in many sectors of society, including employment, public services, public accommodations (i.e., privately owned entities open to the public), telecommunica­ tions, and more. For this reason, it prohibits discrimination generally against disabled individuals who satisfy the essential requirements ofa particular job, or who meet the qualification standards for a program, service, or benefit.

But the ADA’s impact on health care for disabled indi­

viduals is notable, in large part because the law defines “places of public accommodation” to include private hospitals and other private healthcare providers. So, for example, a dentist

in private practice who does not receive any federal funds for his services is nonetheless prohibited from discriminat­

ing against a person who is HIV-positive, as the well-known case of Bragdon v. Abbott53 makes clear. This represents an important expansion of federal disability law, because prior to the ADA, only recipients of federal funds were proscribed from discriminating on the basis of disability. Note also how this expanded concept ofpublic accommodations differs from Title VI ofthe Civil Rights Act, which still requires the receipt

offederal money on the part ofthe offending entity to trigger protections for racial and ethnic minorities.

Although the ADA has dramatically altered the disabil­ ity law landscape, it is not without limitations. For example, the regulations implementing the ADA’s statutory text only

require entities that implement public programs and services to make «reasonable modifications)l-but not «fundamen­

tal alterations”-to those programs and services. Under the ADA, a fundamental alteration is one that would change the

essential nature of a public program or service. Whether a requested change to a public program or service by a disabled individual amounts to a «reasonable” or “fundamental” one

is potentially determinative to the outcome of the request. Why? Because if a court determines that the request would

alter the essential nature of the program or service at issue, it is powerless under the ADA to order the change. Another way of understanding this reasonable modification/funda­ mental alteration dichotomy is to recognize that fundamental alterations to public services-alterations that might actually

be necessary to achieve at least the spirit of the ADA’s loftiest goals and meet the expectations of a modern, enlightened society-could only be made by the political branches of

government, not by the courts. Another important limitation of the ADA (at least as it

has been interpreted by most courts) is that it does not pro­ hibit arbitrary insurance coverage limits attached to certain medical conditions. A stark example of this is found in the case of Doe v. Mutual of Omaha Insurance Company, 54 in which a federal appellate court ruled that a lifetime benefit limitation in a health insurance policy of $25,000 for AIDS or AIDS-related conditions did not violate the ADA, even

though the very same policy set a $1 million lifetime limit for other conditions.

Socioeconomic Status Discrimination

Compared to race or disability discrimination in healthcare access and treatment, healthcare discrimination based on class gains little attention-even though socioeconomic sta­ tus is independently associated with health status, and the negative effects ofpoverty on health andhealthcare access are

incontrovertible. Class-related healthcare discrimination can take many forms. For example, healthcare providers might refuse to accept as patients individuals who are covered under Medicaid, or low-income individuals might fall victim to the practice of redlining, which refers to discrimination based on geographic location when companies offer goods and services to consumers. (Although insufficient data exist to know the extent of redlining in healthcare-related goods and services, industries such as home health care, pharmaceuticals, and managed care have come under particular scrutiny. 55) An­ other example stems from the fact that healthcare providers (physician and dental practices, hospitals, etc.) sometimes elect to not operate in relatively poor communities, leaving residents of these communities at heightened risk for experi­ encing a shortage of adequate healthcare resources.

Gender Discrimination

Gender discrimination against women is also a problem in health care. This bias appears to be of particular concern in the area of coronary heart disease, 56 in which delayed or dis­ parate care could have severe consequences. At least, in theory, gender discrimination in health care could be remedied under the Equal Protection Clause of the federal Constitution; how­ ever, Equal Protection claims are difficult to win, because they require proof of both state action (a sufficient govern­ ment connection to the discriminatory acts) and proximate causation (a cause-and-effect link between the discrimination and the harm suffered). Also, consider the fact that healthcare practitioners who receive federal funds cannot face suit under Title VI for even obvious gender discrimination, because Title VI’s prohibitions relate only to race, color, and national origin discrimination.

Age Discrimination Finally, the medical care system also seems to be biased against the elderly. Just one of several disturbing facts on the treat­ ment front is that the elderly sometimes do not receive needed surgical care because health professionals wrongfully assume that the chances ofrecovery are not good. 57 Another concern pertains to insurance coverage, in that many employers are at­ tempting to rescind lifetime health coverage benefits to retired workers, even where the benefits had been promised as part of negotiated labor contracts. At first blush, this may not seem like a critical issue, because many retirees are at or beyond the age required for Medicare eligibility. But some retirees are not yet 65-years old, a retiree’s employer-sponsored benefits might provide more or different coverage than Medicare, and employer benefits might cover a retiree’s dependents, which Medicare does not do.

INDIVIDUAL RIGHTS IN A I’UIBLIC HEALTH CONTEXT The discussion thus far has focused on health care legal rights that individuals can claim in the context of access, receipt of services, freedom ofchoice, and anti-discrimination. In each of these areas, however, the right claimed is not absolute. For example, EMTALA does not make illegal all transfers of in­ digent patients from private hospitals to public ones; rather, it requires that patients be medically stabilized before a trans­ fer can occur. Even eminent civil rights laws do not provide blanket protections, because they might only be triggered where federal funding is present, or where the assistance re­ quested would not fundamentally alter a government health program.

In this section, we consider restrictions on individual rights and liberties of a different sort: These derive not from the limitations ofspecific laws, but rather from governmental police powers used to protect the general public’s health and welfare. One simple way to think about individual rights in a public health context is to use a balancing approach~what might the appropriate legal trade-offs be between private rights and public welfare? Public discussion of this trade-off intensified after the terrorist attacks of September 11, 2001, because many government actions taken in their wake-the passage ofnew laws, the tightening of existing regulations, the detainment of alleged terrorists-starkly raised the question of where to draw the line between individual autonomy and government authority to restrain that autonomy in the name of public welfare and national security. The attacks raised new public health law-related questions as well, including whether the potential for a bioterrorist attack utilizing smallpox should compel the federal government to vaccinate individuals-even against their will-against the virus in order to protect the public at large in the event of an attack.

Overview of Police Powers

Police powers represent state and local government author­ ity to require individual conformance with established stan­ dards of conduct. These standards are designed to promote and protect the public’s health, safety, and welfare, and to permit government control ofpersonal, corporate, and other private interests. The government’s police powers are broad and take many forms. Healthcare professionals are required to obtain licenses from government agencies. Healthcare fa­ cilities face accreditation standards. Food establishn1ents are heavily regulated. Employers are bound by numerous occu­ pational health and safety rules. Businesses are constrained by pollution control measures. Tobacco products can only be

marketed in certain ways. The purchase ofguns iS controlled, buildings have to abide by certain codes, motorcyclists must wear helmets. The list goes on and on.

The government’s police powers are oftentimes invasive, a result that stems in part from the fact that the American colonies were battling multiple communicable diseases dur­ ing the time ofthe writing ofthe Constitution, and its drafters were thus well aware ofthe need for pervasive governmental public health powers. At the same time, the government may not overreach when restricting private autonomy in the name of public health promotion and protection. For example, police powers cannot be used as a form ofpunish­ ment, they cannot be used arbitrarily and capriciously, and they cannot be used for purposes unrelated to public health and welfare.

A key principle inherent to the use of police powers is that of coerdon.58 This is so because, in a country founded upon the twin ideals of individualism and a limited govern­ ment, many individuals and busin;esses do not respond kindly to being told to conform with public health regulations that limit their actions. For example, sometimes a public health concern (e.g., pollution) requires a response (enhanced gov­ ernmental regulation) that may not be in the best economic interests of an implicated party (a refinery). This is not to say that individuals and businesses do not voluntarily assume responsibilities and measures that are in the public’s interest. For instance, one effect ofpoor exercise habits-obesity-has

enormous implications for the public’s health and for national healthcare costs. As a result, the government would prefer that all individuals exercise for a minimum amount of time each week, but there is ofcourse no law requiring this; rather, voluntarism is the guiding principle when it comes to per­ sonal exercise. Nonetheless, personal coercion and industrial

regulation have long been adopted (and accepted) practices ofpublic health officials, and all of the major communicable disease outbreaks have been combated with some combination of compulsory screening, examination, treatment, isolation, and quarantine programs.

The Jacobson v. Massachusetts Decision

The fact that government coercion can be justified by impor­ tant public health goals does not answer the question ofwhere to draw the line between personal/economic freedom on the one hand, and the public welfare on the other. This question was taken up by the Supreme Court in Jacobson v. Massachu­ setts,59 perhaps the most famous public health law decision in the Court’s history and the one to which we alluded in the second factual scenario at the opening of this chapter.

The facts in Jacobson are straightforward enough. At the turn of the 20th century, the state of Massachusetts en­ acted a law granting local health boards the power to require vaccination when necessary to protect the public’s health or safety. In 1902, the Cambridge Board ofHealth, in the throes ofattempting to contain a smallpox outbreak, took the state up on its offer and issued an order requiring all adults in the

‘city to be vaccinated against the disease. Henning Jacobson

refused vaccination on the ground that he previously suffered negative reactions to vaccinations. Jacobson was fined $5 for his refusal, a penalty upheld by the state’s highest court. Ja­ cobson appealed to the U.S. Supreme Court, setting the stage for a decision tha( more than 100 years later, remains both

•61controversial and at least symbolically forceful.60

Like the enduring private interest/public welfare ten­ sion underpinning public health law generally, the Jacobson decision amounts to «a classic case of reconciling individual

interests in bodily integrity with collective interests in health and safety.”60(psnJ The 7-2 decision went the state’s way, with

the Supreme Court recognizing that police powers were gen­ erally broad enough to encompass forced vaccination. Re­ sponding to Jacobson’s argument that the Massachusetts law impermissibly infringed on his constitutional right to liberty, the Court wrote:

[T]he liberty secured by the Constitution ofthe United States to every person within its jurisdic­ tion does not import an absolute right in each person to be, at all times and in all circum­ stances, wholly freed from restraint. There are manifold restraints to which every person is nec­ essarily subject for the common good. On any other basis organized society could not exist with

safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.62

Due to this and other language used by the Court in the decision, Jacobson is often described as sweepingly deferen­ tial to public health officials and their use of police powers. And without question, social compact theory (the idea that citizens have duties to one another and to society as a whole) animates the Court’s decision. However, the Jacobson deci­ sion also recognizes the individual liberties protected by the Constitution, and in fact requires a deliberative governmental process to safeguard these interests.

According to the Jacobson Court, public health powers must be exercised in conformity with four standards in order to pass constitutional muster:

The first standard, that of “public health necessity,” requires that government use its police powers only in the face of a demonstrable public health threat. The second standard, termed “reasonable means,” dic­ tates that the methods used when exercising police powers must be designed in such a way as to prevent or ameliorate the public health threat found to exist under the first standard. “Proportionality” is the third Jacobson standard; it is violated when a particular public health measure im­ poses a burden on individuals totally disproportionate to the benefit to be expected from the measure. Finally, and axiomatically, the public health regula­ tion itself should not pose a significant health risk to individuals subject to it. This is the standard of”harm avoidanCe.”

These standards have never been explicitly overturned, but it can be argued that they have at the very least been im­ plicitly replaced, given that in the 100-plus years since Jacob­ son was decided, the Supreme Court has developed a much more complex approach to applying constitutional provisions to cases implicating individual autonomy and liberty.

The “Negative Constitution”

The discussion of police powers up to this point might rea­ sonably lead you to believe that the Constitution obligates the government to protect the public’s health and welfare through affirmative use of its powers. This view, however, has never been adopted by the Supreme Court. Instead, the prevailing view is that the Constitution empowers government to act in the name ofpublic health, but does not require itto do so. This

interpretation of the Constitution refers to what is known as the “negative constitution,” that is, the idea that the Consti­ tution does not require government to provide any services, public health or otherwise. This approach to constitutional law derives from the fact that the Constitution is phrased mainly in negative terms (e.g., the First Amendment prohib­ its government abridgment of free speech). Professor Wendy Parmet describes the “negative constitution” this way:

In the century that has witnessed Auschwitz and Chernobyl, it is ~asyto see the dangers posed by state power. This recognition tempers enthusi­ asm for public authority and leads us to use law as a limiting device. In our legal tradition, this view of law is integral to constitutional struc­

ture, with its emphasis on separation ofpowers, checks and balances, procedural protections, and individual rights. We rely on the Consti­ tution to limit the power of the government to restrain our freedoms and cause us harm. In

this sense, law is a negative force that prevents the state from intruding upon the individual. This negative conception oflaw, which sees legal rights as a restraint upon the state, has played a dominant role in the fonnulation of contem­

porary American public health law. It explains the central pillars ofconstitutional public health law: the search for limits on governmental au­ thority to restrain individual freedoms in the name ofpublic health, and the concomitant as­ sumption that government has no obligation to promote public health.63(PP267•271l

In two important decisions, DeShaney v. Winnebago County Department of Social Services64 and Town of Castle Rock, Colorado v. Gonzales, 65 the Supreme Court has ad­ vanced this view of the negative constitution. In the former case, one-year-old Joshua DeShaneywas placed in his father’s custody after his parents divorced. Two years later, the father’s second wife complained to county officials in Wisconsin that the father had been abusing Joshua physically. Social service workers opened a file on the case and interviewed Joshua’s father, but the county did not pursue the matter further after the father denied the charges. One year after that, an emer­ gency romn physician treating Joshua alerted social services ofhis suspicion that Joshua’s injuries were the result ofabuse. The county again investigated but decided that insufficient evidence ofchild abuse existed to remove Joshua from his fa­ ther’s custody. This emergency room scenario played out two additional times over the next several months, but Joshua’s

caseworkers still believed that they had no basis on which to place Joshua in court custody. Some months later, when Joshua was four years old, he suffered a beating so severe that he fell into a life-threatening coma. He survived but was left with permanent, severe brain damage, and he was expected to live

his life in an institution for the profoundly mentally retarded. Joshua’s father was subsequently convicted of child abuse.

Joshua’s I)!Other filed a civil rights claim on Joshua’s be­ half against the county officials who failed to take the boy into their custody. The lawsuit was based on the Due Process Clause of the federal Constitution, which prohibits states from depriving any person ofproperty without due process oflaw. However, the Supreme Court in DeShaney concluded that the «substantive” component of the Due Process Clause-which

focuses on challenges t6 government conduct-could not

be read to provide Joshua with a property interest in having state child welfare officials protect him from beatings by his father. For a 6-3 majority, Chief)ustice Rehnquist held that state officials had no affirmative constitutional duty to pro­ tectJoshua:

[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against inva­ sion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as a

guarantee ofcertain minimal levels ofsafety and

security. It forbids the State itself to deprive indi­ viduals oflife, liberty, or property without “due process oflaw,” but its language cannot fairly be extended to impose an affirmative obligation on

the State to ensure that those interests do not

come to harm through other means. 66

The majority fnrther rejected the argument that the state’s knowledge of the danger Joshua faced, and its expression of willingness to protect him against that danger, established a “special relationship” that gave rise to an affirmative consti­

tutional duty to protect. In dissent, three justices in DeShaney argued that through

the establishment ofits child protection program, the state of Wisconsin undertook a vital duty and effectively intervened in Joshua’s life, and its failure to live up to its child protec­ tion duty amounted to a constitutional violation. According

to the dissenters, the majority opinion «construes the Due

Process Clause to permit a State to displace private sources

of protection and then, at the critical moment, to shrug its

shoulders and turn away from the harm that it has promised to try to prevent.”67

Sixteen years after DeShaney, the Supreme Court in Cas­ tle Rock v. Gonzales had an opportunity to again consider whether the government has a duty to affirmatively protect its citizens. This time, however, the Court was concerned not

with substantive due process, but rather with procedural due process, which mandates that when a state establishes a benefit or right for its citizens, it is not entitled to deny individuals the benefit or right in an arbitrary or unfair way.

Unfortunately, the facts in Gonzales are as tragic as those in DeShaney. In May 1999, Jessica Gonzales received a court order protecting her and her three young daughters from her husband, who was also the girls’ father. On June 22nd, all three girls disappeared in the late afternoon from in front of the Gonzales home, and Jessica suspected that her husband had taken them in violation of the restraining order. This suspicion was confirmed in a phone conversation she had with her husband. In two initial phone conversations with the Castle Rock Police Department, she was told there was nothing the police could do and to wait until 10:00 p.m. to see if her husband brought the girls home.

Shortly after 10:00 p.m., Jessica called the police to report that her children were still missing, but this time she was told to wait until midnight to see what transpired. She called the police again at midnight, reported that her children were still missing, and left her home to go to her husband’s apartment. Finding nobody there, she called the police again at 12:10 a.m. and was told to wait for an officer to arrive. Thirty minutes

later, after no officer showed up, she went to the police station

to submit a report. According to the Supreme Court decision,

the officer who wrote up the report “made no reasonable effort to enforce the [restraining order] or locate the three children. Instead, he went to dinner.” A couple of hours later, Jessica’s husband pulled his truck up to, and began shooting at, the Castle Rock Police Department. After he was killed by police during the gunfight, the three Gonzales daughters were found dead in the back of the truck; they had been murdered by their father hours earlier.

Jessica sued the police department, claiming that her con­ stitutional right to procedural due process was violated by the department’s inaction. She argued that the restraining order she received was her “property” under the Constitution’s Due

Process Clause and that it was effectively “taken” from her without due process. Overturning the federal appellate court that ruled in her favor, the Supreme Court decided by a 7-2 margin that Jessica did not have a property interest in police enforcement ofthe restraining order against her husband.

The Court said it was not clear that even if it had found an individual entitlement to enforcement of a restraining

order under a Colorado state statute requiring officers to use every reasonable means to enforce restraining orders, that this entitlement would constitute a protected “property” interest that triggers due process protections under the federal Con­ stitution. Justice Antonin Scalia wrote that the Due Process Clause does not protect all government “benefits,” includ­ ing those things that government officials have discretion to grant or deny. Applying this standard, the Court ruled that Colorado’s protection order law did not create an individual entitlement to police enforcement of restraining orders, ex­ plaining that police have discretion to act or not act under many circumstances, including when to enforce a restraining order (e.g., police officers have discretion to consider whether a violation of a protection order is too “technical” or minor to justify enforcement). Furthermore, the Court noted that if the Colorado legislature included statutory language making police enforcement of a restraining order “mandatory,” even that would not necessarily mean that Mrs. Gonzales had a personal entitlement to its enforcement, given that the statute makes no mention of an individual’s power to demand-Or even request-enforcement.

In dissent, two justices in Gonzales argued that restrain­ ing orders amount to a personal, enforceable property interest. They asserted that the majority opinion wrongly ruled that

a citizen’s interest in government-provided police protection does not resemble a “traditional conception” of property. Looking to the legislative history and text of Colorado’s own protection order law and to the purpose of the state’s domestic violence legislation, the dissent concluded that a particular class of individuals was indeed entitled beneficiaries of do­ lnestic restraining orders.

CONCLUSION

This chapter offered a snapshot ofthe current state ofhealth­ related legal rights. But, as alluded to early on in the chapter, there were times in its relatively short history that this country was closer to recognizing broader individual healthcare rights than is currently the case, just as there have been times (as the aftermath of September 11, 2001, proved) when concerns for the public’s health and safety have eclipsed the nation’s more natural inclinations toward individualism and a deregulated marketplace. That this is so is ofno surprise: Legal rights are, by nature, subject to shifts in the political terrain. For exam­ ple, the Aid for Families with Dependent Children program (commonly known as AFDC), the federal welfare entitlement program for low-income populations, was dismantled in 1996 after more than 60 years in existence. Originally enacted under a slightly different name as part of the New Deal in 1935, AFDC was replaced with the Temporary Assistance for Needy Families (TANF) program by a moderate Democrat (President Bill Clinton) and a conservative, Republican-con­ trolled Congress. Compared to AFDC, TANF dramatically ….i limited the receipt of individual benefits and focused much more heavily on creating work opportunities for needy fami­ lies. Like legal rights generally, health-related legal rights are similarly subject to changing political currents. For example, at the time of this writing, several state legislatures continue to pass bills that protect health professionals from providing care that conflicts with their personal beliefs, reflecting the current political power of social conservatives.i

Of course, changes to legal rights are not always rep­ resented by restrictions of those rights. The enactment of Medicaid and Medicare, which created new health-related rights, is an obvious example. Other major examples include EMTALA and expanded state consumer rights for persons in ma~aged care. On a less noticed scale, legal rights for persons with HIV/AIDS have expanded since the 1980s,68 and federal courts now review the constitutionality of the treatment pro­ vided in, and conditions of, psychiatric hospitals. 69 These are just a few of many examples.

Nonetheless, vast challenges remain. After all, many scholars, politicians, and consumers point to the millions of uninsured Americans as just one example of not only a failing

healthcare financing and delivery system, but also a failing of the legal system. To reduce this nation’s huge uninsured

population takes not just political will, but also an enormous undertaking to change the law, as witnessed with the ACA. A “rights revolution” in a health context, like other major legal upheavals, requires something else) too: a substantial amount of general economic and social unrest. 70 As historian Brooks Adams once noted, “Law is merely the expression ofthe will of the strongest for the time being, and therefore laws have no fixity, but shift frmn generation to generation.”71<P197)

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narrative of health care reform. JAMA. 2010;304(23):2639-2640. 4. JostTS. Disentitlement? The TltreatsFacingOur Public Health-Care

Programs and a Rights-Based Response. New York, NY: Oxford University Press; 2003.

5, Davis MF. Brutal Need: Lawyers and the Welfare Rights Movement, 1960-1973, New Haven, CT: Yale University Press; 1993.

6. 411 u.s. 1 (1973). 7. Ibid., 35. 8. Stacy T. The courts, the constitution, anda just distribution ofhealth

care. Kans JLaw Public Policy. 1993/1994;3:77~94. 9. Smith PS. Addressing the plight of inner-city schools: the federal

right to education after Kadrmas v. Dickinson Public Schools. Whittier Law Rev. 1997;18:825.

10. Reinhardt U. The debate that wasn’t: the public and the Clinton health care plan. In; Aaron H., ed. The Problem That Won’t Go Away: Re­ fonning U.S. Health Care Financing. Washington, D.C.: Brookings Institlt­ tion; 1996: 70-109.

11. Vladeck B. Universal health insurance in the United States: reflec­ tions on the past, the present, and the future [editorial]. Am JPub Health. 2003;93:16. Blum JD, Talib N, Carstens P, et al. Rights of patients: com­ parative perspectives from five countries. Med Law. 2003;22:451. Rich RF. Health policy, health insurance and the social contract. Camp Labor Law Policy]. 2000;21:397.

12. Barnes A, McChrystal M. The various human rights in health care. Human Rights. 1998;25:12.

13. Kinney ED, Clark BA. Provisions for health and health care in the constitutions of the countries of the world. Cornell Int Law f. 2004;37:2.

14. Littell A. Can a constitutional right to health guarantee universal health care coverage or improved health outcomes?: A survey of selected states. Conn Law Rev. 2002;35:289.

15. Yamin AE. The right to health under international law and its rel­ evance to the United States. Am f Public Health. 2005;95(7):1156.

16. President’s Commission for the Study ofEthical Problems in Medi­ cine and Biomedical and Behavioral Research. Securing Access to Health Care: A Report on the Ethical Implications ofDifferences in the Availability ofHealth Services. Washington, DC: The National Academies Press; 1983.

17. Starr P. The Social Transformation ofAmerican Medicine: The Rise ofa Sovereign Profession and the Making ofa Vast Indust1y. New York, NY: Basic Books; 1982.

18. Wing KR. The right to health care in the United States. Ann Health Law. 1993;2:163.

19. Annas GJ. The RigiJts ofPatients. 3rd ed. Carbondale, IL: Southern Illinois University Press; 2004.

20. 42 U.S.C. § 1395dd(e)(1).

21. Rosenblatt RE, Law SA, Rosenbaum S. Law and the American Health Care System. New York, NY: The Foundation Press; 1997.

22. Rosenbaum S. Realigning the social order: the patient protection and affordable care act and the U.S. health insurance system,” Suffolk Journal of Health and Biomedical Law (winter 2011).

23. 45 C.F.R. Part 46. 24. 464 F.2d 772 (D.C. Cir. 1972). 25. Ibid., 782.

· 26. Ibid., 783 fn. 36. 27. 381 u.s. 479 {1965). 28. Ibid., 484-486. 29. Lovingv. Virginia, 388 U.S. 1 (1967). 30. Eisenstadt v. Baird, 405 U.S. 438 (1972). 31. 410 U.S. 113 (1973). For a compelling look at what the case has

meant to society, see David J, Garrow, Liberty and Sexuality: The Right to Privacy and the Making ofRoe v. Wade (California: University ofCalifornia Press, 1994).

32. 410 u.s., 154, 33. Ibid., 164-165. 34. Barzelay DE, Heymann PB. The forest and the trees: Roe v. Wade

and its critics. Boston Univ Law Rev. 1973;53:765. 35, Ely JH. The wages ofcrying wolf: a comment on Roe v. Wade. Yale

Law f. 1973;82:920. 36. Regan DH. Rewriting Roe v. Wade. Mich Law Rev. 1979;77:269. 37. Bopp J, Coleson R. The right to abortion; anomalous, absolute, and

ripe for reversal. Brigham Young Univ JPublic Law. 1989;3:181. 38. 505 u.s. 833 {1992). 39. Ibid., 847. 40. 530 u.s. 914 {2000). 41. Ibid., 932. 42. 18 U.S.C.A. § 1531 (‘) {2004). 43. Ibid., (b). 44. 42 U.S.C. § 291e(f). 45. Smith DB. Health Care Divided: Race and Healing a Nation. Ann

Arbor, MI: The University ofMichigan Press; 1999. 46. Byrd WM, Clayton LA. An American Health Dilemma: A Medical

History ofAfrican Americans and the Problem ofRace, Beginnings to 1900. New York, NY: Routledge; 2000.

47. Byrd WM, Clayton LA. An American Health Dilemma: Race, Medi­ cine, and Health Care in the United States, 1900-2000. New York, NY: Routledge; 2002.

48. Smedley BD, Stith AY, Nelson AR, eds. Unequal Treatment: Con­ fronting Racial and Ethnic Disparities in Health Care. Washington, DC: The National Academies Press; 2003.

49. 42 U.S. C.§§ 2000a et seq. 50. 42 u.s.c.§ 2000d. 51. 532 u.s. 275 {2001). 52. 42 U.S.C. §§ 12101 et seq. 53. 524 u.s. 624 (1998), 54. 179 F.3d 557 (7th Cir.1999), cert. denied, 528 U.S. 1106 (2000). 55. Perez TE. The civil rights dimension ofracial and ethnic disparities

in health status. In: Smedley BD, Stith AY, Nelson AR, eds. Unequal Treat­ ment: ConfrontingRacial and Ethnic Disparities in Health Care. Washington, DC: The National Academies Press; 2003; 626-663.

56. Bess CJ. Gender bias in health care: a life or death issue for women with coronary heart disease. Hastings Women’s Law f. 1995;6:41.

57. Smith GP, II. Our hearts were once young and gay: health care ra­ tioning and the elderly. Univ Fla JLaw Public Policy. 1996;8:1.

58. Gostin LO. Public Health Law: Powe1~ Duty, Restraint. Berkeley, CA: University ofCalifornia Press/New York, NY: The Milbank Memorial Fund; 2000.

59. 197 u.s. 11 {1905).

60. Gostin LO.facobson v. Massachusetts at 100 years: police powers and civil liberties in tension. Am l Public Health. 2005;95(4):576.

61. Mariner WK, Annas GJ, Glantz LH. jacobson v. Massachusetts: it’s not your great-great-grandfather’s public health law. Am f Public Health. 2005;95(4),581.

62. 197 U.S. at 26. 63. Parmet W. Health care and the constitution: public health and

the role of the state in the framing era. Hastings Constitutional Law Q. 1992;20:267, 271.

64. 489 u.s. 189 (1989). 65. 125 S.Ct. 2796 (2005). 66. 489 U.S. at 195. 67. Ibid., 212. 68. Halpern SA. Medical authority and the culture of rights. JHealth

Politics Policy Law. 2004;29(4-5):835. 69. Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972). 70. Friedman LM. The idea ofright as a social and legal concept. JSocial

Issues. 1971;27(2):189-198. 71. NashB, Zullo A, eds. Lawyer’s Wit and Wisdom: Quotations on the

Legal Profession, In Brief Philadelphia, PA: Running Press; 1995.

ENDNOTES a. These competing concepts were given life in Paul Starr’s influential

book, The Social Transformation ofAmerican Medicine: The Rise ofa Sov­ ereign Profession and the Making of a Vast Industry (New York, NY: Basic Books, Inc., 1982). Incidentally, The Social Transformation of American Medicine should be read by all st~dents with an interest in the history of medicine; the book’s significance across a range ofdisciplines is hard to over­ state. See “Special Issue: Transforming American Medicine: A Twenty-Year Retrospective on The Social Transformation ofAmerican Medicine,” journal ofHealth Politics, Policy, and Law 29, nos. 4-5 (August-October 2004).

b. For an interesting article describing the importance ofpolitical struc­ tures in determining the level of equalities/inequalities in a society, including the level ofgovernment-provided health care coverage, see Vicente Navarro and Leiyu Shi, “The Political Context ofSocial Inequalities and Health,” in Health and Social Justice: Politics, Ideology, and Inequity in the Distribution ofDisease, ed. Richard Hofrichter (San Francisco, CA: Jossey-Bass, 2003).

c. Incidentally, the Canterbury decision was authored by Spottswood Robinson, III who, prior to becoming a highly regarded federal judge, was

instrumental in the fight for civil rights, in part as one of the National As­ sociation for the Advancement of Colored People (NAACP) lawyers who initially brought suit in one ofthe cases that eventually morphed into Brown v. Board ofEducation.

d. A now-famous 1890 Harvard Law Review article titled “The Right to Privacy,” written by Samuel Warren and Louis Brandeis, is often credited with introducing the constitutional “right to be let alone.”

e. In a health context, this type of privacy is embodied by the Health Insurance Portability and Accountability Act (HIPAA), found in large part at 29 U.S.C. §§ 1181-1187, 42 U.S.C. §§ 300gg et seq. and 42 U.S.C. §§ 1320a et seq., which creates a federal right to maintain the confidentiality ofone’s personal health information.

f. For example, notice how the Supreme Court linked states’ power to ban abortions (with certain exceptions) to fetal viability, even though the progression ofmedical knowledge and technology could push back the point of viability earlier into pregnancy. Also, who appears to hold the power, under “(a)” above, to decide whether an abortion should occur? The physi­ cian, a fact often overlooked by those who hail Roe as a seminal women’s rights case and one that calls into question how the pregnant woman’s con­ stitutional right to privacy could be effectuated by her treating physician.

g. This section was adapted from Joel B. Teitelbaum, “Health Care and Civil Rights: An Introduction,” Ethnicity and Disease 15, no. 2, Supp. 2, (2005), 27-30.

h. For a discussion of the implications of the Sandoval decision in a health care context, see Sara Rosenbaum and Joel Teitelbaum, “Civil Rights Enforcement in the Modern Healthcare System: Reinvigorating the Role of the Federal Government in the Aftermath of Alexander v. Sandoval,” Yale journal ofHealth Policy, Law, and Ethics III:2 (2003): I.

i. These bills represent a “surge of legislation that reflects the intensi­ fying tension between asserting individual religious values and defending patients’ rights ….The flurry of political activity is being welcomed by conservative groups that consider it crucial to prevent health workers from being coerced into participating in care they find morally repugnant­ protecting their ‘right of conscience’ or ‘right of refusal.’ … The swell of propositions is raising alarm among advocates for abortion rights, family planning, AIDS prevention, the right to die, gays and lesbians, and others who see the push as the latest manifestation ofthe growing political power ofsocial conservatives.” Stein R. Health workers’ choice debated: proposals back right not to treat. Washington Post. January 30, 2006:A01.

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