Policy and Law Chapter 6

-Brooks Adams

"Law is merely the expression of the will of the strongest for the time being, and therefore laws have no fixity, but shift from generation to generation"

Canterbury v. Spence

**19-yr old had procedure done on spine to correct a herniated disc. Doctor did not inform patient of risks. Patient fell the next day and paralysis occurred. Lead to a 2nd surgery that left paralysis of bowels and patient walking with crutches.

Welfare Rights

- 1960s activists pressed for the federal constitution to be interpreted to include individual right to welfare -->This included minimum levels of housing, education, food, healthcare, etc. - This was overturned by the Supreme Courts in a number of cases - Consider Education -->No national, generalized legal right to education -->However, states have chosen to interpret their state constitution to include a basic level of education

Roe v. Wade

- 1970 - Unmarried women in Texas challenged the Texas criminal law to obtain an abortion - Used Griswold case as legal precedent - Texas stance - the state had compelling interest in protecting the women from unsafe medical procedures and protecting the prenatal life - Federal court agreed with Roe and declared it unconstitutional. --> Violation of the constitutional right to privacy --> Texas appealed to the Supreme Court

Supreme Court: The Planned Parenthood of SE Pennsylvania v. Casey

- 5-4 Supreme Court Decision (using Roe v Wade) - Outcome: PA law was upheld, except for notification of husband. Also stated that states can't place undue burden on a women who wants an abortion prior to viability. - Further outlined authority of states to restrict access to abortion --> Trimesters were replaced with fetal viability as cutoffs --> Pregnant women can initiate abortion decision, not physicians as stated in Roe v Wade --> State's interest begins at outset of pregnancy, not at the 2nd trimester as stated in Roe v Wade --> State may not prevent an abortion prior to fetal viability. They can set regulations regarding the process as long as isn't a "substantial obstacle"

Age Discrimination

- Bias against elderly - Sometimes do not receive surgical care because professionals wrongfully assume poor outcomes - Insurance coverage is also an issue --> Employers are now rescinding lifetime health insurance provision promised to them when retired --> This is of particular concern for those who retire before the age of 65

Griswold v. Connecticut (1965)

- Considered the constitutionality of a state law criminalizing the provision of contraception to married couples. - Executive Director of Planned Parenthood convicted of aiding and abetting prevention of conception by providing birth control . - Supreme Court held that this was a violation or privacy (although not specifically granted in the constitution)

DeShaney vs. Winnebago County Health Depart.

- Couple divorced and father received custody of 1 year old. After several complaints made to social services about abuse, the child received a beating so bad it left him in a coma. He survived but with severe injuries. Mother filed a lawsuit on behalf of the child. - Sued county officials on Due Process Clause (assures that government operates within the law and provides fair procedures) - 6-3 Supreme Court vote- saying that state officials had no affirmative constitutional duty to protect Joshua - The Due Process Clause provides limitations on what the government can do - not guarantee a certain level of safety and security from others outside the government

EMTALA (Examination and Treatment of Medical Conditions and Woman in Labor Act)

- Enables everyone access to hospital care in medical emergencies regardless of their ability to pay - Represents the only truly universal legal right to health care in this country. - Enacted in 1986 to prevent "patient dumping" (turning away poor or uninsured persons in need of care) --> Common among private hospitals -->Made possible by the no-duty principle

Socioeconomic Status Discrimination

- Health providers might refuse patients who are covered under Medicaid - Providers elect not to operate in rural or low income communities

Physical and Mental Discrimination

- Historically speaking, these individuals were viewed has having little to offer society - They were simply institutionalized - American Disabilities Act (ADA) of 1990

American Disabilities Act (ADA) of 1990

- Intended to give maximum opportunity for community integration - Extends to healthcare via the "place of public accommodation" clause - This extends to EVERY agency, not just those receiving federal dollars - differs from Title VI of the Civil Rights Act of 1964

Castle Rock vs. Gonzales

- Jessica Gonzales had a restraining order to protect her and her 3 daughters from her husband. One day the children went missing. After numerous attempts to get the police involved, the children were found dead. Jessica sued the police department on due process grounds --> Says that once a state establishes a right to its citizens, the state is not entitled to deny individuals the benefit in an unfair way - Jessica argued that the restraining order was her "property" and when they opted not to enforce it, her property was "taken from her" - 7-2 Supreme Court decision - The Due Process Clause does not protect all government benefits, including those the government officials have discretion to grant or deny.

Jim Crow laws

- Legally segregated healthcare - In places that didn't have Jim Crow laws, there were corporate laws and contracts that essentially did the same thing

Stenberg vs. Carhart

- 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 delivery" - Law penalizes physician with 20 yrs in prison, fine up to $25,000, and revocation of license. - 5-4 Supreme Court vote determine Nebraska law unconstitutional on 2 accounts: 1) State created undue burden on women seeking pre-viability abortions by banning the most commonly used method for pre-viability 2nd trimester abortions 2) Lacked exception for preservation of health of the pregnant woman

Supreme Court Justice Brett Kavanaugh (Current)

- Opposed to women's rights to abortions - Lead to an anti-abortion majority in the SC --> Risk of reversing Roe vs. Wade as well as WWH vs. Hellerstedt

The Planned Parenthood of SE Pennsylvania v. Casey

- PA Abortion Control Act --> Required women to receive info 24 hrs before seeking an abortion --> Minor had to seek parental consent --> Married women had to sign agreement saying husband was notified --> Reporting requirements for facility performing abortion - There were exceptions for medical emergencies

Partial Birth Abortion Ban Act of 2003

- Passed by Congress under Bush (after being vetoed twice by Clinton) - This Act basically bans the dilation and extraction (D&X) procedure -->Provides exceptions if it affects a woman's life, but not their health - 3 states challenged this Act because it lacked a health exception clause. -Appellate courts declared this law unconstitutional and it was sent to the Supreme Court

Negative Constitution

- Prevailing view is that the Constitution empowers government to act in the name of public health but does not require it to do so. - This interpretation refers to what is known as the "negative constitution"—the idea that the Constitution 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 - It basically tells you what the government can't do

Right to Personal Privacy

- Recognized by the Supreme Court since 1890s: --> Even though not mentioned in the constitution - Taken 2- pronged approach: 1) Limiting others' access to and use of individual's private information 2) Individual autonomy from governmental interference about making personal decisions --> Relates to controversial topics like abortions or right to end one's life

Police Powers

- Represent state and local government authority to require individual conformance with established standards of conduct --> standards are designed to promote and protect the public's health, safety, and welfare, and to permit government control of personal, corporate, and other private interests. - Examples: inherent key of coercion --> Healthcare professionals have licenses --> Health facilities have accreditation standards --> Food establishments have health inspections --> Occupational health guidelines --> Pollution control measures --> Limited marketing for tobacco products

Rights under health insurance laws: Affordable Care Act

- Reshapes health insurance access by eliminating the ability of the insurance companies to reject clients based on health status, age, or disability status -->No pre-existing conditions -->No lifetime or annual maximums -->No rescissions -->No fees for out of network emergency services -->Creation of state health insurance exchanges - Also expanded Medicaid coverage to cover all non-elderly low income people who are legal residents or citizens -->if states choose to participate

Gender Discrimination

- Should be remedied under the Equal Protection Clause -->These are difficult to win because you have to prove the decimation exists AND that it lead to your poor outcome - Title VI of the Civil Rights Act only applies to race, color, and national origin

Jacobson vs. Massachusetts

- State passed a law granting local health boards the authority to require vaccinations. Jacobson refused the vaccination on the grounds that he had suffered negative consequences previously. - 7-2 Supreme Court decision in the support of the state --> Recognized that the Police Powers were broad enough to encompass forced vaccinations - Established 4 standards for public health powers 1) Use only in the face of public health threat 2) Methods must prevent or make the threat better 3) Measure cannot impose burden on the individual that is disproportionate to the benefit 4) Measure should not impose significant health risk

Gonzales v. Carhart

- Supreme Court upheld constitutionality of PBABA in 5-4 decision - Found that PBABA was clear in what procedures were included and it did not pose undue burden on the right to receive an abortion - Even with the lack of health exception for the mother

Whole Women's Health vs. Hellerstedt (Current)

- Texas law requiring clinics that provide abortions to have surgical facilities and doctors to have admitting privileges at a nearby hospital. - The law was predicted to close many clinics and further reduce availability of abortion in Texas - The Supreme Court has ruled the law violated the Constitution, overturning it in a 5-3 decision.

Rights Under Healthcare Financing Laws: Medicaid

- There are several laws that aim to expand healthcare access - Medicaid is different from other federal programs that provide care (like community clinics) - Medicaid gives the right to individuals to enforce program obligations through the courts. -->This basically means : an individual who is enrolled in Medicaid can insist on medical treatment

Individual rights and Health Care: A Global Perspective

- U.S. is one of the only high-income nations that does not guarantee health care as a fundamental right. - Some two-thirds of constitutions world-wide address health or health care. -->Almost all of these do so in universal terms

Supreme Court: Roe v. Wade

- Voted 7-2 margin that the abortion law was unconstitutional - However, it set limits to the right to an abortion --> Development of the TRIMESTER FRAMEWORK:the right to choose an abortion is linked to viability of the fetus -Within the 1st trimester-decision left up to the pregnant woman's physician -After the 1st trimester-the state may set regulations related to maternal health -After 1st trimester- States may ban abortions except when pregnancies endanger a women's life - Highly controversial - Lead to other state policies related to this issue....

IOM report (2003)

- documented disparities and stated that they exist not solely from the amount of care needed (meaning that the system perpetuates the disparities) --> Also stated that even when patient characteristics were controlled for, differences arose in terms of access to care and once treatment was sought

Title VI of the 1964 Civil Rights Act

- extends right to care to individuals regardless of race, color, national origin --> Only among those receiving federal funding

Race/Ethnicity Disparities

-Differences in health care access, treatment, and outcomes between populations of color and Caucasians

Canterbury v. Spence Lead to...

1) As part of the physician's responsibility, there is a duty of reasonable disclosure of choices with respect to treatment -->This did not need to be prompted by the patient 2) Disclosure included: --> Potential risks --> Alternatives to proposed treatment --> Likely outcome of not being treated at all - This decision has lead to other interpretations to include: --> Research and financial considerations, right to interpreter, right for medical directives

Categorize health care rights in 3 ways

1) Rights related to receiving services explicitly provided under health care or health financing laws. 2) Rights concerning freedom of choice and freedom from government interference when making health care decisions. 3) The right to be free from unlawful discrimination when accessing or receiving health care.

3) The right to be free from unlawful discrimination when accessing or receiving health care.

Discrimination in health care can occur on the basis of race/ethnicity, socioeconomic status, disability, age, and gender.

Hospital Survey & Construction Act of 1946

Explicitly sanctioned the construction of segregated facilities

EMTALA

Includes 2 related duties (that only relate to hospitals that participate in Medicare, which most do): 1) Requires appropriate screening examination for an emergency medical condition 2) Must stabilize the condition or they must transfer the patient to a facility that can stabilize the patient (if they can't)

One of the reasons Medicaid is controversial

Legal Entitlements are one of the reasons (arguably) for the high costs associated with the program

2.Rights concerning freedom of choice and freedom from government interference when making health care decisions

One of the most important health care rights is the right of individual patients to make informed decisions about the scope and course of their own care. This includes the right to refuse treatment.

Texas SB 8 (Current)

That's well before many women even know they are pregnant. - The law allows private citizens to sue abortion providers and anyone else who helps a woman obtain an abortion — including those who give a woman a ride to a clinic or provide financial assistance to obtain an abortion. --> Private citizens who bring these suits don't need to show any connection to those they are suing. - The law makes no exceptions for cases involving rape or incest.

Simkins v Moses H. Cone Memorial Hospital in 1963

Title VI - makes it illegal for facilities that receive FEDERAL FUNDING to discriminate on RACE, COLOR, or NATIONAL ORIGIN

Immunizations

While controversial - states still have the right to require vaccinationsTo immunize or to not immunize, that is the question

DeShaney vs. Winnebago County Health Depart. and Castle Rock vs. Gonzales Essentially...

in both of these cases, the negative constitution was used to describe what the government can't do, not what is has to do.

No-duty-to-treat principal

individuals have no legal right to health care services or to public health insurance and, correspondingly, there exists on the part of health care providers no general legal duty to provide care. - Came out of the Hurley v Eddingfield case - May have ethical principles that differ - ACA does not alter this principle