In November 2011, U.S. District Court Judge Richard Leon ruled that the U.S. Food and Drug Administration's (FDA’s) proposed graphic health warnings for cigarette packages violated tobacco companies’ First Amendment rights. In doing so, he pointedly refused to consider the experiences of Canada, the United Kingdom, and the more than thirty other countries that had adopted similar graphic warnings in the past decade. Rather, he swatted away all references to those other countries’ experiences by stating (first at oral argument and then in his decision) that “none of [those countries] afford First Amendment protections like those found in our Constitution.”

While it is true that no other country uses the First Amendment per se, many other countries do offer constitutional protection to freedom of speech and/or freedom of expression. Indeed, several other countries apply “strikingly similar” legal tests when reviewing restrictions on speech (and on commercial speech in particular). Thus, the statement that other countries do not “afford First Amendment protections like those found in our Constitution” is an oversimplification.

Tuberculosis (TB), “the world’s most neglected health crisis,” has returned after decades of decline, but has only gradually caught the attention of governments as a formidable threat to public health. By 1984, when TB cases hit an all-time low, federal and state governments stopped supporting the medical infrastructure that once served to contain the disease. State officials around the nation began dismantling laboratory research programs and closing TB clinics and sanitoria. Since 1985, however, TB rates have steadily increased to 26,673 reported cases in 1992, and some have estimated that by the year 2000, there could be a twenty percent increase. By 1993, Congress, realizing that TB could pose a major public health threat, allocated over $100 million to the Department of Health and Human Services for TB prevention and treatment programs. Those funds, however, were sorely needed years before and amounted to only a fraction of what public health officials believe necessary to control TB today.

Health care expenditures in the United States have continued to grow despite efforts to control them. This Article discusses the need for health care reform, outlines the model that reform should follow, and considers why the United States has not progressed toward a workable solution. It introduces a single-payer approach to cost containment and explains how such an approach could be “sold” in the United States. Finally, the Article examines various ways to mobilize support for such health care reform.

Environmental, public health, alternative food, and food justice advocates are working together to achieve incremental agricultural subsidy and nutrition assistance reforms that increase access to fresh fruits and vegetables. When it comes to targeting food and beverage products for increased regulation and decreased consumption, however, the priorities of various food reform movements diverge. This article argues that foundational legal issues, including preemption of state and local authority to protect the public's health and welfare, increasing First Amendment protection for commercial speech, and eroding judicial deference to legislative policy judgments, present a more promising avenue for collaboration across movements than discrete food reform priorities around issues like sugary drinks, genetic modification, or organics. Using the Vermont Genetically Modified Organism (GMO) Labeling Act litigation, the Kauai GMO Cultivation Ordinance litigation, the New York City Sugary Drinks Portion Rule litigation, and the Cleveland Trans Fat Ban litigation as case studies, I discuss the foundational legal challenges faced by diverse food reformers, even when their discrete reform priorities diverge. I also explore the broader implications of cooperation among groups that respond differently to the “irrationalities” (from the public health perspective) or “values” (from the environmental and alternative food perspective) that permeate public risk perception for democratic governance in the face of scientific uncertainty.

The recent and continual call for tort reform has many scholars proposing alternatives to current U.S. medical malpractice law. Most commentators limit their discussions to variations of the two Anglo Saxon theories of liability — negligence and strict liability. Little has been written examining the legal treatment of medical malpractice in other cultures. This article compares and contrasts Jewish and American medical malpractice law, examining both the contemporary and ancient sources of the law.

As health care reform pervades the United States, lawmakers have subjected physician self-referrals to heightened scrutiny. Recent evidence indicates that sending patients to facilities in which a physician has an ownership interest often causes overutilization, overpricing, and lower quality of care. This Note analyzes how physician self-referral arrangements can have negative effects on competition. To combat the adverse effects, the Note examines how enforcing antitrust laws can ameliorate the self-referral dilemma and aid in restoring competition to the health care market. This solution will maintain the doctor's right to invest while protecting the patient's vulnerability.

This Article explores the concept of public accommodation in a civil rights context and presents an argument for revising the Civil Rights Act of 1964 (Act) to extend public accommodation obligations to private healthcare providers and the healthcare industry as a whole, regardless of their participation in federally assisted programs. To the extent that the Act currently reaches healthcare conduct within a relatively narrow definition of “federal assistance,” this view has been eclipsed by the evolution of social attitudes toward the community-wide obligation of healthcare providers, U.S. civil rights policy at both the federal and state levels, the enormity of the federal investment in the U.S. health system and changing concepts of basic health quality. This analysis begins with a brief overview of the current structure of U.S. civil rights law in the context of racial and ethnic minority groups’ access to healthcare.

Improving access to essential medicines in low- and middle-income countries (LMICs) has become a critical health policy issue. Millions more people die each year in poorer countries from diseases that are treated by pharmaceutical agents currently available in higher income nations. Recent medical innovation has tended to focus on problems affecting populations in developed countries and avoid those found exclusively or predominantly in LMICs. The etiology of these disparities is multifactorial, and can include high costs of products, inadequate cooperation between governments and aid agencies, rigid protection of intellectual property rights, and poor local health leadership regarding dissemination of products.

Over the past two decades, there have been growing efforts to reduce global disparities in availability of essential medicines. At the forefront of these efforts have been international agencies such as the World Health Organization, or groups like Médicins Sans Frontières and Partners in Health, which have helped set international health priorities and sought to improve local health care delivery systems.

Health reform debates in the United States are typically conducted using the language of insurance. President Barack Obama described his hopes for expanding access to care as “health insurance reform.” Both proponents and opponents of reform debated the merits of reform proposals leading to the Patient Protection and Affordable Care Act of 2010 in insurance terms. Yet, disagreements over the structure of reform reveal deep differences in what proponents and opponents of reform mean by insurance and the role it should play in mediating access to health care. Scholars of insurance law are likely to describe insurance somewhat narrowly as a risk spreading device. Industry representatives, among others, often view conventional indemnity insurance as the norm. From this perspective, reforms that move too far beyond underwriting risks can be seen as undermining actuarial fairness, threatening the very idea of insurance and possibly the industry itself.

“Big Data represents a challenge that points to the need for collective and political approaches to self-protection rather than solely individual, atomistic approaches.”

– Anita Allen, “Protecting One's Own Privacy in a Big Data Economy”

Laws regulating patient care are an essential component of protecting patients and doctors alike. No studies have previously examined what laws exist regarding pelvic examinations in the United States (US). This study systematically reviews and compares regulation and legislation of pelvic examinations in the U.S. and provides a comprehensive resource to educate clinicians, patients, and lawmakers. Each of the fifty States in the U.S. was included. The primary outcome was existence of any pelvic or rectal exam laws. Data was obtained for the type of examination defined within the law, exceptions to the law, to whom the law applied to, the type of consent required, and to whom the consent applied to. Laws were identified from each of the individual state legislative websites. All sections of each law pertaining to pelvic examination were reviewed and organized by state. Descriptive statistics were performed for each of the variables, including frequencies of each amongst the fifty states. State regulation for pelvic examinations varied from no law or regulation to laws pertaining to pelvic, rectal, prostate, and breast examination performed in any context. As of November 22, 2022, there are twenty states (40%) with pelvic examination laws applying to anesthetized or unconscious patients. Thirteen additional states (26%) have proposed pelvic exam laws. Seventeen states (34%) do not have any laws regarding pelvic examinations. Regulation of pelvic examinations has become an increasingly important issue over the past few years in response to growing concerns of patient autonomy and the ethical issues raised by such sensitive examinations. While pelvic examination laws that balance protection for patient autonomy and the needs of caregivers and educators exist in much of the U.S., more work needs to continue in consultation with physicians and health care providers to ensure that all states have reasonable laws protecting the autonomy of patients while also maintaining quality of care.

Although international covenants have long recognized a fundamental right to healthcare, and other countries provide healthcare coverage for all of their citizens, rights to healthcare in the United States have been adopted only grudgingly, and in a manner that is inherently unstable. While a solid right to healthcare would provide much benefit to individuals and society, the political and judicial branches of the U.S. government have granted rights that are incomplete and vulnerable to erosion over time.

Unfortunately, enactment of the Patient Protection and Affordable Care Act (ACA) does not change these fundamental weaknesses in the regime of U.S. healthcare rights. Millions of Americans will remain uninsured after ACA takes full effect, and rather than creating a more stable right to healthcare, ACA gives unstable rights to more people. As a result, even if ACA survives its constitutional challenges, access to healthcare still will be threatened by the potential for attrition of the rights that ACA provides.

In the twenty-year-long debate over medical malpractice reform, obstetrics is unique. No other area of specialty medical practice has managed to argue successfully that its malpractice victims should be singled out and barred from obtaining relief through the tort system. Yet, following a well-organized lobbying effort by OB/GYNs, the state legislatures in Virginia and Florida have enacted so-called “bad baby bills” that create workers-compensation-type programs for victims of birth-related injuries. Such statutes provide the exclusive remedy for this and only this class of plaintiffs. Other states are considering following suit: bills have been introduced in North Carolina, Illinois and New York.

What justifies this extraordinary legislative action? Proponents of the reforms admit that the effect of these statutes is to reduce the malpractice burden on OB/GYNs. But they are careful to portray patients rather than physicians as the primary beneficiaries of their efforts.

The role of Medicare in our national market for acute care hospital services is that of a power buyer. Medicare beneficiaries in 2008 included some 45.2 million people. Total benefits paid in 2008 were $462 billion, including 29% of all hospital spending. Medicare's dominance in the buyer's market for acute care hospital beds renders the program particularly wellsuited to scrutinize the role of acute care hospital services in producing effective and efficient outcomes for Medicare beneficiaries. “[I]f there are to be far-reaching changes in the way medicine is practiced in this country, Medicare will have to drive them.” It is a historical irony that a program, a scaled-down version of national health insurance, could have grown to this power buyer status; but the history of Medicare is full of ironies—the greatest of which may prove to be that Medicare reforms now sit at the very center of the funding mechanisms for the 2010 Patient Protection and Affordable Care Act (PPACA).

Several Massachusetts laws, including the recently enacted Patients’ Bill of Rights, protect the rights of nursing home patients. Although these laws address many of the problems that such patients face, they do not adequately meet all of the unique needs of this vulnerable group.

This Comment discusses safeguards afforded by current Massachusetts law that are particularly important for nursing home patients, and recommends improvements that would secure more adequate protection for their rights. The Comment also analyzes some of Massachusetts law’s shortcomings in implementation and enforcement, in forum selection and in limitations on standing, and suggests improvements in these areas. Finally, the Comment proposes the enactment of a comprehensive Bill of Rights for Nursing Home Patients in order to address their unique needs more adequately, and to eliminate the duplicative, vague, and confusing provisions contained in current law.

In the 1970's, Michigan and other states were confronted with a medical malpractice crisis of astronomical proportions. The escalating number of medical malpractice lawsuits and concomitant increase in malpractice premiums for health care providers fostered a divisive climate among doctors, lawyers and patients. In response to this crisis, the Michigan legislature enacted the Medical Malpractice Arbitration Act. The Act establishes a process whereby patients may agree to arbitrate any claims rather than pursue them through the courts.

Part II of this Article discusses the historical evolution of arbitration as a precursor to its establishment as a resolution modality for health care disputes. Part III describes the statutory framework of the Michigan Medical Malpractice Arbitration Act. Part IV discusses the contractual and constitutional challenges to the arbitration statute and their resolution in Morris v. Metriyakool.

As the law respecting arbitration becomes less vulnerable to judicial perforation, this Author suggests that other jurisdictions treat the Michigan Medical Arbitration Program as an archetype, susceptible to replication.

When Austin Powers, ace British secret agent, is thawed out after thirty years of suspended animation, he is greeted by his old boss, accompanied by a Russian general. Powers is alarmed by the presence of the Russian general, and complains about the breach of security. Powers' boss tells him “a lot's happened since you were frozen. The Cold War is over.” Powers thinks for a moment, and then responds, “finally those capitalist pigs will pay for their crimes eh, eh comrades, eh?“ His boss gently interrupts, and informs Powers that “we won.” Powers clumsily responds, “Oh groovy, smashing, yeah capitalism,” his tactlessness prefiguring his behavior through the rest of the movie. Despite Powers' noteworthy skills as a secret agent, he has foolishly disregarded the first rule of forecasting the future: don't be around when your predictions are assessed for accuracy and completeness.

Calvin Coolidge had a successful run in politics for over twenty years before ultimately becoming president of the United States in 1923. Throughout Coolidge's first term as president, he worked long, hard hours, was active in Congress, and maintained a strong relationship with the media. This changed, however, during the second term of his presidency. Less than a month after his second-term election, Coolidge's son died of blood poisoning. This traumatic event caused the President to enter into a deep depression. In his autobiography, Coolidge admitted that when his son died, the power and glory of the presidency went with him. His grief, which has since been coined pathological grief, had an effect on the President's mind, body and spirit. President Coolidge lost interest in his job and began sleeping fourteen hours a day, ultimately earning a reputation as one of the most ineffectual presidents ever to hold office. His depression rendered him incapable of making decisions, and as a result most of his duties were delegated to members of his Cabinet. Though the White House knew for four years that Coolidge's depression rendered him incompetent, he remained in office until the end of his second term.

As the opioid epidemic continues in the United States and ongoing litigation seeks to hold contributors responsible, state governments have initiated lawsuits against retail pharmacies for their role in contributing to the crisis. This article summarizes an action the State of West Virginia brought against CVS, which the parties recently settled in the fall of 2022. This article examines the unique position of retail pharmacies like CVS, which often serve as both distributors and dispensers, in contributing to the oversaturation and illicit diversion of opioid prescriptions. The article concludes by assessing the viability of potential causes of action against retail pharmacies in opioid litigation.

A component of the 1965 Medicaid Act, the Institutions for Mental Diseases (“IMD”) Exclusion was supposed to be a remedy for the brutal, dysfunctional mental healthcare system run through state hospitals. In the years since Medicaid was created, the IMD Exclusion has instead barred thousands of those in need of intensive, inpatient treatment from receiving it. As a result, many severely mentally ill individuals are left without adequate care and without a home. They struggle in the street where they are otherized by those in their community and are susceptible to confrontational episodes with law enforcement. Many are ultimately incarcerated, where they are thrust into an abusive environment known to exacerbate mental health issues.

This Note's central contention is that the IMD Exclusion creates an access gap for the poorest Americans who suffer from mental illness. Subsequently, prisons and jails fill that gap to the detriment of those individuals. The Note will proceed first by explaining the IMD Exclusion and how it applies to state-run medical care services and facilities. This Note will discuss the nationwide movement, in the 1950s through the 1960s and ‘70s, to deinstitutionalize notoriously abusive state psychiatric hospitals, a movement that culminated in the passage of the Medicaid Act in 1965, along with the IMD Exclusion. This Note will then shift focus to criticize the practical effects of the IMD Exclusion and its extensive role in the mass incarceration issue today. In doing so, this Note will identify the major weaknesses of the IMD Exclusion and explain how these weaknesses create an access gap for mentally ill persons, while simultaneously making them more vulnerable to contact with the police and the criminal justice system.