The U.S. healthcare system continually confronts the challenge of controlling costs, improving quality and patient safety, and increasing or maintaining patient access to care. Payors and purchasers of healthcare (both public and private) strive to develop mechanisms to guarantee that they are purchasing the highest-value care – seeking to ensure that amounts paid take into account and provide incentives encouraging the delivery of high-quality, cost-efficient care. Through “value-based purchasing” (“VBP”) strategies, healthcare payors and purchasers are transforming from passive payors of claims (as in a traditional fee for service system) to active purchasers of quality care. To date, employers, health plans, and the Centers for Medicare and Medicaid Services (“CMS”) have implemented well over 100 VBP programs. However, progress is slower than anticipated. As the Institute of Medicine (“IOM”) and others have noted, adoption of VBP reforms may be hampered by legal barriers arising from a number of state and federal laws. The goal of this paper is to identify potential state and federal legal impediments to implementing VBP in healthcare.

The struggle for control of this nation's life-giving blood resources was, up until five years ago, largely a private affair between representative organizations of the blood collectors. The system that emerged from that struggle was declared unhealthy by several experts who complained that blood was too often unsafe or unavailable. Then in 1972 the government, predominantly the federal government, responded to public pressure and joined the fray. This Comment examines some legal, political, and policy aspects of the battle over blood collection—a battle from which no stable guiding force has yet evolved.

I propose to survey briefly 16 of the Supreme Court's “Law and Psychiatry” decisions in the decade and a half from 1972 through 1986. I shall emphasize Justice Harry Blackmun's role in these decisions, his votes and his opinions.

Justice Blackmun's changing “social vision” on the court has been much discussed. It has even been examined quantitatively in a Harvard Law Review student note. This note measured his shift over time from voting with Burger and Rehnquist to voting with Brennan and Marshall. The lines of this graph cross in 1981, and 16 cases I have selected confirm this change. The 16 law and psychiatry cases are listed in Chart 1 below in chronological order. There were 8 cases before 1981 in which Justice Blackmun consistently voted with Burger and Rehnquist. There were 8 cases after 1981 in which Justice Blackmun consistently voted with Brennan and Marshall.

Obesity is the number one health problem facing America today. The connection to physical inactivity and a sedentary lifestyle has long been recognized, but only recently has it become a focal point for physicians worldwide. Surprisingly, the answer may be as close as America's backyardthe public lands and waters under the management of the U.S. Department of the Interior (Interior), as well as other federal, state, and local agencies. While traditional efforts to increase physical activity among Americans have focused on exercise-related activities such as calisthenics, treadmills, or stair machines, more recently leisuretime activities like gardening and housework have emerged as additions to the physical activity arsenal. These activities in turn have shifted attention away from individual obstacles and toward barriers to human movement in the built environment.

The scope of product liability for prescription drug injuries is a highstakes matter. As the recent Vioxx litigation illustrates, drug manufacturers can face numerous lawsuits when users are injured by risks discovered only after the drug reaches the market. The extent to which Food and Drug Administration (FDA) decisions preempt tort liability has emerged as a major issue. The agency itself has issued a policy that favors preemption when a drug manufacturer consults with the agency about a new risk. The Supreme Court has found liability preempted for medical devices based on an express preemption provisions and is expected to make an important ruling on drug preemption this term in Wyeth v. Levine. Some believe that the Court will rule in favor of preemption even though there is no express statutory provision for drugs.

In September of 2014, Elisabeth Rosenthal of The New York Times detailed a burgeoning problem she termed “drive-by-doctoring,” a practice in which patients go to the hospital for surgery with an in-network physician who, without the patient's knowledge or consent, is assisted by, or consults with, an out-of-network physician during the procedure. While the in-network physician's costs are covered by the patient's insurance, the out-of-network physician charges large fees for her participation, which typically are not fully covered by the patient's insurance plan and are instead passed directly through to the patient. Patients wake from surgery with surprise medical bills that can total over one hundred thousand dollars. Providers typically attempt to collect the full amount of these surprise charges, which “can be especially significant because … they may involve out-of-network providers who bill 20 to 40 times the usual local rates ….”

Spurred by President Ronald Reagan's 1986 Executive Order seeking to establish a drug-free workplace and by the growing empirical data purporting to show a loss of time, money and productivity due to the adverse effects of substance abuse, employers in both the public and private sector have implemented drug testing programs on an unprecedented scale. Today, employers subject an estimated thirty million workers to some type of employer-sponsored drug and alcohol testing in the workplace. A 1996 survey by the American Management Association reports that eighty-one percent of all major corporations now employ some type of drug testing program, a fourfold increase in nine years.

While drag testing in the health care sector is rising, it still lags behind other industries. When a hospital does test, it often exempts a crucial job classification—physicians. This Article's thesis centers on the potential liability hospitals face by failing to include drug testing in its hiring and credentialing process.

Every day, companies collect health information from customers and analyze it for commercial purposes. This poses a significant threat to privacy, particularly as the Fourth Amendment protection of this deeply personal information is limited. Generally, law enforcement officers do not need probable cause and a warrant to access these private health information databases; only a subpoena is required, and sometimes nothing at all. The Fourth Amendment protections for health information may, however, have changed after the Supreme Court's 2018 decision in Carpenter v. United States, which held that the Fourth Amendment protects people from warrantless searches of historical cell-site location information possessed by their cell phone providers. The Court explained that, because of the nature of historical cell-site location information, individuals retain a reasonable expectation of privacy despite the information being in the possession of a third party. In reaching its holding, the Supreme Court considered the type of data, the uniqueness of cell-site location information, the impact of technological advancement on privacy, the voluntariness of the disclosure, and the property rights associated with the records. Many of these factors could support heightened Fourth Amendment protection for health information. This Article argues that Carpenter v. United States provides additional protections for future searches of health information in private databases.

The National Abortion Rights Action League (NARAL) and the Women's Legal Defense Fund (WLDF) co-authored an amicus curiae brief submitted to the United States Supreme Court in Webster v. Reproductive Health Services. The brief was authored on behalf of seventyseven organizations committed to women's equality. The brief argued that continued constitutional protection of a woman's fundamental right to choose abortion is guaranteed by the liberty-based right to privacy. Further, we argued that this right is essential to women's ability to achieve sexual equality. In order to participate in society as equals, women must be afforded the opportunity to make decisions concerning childbearing. Women's unique reproductive capabilities have long served as a principal justification for their unequal and disadvantageous treatment by the state. Restrictive abortion laws continue “our Nation['s] … long and unfortunate history of sex discrimination” by depriving women of the freedom to control the course of their lives.

The authors of this Comment note recent trends rigidifying the enforcement of building and safety codes for health care facilities and compare the estimated costs (in terms of dollars spent) of those trends with their anticipated benefits (in terms of potential years of human life saved). They estimate that for each potential year of life saved, strict enforcement of the Life Safety Code of the National Fire Protection Association would cost $12.7 to $63.5 million for hospitals and $1.1 to $2.6 million for nursing homes, the latter figure based on Massachusetts's experience. These figures are contrasted to the cost of routine kidney dialysis, which is generally acknowledged to be an extremely expensive technology, costing approximately $20,000 per potential year of life saved. The authors suggest that even if strict enforcement of the Code were fully effective (which, given the current structure of the Code, seems doubtful), a portion of the substantial financial resources expended from our limited national health care budget in hewing to the letter of the Code might be better spent on other activities with greater potential yield in improving the quality of life for patients in hospitals and nursing homes.

Society benefits from physicians who seek truth and healing for the good of humanity. Despite ethical admonishments to “do no harm,” however, physicians have caused some of the most appalling human rights abuses of the twentieth century. Physicians, alone or in concert with the state, have willfully abused their medical knowledge and debauched their profession in furtherance of human rights violations. Compounding their crimes, physicians often have been complicit in following oppressive regimes in abusive practices against their citizens. Ironically, it is their knowledge of this healing art that allows physicians to take part in this injurious conduct; and it is this knowledge that states seek to harness in buttressing violative policies. In fact, for nations bent on violating human rights, it is “much easier for governments to adopt inherently evil and destructive policies if they are aided by the patina of legitimacy that physician participation provides.”

Upon the death of a king or queen, the proclamation “the king is dead, long live the king” announces a new monarch’s accession to the throne, preserving the sovereign order. As the Patient Protection and Affordable Care Act (ACA) is implemented, it is tempting to proclaim the reign of a new system of health insurance. But, will it preserve the old order or initiate a new form of governance? As states and insurers grapple with new rules and regulations being issued from the Department of Health and Human Services, the Treasury Department and the Department of Labor, one might believe an entirely new health insurance system is being built. Yet, the ACA is designed to preserve existing forms of public and private health insurance, such as Medicare and private employer group health plans, which will continue to operate much as they have in the recent past. What has changed is the role that insurance will play and how that will shape the way we think about health policy.

The purpose of this paper is to provide a comprehensive review of the work of the World Health Organization (WHO), begun a decade ago in Europe, in the field of health legislation. This program is the result of the interaction between two important factors: the trends in national health policy and legislation at the country level, and the implementation of the Health for All policy, which has been collectively adopted by the European Member States in various WHO fora.

Health legislation has proved to be a valuable tool in supporting National Health Policies in European countries and a key element in international health activities. The paper will be presented in three main parts. The first examines the legislative implications of the Health for All policy and strategy. The second gives an overview of developments in health legislation in Europe, focusing on national achievements in three areas in which change is necessary to achieve Health for All: health care systems, the environment, and lifestyles. The third part gives an account of activities carried out by the Regional Office for Europe of WHO in the health legislation field, recalls the organization of the first WHO medium-term program in this field, and summarizes its four current subprograms on health policy, health situation, exchange of information, and training. The conclusion briefly outlines the prospects for further developments in Europe.

During the emergence of SARS-CoV-2 and the COVID-19 pandemic, public health officials exercised their police powers to combat the spread of the virus. The pandemic-related legal interventions adopted throughout the United States included lockdown orders and mask mandates. However, these policies and interventions meant to promote the general welfare of the public, in defense of common good, were met with legal challenges, especially in opposition to interventions’ impact on the exercise of religion. This article provides a legal analysis of the policies meant to curb the COVID-19 pandemic with a focus on legislative and judiciary actions and their implications for religious freedom. Ultimately, we hope this article will help inform future legal analyses on conflicts between public health and religious freedom in the context of pandemic legal preparedness efforts.