Where Are We Now: Post 5, Ways of Being Wrong – and Opportunities to be Right

By Scott Burris

The main contests (a summary of previous posts):

A lot of people in public health practice seem to be (appropriately) concerned about our public health infrastructure – the agencies within public health systems where day to day work is done. Public health infrastructure tends to get taken for granted and neglected. Core prevention activities, from surveillance to restaurant inspection, easily become invisible.  Health agencies become collateral damage in the war on government.  Our challenge here is to get noticed and appreciated – and to deserve it by being demonstrably effective, efficient, smart. Legal infrastructure is a meaningful part of this, so there is work for legal academics both in institutional design and in helping health agencies use their legal authority effectively and creatively.

In public health law (and PHLR), most of us tend to be working on legal interventions. Public health work can be pretty straightforward and even popular when it has to do with preventing proximate and substantial harms, and this is true even when the legal intervention involves changing behavior. Law changes norms and expectations, so initial resistance often gives way to acceptance.  The fact that sometimes the industry whose profits are implicated can fight back, and even win, defines the hard part of the game – and challenges our field to be more legally and politically effective.

Then there is a third game, in which public health (in a not altogether new or unprecedented way) has concerned itself with the structure of the healthy society, and (perhaps to an unprecedented extent) taken on distal contributors to complex, multi-factoral health threats, case in point obesity.  I’m not sure we have an effective game plan for this. But in each case, there are things we are doing poorly – or that we should think about doing better.

Challenges and opportunities:

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Maintenance of Effort in Maine

After the NFIB decision in June, Maine tried to expand Justice Roberts’ remedy to also make the “maintenance of effort” provision optional for states. Maine was unsuccessful in the First Circuit with the argument, for procedural reasons.  Prior coverage here.

The Obama Administration is sticking to the letter of the law, and announced Tuesday that it is refusing to allow cuts for Medicaid beneficiaries at or below 133% (138% after the 5% income disregard) of FPL in Maine.

Maine has not yet announced whether it will take the case back to the First Circuit. With Huberfeld & Leonard, we’ve argued at length (see esp. pp. 75-83) that Maine does not have the winning argument, in an article to be published in the BU Law Review later this month. SSRN version here. The short version is that MOE is a common tool to lock-in states during transition to a new program, was discussed in the briefing, but was not part of the coercion analysis in Justice Roberts’ plurality. The key provision was 42 USC 1396c, the Secretary’s authority to reduce some or all of the funding to non-compliant states. But we will see if Maine wants to argue the substance of this point at the First Circuit.


Reproducing After One’s Suicide

If you live long enough you really do see it all. News.Com.Au reports that an Australian judge has permitted a widow to extract sperm from the body of her husband who recently committed suicide to be used for In Vitro Fertilization (IVF) of the woman. According to the report “The woman, whose name has been suppressed, had spent the past two years trying to conceive and recently began in vitro fertilisation (IVF) treatment when her husband, who suffered from severe bouts of depression, committed suicide.”  From the article there is a report on some of the reasoning of the court

Under the Human Tissue and Transplant Act, a designated officer at a hospital (usually a senior doctor) may authorise a request from a next of kin for the removal of human tissue from a deceased person for medical procedures. Judge Edelman said sperm fell under that scope. The only restriction is when a person dies in sudden or suspicious circumstances. In those cases permission needs to be given by the State Coroner who did not object to the sperm being removed and stored. Because of the short turnaround time for the hearing, Judge Edelman said the Health Minister did not have an opportunity to appear at the proceeding. He said the Minister would have an opportunity to be represented at any future hearing concerning the use of the sperm for IVF.

This case raises a number of very interesting questions.

First, I think the court’s reasoning distinguishing the extraction of sperm (permitted) versus its eventual use through IVF (which seems may be subject to prohibition later) interestingly implicitly makes a distinction I have drawn in my own work between a bodily integrity right related to one’s reproductive material and a non-use right I have called “The Right Not to Be a Genetic Parent?” The Court seems to suggest a default rule where extraction is permitted as a matter of course (no posthumous bodily integrity) but perhaps a different rule as to the Right Not to Be a Genetic Parent. Second, the case raises the more general question of the nature of the interests of the would-be genetic parent in posthumous reproduction. In The Right Not to Be a Genetic Parent I argued that the strongest argument for such a right is connected to what I call “attributional parenthood,” the attribution by the genetic parent, the child, and third-parties of parenthood to him/her on the basis of the genetic tie. Posthumous parentage, though creates some special problems with this argument. As I suggest in a rather lengthy footnote (n. 64) in that article:

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