Limited Access to Contraceptives in Illinois

By Alexandra Gross

What does “access” really mean for the purposes of PPACA’s contraceptive coverage mandate?

For two years, I’ve been enrolled in Loyola University of Chicago’s Student Health Insurance Plan, provided through a Blue Cross Blue Shield Illinois (BCBSIL) PPO plan. During this time, I have had to pay out-of-pocket for my contraceptive method every month. As a student studying health law, I was aware of the ACA’s contraceptive coverage mandate, § 2713 of the Public Health Services Act, which requires non-grandfathered health insurance plans to provide access to a full range of Food and Drug Administration approved contraceptive methods without cost sharing. The contraceptive coverage mandate reflects Congress’ determination that “access to preventive services without cost sharing is necessary to achieve access to basic health care,” particularly for women, as they have unique health care needs. The contraceptive coverage mandate also states that plans and insurers may impose “reasonable medical management techniques” to control costs and promote efficient delivery of care. For example, plans may cover a generic drug without cost sharing, but impose cost sharing for the equivalent brand name drug. Even with the imposition of medical management techniques, I still could not figure out why every single woman I talked to who was on my plan had a copayment of twenty dollars or more a month.

My colleagues and I assumed our issues with contraceptives were a result of attending a religiously affiliated institution. We were wrong. Loyola has properly sought a religious exemption from providing contraceptive coverage and communicated to the students and employees that BCBSIL should be accommodating us directly, without Loyola’s involvement. However, in practice, the accommodation is failing the students and employees at Loyola University of Chicago.  Continue reading

On Agency Accommodations and Least Restrictive Alternatives

Nadia N. Sawicki

Did HHS shoot itself in the foot by providing an accommodation to religious non-profits?

In holding that the contraceptive mandate imposed by HHS on Hobby Lobby and Conestoga Wood was not the “least restrictive alternative” for providing no-cost contraceptive coverage to women, the Supreme Court pointed to the accommodation HHS recently provided to religiously-affiliated non-profit corporations. Under the accommodation, “eligible organizations” such as religiously-affiliated hospitals and universities can avoid funding insurance coverage for contraceptives if they certify that they have a religious objection to providing such coverage. In such cases, the eligible organization’s insurance issuer must exclude contraception from the organization’s group health insurance plan, and instead provide a separate issuer-funded contraceptive plan directly to employees. Given that such an accommodation is already in place for some employers, the Supreme Court noted, “HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs.”

One obvious problem with the Court’s assertion, noted in Justice Ginsburg’s dissent, is that the Court expressly declined to determine whether such an accommodation would in fact be permissible under RFRA. Given the challenges to the accommodation-by-certification requirement already brought by organizations like Little Sisters of the Poor, it is far from clear that the current composition of the Supreme Court would uphold this requirement if faced with a direct challenge.

A second, perhaps less obvious, concern about the Court’s proposal that the eligible employer accommodation be extended to for-profit corporations is that HHS may now regret providing it – and as a result, HHS may refrain from making similar accommodations in the future, which would be a significant loss to defenders of religious freedom.

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Sincerity and Religious Belief in Hobby Lobby

Nadia N. Sawicki

Courts evaluating First Amendment and RFRA claims have long held that they are in no position to evaluate the validity, centrality, or reasonableness of a claimant’s sincere religious beliefs. And while there is room for courts to evaluate whether a claimant’s beliefs are indeed “sincere,” many courts shy away from doing so because of a perceived overlap between judgments about centrality and about sincerity.

In Hobby Lobby, the sincerity of the corporation’s beliefs was not in dispute. Hobby Lobby asserted (and HHS accepted the claim) that it had a sincere religious belief that life begins at conception, and that this belief prohibited it from facilitating access to contraceptives that operate after that point.

But recent news reports have shown that Hobby Lobby has, in fact, been involved in activities that seemingly run afoul of this belief – including investing in pharmaceutical companies that manufacture the contraceptives they raise objections to in their lawsuit, as well as drugs commonly used for abortion; investing in insurance companies that cover abortion and emergency contraceptives; and actually providing coverage for emergency contraception in their own health plan until 2012.

While these facts were not raised before the courts hearing Hobby Lobby’s RFRA claims, First Amendment precedent suggests that they would be relevant to a judgment about the sincerity of Hobby Lobby’s religious beliefs. Surely a company that believes life begins at conception would have more difficulty demonstrating the sincerity of its beliefs when some of its conduct supports activities that are in direct opposition to this stated belief. This is not to say that a court would ultimately conclude that Hobby Lobby’s religious beliefs were insincere – but rather, that a court could legitimately consider these facts without treading into the dangerous territory of judging the merits and centrality of Hobby Lobby’s beliefs to the exercise of its faith.

“That’s a Lot of Marijuana”

Nadia N. Sawicki

Earlier this month, the Drug Enforcement Administration issued notice that it would be increasing the 2014 production quota for marijuana from 21 kilograms to 650 kilograms – an almost 3000% increase. In the words of DEA spokeswoman Barbara Carreno, “That’s a lot of marijuana.” This step, according to the National Institute on Drug Abuse (NIDA), was a necessary response to a dramatic increase in current and proposed marijuana research. Continue reading

How Medicine Learns About the Law

Nadia N. Sawicki

Many medical providers learn about the law the way kids learn about sex – whispers with friends, internet message boards, and media depictions of the most dramatic and unrealistic kind. And while both medical schools and junior high schools offer some type of formal education, it is quite limited, especially as compared to the information these students collect through other, less reputable, sources. As a result, many medical providers go into practice with a dark cloud over their heads – the “scared straight” model of legal education, if you will.

We’ve heard a lot about the practice of defensive medicine – ordering more tests and procedures than are medically necessary in an effort to protect oneself from potential liability. But fear of liability manifests itself in other, less dramatic, ways as well – for example, in overly-restrictive interpretations of HIPAA requirements that make it difficult for patients and their care providers to access needed medical information. In reality, however, much of the fear of liability experienced by medical professionals is unfounded.

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“Sanitizing” Lethal Injection

Nadia N. Sawicki

Oklahoma’s botched execution of Clayton Lockett has brought increased attention to an issue that I have been concerned with for years – the increased “medicalization” of legally sanctioned executions, and, in particular, the role that medical professionals and the scientific community play in this process.

Until the 20th century, most executions were conducted publicly – execution was a communal ritual that served as a means of catharsis. But the American execution process has, over time, become less visible, and, as a consequence, subject to less public oversight. I believe that the movement of the capital punishment process “behind the curtain,” both literally and figuratively, should trouble death penalty opponents and supporters alike.

The standard lethal injection protocol used throughout the United States was developed in 1976 by Dr. Jay Chapman, Oklahoma’s state medical examiner, and Dr. Stanley Deutsch, chair of the Oklahoma Medical School anesthesiology department. Without testing or research, they settled on a three-drug protocol for executing prisoners – sodium thiopental, a short-acting barbiturate; pancuronium bromide, a paralytic; and potassium chloride, which stops the heart. Until recently, this was the combination used in every state.

Things began to change when Hospira, the U.S. pharmaceutical company that manufactured sodium thiopental, stopped making the drug in 2011. Since then, European manufacturers of sodium thiopental and pentobarbital have limited the production of these drugs, and the European Commission has restricted their export to the U.S. for execution purposes. And just last year, the U.S. Court of Appeals for the District of Columbia ruled in Cook v. FDA that the FDA lacks authority to permit importation of these drugs, which, when used for lethal injection, are considered “misbranded” under the FDCA. As a result, many states, including Oklahoma, have had to resort to other alternatives.

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Media Matters: Fetal Abnormalities in the Munoz Case

Nadia N. Sawicki

The tragic case of Marlise Munoz is finally at an end, now that John Peter Smith Hospital has, pursuant to an order by Judge R. H. Wallace, Jr., taken Ms. Munoz off life support and released her body to her family.  A few questions about the media’s role in this case linger in my mind, however; I will be addressing them in a series of posts.

In the days immediately preceding the court’s ruling, media reports frequently mentioned that the fetus Ms. Munoz was carrying was “distinctly abnormal.”  My impression is that these reports were intended to strengthen the case, at least in the public’s eyes, for withdrawal of life support.  Maintaining a dead body on life support against the family’s wishes in order to preserve the life of an able fetus is one thing, commentators seemed to suggest, but the case for doing so when the fetus suffers from hydrocephalus, heart problems, and deformation of the lower extremities is less compelling.

In the eyes of pro-life advocates committed to preserving the potentiality of life at all costs, however, the fetus’ medical condition seems irrelevant.  Unless a fetus is definitively not viable (which in this case the hospital finally conceded it was), a true commitment to the preservation of fetal life would not waver in the face of likely disability upon the child’s birth.

The fervent media reporting about the abnormality of the Munoz fetus seems, at least to me, to reflect a disconnect between the public’s perception of the significance of fetal disability in such cases, and its significance to disability advocates and advocates of pro-life policy.  What lessons, if any, can we learn from this disconnect?

Standards of Care and Patient Advocacy in Religiously Affiliated Hospitals

By Nadia N. Sawicki

The New York Times reported today that the ACLU has filed a lawsuit against the United States Conference of Catholic Bishops on behalf of Tamesha Means, a patient at Mercy Health Partners in Michigan.  The suit alleges that Means suffered physical and emotional harm as a result of the Conference of Bishops’ ethical directives relating to pregnancy termination, which Mercy, as a Catholic health institution, is required to follow.

According to the ACLU press release and the Times article, when Means’ water broke 18 weeks into her pregnancy, she rushed to Mercy Health, the only hospital in her county.  According to medical experts, the fetus had “virtually no chance of surviving” and posed a significant risk to Means’ health.  Mercy physicians did not share this information with Means, and discharged her without informing her that terminating the pregnancy and extracting the fetus was the safest course of action from a medical perspective. Means returned to the hospital twice in the next two days, suffering from infection and extreme pain, but it wasn’t until she miscarried that the staff at Mercy attended to her medical needs.   An obstetrician at the University of Wisconsin Medical School quoted in the Times described Mercy’s treatment of Means’ condition as “basic neglect.”

Rather than suing Mercy Health Partners, Means and the ACLU are suing the Conference of Bishops.  They argue that by directing Catholic hospitals to avoid terminating pregnancies or providing referrals (even when a woman’s health is at risk), the Conference of Bishops is ultimately responsible for the harms suffered by Means and other women in her position.  According to Louise Melling, deputy director of the ACLU, “This isn’t about religious freedom, it’s about medical care.”

There are a host of legal, ethical, and religious issues associated with the Tamesha Means case.  But in this post, I’d like to focus on only one - the division of legal responsibility between health care providers and third parties when it comes to patient advocacy and quality of care. Continue reading

Doctors who DREAM: Clearing up Confusion on Citizenship Requirements

Nadia N. Sawicki

Loyola University Chicago’s Stritch School of Medicine recently announced that it is accepting applications from DREAMers – undocumented immigrants who are eligible for the Deferred Action for Childhood Arrivals (DACA) program, which grants qualified applicants a two-year, renewable authorization to remain and work within the United States. This news was met with predictable responses on both sides of the immigration debate – DREAMers applauded the decision, while critics of immigration reform derided the program as a “campaign by that elites who run higher education” who are insensitive to the program’s effects on American citizens.

Media reporting on Loyola’s new policy, however, has been unclear with respect to one issue – whether DREAMer graduates will ultimately be able to obtain medical licenses in the states in which they intend to practice.  According to Geoffrey Young, senior director of student affairs and programs at the Association of American Medical Colleges in Washington, who was quoted in an article in Crain’s Chicago Business, “They’ll all be M.D.s, but whether or not they can practice legally in states is to be determined.”

Under the best interpretation of current law, however, DREAMers who successfully graduate medical school cannot be barred from obtaining a medical license on account of their citizenship status.  While some states’ licensing requirements still include a citizenship requirement (New Jersey, for example, requires that applicants for a medical license be U.S. citizens or declare their intention to be a citizen; those who fail to gain citizenship within a set period of time will have their temporary licenses revoked), Supreme Court precedent indicates that withholding medical licensure based on citizenship status would likely violate the Equal Protection clause of the Fourteenth Amendment.

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Health Law Chair Position at Loyola University Chicago

Nadia N. Sawicki

I’m pleased to announce that Loyola University Chicago School of Law is seeking to fill the recently created Bernard J. Beazley Chair in Health Law and Policy.  My colleagues and I at the the Beazley Institute for Health Law and Policy are excited for the opportunity to welcome a distinguished scholar of health law into the Loyola community.

Inquiries should be directed to Prof. Spencer Weber Waller, the chair of the search committee, at  swalle1 at luc.edu. Interested candidates should submit an application at www.careers.luc.edu.

Additional details about the position are below the fold. Continue reading

Lethal Injection Drug Shortage Leads to Debate

Nadia N. Sawicki

A recent article in the New York Times (“Death Row Improvises, Lacking Lethal Mix”) described the challenges that correctional departments in death penalty states face in obtaining the drugs needed for lethal injection. The manufacturers of pancuronium bromide and pentobarbital, for example, have refused to supply drugs for execution purposes, and the U.S. Court of Appeals for the District of the District of Columbia recently ruled that the FDA cannot approve importation of sodium thiopental. States such as Missouri, Arkansas, and California are now struggling to decide how to approach the issue.

The article quotes death penalty supporter Kent Scheidegger, of the Criminal Justice Legal Foundation, who describes the legal challenges to lethal injection drugs as a “conspiracy to choke off capital punishment by limiting the availability of drugs.”  Also quoted is Robert Blecker, a professor of criminal law at New York Law School, who refers to the drug challenges as “an abolitionist tactic to gum up the works … It’s just another tactic.”  Such comments do a disservice to those on both sides of the political spectrum who have legitimate concerns about the methods by which states execute death row prisoners.  Not every challenge to lethal injection techniques is a subversive tactic to overturn the death penalty.  In engaging in debate on this issue, commentators ought to look beyond their own political perspectives and consider that the arguments made by opponents are made in good faith and do not always reflect a predetermined political view.

While many opponents of lethal injection techniques are driven by a moral opposition to the death penalty, the arguments about the problems with these techniques are valid regardless of one’s political position. Surely, even a supporter of the death penalty can believe that the methods used to execute prisoners matter – that lethal injection techniques ought to be effective and efficient, and ought to be designed to avoid the types of errors that have caused complications in the past.  One’s support for the death penalty as a penal tool should not negate human compassion for even the most hardened criminal’s last moments on earth.  While death penalty states may be eager to move forward with executions as quickly as possible, it is foolish for this motivation to drive the adoption of untested and unproven drugs.

While there are very real logistical challenges to testing new execution techniques, death penalty supporters are wrong to describe the arguments presented by opponents of the current system of lethal injection as merely conspiratorial tactics to “gum up the works.” Rather, these arguments reflect legitimate concerns about the end-of-life experiences faced by the 40 to 60 prisoners who are executed every year.  Commentators such as Scheidegger and Blecker, if truly committed to the death penalty, ought to find ways to satisfy critics’ concerns about humane execution methods, rather than dismiss critics as politically-motivated obstructionists.

Is Paying For Medical Care Like Buying A Used Car?

Nadia N. Sawicki

Two recent publications prompt me to ask this question.

The first, forthcoming in JAMA Internal Medicine, is a study by Jaime Rosenthal, a student at Washington University in St. Louis.  Rosenthal and her colleagues set out to obtain pricing data for total hip arthroplasty from 20 top-ranked orthopedic hospitals and 102 representative general hospitals (two from each state and Washington DC).  Rosenthal, posing as the granddaughter of a 62-year old woman without health insurance, contacted each hospital numerous times to inquire about the total cost of the procedure.  Only 45% of the top-ranked hospitals and 10% of other hospitals were able to provide a complete bundled price; price estimates were obtained at 15% of ranked hospitals and 53% of other hospitals by contacting the hospital and physicians separately.  And perhaps most startlingly, the prices quoted for the procedure ranged from $11,000 to $125,798.  The authors’ conclusion is a modest one – that patients “may find considerable price savings through comparison shopping” – but I believe its impact is far greater.  In part because of the way health care is financed in our country, the average American consumer has little awareness of how much any given medical procedure actually costs.  But who can blame the consumer in this market, when those who provide the services themselves have no baseline against which to set costs?

This brings me to the second piece –  Steven Brill’s excellent article in Time Magazine, “Bitter Pill: Why Medical Bills are Killing Us,” which my co-blogger Patrick O’Leary blogged about last week.  ).   Brill spent half a year trying to understand why some nonprofit hospitals seem to function like prosperous businesses – with brand-new facilities, impressive executive compensation, and high profit margins.  He approached this problem by analyzing patients’ medical bills from hospitals, physicians, drug companies, “and every other player in the American health care ecosystem.”  Brill offers a scathing commentary on a system where patients are billed $18 per diabetes testing strip that can be purchased in boxes of 50 on Amazon.com for about 55 cents per strip.  Another example: one patient was billed $7,997.54 for a CT scan stress test that Medicare pays $554 for; and $3 for a reusable pen that marked where an incision would go.  These prices, Brill explains, are based on the chargemaster, a master document of prices kept by every hospital that is the basis for insurance negotiation reductions.  Nearly every executive he spoke with said that the chargemaster prices are irrelevant because “nobody gets charged those prices,” but Brill’s research suggests the contrary. Those without insurance, as we in the health law and policy community have long known, are charged more that those who are covered by insurance.  Brill’s article also follows medical billing advocates who negotiate patient bills down dramatically for patients who are willing to pay their fees; however, not every patient is so lucky.

The findings in Rosenthal’s and Brill’s articles are startling.  Few consumers, I would image, participate in the health care market with the understanding that the costs they might pay vary widely from institution to institution; that the prices they are asked to pay for a given procedure are far in excess of how much federal health programs believe the procedure is worth; or that they can “bargain down” their charges through skilled negotiation by someone with inside knowledge of the system.  Readers of this blog might chafe at the comparison between the market for health care and the market for used cars, but perhaps it is the used car dealer who should feel offended.  His customers, at least, can rely on the Kelley Blue Book.

Google, Whole Foods, and … Big Pharma?

Nadia N. Sawicki

Google’s informal corporate slogan is “Don’t be evil.”  Whole Foods is a Fortune 500 company with a net revenue of 10 billion dollar that prides itself on a commitment to social responsibility.  Both companies have pledged to do long-term good in the world, even at the expense of short-term gains, and both are wildly successful.

If corporations can be profitable as a result of their commitments to social justice and corporate ethics, why can’t this doctrine be extended to the pharmaceutical industry?  Someday, a company called GoodPharma might reach the Fortune 500 on the basis of a pledge to improve access to medicine, conduct international research trials in accordance with the highest standards of research ethics, engage in research on orphan diseases, publish negative research findings, promptly report information about adverse effects, and generally act as a model for ethical industry practices.  If this business model hasn’t been explored, it should be.

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Good Science and Bad Verdicts

Nadia N. Sawicki

On Monday, an Italian court convicted six scientists and a government official of manslaughter for providing the townspeople of L’Aquila with “inaccurate, incomplete and contradictory” information about risk of a 2009 earthquake in which 309 residents subsequently died. The prosecutors in the case successfully alleged that the scientists, all members of the National Commission for the Forecast and Prevention of Major Risk (La Commissione Nazionale per la Previsione e Prevenzione dei Grandi Rischi), downplayed the risks to the town at a meeting in which they described the possibility of a large earthquake “unlikely” despite a series of minor tremors.  Interestingly, the prosecutor in the case cited a 2009 ruling by the U.S. District Court for the Eastern District of Louisiana holding that the U.S. Army Corps of Engineers’ negligent maintenance of a navigation channel contributed to the flooding after Hurricane Katrina.

The defendants were sentenced to six years in prison and ordered to pay $10.2 million in damages and costs, a result one of the convicted defendants, a physicist, has decried as “medieval.”

The decision to criminally punish scientists for failing to predict a natural disaster that is inherently unpredictable is likely to have a chilling effect on critical research.  More importantly, it may lead to reluctance on the part of the scientific community to collaborate with government agencies for the public good. Indeed, the Department of Civil Protection (Dipartimento della Protezione Civile), of which the National Commission is a part, suggested that the first consequence of the court’s ruling would be a “paralysis of forecasting and prevention activities” (translation my own).  “This is the death of public service on the part of professors and professionals,” said Luciano Maiani, president of the National Commission, who, along with a number of colleagues, resigned his post on Tuesday.

Missouri District Court Dismisses Challenge to Contraception Mandate

By Nadia N. Sawicki

Litigation challenging the PPACA contraception mandate continues, and last week’s decision by the U.S. District Court for the Eastern District of Missouri in O’Brien v. HHS brings the total number of decisions on the merits to two (three cases – Nebraska v. Sebelius, Wheaton College v. Sebelius, and Belmont Abbey v. Sebelius – have already been dismissed for lack of standing).

Judge Carol Jackson’s opinion dismisses all the plaintiffs’ claims, but focuses primarily on the Religious Freedom and Restoration Act (RFRA) claim.   RFRA, which was passed by Congress in response to the Supreme Court’s 1990 decision in Employment Division v. Smith, applies a stricter standard of scrutiny to burdens on religious exercise than is constitutionally required under Smith.  A plaintiff who can demonstrate that his freedom of religious exercise is being substantially burdened by a law will prevail unless the government can prove that the law serves a compelling state interest using the least restrictive means possible.

With respect to O’Brien’s RFRA claim, the District Court concluded that requiring a corporate employer to cover contraception in its health insurance plan does not impose a substantial burden on the entity’s right to religious exercise.  Or rather, the entity’s hypothetical right to religious exercise – the District Court assumed for the sake of argument that a secular corporation can, in fact, “exercise” a religion.  The court concluded, however, that whatever burdens exist on the plaintiffs’ right of free exercise, those burdens are “too attenuated to state a claim for relief.”   Unlike other cases where plaintiffs have been able to demonstrate substantial burdens on religion, the PPACA contraception mandate would not prevent the plaintiffs in O’Brien from keeping the Sabbath, raising a family according to Scripture, eschewing contraception, or expressing an opinion to employees.  Rather, the mandate merely requires indirect financial support of a practice with which the plaintiffs disagree – no different, the court suggests, than paying a salary to an employee who, through her own free will, chooses to purchase an objectionable product.  While the court did not draw this connection directly, this reasoning is similar in kind to the reasoning used by courts in rejecting claims of conscientious objection by taxpayers.

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When Is An Emergency Not an Emergency?

In 2010, Illinois issued an administrative rule requiring that pharmacies dispense all lawfully prescribed drugs, including emergency contraception, or face sanctions.  Last week, an Illinois appellate court in Morr-Fitz v. Quinn held that Illinois’ Conscience Act prohibits enforcement of the rule as applied to the plaintiffs, pharmacy owners with ethical convictions against distribution of emergency contraception.

The case was decided on state law grounds, and involved a rather thorough textual analysis of the Illinois Conscience Act and the administrative rule regarding pharmacies’ obligations to dispense.  The most interesting part of the court’s analysis, in my opinion, was its discussion of whether the need for emergency contraception qualifies as an emergency.

By its terms, the Illinois Conscience Act does not relieve medical providers from their legal obligations to provide “emergency medical care.”  The state defendants in this case argued that “because ‘every hour counts’ in the effectiveness of Plan B contraceptives, the provision of emergency contraceptives falls within this exception.”  The court, however, concluded that emergency medical care necessarily involves “an element of urgency and the need for immediate action,” and that a woman’s need for emergency contraception does not fall within this definition.  According to the court, unlike a ruptured appendix or surgical shock, “unprotected sex does not place a woman in imminent danger requiring an urgent response.”

What do you think?

Symposium: Freedom of Choice at the End of Life, Nov. 16

Nadia N. Sawicki

New York Law School’s Justice Action Center is hosting a symposium on elder law on Friday, November 16, titled “Freedom of Choice at the End of Life: Patients’ Rights in a Shifting Legal and Political Landscape.”   A number of Bill of Health bloggers (myself included) will be speaking at this event, which will address topics including legal and practical impediments to honoring end-of-life wishes, the practicalities of drafting and using advance planning tools, pain management and palliative care, futility, and ethical dilemmas in end-of-life care.  You can register here.

9th Circuit: Prosecution of Women Seeking Illegal Abortions Likely Unconstitutional

Nadia N. Sawicki

In May 2011, Jennie Linn McCormack was charged with violating an Idaho law making it a felony for any woman to undergo an abortion in a manner not authorized by statute. The 9th Circuit Court of Appeals has recently upheld the U.S. District Court for the District of Idaho’s grant of a preliminary injunction restraining enforcement of the statute under which McCormack was charged.

McCormack’s crime, according to prosecutor Mark Heideman, was that she used medication legally prescribed by a physician on the Internet to induce abortion. McCormack pursued this option because there were no abortion providers in the eight southeastern Idaho counties proximate to her home, and the cost of traveling 138 miles to a provider Salt Lake City, Utah was beyond her means.

Idaho’s abortion statute is unusual in that it expressly permits prosecution of pregnant women who pursue illegal abortions, rather than being limited to third-party abortion providers. Hiedeman contended that his prosecutorial authority under the statute was valid, arguing that the health and safety justifications for criminalizing illegal abortions are just as relevant when the responsible actor is the pregnant woman herself. The 9th Circuit disagreed. It noted that abortion laws have historically been aimed at protecting women from unqualified abortion providers, and that most statutory and common law precedents exempt women from liability for actions taken in connection with abortion. Judge Pregerson supported the validity of McCormack’s claim that prosecuting pregnant women for illegal abortion poses an undue burden on reproductive choice in that it requires women to police their providers’ compliance with abortion laws.

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Tobacco Labeling and the Ethics of Persuasion

by Nadia N. Sawicki

The D.C. Circuit’s recent decision vacating the FDA’s graphic labeling requirements has prompted a flood of valuable commentary about compelled speech doctrine, including Richard Epstein’s, below.  While analysis of the First Amendment issues is important, I view the R.J. Reynolds case instead as an example of how emphasis on formal legal arguments may detract attention from the underlying source of public opposition.

My current research focuses on the state’s use of emotionally-gripping graphic imagery in medical and public health contexts. I focus on two examples – the “fear appeal,” exemplified by the FDA’s graphic tobacco labeling requirements; and appeals to positive emotions, such as maternal bonding, exemplified by state laws requiring that women view ultrasound images and hear the heartbeat of their own fetus before consenting to an abortion.

Both types of appeals to emotion have faced constitutional challenges – as violations of First Amendment compelled speech doctrine, or imposition of undue burdens on reproductive liberty interests.   But these formalistic constitutional tests do not, in my opinion, get at the heart of the public’s concern about government persuasion using emotional imagery.  Few contemporary commentators are willing to challenge requirements for scientifically valid textual warnings. Rather, it is the use of images – diseased lungs, cadavers, fetal heartbeats – that strikes a chord of concern among many critics.  Whether designed to inspire fear, love, or disgust, the government’s use of these images to persuade seems to run counter to the principles of democratic discourse.

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