By Jenna Tynan, HLS Class of 2016 –
Multiple commentators have weighed in on the relative boon or bust of the long-awaited Obamacare implementation. Both perspectives, however, have shown that any legislation’s impact is determined not only by the text of the act but also by the parties affected. A recent personal experience at the doctor’s office demonstrates the reactionary impact of legislation. After determining that I had a common eye infection well treated by oral antibiotics, the physicians chose a different antibiotic regimen, referring to their inability to dispense the antibiotic for fear that I may be pregnant. I firmly vouched that I was not pregnant, but the physicians responded that they would like to take my word but could not do so.
At first, I thought that antibiotic manufacturers were now taking the paternalistic approach that isotretinoin (acne medication) producers have taken. Isotretinoin producers now require patients, pharmacists, and physicians to join the iPledge program to prevent pregnancy during medication ingestion. However, my physicians’ prescribing choice was not driven by such a formalized program, but the combination of a labeling restriction promulgated in 2013 and, as I opine, fear of medical malpractice suits. The particular regulations on their face appear benign: providing for updated labeling requirements. The Act, among other things, requires warnings that highlight increased risks of birth defects for drugs falling in the FDA’s pregnancy categories C,D, and X. As a side note, the category system weighs the benefits of the drug in each category against potential pregnancy-related risks. Drugs in Category A have the greatest benefit per risk ratio. Category X drugs, conversely, carry substantial risk per unit of benefit; labels for category X drugs require “contraindication” instructions strongly advising against use if the patient is possibly pregnant.
However, physicians seem to have responded to these labeling restrictions by tightening their own prescribing decisions. Further, radiologists have either begun or have been recommended to conduct pregnancy tests before administering x-rays. This anecdote underscores that well-thought-out and even uncontested regulations can produce unsavory effects. Now, a female of childbearing age seems to have, as Carol Gilligan has put it, “lost her voice” to vouch for her own pregnancy status without independent verification. Yes, physicians and pharmaceutical producers do have specialized knowledge that average consumers do not, but that knowledge should not impair the patient rights of a particular class of individuals. Car manufacturers could use the same rationale, taken to its extreme, to require pregnant women to occupy only the back seat of a car for fear of miscarriage liability due to faulty airbag deployment. Though I doubt we’ll ever approach such a result, I do believe that one’s autonomy in health decision-making should not be reduced based on being a female in a particular fertility cohort. Perhaps this particular reaction will indeed reduce birth complications. However I posit that such reactions are a prescription for paternalism whereas patients would be better served with a double dose of autonomy.
The views in this blog post are solely the views of the author and not of the Harvard Law School Journal on Legislation. The article image was taken from http://en.wikipedia.org/wiki/File:Ritalin-SR-20mg-1000×1000.jpg, which indicates that the image is free license.
By Kellen Wittkop, HLS Class of 2016 –
College students navigate a constant balancing act of managing the many stresses that accompany enrollment at any institution of higher learning: classes, activities, job searches, etc. But one of the largest causes of anxiety for students is something that often looms largely in the shadows – debt. According to American Student Assistance, a non-profit organization that promotes itself as a “nonprofit you can rely on for neutral, honest student loan solutions,” of the approximate 20 million students in attendance each year, 60% (12 million) of those students borrow annually to cover costs of their education. Estimates from the Federal Reserve Bank of New York and the Consumer Finance Protection Bureau (CFPB) put outstanding student loan debt in the range of $902 billion to $1 trillion. See full statistics here.
Some members of Congress have recognized this problem and have taken action. In late December 2013, a group of Democratic senators – led in large part by former Harvard Law professor Elizabeth Warren, D-Mass. – announced a package of bills aimed largely at giving student loan borrowers greater rights, now officially titled the “Student Loan Borrower Bill of Rights” (see http://thomas.loc.gov/cgi-bin/bdquery/z?d113:s1803: for full text of the bill). Essentially, the bill seeks to amend the Truth in Lending Act to provide greater disclosure information to borrowers and direction for the order of payment applications by servicers, among other goals. Some of the issues covered in the bill include: new regulations for servicing private loans (about 14% of all student loans) involving advising the borrower of their long-term options; a “Bill of Rights” section aimed at directing servicers to apply any extra money to outstanding loan principle with the highest interest rate, helping to ensure that borrowers pay down their more expensive loans first; a similar section for the “rights” of borrowers of federal student loans including an instruction to the CFPB to draft rules promoting cost-minimization for borrowers; and other sections involving specific provisions for members of the military and enrollment verifications for servicers (see http://www.businessweek.com/articles/2013-12-13/unpacking-the-proposed-student-loan-borrower-bill-of-rights or the CRS summary). The bill has been referred to the Committee on Health, Education, Labor, and Pensions.
For now, those of us with the specter of debt imminent to our futures, we can only hope that this bill and others like it will change the culture of student loan borrowing. As Senator Jack Reed, D-R.I. stated, “If we’re going to make a dent in making college affordable, we have to hold servicers accountable, increase transparency, and ensure students and their families get a fair deal.”
The views in this blog post are solely the views of the author and not of the Harvard Law School Journal on Legislation. The article image was taken from http://en.wikipedia.org/wiki/File:Elizabeth_Warren–Official_113th_Congressional_Portrait–.jpg, which indicates that the image is in the public domain.
Join the Journal on Legislation for its annual Symposium, “Drug Policy: Reality and Reform.” There will be two panels, which will consist of short speeches, debate between panelists, and a question and answer session. Panera lunch will be provided at both panels!
The first panel discussion, held on Tuesday, February 11th at 12 noon in WCC 1015, will focus on the relationship between drug policies and mass incarceration. The speakers on the first panel will be:
The second panel discussion, held on Wednesday, February 12th at 12 noon in WCC 1015, will focus on the possibility of ending marijuana prohibition. The speakers on the second panel will be:
We will also be showing “The House I Live in” on February 11th at 5 p.m. in WCC 2009, and dinner will be provided. Please join these events for a spirited conversation on these contentious and timely subjects!
By Tyler Anderson, HLS Class of 2014 –
Over the past several months, Congress has generated considerable outrage regarding the NSA’s collection of data from foreign officials. http://www.lawfareblog.com/2013/10/skepticism-about-supposed-white-house-and-intelligence-committees-ignorance-about-nsa-collection-against-allied-leaders/. Some of this criticism is surely deserved; for example, we recently learned that the NSA spied on Ban Ki-moon’s talking points before Ban’s meeting with President Obama to discuss, among other things, global climate change, http://www.nytimes.com/2013/11/03/world/no-morsel-too-minuscule-for-all-consuming-nsa.html?pagewanted=1&nl=todaysheadlines&emc=edit_th_20131103 — Moon is not the sort of existential threat toward which the NSA should be dedicating its resources.
Nevertheless, the outrage generated by international spying domestically – and particularly by Congress – largely misses the problems generated by NSA surveillance that is both secret and expansive. Here, the history of intelligence surveillance reform is instructive. The original Foreign Intelligence Surveillance Act and the Foreign Intelligence Surveillance Act Amendments Act (FAA) strongly distinguished between surveillance conducted on foreigners compared to surveillance conducted on Americans. See Tyler C. Anderson, Toward Institutional Reform of Intelligence Surveillance: A Proposal to Amend the Foreign Intelligence Surveillance Act, 8.2 Harv. L. & Pol. Rev. __ (2014) (forthcoming). While some of this tailoring is due to Constitutional (primarily 4th Amendment) constraints, it is important to remember that Congress put the policy of limiting surveillance overreach into play as a direct response to the unauthorized wiretapping of non-violent civic activists and other egregious behavior by the intelligence community against American citizens. Id.; Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, United States Senate (“Church Committee”), Report No. 94-755 (1976), available at: http://www.intelligence.senate.gov/churchcommittee.html.
In an overly punitive criminal justice system where the typical American commits up to three felonies a day, http://www.threefeloniesaday.com/Youtoo/tabid/86/Default.aspx, information gathered by an NSA that can always make credible arguments that its power must be expanded to prevent the next terrorist attack, http://www.theguardian.com/commentisfree/2013/oct/16/nsa-fbi-endrun-weak-oversight, gives the United States government enormous power that could be leveraged against every American. This is a problem that Angela Merkel and Dilma Rousseff don’t have to worry about.*
* I say this while acknowledging that there are many measures the United States government can bring to bear against non-U.S. citizens that can make life very unpleasant for them. Hat tip Ted Weisman.
The views in this blog post are solely the views of the author and not of the Harvard Law School Journal on Legislation. The article image was taken from http://en.wikipedia.org/wiki/File:National_Security_Agency_headquarters,_Fort_Meade,_Maryland.jpg, which indicates that the image is in the public domain.
By Jenna Tynan, HLS Class of 2016 –
Imagine you’re a first-year associate and after your standard fourteen-hour workday, you sit back and indulge in a product recently found more addictive than cocaine: the iconic Oreo. You rush back to work the next morning with a wayward Oreo stain on your favorite blazer only to end yet another long day…with a pink slip!?! You violated the firm’s categorical ban on Oreo consumption promulgated to reduce diabetic healthcare costs believed to rise with sugar consumption. Luckily for this author, no employer has banned recreational Oreo consumption, but America’s over 43 million smokers aren’t so fortunate. Healthcare industries, city municipalities and airlines have banned hiring prospective candidates who smoke or use tobacco products citing controlling costs and presenting a “healthy” image for their rationale. These employers may be justified in their decision given the new “tax” for not proving health benefits to all employees. However, employer regulation, and especially government employer regulation, of what happens in an employee’s home seems to conflict with those penumbral privacy rights cherished and protected by our judicial system.
As a result, twenty-nine states and the District of Columbia have enacted “smoker protection laws,” which prohibit various forms of discrimination based on a candidate’s off-duty smoking habits. The laws vary in their expansiveness and application. For example, D.C.’s legislation exempts employers who prove nonsmoker status is a Bona Fide Occupational Qualification (BFOQ). This carve out may lessen the worries of the hospitals, clinics and fire stations most likely to institute the bans. Other state legislation such as Kentucky’s statute eases employers’ cost concerns by banning smoking-based discrimination for hiring and termination decisions but allowing employers to charge higher rates to smokers for employer-subsidized healthcare premiums. However, most of these laws prohibit any smoker-directed discriminatory activity, and some, such as California’s and North Dakota’s, extend protection to any employee’s “lawful off-duty” activities. Especially with the recent legalization of marijuana, employers may question how these laws square off with previously adopted drug-free workplace policies.
Though employers’ smoking-based discrimination seems to infringe an employee’s right to engage in a lawful off-duty and private activity, state intervention could also be attacked with a similar rationale. First, employers may invoke the “contract clause” constitutional defense, which states that no state can enact a law violating the obligation of contracts. Employers could aver that such statutes impinge on both their rights and an employee’s rights to enter into valid employment obligations. However, such an argument is likely to fail post Lochner Era. Employers could also appeal to theories that such regulation constitutes confiscatory “takings;” but they are more likely to rely on business needs (such as the case with hospitals), the need to guarantee compliance with smoke-free workplace requirements, or the notion that they shouldn’t have to pay for wrongs caused by tobacco companies. In this case, a business’s right to control costs and shape its workforce conflicts with a person’s right to engage in a lawful private activity. This conflict evokes the questions of whether states should legislatively declare smokers a protected class and how legislation should be tailored to balance competing employer interests. With the rapidly-changing healthcare regime, this issue is one to watch in the future.
The views in this blog post are solely the views of the author and not of the Harvard Law School Journal on Legislation. The article image was taken from http://en.wikipedia.org/wiki/File:No_Smoking.svg, which indicates that the image is in the public domain.