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Abstract:
This article argues that acts of gender-based violence should be recognized under the Hate Crimes Statistics Act of 1990, and that certain types of violence against women, such as rape, are fundamentally gender-based. Part I examines the existing definition of hate crimes under the HCSA, and the exclusion of the majority of violence against women. Part II suggests gender should be included as a category under the HCSA because of the similar effects of violence directed at women due to gender, and violence directed at members of other groups because of their group identity. Using acquaintance rape as an example, this part also examines the tremendous resistance to the recognition of gender-based violence against women as a hate crime and the institutionalized inequality which that resistence reflects. Part III examines the possible effects of inclusion of gender in the HCSA. Finally, Part IV offers a critique of the current implementation guidelines of the HCSA for failure to recognize the intersection and interaction of the enumerated groups, and makes suggestions for imporevement.

Hate crime, gender, violence against women, rape, discrimination

Abstract:
In its recent terms, the Supreme Court has increasingly turned its attention toward the Americans with Disabilities Act, and specifically the questions of who should be protected under the ADA, and what such protection requires. In the wake of the Court's decisions, workers have found it increasingly difficult to assert and protect their right to be free of disability-based discrimination in the workplace. Given the widespread influence of John Rawls in contemporary discussions of social, political and economic justice, his recent and final formulation of his theory of distributive justice presents a significant and promising philosophical foundation for evaluation of Title I of the ADA and the cases interpreting it.

In particular, the two parts of Rawls's second principle of justice - the Principle of Fair Opportunity and the Difference Principle - reflect and reinforce the ADA's prohibition of both irrational and rational disability-based discrimination. The Principle of Fair Opportunity shares strong links to the ADA's protection of people with disabilities where the disability is not relevant to job performance, including protection of workers regarded as disabled or workers with a history of disability. The Difference Principle raises the issue of people with disability as least advantaged in the Rawlsian sense, and shares strong links to the ADA's protections where the disability does affect job performance, including actually disabled workers and the reasonable accommodation requirement.

Using Rawls's methodology to evaluate recent ADA jurisprudence in light of the structure and content of the ADA indicates that many of these cases are not correctly decided, and suggests a better approach informed by values of distributive justice as well as the language and stated purposes of the ADA. Although Rawls does not take us as far as we want to go, his theory has significant value for understanding and advancing the interests of workers with disabilities, and perhaps those without disabilities as well.

Disability, ADA, John Rawls, Employment, Employment Discrimination, Reasonable Accomodation, Principle of Fair Opportunity, Difference Principle

Abstract:
Despite a decade of litigation, there is no consistent understanding of the reasonable accommodation requirement of Title I of the Americans with Disabilities Act of 1990 (the 'ADA'). Indeed, there are three inconsistent distributive outcomes that appear to comport with the reasonable accommodation requirement: cost-shifting, cost-sharing, and cost-avoidance.

One reason for such inconsistent outcomes is a failure to develop a coherent and consistent theory of disability. Because disability has been and continues to be medicalized, this Article takes a fresh look at the medical literature on health, illness, and disability. It recommends the use of the experiential health model over the currently accepted functional health model to understand disability in the context of the ADA because it captures the contextual, socially-constructed, and political nature of disability.

A second, related reason for inconsistent outcomes is an ambivalent attitude toward the costs of antidiscrimination law, often expressed as a tension between efficiency and rights. This Article examines disability-based discrimination in the workplace in this context, revealing the underlying tension between disability discrimination as a civil rights issue, and the view of disability discrimination as a social safety net issue.

Using a theory of disability informed by an experiential definition of health and the distributive analysis to evaluate the three distributive outcomes demonstrates that, although flawed, cost-shifting is the best outcome because it embodies a social-experiential model of disability and the potential for both socioeconomic and political reconstruction.

disability, health, experiential health, functional health, illness, social construction, discrimination, employment discrimination, reasonable accomodation, ADA, ERISA

Abstract:
Several recent films have villainized the health insurance industry as central elements of their plots. This Article examines three of those films: Critical Care, The Rainmaker, and John Q. It analyzes these films through the context of the consumer backlash against managed care that began in the 1990s and shows how these films reflect the consumer sentiment regarding health insurance companies and the cost controlling strategies they employ. In addition, the Article identifies three key premises about health insurance in the films that, although exaggerated and incomplete, have significant factual support. Ultimately, the author argues that, despite their passionately critical and liberal tone, these films actually put forward solutions that are highly individualist and conservative, rather than inclusive and systemic.

Health insurance, managed care, uninsured, underinsured, physician incentives, employer health plans, consumer directed health care, film

Abstract:
Traditionally, employer-sponsored group insurance plans have been the backbone of health insurance coverage in the United States. While it is still true that most Americans get their health insurance through their employment, the erosion of employer-sponsored health insurance has increased the ranks of the uninsured and pushed more workers, retirees and their families into the individual insurance market. In 2005, for example, nine percent of the population, or nearly 27 million people, turned to individual policies for health insurance coverage.

The Health Care Choice Act of 2005 (the "Act") currently before Congress aims to reform perceived problems in the individual market, and is touted as part of the solution to the problem of the uninsured. It purports to allow individuals who are not eligible for or cannot afford group coverage to purchase an individual policy in and from any state. If passed, the Act would allow health insurers to offer individual policies of insurance from any state without being required to comply with the laws of the insured's state. Its proponents claim that it would lower the cost of individual health insurance by bypassing state laws such as those mandating benefits, and offer consumers more choice.

It does not appear that the Act would lower costs for most purchasers, increase meaningful choices, or reduce the overall number of uninsured. Moreover, the Act would permit health insurers to sell policies from the states with the fewest consumer protections, and to market and sell those policies to consumers in all other states. This would erode important consumer protections under state law and undercut the role of the states in regulating health insurance products and protecting their citizens. Worse, the Act could increase the existing problem of fragmentation in the individual and broader insurance markets and divert attention away from systemic issues such as the increasingly high cost of health care, and the growing crisis of un- and under-insurance. Indeed, the Act can be seen as an example of the larger political approach to health care policy, one focused on individual, market-based solutions that undermine the concept of health insurance as an expression of social solidarity and collective responsibility.

health care, health law, health insurance, Health Care Choice Act

Abstract:
Infertility affects approximately ten percent of the reproductive-age population in the United States, and strikes people of every race, ethnicity and socio-economic level. It is recognized by the medical community as a disease, one with devastating physical, psychological, and financial effects.

In 1998, the Supreme Court held in Bragdon v. Abbott that reproduction is a major life activity within the meaning of the ADA. Many lawyers, activists and scholars thought that coverage for infertility treatment would follow soon after. In fact, in 2003 in the first major case applying Bragdon to health benefits, Saks v. Franklin Covey, the Second Circuit held that an employer's health plan could exclude coverage for infertility procedures performed on women only without violating Title VII or the ADA.

This Article critically examines the decision in Saks, highlighting the increasingly inequitable patterns of protection for workers and their families with regard to coverage of treatment for infertility. Part I provides a brief overview of the disease of infertility, medical treatments of infertility, and the cost of such treatments. Part II provides an overview of the important but limited protections under federal and state law against discrimination in benefits focusing on Title VII, the ADA and ERISA. Against this backdrop, Part III closely examines the decisions of the trial and appellate courts in Saks, and the rejection of plaintiff's challenges to the exclusion of certain infertility treatments under the ADA, Title VII, PDA and state law. Part IV provides a roadmap of alternative legal and factual analyses for Title VII and ADA claims that could be successfully pursued by future plaintiffs. Finally, Part V critically examines the policy arguments commonly raised in opposition to coverage, including reproduction as a "lifestyle choice" and the fear of increased health care costs, and concludes that public policy strongly supports comprehensive coverage of infertility.

fertility, infertility, civil rights, gender, disability, health care, health insurance, ERISA, ADA, Title VII, PDA

Abstract:
In keeping with the Symposium theme, "The Mass Media's Influence on Health Law and Policy," this essay is designed to share my experience using clips from three recent popular films as a method of enhancing coverage and discussion of legal and policy issues surrounding the private health insurance system, and to provide some practical advice for others interested in doing the same. Specific topics include the erosion of employer-sponsored health insurance, continuation of private coverage under COBRA and HIPAA, public health care programs, physician incentives, the uninsured and access to care and legal remedies for claim denial. This essay builds upon a presentation that I gave along with Professors Timothy S. Hall and Ross D. Silverman at the 2004 Health Law Teachers Conference entitled "Health Law, Policy and Media," and was inspired by Professor Paul Bergman's entertaining and informative essay, "Teaching Evidence the 'Reel' Way." I am grateful to the Houston Journal of Health Law and Policy for the invitation to contribute to this issue.

health law, film, teaching

Abstract:
Although chronic illness is generally associated with the elderly or disabled, chronic conditions are widespread among working-age adults and pose significant challenges for employer-based health care plans. Indeed, a recent study found that the number of working-age adults with a major chronic condition has grown by 25 percent over the past 10 years, to a total of nearly 58 million in 2006. Chronic illness imposes significant costs on workers, employers, and the overall economy. This population accounts for three-quarters of all personal medical spending in the United States, and a Milken Institute study recently estimated that lost workdays and lower productivity as a result of the seven most common chronic diseases results in an annual loss of over $1 trillion dollars.

I am focusing on this significant and growing population as a challenge for employers and as a critical test case for current health care reform proposals. Many of the cost-control methods used by employer-based plans simply shift rather than lower health care costs. This disproportionately burdens people with chronic illnesses and creates long-term social and economic costs. The experiences and challenges of workers with chronic illness provide an opportunity to examine the larger framework of health care reform, not just the employer’s role in isolation, and they make clear that chronic illness is an issue that must be addressed by employers and policymakers.

Health care, Health care policy, Health care reform, Health insurance, Chronic illness, Employment-based health insurance, Employee benefits, ERISA

Abstract:
It is well-known that people with disabilities face multiple barriers to adequate health care, including lower average incomes, disproportionate poverty, and issues with insurance coverage. This article focuses on a more fundamental barrier - one that has not been discussed in the legal literature - inaccessible medical equipment and its effect on the delivery of women’s health care to millions of women with disabilities.

The problem of physical barriers to the delivery of health care for people with disabilities is a surprisingly under-examined subject. Early writing after the passage of the Americans with Disabilities Act (ADA), primarily in the medical literature, noted lack of access as a problem, but predicted or appeared to assume that the ADA’s requirement of removal of architectural barriers where readily achievable would quickly remedy the problem. Most legal scholars since then have focused on the problems of the role of disability in medical decision-making and insurance coverage.

Although the Rehabilitation Act and the ADA require that health care programs, institutions, and offices be accessible, few actually are: over fifteen years after the passage of the ADA, women with mobility impairments cannot get on examination tables, cannot be weighed, and cannot use mammography equipment. This pervasive and unequal treatment has serious consequences for the health and well-being of millions of women.

The continuing failure to ameliorate this seemingly simple problem points to larger questions. What does it mean to have a disability? And how does the answer to that question inform our understanding of the social, political, and economic consequences of disability? Even a cursory review of law and practice in this area reveals a deep conflict in our understanding of disability and the justness of its social, political, and economic consequences. I have explored these questions elsewhere, arguing that disability is under-theorized, and offering an alternative model of disability in the context of employment discrimination claims under Title I of the ADA. These same questions are present here in a different context. What does it mean to be a woman with a disability? And what if anything should we do to ameliorate disparities in access to health care for women with disabilities? This article seeks a solution to the problem of inaccessible medical equipment informed by these larger questions.

Part I establishes the scope of the problem through a review of the medical literature and the first national survey of women with disabilities on their experiences with women’s health care. Disturbingly, the literature reveals significant equipment-related barriers to women’s health care for women with mobility disabilities. Part II provides an overview of disability-based civil rights law, specifically the Rehabilitation Act and the ADA, and the requirements regarding equal access to health care programs and services. Part III explores possible explanations for the discrepancy between the requirements of the law and the experience of women with disabilities. The section first addresses possible objections to enforcement of the duty to acquire accessible equipment, including claims that there is no consensus on the definition of accessible equipment, that accessible equipment is not available, and that accessible equipment is not necessary because patients can be lifted onto existing equipment. It then argues that the continuing stigmatization of sexuality, reproduction, and parenting in connection with women with disabilities plays a key role in the continuing invisibility of the problem among people without disabilities, including physicians. Finally, Part IV discusses ways to increase equitable access to women’s health care for women with disabilities in light of the physical and societal barriers identified above, and suggests addressing the responsibility of states to ensure meaningful access to the Medicaid program for women with disabilities as a promising place to start.

Disability, Disability discrimination, Americans with Disabilities Act, ADA, Rehabilitation Act, Health care, Health care policy, Health care reform, Access to health care, Medical Equipment, Medicaid, Women’s health care

Abstract:
Proceedings of the 2004 Annual Meeting, Association of American Law Schools, Sections on Employee Benefits and Employment Discrimination. Panel includes: Professor Colleen E. Medill; Professor Helen Norton; Eve Gartner, Esq.; and Professor Elizabeth Pendo.

Disability, Disability discrimination, Americans with Disabilities Act, ADA, Sex discrimination, Title VII, Employment discrimination, Health care, Health care policy, Health insurance, Infertility, Assisted reproductive technologies, Employment-based health insurance, Employee benefits, ERISA