Neuroscience and Health Law: An Integrative Approach?

Abstract

Clinicians and scientists use functional magnetic resonance imaging (fMRI) to map sensory, motor, and cognitive function and to study the neural correlates of a range of physical and mental conditions, behaviors, characteristics, and preferences. Due to its move outside the clinical and research contexts, fMRI raises a number of ethical, legal, and social issues that are being examined within the overlapping fields of neuroethics and neurolaw. The early neuroethics and neurolaw scholarship focused heavily on the implications of fMRI for evidence law, criminal law, criminal procedure, and constitutional law. Little attention has been paid, however, to the implications of advances in neuroscience for more traditional civil and regulatory health law issues.

In this Article, I explore the ways in which neuroscience impacts a range of health, disability, and benefit law issues, including the scope of public and private health insurance benefits (Part II), the mental health parity debate (Part III), protected status under federal and state disability law (Part IV), and the distribution of benefits under social security and other benefit programs (Part V). I find that patients, patient advocacy organizations, litigants, lobbyists, legislatures, and scholars are relying on advances in neuroscience to characterize mental health conditions as brain-based conditions worthy of insurance coverage, protected civil status, and disability and other benefits. I conclude that advances in neuroscience give us reason to revisit age-old health, disability, and benefit law questions although I clarify that neuroscience does not yet answer these questions.

Because I anticipate that neuroscience will continue to play a role in the development and shaping of health, disability, and benefit law and policy, I recommend that lawyers and scholars who work in these areas be mindful of the ways in which stakeholders will continue to use neuroscience to bear on the formulation and interpretation of such law.

Keywords: Neuroscience, Neurolaw, Neuroethics, Health Law, Disability Law