A Virtuous Circle: How Health Solidarity Could Prompt Recalibration of Privacy and Improve Data and Research

28 Pages Posted: 1 Feb 2021 Last revised: 16 Oct 2021

See all articles by Nicolas Terry

Nicolas Terry

Indiana University Robert H. McKinney School of Law

Christine Nero Coughlin

Wake Forest University - School of Law

Date Written: January 27, 2021

Abstract

While data laws were given a seat with older, relationship-based health law such as tort duties, they are not seen as a crucial part of the modern healthcare regulatory system and viewed only from a distance when healthcare history and policy are discussed. However, here we argue that our healthcare data laws have a closer relationship to the healthcare law mothership than often portrayed (and that is not necessarily a compliment). The core proposition that we advance is that there is (or should be) a hydraulic relationship between healthcare and health privacy. First, if health care continues to robustly prohibit health discrimination and continues to grow closer to universal access, the need for health data protection should decrease. This is not because privacy declines as a value but because exposures of health information will be less consequential. Second, it is broadly accepted that the U.S. imprudently spends a considerably larger percentage of its “health dollars” on clinical health rather than public health. The outsized role of social determinants, zip-code health, and institutionalized health inequities has been accentuated during the COVID-19 pandemic. Public health recognizes solidarity, social and health interdependence as a fundamental tenet. As the recovery from COVID-19 begins and we “rebuild better,” public health and hence solidarity likely will be strengthened. Third, the movements towards universal access and more vibrant public health are likely to be premised on a shift away from health individualism to solidarity. As this shift slowly develops, it is likely to engender more sharing of personal information in order to improve the overall health of the population.

Suggested Citation

Terry, Nicolas P. and Coughlin, Christine Nero, A Virtuous Circle: How Health Solidarity Could Prompt Recalibration of Privacy and Improve Data and Research (January 27, 2021). Oklahoma Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3774366

Nicolas P. Terry (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 W. New York St
Indianapolis, IN 46202
United States

Christine Nero Coughlin

Wake Forest University - School of Law ( email )

P.O. Box 7206
Winston-Salem, NC 27109
United States

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