Penalizing Prevention: The Paradoxical Legal Treatment of Preventive Medicine

75 Pages Posted: 4 Mar 2022 Last revised: 19 Jul 2023

Date Written: February 27, 2022


Preventive medicine, which includes interventions intended to preempt illnesses before they surface, has long been a priority for furthering public health goals and improving quality of care. Yet, preventive medicine also sends strong signals about the possible risks associated with the users’ behavior and character. This signaling effect intersects with existing stigma and pervades law and policy. Thus, the law endorses and encourages prevention on one hand and penalizes it on the other creating the paradoxical legal treatment of preventive medicine. A spectrum of penalties is assigned to those using preventive medicine including, for example, insurance discrimination, exclusion from civic practices or the legal profession, and stigmatization. Laws, policies, and court decisions that penalize users deter them from using life-saving preventive health measures, hindering the promise of preventive medicine. This Article introduces an original typology and conducts three in-depth case studies on the regulation of the HIV prophylactic drug, PrEP, mental health treatment, and the public use of the opioid blocker Naloxone to demonstrate how the law penalizes prevention. It then calls for harmonizing the legal regulation of preventive medicine to allow for its important goals to come to fruition.

Funding Information: None.

Declaration of Interests: None.

Keywords: Health Law; Preventive Medicine; Insurance Law; Public Health Law; FDA Law; Family Law; Mental Health Law; Child Custody; LGBTQ Rights; Legal Profession; HIV Prevention; Opioid Crisis; Naloxone; PrEP; Colonoscopy

Suggested Citation

Dorfman, Doron, Penalizing Prevention: The Paradoxical Legal Treatment of Preventive Medicine (February 27, 2022). Cornell Law Review, Vol. 109(2), 2024, Forthcoming , Seton Hall Law School Legal Studies Research Forthcoming, Available at SSRN: or

Doron Dorfman (Contact Author)

Seton Hall Law School ( email )

One Newark Center
Newark, NJ 07102-5210
United States

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