December 22, 2011
Harvard Law School Assistant Professor of Law I. Glenn Cohen, co-director of HLS’s Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics, is the author of three recently published articles on health law topics.
In a Dec. 21 article for the New England Journal of Medicine (NEJM), Cohen analyzed the recent decision on Flynn v. Holder by the U.S. Court of Appeals for the Ninth Circuit, which held that the ban on selling “bone marrow” that is part of the National Organ Transplant Act (NOTA) of 1984 does not encompass “peripheral blood stem cells” obtained through apheresis:
Selling Bone Marrow — Flynn v. Holder
By I. Glenn Cohen
Published: Dec. 21, 2011
On December 1, 2011, in Flynn v. Holder, the U.S. Court of Appeals for the Ninth Circuit held that the ban on selling “bone marrow” that is part of the National Organ Transplant Act (NOTA) of 19841 does not encompass “peripheral blood stem cells” obtained through apheresis. This ruling means that the sale of blood stem cells for transplantation will now be permitted.2 The court based its holding solely on statutory interpretation of NOTA, not the plaintiffs' more radical claim that the prohibition on selling bone marrow violates the Equal Protection Clause of the U.S. Constitution, which prohibits the federal and state governments from denying any person the equal protection of the law. For those seeking to establish a constitutional right to buy and sell body parts in the United States, this case was a loss, but for those narrowly focused on blood stem cells obtained through apheresis, the decision legally sanctions a commercial market. Read the full article at NEJM.org »
In a Dec. 15 article for the American Journal of Public Health (AJPH), Cohen and Brown University’s Dr. Eli Adashi suggest reparations for U.S. Guatemalan citizens and their families who, according to recently discovered records, were the subjects of non-consensual experiments between 1946 and 1948 by the U.S. Public Health Service. Upon finding these records, the Obama administration issued a series of public apologies and launched an investigation into the matter, but Cohen and Adashi argue that they should go further.
The following is an abstract, available on the AJPH website:
In the Wake of the Guatemala: The Case for Voluntary Compensation and Remediation
By I. Glenn Cohen and Eli Y. Adashi
Published: Dec. 15, 2011
Recently unearthed records reveal that between 1946 and 1948, researchers with the US Public Health Service engaged in nonconsensual inoculation of vulnerable Guatemalan populations with syphilis, gonorrhea, or chancroid.
The US government has issued formal public apologies to the Guatemalan government and its people, and the Presidential Commission for the Study of Bioethical Issues has been tasked with reviewing the historical record and the adequacy of protection of human research participants.
We argue that the US response is insufficient and call for a restitution program directed at the aggrieved parties. We review the lessons of two earlier analogous cases and propose guiding principles upon which such a restitution program could be crafted with the Guatemalan people in mind.
The full article is available by PDF here.
In a Dec. 7 article for the NEJM, Cohen and James F. Blumstein, a professor at Vanderbilt Law School, discuss the upcoming Supreme Court review of the Affordable Care Act (ACA):
The Constitutionality of the ACA's Medicaid-Expansion Mandate
By I. Glenn Cohen and James F. Blumstein
Published: Dec. 7, 2011
Nearly all media and scholarly discussion of the constitutionality of the Affordable Care Act (ACA) has focused on the individual mandate to obtain health insurance. The Supreme Court has now promised to review not only that issue but also the issue of whether the ACA's Medicaid expansion violates the U.S. Constitution. …
… Only the lawsuit brought by Florida, joined by 25 other states, has challenged the ACA's mandatory Medicaid-expansion requirements. The 11th Circuit Court of Appeals rejected that challenge, but the Supreme Court has granted review on this issue, allocating it a full hour of argument. …
… Though the federal government may not force states to participate in federal programs, it may use financial incentives to induce them to do so (as Congress did with the original Medicaid program). But as a 1987 Supreme Court decision put it, “in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which [permissible] pressure turns into [impermissible] compulsion.” Read the full article at NEJM.org »