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The Faltering Promise of FDA Tobacco Regulation
Get PDFCongress passed the Tobacco Control Act (TCA) in 2009, giving the FDA the authority to regulate tobacco products for the first time. Ten years later, the promise that the TCA’s enactment would be a transformative moment for public health has not materialized. To the contrary, the FDA’s most notable regulatory effort—requiring graphic warnings on cigarette packages and advertisements—has been struck down in court, and the FDA is now scrambling to address a youth e-cigarette epidemic that caught it off guard. This Article provides a brief review of TCA implementation during the Obama administration, and it reviews the Trump administration’s “comprehensive plan” for nicotine regulation. It concludes with a discussion of the structural obstacles to more robust FDA tobacco regulation
Ukraine and the Evaporating Hyphen of Market-Democracy
Get PDFThis post is part of the series Lessons for Liberalism from the “Illiberal East”
Information wars, fake news, kompromat: surprised Ukrainians have found their lexicon for foreign interference spread as loan-words across a putative new Cold War. Narratives of hegemony long familiar in Ukraine have metastasized, and their protagonists—troll hordes, political technologists, the Paul Manaforts and Victoria Nulands—have been set loose far beyond Ukrainian borders. For those who are anxious that liberalism is stumbling into traps laid by foreign intelligence, stuck trading off with fascism and socialism or otherwise in crisis, Ukraine’s recent history portends an ominous global futur
New Takes on Jim Crow: A Review of Recent Scholarship
Get PDFMore than half a century has passed since C. Vann Woodward penned his iconic monograph, The Strange Career of Jim Crow, and legal segregation continues to compel. Recent works have reassessed Jim Crow’s birth, its life, and its aftermath, suggesting that the system was at once more implicated in the reproduction of racist ideas than had been previously assumed, and also more fluid: a variegated landscape of rules and norms that lent themselves to various forms of political, legal, and cultural resistance
Independence is the New Health
Get PDFMedicaid plays key roles in supporting our nation’s health. Under the Affordable Care Act, Medicaid took an even more central position in public health endeavors by extending coverage in all interested states to millions of adults who typically fell through the health care cracks. Nevertheless, the Trump administration is now undoing these gains by actively encouraging states to curtail access to Medicaid in key respects while using the rhetoric of health.
This article examines Trump administration efforts in two contexts: (1) state § 1115 waiver applications seeking to better align their Medicaid programs with cash welfare and food stamp programs, and (2) changes to Medicaid funding for contraceptive and other reproductive health services. In the process, it concludes that, when ideology trumps public health, it not only leads to bad health outcomes, but also, potentially, to bad legal outcomes. Those who value Medicaid as a strong safety net and public health program need to alter their rhetoric in seeking to protect and bolster it by focusing on Medicaid’s role in supporting individuals and communities. Independence is healthy, and Medicaid can play a key role in supporting our independence when we all accept and support its role as a robust safety net program on which all Americans should be able to rely if necessary
Political Rhetoric and Minority Health: Introducing the Rhetoric-Policy-Health Paradigm
Get PDFRhetoric is a persuasive device that has been studied for centuries by philosophers, thinkers, and teachers. In the political sphere of the Trump era, the bombastic, social media driven dissemination of rhetoric creates the perfect space to increase its effect. Today, there are clear examples of how rhetoric influences policy. This Article explores the link between divisive political rhetoric and policies that negatively affect minority health in the U.S. The rhetoric-policy-health (RPH) paradigm illustrates the connection between rhetoric and health. Existing public health policy research related to Health in All Policies and the social determinants of health combined with rhetorical persuasive tools create the foundation for the paradigm
Stretching Armstrong: How the Eighth Circuit Incorrectly Applied Supreme Court Precedent in Does v. Gillespie
Get PDFMedicaid serves as an important source of health insurance for millions of Americans. One of the Act’s core tenants is the patient’s freedom to choose from any qualified and willing provider. This “freedom of choice” provision was eventually codified, and subsequent protections were put in place to protect a patient’s choice regarding family planning services. However, as states attempt to limit access to family planning services by severing their Medicaid contracts with Planned Parenthood, patients must rely on § 1983 to pursue relief in federal courts. Section 1983 provides a right of action for the violation of any federal right or law. Courts have routinely allowed Medicaid patients to use § 1983 to access federal court. In fact, five circuit courts of appeals have all held the freedom of choice provision creates a right that can be enforced in federal court. Unfortunately, however, the Eighth Circuit in Does v. Gillespie held otherwise by incorrectly applying Supreme Court precedent. This created a circuit split to position Does to be the case that gives the Supreme Court the opportunity to potentially close the door on all § 1983 private rights of action in Medicaid cases
Regulatory Implications of the Comprehensive Care for Joint Replacement Demonstration Project
Get PDFAn often overlooked provision in the Patient Protection and Affordable Care Act is the authorization of demonstration projects which incentivize providers to develop, implement, and test novel, cost-cutting approaches to care delivery. One such project, the Comprehensive Care for Joint Replacement demonstration project, encourages providers across the continuum of care to collaborate on strategies that improve the quality of and lower the cost of complete joint replacements. The project allows providers to share the benefits of cost savings, and liabilities for cost overruns, across the surgeons performing procedures, acute care facilities, and post-acute care facilities. Arrangements of this type, outside of the demonstration project, could potentially expose participants to liability under federal laws prohibiting certain financial relationships between providers. It is therefore important to understand the regulatory implications for the creation and operation of provider networks. It is also possible these relationships may need to be unwound if the demonstration project were to end. Finally, it is also possible these models may be adopted outright and become permanent programs. This article will explore the underlying regulatory structure implicated in cost-sharing arrangements with a focus on those potential issues implicit in the Comprehensive Care for Joint Replacement demonstration project
In (Partial) Praise of (Some) Compromise: Comments on Tebbe
Get PDFI want to begin by sketching a point of view that, at best, makes only an implicit showing in Tebbe\u27s persuasive, thoughtful, and challenging book. That viewpoint looks something like this:2 religion is unique, not just in substance but also in form. Start with substance: religion is a way of looking at the world as not exhausted by secular values or concerns; for money, prestige, or for utility broadly construed, or even exhausted by morality. Religion asks, repeatedly of those who believe in it, to do seemingly impossible things. It counts on miracles. Religion sees the world and our lives, fundamentally, as something that we did not make and which come to us as sort of a gift. It tells us that others should be at the center of our universe and not ourselves. And now, go to form: religion, to the believer, pervades that person\u27s life. It is a structure of commands, in part; a collection of virtues, in part; a set of techniques for making it through the day, in part; and a relationship, in part. In both of these ways (form and content), there is nothing quite like religion to many. To put it another way, religion truly is special
