Enactment of the Patient Protection and Affordable Care Act (ACA) in 2010 marked the most importa... more Enactment of the Patient Protection and Affordable Care Act (ACA) in 2010 marked the most important accomplishment in U.S. health care reform in decades. Not since Medicare and Medicaid were passed in 1965 have so many Americans been given access to insurance coverage for their health care. Though the goal of universal health care was not achieved, ACA brought coverage to millions of uninsured Americans and provided assurance to the already-insured that if they lost their insurance through job loss or job change, they could turn to an expanded Medicaid program or a government-subsidized insurance policy for affordable coverage. But while ACA has had a major impact on the U.S. health care system, its promise has been limited by its design. Rather than replacing the U.S. system with a more effective, less costly, and politically sustainable model, lawmakers decided to build on top of an inefficient, expensive, and politically insecure, existing model. A health care system that rested ...
As state governments respond to the needs of their aging populations, an issue of particular conc... more As state governments respond to the needs of their aging populations, an issue of particular concern is health care at the end of life. With the many advances in public health and medical treatment — as well as in education, wealth, and other socioeconomic metrics — Americans are living much longer lives. But many Americans also face prolonged illness at the end of life that can result in great suffering. Often the suffering can be relieved with good palliative care, but for some Americans continued life becomes intolerable.As a result, there has been increased interest in a right for terminally ill individuals to hasten the dying process by taking a lethal dose of prescription medication (i.e., by “physician aid in dying,” commonly described as “physician-assisted suicide”). The existence of such a right has been litigated in the U. S. Supreme Court and state supreme courts, debated in state legislatures, and addressed in ballot proposals at the state level. Voters in Oregon and Wa...
For generations, parents have viewed spanking and slapping as important, though perhaps regrettab... more For generations, parents have viewed spanking and slapping as important, though perhaps regrettable, methods of discipline for ensuring the appropriate social development of their children. As the proverbial dictum warns, to spare the rod is to spoil the child. To be sure, some parents abjure corporal punishment entirely, and other parents employ it as an infrequent and last resort, but corporal punishment of children has wide and deep roots in American society.This broad social imprimatur of corporal punishment is reflected in the law. Court decisions regularly show a good deal of tolerance for corporal punishment of children. Indeed, in the absence of significant bruising or worse, corporal punishment by parents does not run afoul of prohibitions against child abuse.Yet when we compare the legal acceptability of corporal punishment with the view of medical and other experts in child rearing and family violence, we see a substantial gap. Child-rearing experts are far less tolerant ...
Once touted as the answer to defects in fee-for-service health care insurance, managed care has s... more Once touted as the answer to defects in fee-for-service health care insurance, managed care has seen its fortunes rise and fall over the past decade. Initially, managed care techniques became widespread, and they slowed the growth in health care costs. Indeed, premiums for health care insurance went from double-digit increases in the late 1980s to a less than two percent increase in 1996. More recently, however, public dissatisfaction with managed care has led insurers to jettison key cost-containment strategies of managed care, including closed panels of doctors, primary-care gatekeeping and pre-admission authorization. As insurers abandoned these hallmarks of managed care, health care costs have resumed their rapid growth. Scholars have attributed the fall of managed care to a number of factors, including imperfections in the market for health care insurance, the use by some managed care plans of egregious strategies for cutting costs, and a lack of consumer choice or voice in the...
Richard Epstein, in his book Mortal Peril, supports euthanasia and assisted suicide and rejects t... more Richard Epstein, in his book Mortal Peril, supports euthanasia and assisted suicide and rejects the distinction between them and withdrawal treatment. In this essay, Professor Orentlicher argues that Epstein is correct in finding no meaningful moral distinction between euthanasia and treatment withdrawal, examines the reasons why the distinction has persisted in American jurisprudence, and explains why the distinction has eroded. Epstein also concludes in his book that there is no constitutional right to euthanasia or assisted suicide. Professor Orentlicher's response is that constitutionality is not the appropriate inquiry; rather, the better question is whether to recognize a right to assisted suicide once a right to euthanasia in the form of terminal sedation already exists. He answers this question in the affirmative, arguing that assisted suicide enhances patient welfare and reduces risks of abuse in a world with euthanasia.
Enactment of the Patient Protection and Affordable Care Act (ACA) in 2010 marked the most importa... more Enactment of the Patient Protection and Affordable Care Act (ACA) in 2010 marked the most important accomplishment in U.S. health care reform in decades. Not since Medicare and Medicaid were passed in 1965 have so many Americans been given access to insurance coverage for their health care. Though the goal of universal health care was not achieved, ACA brought coverage to millions of uninsured Americans and provided assurance to the already-insured that if they lost their insurance through job loss or job change, they could turn to an expanded Medicaid program or a government-subsidized insurance policy for affordable coverage. But while ACA has had a major impact on the U.S. health care system, its promise has been limited by its design. Rather than replacing the U.S. system with a more effective, less costly, and politically sustainable model, lawmakers decided to build on top of an inefficient, expensive, and politically insecure, existing model. A health care system that rested ...
As state governments respond to the needs of their aging populations, an issue of particular conc... more As state governments respond to the needs of their aging populations, an issue of particular concern is health care at the end of life. With the many advances in public health and medical treatment — as well as in education, wealth, and other socioeconomic metrics — Americans are living much longer lives. But many Americans also face prolonged illness at the end of life that can result in great suffering. Often the suffering can be relieved with good palliative care, but for some Americans continued life becomes intolerable.As a result, there has been increased interest in a right for terminally ill individuals to hasten the dying process by taking a lethal dose of prescription medication (i.e., by “physician aid in dying,” commonly described as “physician-assisted suicide”). The existence of such a right has been litigated in the U. S. Supreme Court and state supreme courts, debated in state legislatures, and addressed in ballot proposals at the state level. Voters in Oregon and Wa...
For generations, parents have viewed spanking and slapping as important, though perhaps regrettab... more For generations, parents have viewed spanking and slapping as important, though perhaps regrettable, methods of discipline for ensuring the appropriate social development of their children. As the proverbial dictum warns, to spare the rod is to spoil the child. To be sure, some parents abjure corporal punishment entirely, and other parents employ it as an infrequent and last resort, but corporal punishment of children has wide and deep roots in American society.This broad social imprimatur of corporal punishment is reflected in the law. Court decisions regularly show a good deal of tolerance for corporal punishment of children. Indeed, in the absence of significant bruising or worse, corporal punishment by parents does not run afoul of prohibitions against child abuse.Yet when we compare the legal acceptability of corporal punishment with the view of medical and other experts in child rearing and family violence, we see a substantial gap. Child-rearing experts are far less tolerant ...
Once touted as the answer to defects in fee-for-service health care insurance, managed care has s... more Once touted as the answer to defects in fee-for-service health care insurance, managed care has seen its fortunes rise and fall over the past decade. Initially, managed care techniques became widespread, and they slowed the growth in health care costs. Indeed, premiums for health care insurance went from double-digit increases in the late 1980s to a less than two percent increase in 1996. More recently, however, public dissatisfaction with managed care has led insurers to jettison key cost-containment strategies of managed care, including closed panels of doctors, primary-care gatekeeping and pre-admission authorization. As insurers abandoned these hallmarks of managed care, health care costs have resumed their rapid growth. Scholars have attributed the fall of managed care to a number of factors, including imperfections in the market for health care insurance, the use by some managed care plans of egregious strategies for cutting costs, and a lack of consumer choice or voice in the...
Richard Epstein, in his book Mortal Peril, supports euthanasia and assisted suicide and rejects t... more Richard Epstein, in his book Mortal Peril, supports euthanasia and assisted suicide and rejects the distinction between them and withdrawal treatment. In this essay, Professor Orentlicher argues that Epstein is correct in finding no meaningful moral distinction between euthanasia and treatment withdrawal, examines the reasons why the distinction has persisted in American jurisprudence, and explains why the distinction has eroded. Epstein also concludes in his book that there is no constitutional right to euthanasia or assisted suicide. Professor Orentlicher's response is that constitutionality is not the appropriate inquiry; rather, the better question is whether to recognize a right to assisted suicide once a right to euthanasia in the form of terminal sedation already exists. He answers this question in the affirmative, arguing that assisted suicide enhances patient welfare and reduces risks of abuse in a world with euthanasia.
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Papers by David Orentlicher