Covid-19: Medical Decisions, Mandates, and High-Risk Minors.

Kensey Dishman was unvaccinated when she contracted Covid-19 at thirteen years old. She also had asthma and is now dead. Her divorced parents disagreed about whether Kensey should be vaccinated, and her father suggested that it was Kensey's own choice to refuse vaccination. This situation is as complicated as it is tragic, and it raises a number of legal and ethical issues regarding medical decision-making for minors, parental rights, vaccination mandates, and individual freedom versus government interests in protecting minors as well as public health. This commentary explores these issues and highlights potential sources of liability for those involved in Kensey's treatment decisions given her high-risk for complications from Covid-19.

Restricting Reasons: A New Battleground in Abortion Regulation.

The latest trend in abortion restrictions in the United States targets a woman's reasons for terminating a pregnancy. Fourteen states have attempted to enact laws prohibiting abortion on the basis of fetal sex, race, and/or genetic anomaly. These laws are different from regulations tied to a government interest in protecting women's health. Laws that restrict reasons implicate a different set of government interests to be weighed against a woman's constitutional right first recognized in Roe v. Wade. These laws also seek to reframe the nature of the right asserted by the woman. To date, the Supreme Court has declined to address the constitutionality of laws that restrict reasons, and the Court's most recent abortion decisions provide little guidance. It is possible that a conservative majority of the Supreme Court would uphold a law that prohibits reasons for having an abortion that appear discriminatory. But such laws would be difficult to enforce and therefore may be relegated to policy statements rejecting discriminatory norms as opposed to being effective means of restricting access to abortion.

Dying with Dignity; Living with Laws (and Ethics).

An increasing number of jurisdictions allow individuals to obtain medication prescribed by their physicians for medical assistance in dying (MAID). But discussion of whether (and to what extent) individuals have the right to use the health care system to control the time and manner of their death is not limited to MAID. The right also exists in other contexts, such as directing the withdrawal of life-sustaining treatments. Palliative (or terminal) sedation involves medications to render a patient unconscious, coupled with either the withdrawal of artificial nutrition and hydration or their not being administered at all. In high-enough doses, these medications may further suppress already-weakened cardiopulmonary function even if there is no intent to hasten death. When teaching about these topics, I challenge students to consider whether there are meaningful differences between practices like euthanasia, MAID, aggressive use of morphine, terminal sedation, or the withdrawal of ventilator support. Whether their differences are morally, ethically, or legally meaningful can be difficult to tease out. After recently watching a loved one, whom I call "Stephan," direct the time and manner of his death within hospice care in a state that does not allow MAID, I am less inclined than ever to believe that the differences are meaningful in a way the law should recognize.

Defining Life and Regulating Reproductive Choice.

If you blinked you may have missed it. The Department of Health and Human Services published its strategic plan for the 2018-2022 fiscal years, which includes the statement that HHS accomplishes its mission through programs and initiatives that serve and protect "Americans at every stage of life, from conception." Of note, the "from conception" language is new and, depending on the direction President Trump's administration plans to go, could have profound implications for the regulation of reproductive services ranging from abortion to in vitro fertilization (IVF).

Membership Has Its Privileges? Life, Personhood, and Potential in Discussions about Reproductive Choice.

As Professor Dov Fox points out in his essay, reference to "potential life" in American abortion jurisprudence is both indeterminate and underspecified. This commentary highlights that use of the phrase "potential life" by courts also obscures the fact that a position has been taken that biological life is not the equivalent of legal personhood. Worse, the position has been imposed on those who do not share it without offering reasons to justify its imposition in terms that those who oppose it can reasonably be expected to endorse.

Beyond abortion: why the personhood movement implicates reproductive choice.

In 2008, an amendment was proposed to the Colorado Constitution that sought to attach the rights and protections associated with legal "personhood" to any human being from the moment of fertilization. Although the initiative was defeated, it sparked a nation-wide Personhood Movement that has spurred similar efforts at the federal level and in over a dozen states. Personhood advocates choose terms like "fertilization," or phrases such as "human being at any stage of development, " to identify the "person"-defining moment in the reproductive process, and these designations have profound implications for reproductive choice. Proponents are outspoken in their desire to outlaw abortion, but they are less transparent about their intent with respect to other aspects of reproductive choice, such as contraception and infertility treatments. This paper describes the background of the Personhood Movement and its attempt to achieve legal protection of the preborn from the earliest moments of biological development. Following the late 2011 failure of the personhood measure in Mississippi, the language used within the Movement was dramatically changed in an attempt to address some of the concerns raised regarding implications for reproductive choice. Putting abortion to one side, this paper identifies why the personhood framework that is contemplated by the proposed changes does not eliminate the potential for restrictions on contraception and in vitro fertilization (IVF) that put the lives of these newly recognized persons at risk; nor should it if proponents intend to remain consistent with their position. The paper goes on to suggest what those restrictions might look like based on recent efforts being proposed at the state level and frameworks that have already been adopted in other countries.

A brief historical and theoretical perspective on patient autonomy and medical decision making: Part II: The autonomy model.

As part of a larger series addressing the intersection of law and medicine, this essay is the second of two introductory pieces. Beginning with the Hippocratic tradition and lasting for the next 2,400 years, the physician-patient relationship remained relatively unchanged under the beneficence model, a paternalistic framework characterized by the authoritative physician being afforded maximum discretion by the trusting, obedient patient. Over the last 100 years or so, in response to certain changes taking place in both research and clinical practice, the bioethics movement ushered in the autonomy model, and with it, a profoundly different way of approaching decision making in medicine. The shift from the beneficence model to the autonomy model is governed legally by the informed consent doctrine, which emphasizes disclosure to patients of information sufficient to permit them to make intelligent choices regarding treatment alternatives. As this legal doctrine became established, philosophers identified an inherent value in respecting patients as autonomous agents, even where patient choice seems to conflict with the physician's duty to act in the patient's best interests. Whereas the beneficence model presumed that the physician knew what was in the patient's best interests, the autonomy model starts from the premise that the patient knows what treatment decision is in line with his or her true sense of well-being, even where that decision is the refusal of treatment and the result is the patient's death.

A brief historical and theoretical perspective on patient autonomy and medical decision making: Part I: The beneficence model.

As part of a larger series addressing the intersection of law and medicine, this essay is the first of two introductory pieces. This article explores the nature of the physician-patient relationship and of the practice of medicine dating from the Hippocratic tradition to the end of the 19th century, a period during which a beneficence-based medical ethic remained relatively stable. The medical literature dating from the Hippocratic texts to the early codes of the American Medical Association did not include a meaningful role for the patient in the decision-making process. In fact, the practice of benevolent deception--the deliberate withholding of any information thought by the physician to be detrimental to the patient's prognosis--was encouraged. However, as philosophers identified an inherent value in respecting patient self-determination and the law imposed a duty on physicians to obtain informed consent, 2,400 years of relative stability under the beneficence model gave way to the autonomy model.