The Yale Law Journal

Health Law


Vaccination Equity by Design

Kristen Underhill & Olatunde C.A. Johnson

This Essay examines how states’ initial COVID-19 vaccine-distribution strategies tended to disadvantage populations of color, including Black, Latinx, and Native American communities. These dynamics resonate with “inverse equity” effects of other public-health innovations. We argue for a federal reg…


Divide and Conquer? Lessons on Cooperative Federalism from a Decade of Mental Health Parity Enforcement

Caroline V. Lawrence & Blake N. Shultz

This ten-year retrospective on the Mental Health Parity and Addiction Equity Act (MHPAEA) traces the law’s ambivalent track record to its merely partial adoption of a cooperative-federalist framework. Drawing from enforcement data, state settlement documents, and other cooperative-federalist statute…


Unsafe and Unsound: HIV Policy in the U.S. Military

Nikita Lalwani

The military’s approach to HIV was developed in the 1980s, at the height of the epidemic. Today, however, medical advances have transformed HIV from a deadly disease into a manageable chronic illness—but the military’s policies remain stuck in the past. This Comment makes the case for reform.


Deadly Delay: The FDA’s Role in America’s COVID-Testing Debacle

Barbara J. Evans & Ellen Wright Clayton

Recently, the FDA asserted authority to regulate a type of COVID-19 diagnostics known as laboratory-developed tests, which long have been a front line of response to emerging disease. FDA did not, and should not, have authority to regulate these tests. Its intervention added minimal value while cont…


Disability Law and the Case for Evidence-Based Triage in a Pandemic

Govind Persad

When lifesaving medical treatments are scarce, disability law permits triage policies to consider patients’ probability of survival and post-treatment life expectancy. Evidence-based triage that considers these factors, rather than inaccurate stereotypes, can be not only legal and ethical, but conso…


Who Gets the Ventilator? Disability Discrimination in COVID-19 Medical-Rationing Protocols

Samuel R. Bagenstos

The coronavirus pandemic has forced us to take the threat of rationing life-saving treatments seriously. Many health systems employ protocols that explicitly deprioritize people for these treatments based on pre-existing disabilities. This argues that such protocols violate the Americans with Disabi…


Miss-Conceptions: Abortifacients, Regulatory Failure, and Political Opportunity

Rachel Frank

Scientific evidence overwhelmingly shows that the categorization of Plan B and other emergency contraceptives as “abortifacient,” or abortion-inducing, is incorrect. This Note argues that policy-makers and judges entrench this misunderstanding, incorrectly and unnecessarily blurring the lines betwee…


Good and Bad Patient Involvement: Implementing the Patient-Involvement Provisions of the 21st Century Cures Act at the FDA

Kyle T. Edwards

This Essay examines the FDA’s implementation of new statutory patient-involvement requirements in light of past problems with simlar initiatives atthe FDA. Despite the risks of repeating these mistakes, the Essay concludes that the Agency’s early implementation efforts are encouraging.


Pregnancy and Living Wills: A Behavioral Economic Analysis

Elizabeth Villarreal

In most states, women are not permitted to have binding living wills during parts of their pregnancies. This Essay argues that the laws imposing these restrictions are ill-conceived and likely unconstitutional and, using behavioral economics, suggests a better alternative that respects women’s prefe…


The Past, Present, and Future of Section 1115: Learning from History to Improve the Medicaid-Waiver Regime Today

Anthony Albanese

This Essay argues that section 1115 waivers in the Medicaid program have increasingly bee misused, opening the door to ideologically motivated cuts or preconditions on coverage, and suggests a response. 


Innovation Policy Pluralism

Daniel J. Hemel & Lisa Larrimore Ouellette

Intellectual property is not a monolith. It rewards innovators with temporary exclusive rights to their creations, and it conditions consumers’ access to such goods through proprietary pricing. Using this insight, this Article develops a more accurate framework for analyzing the innovation policy la…


GINA, Big Data, and the Future of Employee Privacy

Bradley A. Areheart & Jessica L. Roberts

Threats to privacy abound in modern society, but individuals currently enjoy little meaningful legal protection for their privacy interests. This Feature examines the Genetic Information Nondiscrimination Act (GINA) and argues that it offers a blueprint for preventing employers from breaching employ…


When Patents are Sovereigns: The Competitive Harms of Leasing Tribal Immunity

Cecilia (Yixi) Cheng & Theodore T. Lee

The Hatch-Waxman Act and the AIA balance exclusive rights of pharmaceutical patent holders with entry of generic competitors. Allergan’s recent patent transfer to the Saint Regis Mohawk Tribe threatens this balance. This Essay proposes antitrust suits to sidestep sovereign immunity and prevent compa…


Vaccine Licensure in the Public Interest: Lessons from the Development of the U.S. Army Zika Vaccine

Ana Santos Rutschman

This Essay analyzes the recent attempted exclusive licensing deal for a Zika vaccine, which would have hampered the drug’s affordability and availability. Revising the Patent Act to increase transparency and accountability in the licensing process would ultimately result in more affordable vaccines …


The “M” in MLP: A Proposal for Expanding the Roles of Clinicians in Medical-Legal Partnerships

Jesselyn Friley

Medical-legal partnerships (MLPs) are a promising innovation in the delivery of legal services. Usually located in health care facilities, MLPs connect medical patients with lawyers in order to “detect, address and prevent health-harming social conditions” that medicine alone …


Private Enforcement of the Affordable Care Act: Toward an "Implied Warranty of Legality" in Health Insurance

Christine H. Monahan

For decades, the individual health insurance market failed to provide consumers adequate or affordable health coverage. The Affordable Care Act (ACA) sought to change this state of affairs, establishing a new Patient’s Bill of Rights and instituting other protections that require…


Pre-Exposure Prophylaxis (PrEP) and Criminal Liability Under State HIV Laws

Graham White

Nick Rhoades was diagnosed with HIV at the age of 23. In 2005, he began anti-retroviral therapy (ART), an increasingly effective form of treatment that can reduce the amount of HIV in blood to undetectable levels. Three years later, the treatment had done just that. Rhoades’s risk of transmitting th…


Health Care Exchanges and the Disaggregation of States in the Implementation of the Affordable Care Act

Bridget A. Fahey

Introduction Federalism scholarship and doctrine have long viewed the states as monoliths.1 It is New York that is commandeered,2 Florida’s sovereign immunity that is violated,3 and Indiana that is coerced4—not officials, agencies, or political parties within the state, but the state…


Statutory Ambiguity in King v. Burwell: Time for a Categorical Chevron Rule

Bradley Silverman

Introduction The fate of the Affordable Care Act1 (ACA) may turn on the precise meaning of five words tucked into 26 U.S.C. § 36B(b)(2)(A), a once-obscure provision of the law under which tax subsidies are available for “qualified health plans . . . which were enrolled in through an exc…


No Good Options: Picking Up the Pieces After King v. Burwell

Nicholas Bagley & David K. Jones

Introduction If the Supreme Court rules against the government in King v. Burwell,1 insurance subsidies available under the Affordable Care Act (ACA) will evaporate in the thirty-four states that have refused to establish their own health-care exchanges.2 The pain could be felt within week…


Roundup: Recent Developments in Criminal Justice and Mental Health Law

Michael Clemente

Over the past few weeks, several major developments have occurred at the intersection of criminal justice and mental health law. This Roundup briefly summarizes these matters and discusses how each reflects current trends in the criminal justice system’s approach to individuals with mental …


Fighting for the "Right To Try" Unapproved Drugs: Law as Persuasion

Sam Adriance

Over the last several months, five states have passed “Right to Try” laws,1 which are designed to allow terminally ill patients to obtain experimental drugs.2 Often popularly known as “Dallas Buyers Club” laws,3 Right to Try legislation appears to bypass the FDA’s safety procedures…


Anatomical Intent

Reid Kress Weisbord

Organ transplantation holds the potential to save a sick person’s life, but for a large population of hopeful transplant patients, the short supply of transplantable organs causes a delay or denial of life-saving treatment. In the United States, recent survey data revealed that almost two-…


The Jurisdictional Question in Hobby Lobby

Erin Morrow Hawley

Burwell v. Hobby Lobby Stores, Inc. may well be the biggest case of the past Term.1 But by its own rules, the Supreme Court lacked jurisdiction to decide the case. An obscure statute, the Anti-Injunction Act of 1867 (AIA), imposes a pay-first requirement on federal tax challenges. The deeply…


Hobby Lobby and the Dictionary Act

Emily J. Barnet

Before the end of this month, the Supreme Court will decide Burwell v. Hobby Lobby Stores, Inc.1 and in so doing will determine whether the Religious Freedom and Restoration Act (RFRA) exempts from the Affordable Care Act’s (ACA) contraception mandate closely held, for-profit companies wh…


Kidney Allocation and the Limits of the Age Discrimination Act

Benjamin Eidelson

122 Yale L.J. 1635 (2013).


Bad News for Everybody: Lawson and Kopel on Health Care Reform and Originalism

Andrew Koppelman

Gary Lawson and David Kopel’s Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate argues, on the basis of recent research, that the Necessary and Proper Clause incorporates norms from eighteenth-century agency law, administrative law, and corporate law, and…


Bad News for John Marshall

Gary Lawson & David B. Kopel

In Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, we demonstrated that the individual mandate’s forced participation in commercial transactions cannot be justified under the Necessary and Proper Clause as the Clause was interpreted in McCulloch v. Mar…


“Early-Bird Special” Indeed!: Why the Tax Anti-Injunction Act Permits the Present Challenges to the Minimum Coverage Provision

Michael C. Dorf & Neil S. Siegel

In view of the billions of dollars and enormous effort that might otherwise be wasted, the public interest will be best served if the Supreme Court of the United States reaches the merits of the present challenges to the Patient Protection and Affordable Care Act (ACA) during its October 2011 Term. …


Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond

Abbe R. Gluck

121 Yale L.J. 534 (2011).

State implementation of federal law is commonplace, but has been largely ignored by the interpretive doctrines of legislation and administrative law.  We have no Chevron, federalism canon, or anything else for state implementation, nor any doctrines that ask how Congress’s…


Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate

Gary Lawson & David B. Kopel

In Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform, Professor Andrew Koppelman argues that the individual mandate in the Patient Protection and Affordable Care Act is constitutionally authorized by the Necessary and Proper Clause. This view is fundamentally wrong. The …


Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform

Andrew Koppelman

The Supreme Court may be headed for its most dramatic intervention in American politics—and most flagrant abuse of its power—since Bush v. Gore. Challenges to President Obama’s health care law have started to work their way toward the Court and have been sustained by two Republican-appointed distric…


The Taxing Power, The Affordable Care Act, and the Limits of Constitutional Compromise

Brian Galle

After a quiet century or so, the scope of Congress’s power “[t]o lay and collect taxes” is once again in the news. The taxing power was at issue when the Supreme Court issued a decision that President (and Chief Justice) Taft would later call the worst injury to the Court’s reputation ever, …


Plural Constitutionalism and the Pathologies of American Health Care

Theodore W. Ruger

I. America’s Two Health Care Constitutions The United States has two health care constitutions, and the old is the enemy of the new. The recently enacted Patient Protection and Affordable Care Act (PPACA) is the latest step in the federal government’s incremental efforts over the past half cent…


Conditional Taxation and the Constitutionality of Health Care Reform

Brian Galle

The recent enactment of major health care reform legislation has brought with it a welter of constitutional challenges to the legislation and its key provisions. Attorneys General in more than a dozen states have already filed suits seeking to enjoin the operation of the statute, arguing that its re…


The Dirty Climate Debate

Brian H. Potts

Climate change has become the hottest environmental debate in decades. It could also go down as the dirtiest—and not just politically. As legislators, regulators, pundits, and stakeholders debate the question of whether or not to regulate greenhouse gas emissions, the regulatory uncertainty that t…


Constructive Notice Under the Family and Medical Leave Act

Jillian J. Rennie

118 Yale L.J. 795 (2009).


The Continuing Viability of Medicaid Rights After the Deficit Reduction Act of 2005

Harper Jean Tobin & Rochelle Bobroff

In a recent note in The Yale Law Journal, Jon Donenberg argued that (1) program changes in Medicaid ushered in by the Deficit Reduction Act of 2005 (DRA) sub silentio rendered Medicaid’s basic availability provision unenforceable under 42 U.S.C. § 1983, and (2) state fair hearing procedures const…


Weight Discrimination: One Size Fits All Remedy?

Lucy Wang

117 Yale L.J. 1900 (2008).

Being fat is one of the most devastating social stigmas today. In seeking a legal remedy, commentators and advocates appeal to existing models of employment discrimination: disability, race, sex, and more recently, appearance. Fat people do face discrimination along these…


Medicaid and Beneficiary Enforcement: Maintaining State Compliance with Federal Availability Requirements

Jon Donenberg

117 Yale L.J. 1374 (2008).

When states accept federal funding to administer a joint federal-state program, what assurance is there that they will conform to the requirements of governing federal law? This question takes on a new urgency in the Medicaid context since the § 1983 lawsuits that have hi…


Just Semantics: The Lost Readings of the Americans with Disabilities Act

Jill C. Anderson

117 Yale L.J. 992 (2008).

Disability rights advocates and commentators agree that the Americans with Disabilities Act (ADA) has veered far off course from the Act’s mandate of protecting people with actual or perceived disabilities from discrimination. They likewise agree that the fault lies in the…


The South Dakota Referendum on Abortion: Lessons from a Popular Vote on a Controversial Right

Dale A. Oesterle

Earlier this year, the South Dakota legislature passed a stiff anti-abortion bill, H.B. 1215, designed to test the durability of Roe v. Wade. Soon thereafter, the bill’s opponents collected enough signatures to put the Act on the South Dakota ballot. South Dakota voters will reject or affirm the A…


Ending Court Protection of Voters from the Initiative Process

Richard L. Hasen

When journalists write their stories about state ballot propositions in the 2006 election, they likely will focus on South Dakota’s abortion rights referendum, Michigan’s affirmative action measure, or the variety of eminent domain measures reacting to the Supreme Court’s Kelo decision. But th…


Adverse Selection in Insurance Markets: An Exaggerated Threat

Peter Siegelman

113 Yale L.J. 1223 (2004)

The phrase "adverse selection" was originally coined by insurers to describe the process by which insureds utilize private knowledge of their own riskiness when deciding to buy or forgo insurance. If A knows he will die tomorrow (but his insurer does not), life insurance th…


Proxy Consent to Organ Donation by Incompetents

Michael T. Morley

111 Yale L.J. 1215 (2002)


Drug Designs are Different

James A. Henderson Jr. & Aaron D. Twerski

111 Yale L.J. 151 (2001)

In an essay published in this Journal entitled Is There a Design Defect in the Restatement (Third) of Torts: Products Liability?, George Conk criticizes the American Law Institute and the Reporters of the new Restatement for immunizing prescription drug manufacturers from lia…