Implications of Abandoning Abortion

On February 27, 2018, Vice President Pence predicted that abortion could become illegal within “our time.” While attending a luncheon hosted by the Susan B. Anthony List & Life Institute, an anti-abortion institute, Pence hypothesized:“[i]f all of us do all we can, we can once again, in our time, restore the sanctity of life to the center of American law.”

Given the controversial nature of abortion in the United States, Pence’s comment normally would not amount to any concern over the legality of abortion. However, speculations of such policies, specifically the Supreme Court overturning Roe v. Wade, have been circulating since the 2016 campaign. During the 2016 campaign, then-candidate Donald Trump was asked if there should be a punishment for women who chose to have abortions, he responded, “there has to be some form of punishment… there has to be some form.” More recently, these concerns of abandoning Roe arose during Justice Gorsuch’s nomination. Although now-Justice Gorsuch said he would “have walked out the door” if President Trump had asked him to overturn Roe, Vice President Pence’s comment is a reminder that in the current political state anti-abortion legislation may become an inevitable reality.

In Roe, the landmark case in abortion rights, the Supreme Court held that a woman has the right to have an abortion. Although Roe and its subsequent case law have placed restrictions on when and how a woman can get an abortion, today, the choice still remains with the woman to decide if she wants an abortion. Roe and the legalization of abortion were important for more than just the right to choose. The legalization of abortion also allows states to regulate the safety of abortion procedures themselves so long as they do not impose an undue burden, or substantial obstacle, on a woman trying to get an abortion.

Keeping abortion legal keeps abortion safe. States have legitimate interests in the health and safety of pregnant women, as well as the potential life of the unborn child, and thus are able to regulate abortion procedures. Between the criminalization of abortion and Roe, it is estimated that up to 1.2 million illegal abortions were performed per year in the United States. During this period, women with means had several options for an illegal abortion: leave the country and have a medical abortion abroad, or find a physician willing to perform an abortion. And even in these cases, safety was not guaranteed. Both options were expensive and largely inaccessible to women without means. Women who could not afford to pay off a doctor or leave the country resorted to back-alley procedures and home remedies, such as inserting knitting needles and coat hangers into their vaginas. These methods often resulted in serious injury, infection, and death.

Due to medical advances, abortions have become significantly safer since its inception thousands of years ago. In fact, Justice Ginsburg discussed how safe abortion now is in her concurrence in Whole Woman’s Health v. Hellerstedt. Today, states may impose reasonable standards on facilities that perform abortions to protect the safety and wellbeing of the patients. Medical abortions performed in hospitals and clinics have a 0.5% incidence of major complications. Moreover, in 2013, out of the nearly one million abortions performed, only four women died of complications arising from abortion.

Although mortality and incidence of injury related to abortion has decreased in the U.S., globally, between 4.7% and 13.2% of maternal deaths can still be contributed to “unsafe abortion.” The World Health Organization defines unsafe abortion as “when a pregnancy is terminated either by persons lacking the necessary skills or in an environment that does not conform to minimal medical standards, or both.” The WHO cites the legality and availability of abortion as two of the major barriers for women to obtain a safe abortion.

If Vice President Pence is correct, and abortion becomes illegal within “our time,” the need for abortions will not cease, the ability to obtain an abortion will not end, and the number of abortions performed per year will not be zero. What will change is the access to safe abortions. “The abortions will continue regardless of whether it’s legal or not legal – as it always has.”

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Access to Mental Health Care in Prisons

Mental illness continues to be stigmatized in the United States, making it difficult for people to discuss and to pursue help. Like mental health, incarceration is a branding topic that often carries with it negative connotations and judgments. Both of these matters are significant and deserve research, awareness, and reform alone; however, the issue of mental health in prisons is one that encompasses both of these issues and must be addressed. The lack of access to services for incarcerated individuals is devastating.

One of the main objectives of incarceration is isolation and separation from the outside world. Because of this, the institutions must provide their inmates with everything essential like food, water, bedding, etc. At what point does the law draw the line between what is essential and what is not? What does this mean for mental health?

The U.S. has the highest rate of adult incarceration among the developed countries, with 2.2 million currently in jails and prisons. Those with mental disorders have been increasingly imprisoned over the last thirty years, most likely due to the deinstitutionalization of the state mental health system. Correctional institutions have become de facto state hospitals, with more seriously and persistently mentally ill inmates in prisons than in all state hospitals in the United States. In cases like Ruiz v. Estelle, U.S. courts have clearly established that prisoners have a right to receive medical and mental health care.

In order to meet this need, it is important to examine options and solutions inside the prisons. Often, state correctional departments have agreements with state departments of mental health to have professionals come into the prisons and provide acute care. Having these mental health professionals come to prison helps address many issues including the lack of ability to transport inmates to outside facilities, understaffed and under trained prison personnel, and lack of resources in general.

Suicide is the third leading cause of death in U.S. state and federal prisons. Suicide-prevention programs in prisons are of increasing importance to mental health professionals, correctional administrators, health care providers, legislators, attorneys, and others as they seek to rehabilitate offenders and avoid the multi-million dollar lawsuits that result from inmate suicides. Suicide prevention efforts must extend beyond the mental health staff of prison facilities, and begin to include guards, administrators, and custodial staffs.

Another important measure is a change of perspective on punishment as a whole. There has been an increase in the use of diversion programs such as mental health and drug courts across the country. These courts work with mental health and substance abuse treatment providers to assist those who struggle with these problems. In order to participate in this treatment alternative, a person must first plead guilty to a crime and be subject to incarceration. Although these alternative routes have many advantages and a great focus, evaluations of mental health and drug courts have shown questionable success and significant challenges.

Another alternative is the use of pre-booking diversion. A pre-booking diversion plan is is one that identifies low-level offenders and redirects them from jail and prosecution by providing linkages to community-based treatment and support services. This alternative requires the efforts of both a law enforcement and social services. When possible, individuals who do come in contact with police should be diverted to other options like treatment before they are ever faced with arrests, charges, and sent to the police station for booking.

Overall, the need for prison-based mental health treatment is profound. It is important we focus our efforts inside the prisons with the staff, health care providers, and inmates in order to create a safer environment. It is also important we move away from the system of punishment, and instead consider alternatives to incarceration in order to rehabilitate and prepare these individuals for life in the community.

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Religious Freedom Trumps Patient-Centeredness

On January 18th, 2018 the Department of Health and Human Services answered the President’s May 4th executive order “Promoting Free Speech and Religious Liberty” by creating the Conscience and Religious Freedom Division (“CRF Division”) in the Office for Civil Rights (“OCR”). The CRF Division seeks to enforce existing federal statutes that protect health care providers from discrimination if they refuse to provide or refer medical services that run contrary to their religious beliefs. HHS then followed up with a proposed rule requiring health care organizations to post notices of religious freedom protections on job applications and employee manuals. The proposed rule applies to health care facilities that receive federal funding. Collectively, these initiatives affect more than 745,000 health care facilities and are estimated to cost $312.3 million dollars in the first year. Supporters believe this is a monumental step in promoting long over-due religious freedom protection. However, opponents are concerned about how extensive these protections will be, and whether they will negatively impact patients’ access to critical health care.

The religious freedom statutes upon which HHS’s proposed rule is based, collectively referred to as “Federal health care conscience and associated anti-discrimination laws,” largely impact access to medical services for women. For example, the Weldon Act provides “protections for health care entities and individuals who object to furthering or participating in abortion” and the Coats-Snow Amendment provides “conscience protections related to abortion, sterilization and certain other health services.” HHS argues that while these laws and numerous others are in fact codified, they are not being enforced to the necessary extent. Therefore, the CFR Division is tasked with reviewing the growing number of complaints filed in the OCR. Since President Trump was elected, the OCR received thirty-four complaints of conscience violations while the Obama administration received ten. The complaints allege discriminatory employment practices ranging from compelling nurses to either provide abortion referrals or resign to not hiring an individual based on religious beliefs conflicting with hospital policies. Pursuant to the complaints, the CRF Division will conduct compliance reviews, investigations, and audits to ensure that health care providers are compliant with federal legislation.

How do these initiatives impact patients? While they focus on protecting health care providers, the Department of Health and Human Services’ proposed rule reveals how patients   can benefit from increasing religious freedom protections. These patient-centered benefits include having the ability to choose a healthcare provider who shares their “deepest convictions” and to “speak frankly about their own convictions that concern questions touching upon life and death.” However, critics argue that HHS’s initiatives are inherently not patient-centered because they go against the fundamental idea that health care providers are supposed to put their patients’ interests before their personal beliefs. For example, in a 2000 case, a New Jersey woman suffering from pregnancy complications was “standing in a pool of blood” and required an emergency C-section. After a nurse scrubbing in realized the C-section would terminate the pregnancy, she objected to continuing assistance on religious grounds and delayed the procedure. After refusing a reassignment offer to the newborn ICU from the hospital, the nurse was terminated. She sued the hospital and the court ruled in favor of the hospital. While the CRF Division was enacted to help protect nurses and other health care workers in situations like this moving forward, the fact still remains that patients risk receiving delayed care or no care at all.

The strong support behind protecting religious freedom also poses a concern when vulnerable populations like LGTB patients cannot access the care they need. OCR Director Roger Severino expressed during the CRF Division’s press conference that “a nation that respects conscience rights is a more diverse nation, it is a more free nation, and is a more just nation.” However, while HHS focuses its efforts on protecting religious freedom, it is risking promoting discrimination against vulnerable populations. For example, one Catholic hospital blocked a doctor from performing a hysterectomy on a transitioning transgender patient. It is unlikely that HHS will promote similar conscience protections for LGBT patients during the current administration. This is evidenced by a statement from Severino, who said “on the basis of religious teachings, moral reasoning, scientific evidence, and medical experience, many have strong grounds to hold that one’s sex is an immutable characteristic.” President Trump’s Justice Department also holds similar beliefs, stating said “sexual orientation is not a protected category” in regards to discrimination protections.

At this point, it is unclear the full impact these initiatives will have on access to health care for women and vulnerable populations like LGBT patients. However, one thing is clear: forcing doctors to refrain from care conflicts with their moral convictions the same way forcing doctors to provide it does. Therefore, a balancing test is necessary to ensure that while peoples’ religious convictions are being respected, patients’ access to care is not compromised as a result. The National Health Law Program argues that given the small percentage of people filing complaints with the OCR, the Trump Administration is creating solutions like the CRF Division to problems that do not really exist. However, if complaints continue to grow and cannot be solved by non-litigious means, the ultimate determination on whether religious freedom protections reach as far as HHS intends will come from adjudication in federal courts.

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Cozy Bedfellows – Journalism and the Pharmaceutical Industry

Announcing LeapsMag: a magazine created and funded by Bayer, the German pharmaceutical company that is covering Alzheimer’s diagnostics, gene therapy, and CRISPR. Bayer started the magazine with the goal of publishing a variety of stories and opinions – as long as the stories do not criticize Bayer initiatives, such as the Bayer-Monsanto merger. Both Bayer and their editor, Kira Peikoff, assert that the company does not have any editorial influence on the content of the magazine. Peikoff even published a statement of independence on the LeapsMag website. But before publishing the statement, she ran it by Bayer because she was “worried that it might ruffle some feathers.”

How do we ease the problem of pharmaceutical (or any commercial) sponsorship of news stories and publications? When I tweeted this article out, biotech reporter, Alaric DeArment asked, “Would journalists take these kinds of roles if the job market in news was better? My guess is that most company-sponsored publications would be staffed by PR and marketing people and not journalists if it was.”  I agree with him. As news consumers, we need to be more cognizant of the price we pay, when we don’t pay for our news or media.

This isn’t the first (or only) instance of cozy relationships between journalism and pharmaceutical companies. Last year, Pfizer sponsored a story in the Boston Globe on a woman’s struggles with Parkinson’s disease, as narrated by her daughter to a scientist working on Parkinson’s research. This story was part of the Boston Globe’s Brand Lab – a section of the Boston Globe enterprise with the specific aim of engaging consumers, encouraging brand loyalty, and communicating a brand’s ideals without using explicit messaging. What the sponsored page fails to mention is that Pfizer has a drug for Parkinson’s in Phase II clinical trials.

In a more scandalous story, STAT News (a subsidiary of the Boston Globe) published an op-ed piece by a physician praising how helpful drug reps are to his practice. When the piece was initially published, readers complained that the physician’s conflicts of interest weren’t disclosed (the physician had received $300,0000 from the drug industry, which is easily searchable on Dollars for Docs). When the physician was interviewed about his disclosures, he admitted to the reporter that he did not write the op-ed piece at all. Instead, the piece was written by a PR firm. The physician was approached by an industry-sponsored group, Alliance for Patient Access, if he wanted to “publish” this op-ed. The physician did say that he “agrees with the spirit of the article” or he “wouldn’t have put his name to it.” After this was revealed, STAT News did retract the article and update their policies on authorship and conflicts of interest in response to this incident.

These three stories are only examples of a pervasive problem of corporate influence in journalism. Health news readers need to be cognizant of the potential conflicts of interest that are present when journalists learn about health news from industry sponsored conferences or when news publications are partially sponsored by healthcare companies. Readers also need to work to support the media so that the news can financially be corporation-free. Although digital subscriptions have been increasing, big traditional news outlets, like the New York Times, have had declining revenue. As people stop paying to support media outlets, these industries become more dependent on ad revenue and commercial support. Another important thing to do is to support organizations that work to expose bias in journalism, like my favorite organization, HealthNewsReview, which reviews news articles and exposes marketing messages in healthcare reporting.

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Big Tech and Health: Implications for HIPAA?

This week, Apple announced that it will now allow users to download and view portions of their medical records on their Apple products. This function will become a part of Apple’s Health app, and now enables consumers to transfer clinical data from their health care providers to their iPhones. This tool will allow for “easier sharing across multiple providers,” meaning that users will be able to bring their medical records with them in the event of switching doctors or moving, rather than going through the process of getting their records faxed or sent by the office itself. However, the risk to consumers may be substantial. By having a considerable amount of protected health information (PHI) on a mobile device or wearable technology, it exposes the consumer to the potential risk of hacking and theft.

While this feature has just begun beta testing, with some high-profile medical institutions among the first to provide access to their patients, the introduction of this feature leaves open some important questions regarding the Health Insurance Portability and Accountability Act (HIPAA).

Although HIPAA does not act as a general medical privacy law, HIPAA standardizes the privacy of health information in the United States by creating baseline protections for health information. The privacy rule, promulgated by the Department of Health and Human Services, focuses on HIPAA in its relation to “covered entities” and “business associates.” In doing so, the rule created a loophole that seems to be growing steadily as more and more of the population engages with websites, phone applications, and wearable technology that collects and stores health information, known as “non-HIPAA” health data.

As most of this health data falls outside of the scope of HIPAA’s protection, there is a serious question as to if, and how, this data should be regulated and protected. While Apple stated that it will not be able to view users’ medical data, which is encrypted, accessible only with the users’ password, and stored locally on the iPhone, users are also given the option to share such data with the company.

While the Apple was initially reluctant to consider the potentiality for HIPAA privacy and security issues, the tech giant has signaled, by seeking and retaining “Privacy Counsel” focused on HIPAA and health, that they are taking the issue of health privacy and security seriously. Recently, CEO Tim Cook stated that “the holy grail of the watch is being able to monitor more and more of what’s going on in the body.” As the Apple Watch itself has been held out to be and adopted as a “health monitoring device,” with 80 percent of its consumers utilizing the health and fitness tracking function, it becomes even more important for Apple to consider adopting a HIPAA-compliant system to protect the plethora of data collected by such devices.

As a recent report issued by the Obama White House demonstrated, “big data analytics” wield the potential to undermine established civil rights protections in how personal information is used in housing, credit, employment, health, education, and the marketplace. With implications such as these, one has to wonder what the next steps will be in addressing the proliferation of non-HIPAA data.

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