Women in the United States not only face pay discrimination in the workplace, but also price discrimination in the marketplace. On average, men will earn $10,381 more in 2022 than women will across the nation. Further, women pay an estimated $1,350 more annually than men do for similar products, goods, and services on average. As a result, women are squeezed economically from both sides. Such gender-based price discrimination against women is known as the “Pink Tax.” There are many ways in which the Pink Tax infiltrates the market, and it impacts families raising girls as much as independent adult women. For example: (1) Girls toys cost 11% more, bikes cost 6% more (helmets 13% more), and clothing range from 4-13% more than boys; (2) women’s versions of personal care products, like shampoo and conditioner, soap, razors, and deodorant, cost 4-48% more than men’s versions; (3) women pay up to 13% more for similar clothing than men; and (4) women’s haircuts cost about 40% more than men’s.

Because of the Pink Tax, by the time a woman reaches 74 years of age, she will have spent approximately $100,000 more than her male counterparts for similar products, goods, and services. This is not a trivial amount of money nor is this a trivial issue. The opportunity cost of women spending more of their income on basic human necessities, like personal care products and clothing, is the ability to save and invest money for their future. Thus, potential adverse effects of the Pink Tax may be: increased female dependence on male partners, stigma or cost-association with raising daughters, and difficulty accumulating wealth and assets over time. Even so, there are several justifications offered for the Pink Tax. One example is that tariffs on imports for women’s products are often higher.Another is that changes in manufacturing (materials, color, size) can be more expensive. Further, some manufacturers and distributors simply believe that women will pay more for a product and, thus, charge more. While these justifications, or rather excuses, have been long accepted, American consumers and legislators alike are trending toward abolishing gender-based price discrimination nationwide.

The “Pink Tax Repeal Act” and “Affordable Care Act” are two examples of federal legislative intervention combatting gender-based price discrimination. Prior to the passage of the Affordable Care Act in 2010, women paid one and a half times more than men for health insurance. This is especially disappointing because these higher-cost health insurance plans for women did not typically include additional benefits for maternity care. While it is arguable that the addition of maternity care in these plans could have justified the increased price for women’s health insurance, since no such maternal care coverage was usually not included, this is an example of gender-based price discrimination. More recently, the 2021 “Pink Tax Repeal Act” was introduced. The Act seeks to prohibit the sales of substantially similar products at different prices “based on the gender of the intended purchaser.” The bill qualifies “substantially similar” as a product in which “the only difference between two products is color.” A perfect example is that a girl’s pink helmet costs $27.99, while a boy’s costs $14.99.

Until the Pink Tax Repeal Act is enacted, individual states are responsible for enforcing the Pink Tax. While the majority of states uphold the Pink Tax, more and more are doing away with it. One potential reason for States keeping the Pink Tax is the revenue it generates. For example, while New York declared gender-based pricing illegal in 2020, it was estimated that New York would lose around $14 million annually as a result. Although still a minority, since 2016, 10 states have eliminated the Pink Tax : California, Connecticut, Florida, Illinois, Nevada, New York, Ohio, Rhode Island, Utah, and Washington. Thus, while only one-fifth of the states have taken a stance against gender-based discrimination, the court system may be able to pick up the slack.

A recent example is Schulte v. Conopco, Inc., 997 F. 3d 823 (8th Cir. 2021). In Schulte, the plaintiff alleged in her complaint that the defendants violated a Missouri statute by engaging in the discriminatory marketing of men and women’s deodorant. This case was dismissed on grounds that the plaintiff failed to allege sufficient facts to support the court finding that the sales of the deodorants at issue were “extrinsically discriminatorily deceptive or unfair.” Essentially, since women are in fact able to purchase male-marketed products, which cost less, the court upheld gender-based price discrimination. Therefore, assistance by the court system does not appear promising since a similar case regarding the pricing of hair regrowth treatment for women (a generic alternative to Rogaine) was also dismissed in Lowe v. Walgreens Boots Alliance, Inc. 2021 WL 4772293 (N.D. Cal. Sept. 23, 2021). As a result, there are two solutions to banish the Pink Tax or, at least, create uniformity of price discrimination across the States: (1) the “right” case marches it way up to the Supreme Court; or (2) Congress passes the Pink Tax Repeal Act, or similar legislation.

In 2018, I wrote an article called “Medicare, Medicaid, and Mexico: A Transnational Health Insurance Plan” I described a United States-sponsored, globalized health insurance framework that would reward interconnectedness and collaboration. While no one could predict a global pandemic, the need for transnational health insurance has never been more apparent.

What is Transnational Health Insurance?

While COVID-19 has dramatically altered the medical tourism market, the pandemic has also revealed the unsustainable strain put on domestic healthcare providers. Transnational health insurance offers a regulatory framework for medical tourism. Here, medical tourism describes the process of receiving healthcare services abroad, rather than domestically. Due to previous trade commitments, the United States precludes comprehensive health insurance portability. Transnational health insurance offers its customers coverage for pursuing treatment and medicine abroad.

As our world becomes more globalized, there is a strong need for our healthcare systems to follow suit. Coordination, collaboration, and cooperation are all necessary to combat global health crises. While it is impossible to say that transnational health insurance could have stopped the pandemic, there is no doubt the collection and distribution of information between countries would have cultivated greater pragmatism with regards to prevention and preparation.

Scientists have speculated that COVID-19 is not the last of many pandemics that society will face. By encouraging citizens to place trust in global health markets, the United States can pave the way in developing global health security.

Gains from Trade

Economically, transnational health insurance would relieve a huge burden on the typical American consumer of healthcare. For some, it is cheaper to fly to Egypt to fix a toothache than it is to get it checked on in the United States. This stems the United States isolating its healthcare market from competition which artificially keeps prices high. By opening affordable global health care options for American citizens, pharmaceutical companies and hospitals in the United States will be forced to lower prices to compete with global markets.

For the United States, skepticism over foreign medical treatment and complex international trade agreements stagnated industry growth. Transnational insurance solves these issues by creating public trust since all healthcare facilities covered by insurance would need to be vetted and held to higher safety standards. Additionally, transnational health insurance would permit trade liberalization without violating the United States’ trade commitment under the General Agreement on Trade in Services which is currently deterring private investment. This allows the government to encourage a race to the top for quality. Once the market stabilizes in price, high-quality care will determine where Americans get their healthcare. Without a monopoly on treatment, United States hospitals will need to find new ways to incentivize patient intake.

Diplomacy

In times of geopolitical turmoil, scientific diplomacy through health collaboration provides a meaningful way to connect the global community. By developing threads of commonality between citizens of the world, geopolitical crises of all sorts can be mitigated. The insurance and healthcare industry implicates huge aspects of the global economy. By instituting global health norms through regulation and insurance standards, transnational health insurance motivates cooperation on all sorts of topics; countries who would otherwise have unrelated domestic goals, could unite under a common cause for global health by standardizing their healthcare industry to compete for patients from the United States. Ultimately, other countries could adopt similar portability standards which would further strengthen interconnectedness.

Conclusion

Transnational health insurance offers a novel solution to increasing healthcare costs and crises. The capacity of the global community to respond to problems of all sorts give physicians, scientists, and policymakers a mechanism to make our world more interconnected. By developing a global health community, the United States can cultivate a position of leadership in approaching future pandemics.

In the age of mass incarceration, incarceration rates among women have continued to skyrocket over recent years. In 1980, there were about 26,000 incarcerated women in the United States. That number has significantly increased by 700%, to about 222,000 incarcerated women in 2019. With the rates of incarcerated women increasing, the inadequate health care provided to this population is glaringly apparent. Women have specific health needs that must be attended to even while in correctional facilities, including access to menstrual hygiene products. However, incarcerated women are not provided with adequate access to treatment when it comes to their gender-specific health care needs.

Given the majority of incarcerated women are of a younger age demographic, the majority of women incarcerated are thus still menstruating. Common stressors and situations that affect most incarcerated women can have a significant impact on their menstrual bleeding. For example, factors such as poverty, exposure to trauma, addiction, and mental illness can lead to various gynecological conditions. Studies have shown that, as a result of these factors, forty percent of incarcerated women have abnormal menstrual bleeding. Despite this, women in correctional facilities do not have ready access to consistent and quality menstrual hygiene products.

The menstrual hygiene products that incarcerated women do have access to are of sub-par quality. The sanitary napkins that are typically provided at correctional facilities have low absorbency and do not have wings. Along with the poor quality of sanitary napkins, correctional facilities typically do not provide incarcerated women with the appropriate quantity of sanitary napkins needed for their entire menstrual cycle. Women typically need about twenty menstrual hygiene products for a single menstrual cycle, yet many correctional facilities only allot about ten menstrual hygiene products for a woman’s menstrual cycle. Most correctional facilities are also very limited on the variety of menstrual hygiene products they provide. Tampons, for instance, can be considered a scarcity in some facilities given most prisons do not even provide tampons to their inmates.

Furthermore, there is currently no overarching policy in place regarding the distribution of feminine hygiene products in correctional facilities, leading to inconsistency among facilities in the United States. Many correctional facilities give prison guards complete discretion and control over the distribution of feminine hygiene products to inmates. As a result, this leads to prison guards providing unequal treatment to inmates by unevenly distributing the products. This discretion gives prison guards an immense power over female inmates by withholding these products as a form of punishment, or by requiring female inmates to provide something in exchange for receiving these products. Allowing prison guards to have this discretion is a major factor as to why incarcerated women have severely inadequate access to menstrual hygiene products. These are products essential to every woman’s menstrual hygiene, and far too many correctional facilities allow guards to withhold these products as a ploy to punish and humiliate incarcerated women, and thereby deprive them of basic health care.

There are serious health effects at risk when women are deprived of their menstrual hygiene needs. When incarcerated women are deprived of access to menstrual hygiene products, they typically resort to homemade alternativesin order to avoid bleeding through their clothes. These alternatives can be very unhygienic and thus lead to serious infections. Some studies show that mismanagement of a woman’s menstrual cycle can even increase a woman’s risk of developing cervical cancer.

The gender-specific health needs of incarcerated women are severely neglected, especially regarding adequate access to menstrual hygiene products. The most promising solution to eliminating this health inequity is passing new legislation, at both the state and federal levels, that would guarantee female correctional facilities are supplied with sufficient and quality menstrual hygiene products and ensure the products are distributed to inmates in an equitable manner. Women, no matter their situation in life, deserve to receive adequate health care. With proposed solutions and legislation, it is hopeful that incarcerated women will no longer be deprived of their basic health care needs and be provided with better access to menstrual hygiene products.

Native Americans have suffered extreme inequities in health care and health outcomes throughout the history of the United States. However, over the past fifty years, the health care needs of Native Americans have drastically changed as this population becomes increasingly urbanized. To address this new reality and provide legally obligated health care more efficiently and effectively, the federal government must develop new funding mechanisms that either supplement or ideally replace the current Indian National Health Service (IHS).

Treaties in the 1800s between the United States and tribal nations laid the legal foundation for the federal government’s obligation to provide health care services to American Indians and Native Alaskans. The Indian National Health Service, an agency within the Department of Health and Human Services, was established in 1955 to create a more uniform and centralized mode of providing services.  Despite this legal obligation to provide health care, the Native American population has faced significant and continued health disparities. Native Americans currently have a life expectancy that is five and a half years less than the national average and they continue to die at higher rates than all other Americans in many categories of causes of death, including chronic liver disease, diabetes, chronic lower respiratory diseases, assault/homicide, and intentional self-harm/suicide.

One major reason for these disparities is that the IHS has been chronically underfunded throughout its history. According to an analysis by the National Congress of American Indians, in order to match the level of care provided to federal prisoners, funding for the IHS would have to almost double.

Another major issue heightening the health care disparities Native Americans face is that IHS funding is not designed to provide care effectively for the mass migration of Native Americans who have moved from remote reservations into urban areas. Today, around seventy percent of Native Americans live in metropolitan areas, compared with thirty-eight percent in 1990. IHS funding has not reflected this major demographic shift, as there are 54,000 urban Native Americans who lack any access to IHS services or tribally operated facilities. As the New York Times reported, in recent years, on average only about one percent of the IHS budget has been allocated to urban programs.  Urban Indian Health Programs have been established to try and meet the needs of those who fall outside of IHS services, however there are approximately one million people living in the service areas of these nonprofit organizations, creating a demand for service that is far greater than can be met.

This large disparity in federal funding is problematic for many reasons as it clearly fails to meet the federal government’s duties to provide health care under the trust obligation. Given that the program designed to provide services is not reaching or providing care to those in inner cities, the funding system for IHS’s programs needs to be readjusted to reflect the new reality. In addition to readjusted and increased funding, more awareness needs to be created around the issues that urban Native Americans face. As Janeen Comenote, executive director of the National Urban Indian Family Coalition, noted , “[t]his is a population that is invisible…people assume they’re not there and don’t face some of the same issues that impact Native peoples who live on reservations”. Without more outreach programs, education programs, community network groups, and increased funding, Urban Indian Health Programs will continue to struggle to provide adequate health care to urban Native Americans, care that the federal government is legally obligated, yet failing, to provide.

There have been two recent lawsuits brought to challenge portions of the health insurance price transparency rules promulgated under the Trump Administration, one of which was recently withdrawn. These rules are supposed to go into effect in stages, but the eventual goal is to have pricing information of items and services covered by health insurance companies available to the public.

In both legal challenges, groups are suing the Department of Health and Human Services (HHS). The first lawsuit was brought by the Chamber of Commerce. Chamber of Commerce of the United States of America et al v. United States Department of Health and Human Services et al, 6:21CV00309. The Chamber was challenging the section of the rule that requires insurers to post internal pricing data, including the “historical net prices” of prescription drugs, in three machine-readable files on a website. The Chamber was arguing that this provision of the rule was unlawful because it violated notice-and-comment rulemaking as well as went beyond the statutory authority of HHS in the Affordable Care Act.

The Affordable Care Act requires disclosures that are made to the public to be made in “plain language.” The Chamber argued that this pricing data is highly technical and could not be understood by the average consumer. Finally, the Chamber was arguing that the disclosure of prices would lead to increase cost to patients as it reduced competition among insurers.

Since the Biden administration delayed enforcement of provisions of the rule that were the basis of the lawsuit, the suit was withdrawn on August 25, 2021. The Chamber has said that they are going to watch the development of the rules to decide whether to refile the suit.

The second lawsuit was brought by The Pharmaceutical Care Management Association (PCMA). Pharmaceutical Care Management Association v. United States Department of Health and Human Services et al, 1:21-cv-02161. The basis of the PCMA lawsuit is very similar to the Chamber lawsuit. The PCMA is challenging the posting of historical net prices of prescription drugs on the basis that it is unlawful and would result in increased costs to patients.

A similar lawsuit in a DC federal appeals court saw the upholding of a similar rule. This rule required hospitals to disclose the negotiated rates between hospitals and insurance companies. The American Hospital Association challenged the rule on the basis that it went beyond the statutory authority in the ACA. I believe that this means that a court could decide the PMCA lawsuit the same way – by upholding the rule as not going beyond the statutory authority of the ACA.

In my opinion, if the enforcement of these rules moves forward, health insurance companies might attempt to lobby Congress to change these rules under the Congressional Review Act to protect the disclosure of their negotiated rates. I do not think that these rules exceed beyond the statutory authority of HHS in the ACA because the goal is to eventually have the information be easily searchable and understandable by the average consumer. I think that the transparency of negotiations as well as the eventual pricing of services and goods would be important for consumers and I believe that as consumers of health insurance, we deserve to have more transparency into health insurance pricing generally.

Health law in an incredibly broad and dynamic field centered around technology. The field is ever changing as health care law and technology advance. In some aspects, the field is advancing as medical technology improves. However, the COVID-19 pandemic produced significant questions and concerns regarding technology and health disparities.

Last week, the Jaharis Health Law Institute hosted a Spring Symposium addressing Health Disparities: Is Technology the Answer? Ana Santos Rutschman, Assistant Professor of Law, Center for Health Law Studies at Saint Louis University School of law, discussed the production and distribution of COVID-19 vaccines with respect to health law related issues. She highlighted that to some extent, the law and society treat vaccines and other life-saving goods as commodities.

How do we as society produce vaccines and allocate emerging health goods at such a rapid rate? Professor Rutschman explained that the production of COVID-19 vaccines are subject to contracts and reflect an intellectual property framework. Generally speaking, she noted that scientifically, the United States succeeds in producing critically needed health goods, vaccines in particular. For example, the United States controlled the Ebola virus outbreak, and in record timing, approved the Ebola vaccine.

Even with the ability to produce critical health goods at such a rapid pace, the United States struggles to distribute vaccines equally among minority racial and ethnic groups. Theories of inequalities in distribution and production of COVID-19 vaccines reflect under-enrollment of racial minorities in clinical medical trials. Professor Rutschman, quoting Dr. Anthony Fauci, mentioned that COVID-19 clinical trials failed to properly reflect the racial and ethnic makeup of the United States. The law requires some representation of minorities but this minimum is very low compared to actual numbers.

Vaccines in particular come with data and trust deficits which cause uncertainty among minority communities. Professor Rutschman believes minorities are systematically short changed within the field of health. In order to make a difference and combat health disparities, Professor Rutschman argues that meaningful changes are required. Vaccine distribution and contract law must work together. Systematic changes are needed. The government can correct some inefficiencies regarding vaccine production and distribution, however administrative changes are needed to do so.

COVID-19 has exposed the structural barriers at the root of health disparities in the United States. This year’s Jaharis Symposium focused on the premise that while technological advances have the potential to revolutionize the delivery of health care, they also raise significant questions about who has access to these innovations and whether they are advancing the interests of the populations with the greatest needs.

As part of this symposium, Valarie Blake, a Professor of Law at the University of West Virginia, presented her research on telehealth in rural America with a focus on the Appalachian region. Professor Blake explained that the health status of Appalachians is near the bottom of America when it comes to health outcomes, such as poisoning deaths, diabetes deaths, HIV prevalence, and more. This is due in part to the many tangible and intangible barriers that people living in rural Appalachia face when it comes to healthcare, such as a lack of sufficient healthcare force, travel barriers, low health literacy, the normalization of poor health, and a general mistrust of medical professionals. Telehealth could be a solution to some of these barriers, Professor Blake explained, but it cannot and should not be the only option. Telehealth has the potential to address problems with transportation and provider shortages, but poor internet speed and coverage can bring more issues. Furthermore, the advent of telehealth presents significant long-term challenges in areas such as quality of care, privacy, fraud, and equality. For example, safeguards are needed for long-term prescribing of controlled substances, many rural states lack sophisticated fraud detection forces, and the lifting of HIPAA enforcement, while meant to improve the speed of entry into telehealth, may be an unnecessary deregulation. For these reasons, Professor Blake argued that telehealth should be considered an additional service to in-person care, and not the sole tool in making healthcare services equally accessible.

Alex Pearlman, a science and technology journalist and bioethicist, presented at the Jaharis Health Law Institute’s Symposium on April 29, 2021. Pearlman’s background is reporting on emerging issues in research, health policy and biotechnology and her work has appeared in numerous leading national and international media outlets, including Stat, New Scientist, MIT Technology Review, The Boston Globe and Vice. Pearlman works as a digital ethnographer and researcher in the Wexler Lab at the University of Pennsylvania Department of Medical Ethics & Health Policy, where she is studying ethical issues in the Community Biology movement during the COVID-19 pandemic. Pearlman also is a research affiliate with the Community Biotechnology Initiative at the MIT Media Lab, where she studies the intersection of the Community Biology movement with issues in ethics and policy, and she is working on the creation of a research ethics framework for use by independent community labs. For the symposium, Pearlman presented on biohackers.

A biohacker is “a do-it-yourself tinkerer, [o]ften participating in self experimentation, gene editing interventions, and agitating against the patent system.” These biohackers, driven by altruistic motives, have “hacked” certain elements of healthcare to provide cheaper options for medication. Some examples of this are the one hour at-home COVID-19 test, open insulin, and the EpiPencil, which is an off-the-shelf answer to increase in price of the EpiPen. Pearlman focused much of the presentation on Glybera, a gene therapy for LPLD, and its pirated counterpart. When Glybera first came on the market, it was the most expensive gene therapy ever at $1 million. Biohackers reverse engineered Glybera using published studies and named the product “Slybera.” Slybera has never been tested as no one will touch the hacked therapy. While biohackers raise many questions of ethics and standards, Pearlman asks, “if there are low cost alternatives, isn’t it in everyone’s best interest to get them resources?”

Dr. Theodosia Stavroulaki is a Jaharis Faculty fellow at DePaul University College of Law. Dr. Stavroulaki teaches and researches topics in Health Law, Public Health, and Anti-Trust law, and has published work in World Competition, Law & Economics Review, Loyola Consumer Law Review, CPI Antitrust Chronicle and the American Journal of Law & Medicine. Her presentation focused on the major issues that arise when health insurance companies merge with powerful drug suppliers. Professor Stavroulaki mentioned that when insurance companies, like Aetna, merge with drug companies like CVS, they can then use big data analytics to identify the likelihood and risks of certain diseases, and design health plans that will discourage high risk patients from purchasing their programs. She further discussed a blind spot in antitrust law, which is that it does not distinguish between different socio-economic groups. This poses a problem because by placing all consumers into one unidentifiable group, antitrust law fails to consider the effects of certain conduct on different consumers.

Dr. Stavroulaki further discussed three ways in which antitrust enforcers should consider the harm these mergers may impose. She first mentioned how vulnerable, high-risk consumers constitute a separate relevant market. Further she discussed how this type of merger will make it difficult for insurance companies to enter the market in the future, seeing as acquiring a retail pharmacy would be a prerequisite. Second, Dr. Stavroulaki suggested that antitrust enforcers can consider how the merger’s negative impact on high-risk consumers should weigh more heavily than its positive impact on low-risk ones, notwithstanding that the net effect of the merger should be assessed. Finally, the proposed merger may facilitate health insurer’s efforts to violate the Affordable Care Act that prohibits discriminatory premium rates. On the other hand, she mentioned the merger might allow for the identification of patients who are not being properly treated in order to provide them with access to the care they require. Dr. Stavroulaki provided an insightful and interesting view into mergers that harm our health.

Talking about end-of-life care is challenging for many people, health care providers included. This is particularly true if a patient completely loses the ability to communicate. In March 2021, the Jaharis Health Law Institute hosted a webinar, which addressed a broad array of concerns central to end-of-life care.

Dr. Anuj K. Shah is an integrative family physician of Heartland Health Centers. He gave an insightful presentation on how effective communication can facilitate the achievement of important end-of-life goals. Decisions regarding end-of-life care are deeply personal, as most patients during end-of-life care contend with fears, needs, and desires. End-of-life decision-making is an ongoing and dynamic process among the patient, their family, and their physician. Patients and their families value open and honest communication. It is therefore critical to have a patient-centered communication to foster a respectful relationship with the patient and to develop a treatment plan.

A physician should make sure that the patient understands the communication, including the patient’s understanding about treatment options. Dr. Shah shared his experience with setting and achieving that goal. For example, he employs an “educate-me-back” technique: when he explains treatment options and consequences to a patient, he always asks the patient to explain these concepts back to him in the patient’s own words so that Dr. Shah knows that the patient understands these concepts and can make an informed decision.

When the patients lack decision-making capacity, a physician would coordinate with the patient’s family to determine treatment options. During that process, by interacting with a patient’s family and friends, a doctor may identify the patient’s end-of-life decisions as if the patient was still responsive.

From a legal perspective, the questions of who may make medical decisions for individuals who have lost capacity is more complex. As the Founder and Managing Attorney of Rao Legal, LLC, Ms. Mitha Rao has observed that too often people assume the answer is their beloved ones or best friends as “they know me.” The reality is that these beloved ones or best friends may not be the ones who can legally make these decisions, unless these individuals have been designated by appropriate legal documents such as advance directives. Ms. Rao offered insights into the role of advance directives in end-of-life decision making.

For example, an individual may appoint an agent to make medical decisions for the individual by executing a health care power of attorney. Having a designated surrogate decision-maker would eliminate the need to institute a guardianship proceeding to decide the individual’s best interests. That often can be too late in emergent situations. A living will is another type of advance directive that states a person’s preferences for end-of-life medical care if he or she later could not voice decisions. In Illinois, a living will permits a person to give medical directions that impact the end-of-life care, including withholding or withdrawing death delaying procedures.

An advance directive could be important in communicating end-of-life issues. Without an advance directive in place, as mentioned by Dr. Shah, family members and doctors are left to guess what the patient would prefer in terms of treatment. That occasionally leads to unintended consequences. These discussions are important to have, and decisions are important to make before there is a critical or urgent need because the appropriate time and consideration can be had outside of a crisis situation.