Last summer, I wrote about the Medical Question Doctrine, the theory that federal courts should defer to physicians on medical-legal questions. The relevance of my piece has resurfaced, now that Texas district court Judge Matthew Kacsmaryk issued a nationwide injunction prohibiting the FDA’s mifepristone approval.

Mifepristone is a one of two medications used for medical abortions. Mifepristone “blocks a hormone called progesterone that is needed for a pregnancy to continue.” The drug itself was first approved in 2000, and its approval was audited and validated in 2008. Mifepristone is effective and safe: the drug is 80% successful and sends fewer people to the ER than Tylenol and Viagra. In fact, only 24 out of nearly 3.7 million individuals who took mifepristone experienced a fatal side effect – and 6 of those cases coincided with alcohol and drug use. This puts the fatality rate of mifepristone at .00065%. Even compared to surgical abortion, medical abortion is indistinguishable with regards to safety and effectiveness.

On a tenuous legal theory and even more strained medical analysis, Judge Kacsmaryk stayed the initial and subsequent mifepristone approvals by the FDA. In essence, Judge Kacsmaryk paused legal distribution and prescription of mifepristone (with a seven-day grace period). Judge Kacsmaryk’s decision rested on the administrative complaint that the FDA had improperly approved the drug and that patients and doctors may experience injuries from using mifepristone.

In response to this decision, legal scholars, newspapers, and the United States President have criticized the decision for adopting radical, conspiracy-like reasoning that badly misconstrues reproductive medicine (and administrative law). In making his decision, Judge Kacsmaryk relies on a new theory of standing, a dormant 1873 statute, and an unprecedented remedy.

Last year, I suggested that the Medical Question Doctrine ought to consider “[1] the breadth of science on the policy, [2] the good faith justification by the physician, [3] the interest convergence of industry in pushing the treatment, [4] the effectiveness of the treatment in past experimentation, and [5] the interests of the state in regulating the treatment.” While none of these factors are dispositive, the Medical Question Doctrine prioritizes dereference to the individual physician rather than substitute the physician’s expertise for the Court’s.

In contrast to these careful considerations, Judge Kacsmaryk’s nationwide remedy contravenes the particularized, case-specific reasoning that physicians use when prescribing treatment. Of course, subsequent FDA regulations had gone further, permitting a prescription without a doctor’s visit. However, Judge Kacsmaryk’s remedy prevented a prescription, even with informed consent (as the initial approval permitted). More than just a contempt for abortion, this decision joins a series of nationwide remedies that demonstrate serious misgivings about expertise and agency judgement. Broadly, this means that a court without medical training can override the best medical judgement of physicians, even when that physician believes that such a treatment may be the most effective medication.

This is especially troubling when the American Medicine Association Code of Medical Ethics requires that physicians “[k]eep[] current with best care practices.” What happens when Federal Judges prohibit the use of best medical treatments? How can doctors conform with their ethical duties when judges intervene into the medical practice? Even for a Court skeptical of the administrative state, the local and particular nature of medical practice should warrant greater deference to physicians who have the most amount of information and knowledge on a particular topic. As I’ve noted before, the US Congress has only had 27 physicians elected to office since 2005, so it is difficult to understand why politicians or judges without medical training should be left to unquestionably dictate best care practices.

While this article does not advocate “Chevron for Doctors,” it does require that a court consider its own expertise on the difficult decisions doctors are forced to make and defer to their on-the-ground training (much in the same way courts will defer to police officers when evaluating qualified immunity claims). Once again, the Supreme Court will be presented with an opportunity to recognize its limits. Rather than succumb to conspiracies about the “Clinton Administration,” the Supreme Court should commit to local decision making; not by politicians and judges who do not understand complex medical procedures, but by doctors who are on the ground making these decisions.

“Medicalization” generally refers to a process in which previously nonmedical conditions come to be understood under the notions of disease and illness. Homelessness is not researched as a disease itself, yet situations for homelessness can be defined as a medical problem. Although medicalization has assisted the healthcare community in gaining awareness of the matter in question, the medicalization of homelessness focuses on cultural and circumstantial understandings rather than professional domain. The medical community reactively spends excessive amounts of money, services and resources on addressing the healthcare needs brought on by homelessness, rather than proactively providing for the tangible needs of the poverty-stricken areas before homelessness occurs. Although access to treatment and medication services is a step in the right direction, it reveals a problem with the medical model: it places homelessness as a potential consequence to disease, addiction or mental illness instead of understanding its contributing nature in creating disease, addition or mental illness.

Politicians and the press tend to link homelessness to mental illness, thus medicalizing a socioeconomic problem. While mental illness can contribute to homelessness, it is not the sole cause. Persisting from the beginning, poverty-stricken communities lacked supportive housing services for individuals experiencing homelessness with acute needs to physical or mental health issues. There was, and currently is, a desperate need for more than just housing. These individuals require additional help to become housed and stay securely housed, in order to maintain mitigate conditions such as a physical ailment or mental ailment exacerbated by homelessness.

Currently, the political and medical sectors focus on prevention and control for disease as well as substance abuse and mental health, which all thrive in poorly maintained areas where more than half the population is prone to experience a form of homelessness. Even with such data and research confirmation, policies continue to stray away from the problem: homelessness itself. The medicalized framework in the US is designed to treat symptoms rather than root causes of homelessness. As a result, legal and policy solutions focus on critiquing this medical framework from an outcome perspective, rather than implementing policies aimed at addressing those root causes. It is important to take a more holistic and systemic approach to address homelessness, one that recognizes the multiple factors that may be contributing to the cause of such debilitating conditions. Shifting the perspective to view homelessness as one of the factors that can create disease, addiction or mental illness may help policymakers create better homeless prevention laws at a federal level, rather than adequately address the notion that treating physical and mental conditions will decrease homelessness.

In the last decade, the internet has quickly become a staple in American society. For Americans today, the internet is not a luxury, but rather, a necessity in many respects.  With the development of modern technology and the invention of smart phones and apps, Americans have become reliant on their devices to track the most private areas of their lives: their personal health. Let’s face it, we have grown so accustomed to technology that we rely on our smart phones to wake us up every morning, send us reminders to take medication, establish our baseline heart rate, and even warn us when that rate becomes abnormal.

With this, it comes as little surprise that millions of women utilize “femtech,” or female technology, to track patterns in their reproductive health such as menstruation and fertility. Among the most frequently downloaded apps within the industry are Flo, ringing in at 43 million active users, and Clue with 12 million monthly active users. While these apps are extremely popular amongst users, U.S. privacy laws do little to regulate the deeply intimate data shared on these apps. Not only is this data incredibly personal, it is extremely revealing. Cycle and fertility tracking apps are so in touch with their users, that they can predict when a user’s cycle begins and ends down to the very day, and when a user may be pregnant. Moreover, these apps can accurately predict when a user has the best chance of conceiving a child.

Accordingly, the Supreme Court’s holding in Dobbs v. Jackson Women’s Health Organization, 142 S.Ct. 2228 (2022) allowed several states to ban abortion and enforce criminal penalties against any individual who aids in or receives an abortion by removing federal protections for the procedure. The implications sparked a wave of concern amongst femtech users and privacy experts. Particularly, users questioned whether this data could be subpoenaed or sold to third parties. More concerningly was if the information could be used against femtech users who have received, or are even considering, an abortion. Once shared on a digital platform, users exercise little control over their own data. Moreover, most health apps retain no accountability over this intimate information because they are exempt from the same standard as medical providers who are legally bound by the Health Insurance Portability and Accountability Act (HIPAA). Thus, the apps are free to use health data as they please.

This concern is heightened by the fact that apps commonly supply data to law enforcement during criminal prosecutions. Although an app’s cooperation with law enforcement typically arises in child exploitative imagery cases, the recent criminalization of abortion has changed the trajectory of investigations. In fact, a Nebraska case revealed that authorities obtained Facebook chat messages between a mother and her 17-year-old daughter to charge the two with carrying out a criminal abortion.

Thus, this wide-spread fear among users and experts is justified. In 2021, the Federal Trade Commission reached a settlement with Flo after it misled users about the security of their personal data. The suit arose after an investigation revealed that the app sold users’ health data to Facebook. Thus, experts urge women who reside in states where abortion is criminalized to delete their apps immediately and revert to using a paper calendar to track their cycles.

Moving forward, it will become increasingly important that users become more cognizant of the data they voluntarily share with cycle and fertility tracking apps. Moreover, there are several safeguards that should be implemented to provide stronger protections for users. Most simply, users can store their data locally. If data remains on a local device—such as a tablet, cell phone, or computer—the data cannot easily be sold to a third-party. In a similar realm, increasing the use of pseudonymous accounts is advantageous in the event of a security breach. This would eliminate a user’s legal name, email address, and phone number from their account; thus, making it far more difficult for a third-party to tie the information back to the user.

At a macro level, eliminating an app’s ability to track a user’s location could provide additional safeguards. Right now, if a user were to undergo an abortion at a clinic, technological tools such as geofence would allow law enforcement to obtain a search warrant to access records on a user’s geographic location. Law enforcement utilize these warrants by specifying a location and time period in which a particular crime occurred. Companies are legally compelled to turn over the information stored in their databases, indicating where users were located within a specified time period. As a practical matter, there is no reason for a cycle tracking app to have a user’s location; eradicating this function could give users a stronger sense of security without impacting the functionality of the app.

Until the U.S. government strengthens its data privacy laws with respect to third-party tracking, users retain no control over the saleability of their personal data. Consequently, women who reside in abortion-banned states should be careful to entrust such sensitive information in the hands of femtech. When in doubt, women should delete their femtech apps and resort to cycle tracking with a paper calendar. Women have been menstruating for as long as humans have existed, and they did so without the help of Flo and Clue—and so can you.

In its June 2022 decision, Dobbs v. Jackson Women’s Health Organization, the Supreme Court overturned Roe v. Wade, finding Roe “egregiously wrong from the start.” In making this decision, the Court looked to whether the stare decisis factors would allow for the continuation of judicially-created abortion rights in the United States. Those factors are “the nature of their error, the quality of their reasoning, the ‘workability’ of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.”

Although the Court goes through all the factors, it spills remarkably little ink on the last one: concrete reliance. Traditionally, reliance generally has been understood as “dependence by one person on another person’s or entity’s statements or actions, particularly where the person acts upon such dependence.” While the stare decisis reliance considerations have been inconsistent, the Court’s decision in Planned Parenthood v. Casey, expressly acknowledged that one’s ability to “participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” But in just over two pages, the Dobbs Court repudiated this theory, and instead held that (1) the unpredictable nature of pregnancy, (2) the generalized social decision making about when and how an individual has a child, and (3) substantive due process interests were not concrete enough to justify the continuation of the precedent.

While no one stare decisis factor is dispositive, the Court’s cursory reading of reliance interests warrants a second look. In an increasingly data-driven society, quantifiable determinations for reliance interests offers the only objective metric to determine how individuals or groups will be impacted by the Court’s decision. In her forthcoming article, “Precedent, Reliance, and Dobbs,” Nina Varsava addresses this very issue. Varsava distinguishes the Supreme Court from Congress or a state legislature because of the promissory nature of precedent. Our elected representatives have no obligation to follow through on their campaign promises or keep the current law static. As such, elections provide a remedy to suture those concerns: voting those politicians out of office. In contrast, when the Supreme Court makes a statement about what the law is, individuals must solely rely on the good word of the Court to stand by what it said.

That said, the Court viewed the reliance-based consequences of breaking its promise in Dobbs very narrowly. For the Dobbs Court, the only people whose reliance interests have been violated are those that (1) are currently pregnant, (2) would have gotten an abortion, and (3) can no longer get an abortion. Of course, the Court may argue that even their reliance interests may not be violated because state bans would not be immediately enacted, thus giving interested parties time to make appropriate changes. With that in mind, post-Dobbs data reveals the substantial changes in abortion access.

For starters, a Texas abortion clinic was one of many that stopped procedures within minutes of Dobbs being released. And within the six months post-Dobbs, twelve states had fully or almost entirely banned abortion, four states had severely limited access to abortion, and six states had made substantial efforts to ban or restrict abortion, which undercuts the Court’s attempt to buttress the impact of its ruling.

Even more substantial is travel time to secure an abortion. Since Dobbs, travel times to obtain access an abortion increased from as low as fifteen minutes to four to eight hours. This affected minority communities the hardest, with 40% of black women facing drives longer than one hour to access an abortion clinic, up from 15%. Another datapoint is information from the remaining abortion providers themselves. The number of abortions in banned states fell, but states like Florida, New York, North Carolina, and Illinois saw increases in the 1000’s. Taken together, increased abortions in “legal” states and heightened travel time demonstrate that those seeking abortions relied on local access.

Although difficult to quantify at this early stage, there are substantial economic costs to states and individuals when rearing children. For parents, the cost of raising a child is $17,000 a year. For states, the cost of public education per year is an average of $15,000 per year. With somewhere between 600,000-900,000 abortions a year, birthing unwanted pregnancies could cost nearly $30 billion a year.

Finally, obtaining an abortion is far from uncommon. Nearly 25% of people that can get an abortion will by the time they are 45 years old. Although this could be attributable to a variety of factors (poverty, access to childcare, or the scope of health insurance coverage), the commonality of abortion services creates an assurance that the demand for abortions is inevitable, regardless of the constitutional backing.

While data can illustrate the tangible impacts of the Court’s decisions, adopting these “concrete” considerations almost always pose policy questions, rather than questions of law. How and whether the Court should make these determinations is indisputably difficult. What is an acceptable travel time to secure an abortion? How does one weigh questions of accessibility against an intangible interest in “life” generally? When do the costs to unborn life outweigh the economic considerations? To some extent, the Dobbs Court may have a point: states may know better than the federal courts regarding the needs of their own citizens – whether its parents or education system can handle more children – and the voters can decide if their legislatures made the right choice.

That said, once the Court has recognized a right, it should give due consideration to impacts that come with limiting or rolling it back entirely. For instance, when presented with the opportunity to end Miranda Rights in Dickerson v. United States, the Court observed that “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” Although the Dickerson Court did not quantify the number of times the warnings have been read or the defendants whose rights were vindicated after a custodial interrogation, the Court considered what sort of expectations people had as a participant in American society.

Americans rely on the Court’s decisions to navigate their behaviors and manage expectations. Without any ability to supersede constitutional rulings, the Court should expand the reliance interest factors to include quantitative determinations. When the Court chooses to alter constitutional rights, data and statistics ought to shape its conclusion.

A recent bill passed in California could hold social media corporations—namely, Tiktok, Instagram, Facebook, Snapchat, YouTube, and the like—accountable for the mental and physical health of the children who are active on their platforms. The bill—The California Age-Appropriate Design Code Act (“Act”) —requires that apps should be child friendly by default. Instead, social media users currently have to manually opt-out of potentially harmful settings—such as precise geolocation tracking, collecting personal information that can be sold to third parties, and allowing unfriended adults to privately message adolescents via their accounts. This means social media platforms must now consider the mental health and physical health of adolescent users when designing their apps—young females being the target audience. Under the Act, app designers must consider:

• Configuring all default privacy settings on the app to the highest level or privacy;
• Disclosing privacy policies, terms of service, and community standards in simple terms that adolescent-users can comprehend;
• Completing assessments—Data Protection Impact Assessment—for products or features likely to be used by adolescent-users;
• Submitting assessments for approval before the products or features are launched on the app; and
• Abstaining from using personal information of children for purposes other than those expressly permitted by the user.

The costs of non-compliance are severe. Violators of the Act could:

• Face injunctions on their products;
• Be fined up to $2,500 per affected child for each violation; and/or
• Be fined up to $7,500 per child if the violation was intentional.

If signed into law by Governor Newsom of California, the bill would go into effect in July 2024. Although it is unclear whether the Governor will sign or veto the bill, it is clear that California legislators are taking the health and safety risks of social media on children seriously. On one hand, eight of the ten most frequented social media sites in the world are headquartered in the state, which suggests that California not only has the opportunity, but the obligation, to regulate corporations that have a profound global impact. On the other hand, social media connectivity is inevitable in the digital age, where iPads are integrated into elementary school curriculums and educational apps are used to practice math, reading, foreign language, and the like. Therefore, it is time that California set the standard for other states to pass regulations that protect social media users, especially children who cannot be expected to understand the risks or repercussions that come with giving away private information by “accepting the terms and conditions.”

So far, California is doing just that. For instance, earlier this year, the California State Assembly proposed The Social Media Platform Duty to Children Act, which would hold social media companies responsible for harming children that become addicted to their apps. In effect, it would allow parents to sue for up to $25,000 per violation. While the bill did not pass in the Senate, the speed at which these measures were proposed is undoubtedly encouraged by the increasing number of scientific studies and academic publications discussing the damaging effects of social media on the developing minds of adolescents. Most of these studies focus on Gen Z, and the prevalence of mood disorders such as anxiety, depression, and self-harm among that demographic. For example, one study found that from 2010 to 2014, the rates of hospital admission for self-harm doubled for girls ages 10 to 14. However, the same study showed that such rates did not increase for boys or young men as well as women in their early 20s. Other studies have demonstrated that this is not an isolated or “American” issue, despite what some critics say. For instance, in 2017 British researchers asked 1,500 young people (aged 14-24) to rate social media platforms according to how they affect their anxiety, loneliness, body image, FOMO, bullying, and sleep—overall, 14 categories collectively referred to as “well-being measures.” The results placed Instagram as the most harmful, followed by Snapchat, Facebook, then Twitter. YouTube was viewed as the most positive. A separate experience confirmed these results when researchers instructed young women to use Instagram, Facebook, or play a matching game for several minutes. The experiment concluded that those who used Instagram, more so than Facebook, showed decreased body satisfaction.

Ultimately, the prevailing evidence that social media has a negative impact on mental health, which often extends to physical health, supports that legislation like the Act is just as much healthcare legislation as it is consumer protection. Moreover, such legislation extends at the state level what the Children’s Online Privacy Protection Rule (“COPPA”) has done at the federal level—that is, protect the privacy and personal information of children under the age of 13 on online platforms. There is also increasing intersectionality between social media data collection and Health Insurance Portability and Accountability Act (“HIPPA”) violations. Recently, Meta (Facebook’s parent company) violated HIPAA by enabling a tracking tool that sent sensitive health information, including patient health conditions, doctor appointments, and medication allergies, from US hospitals to Facebook. As a result, two class action lawsuits were filed in California earlier this year.

Based on this information, California is on the frontlines of a data privacy war against major social media corporations. Many such corporations that oppose the bill argue that differing state laws regulating their apps would make compliance difficult. However, instead of social media corporations maintaining the status quo, which has wreaked havoc on the well-being of the global youth, I propose other solutions:

• Each State could pass individual legislation regarding adolescent social media usage, for which nationwide social media corporations would have to comply with the laws of the strictest state, functioning as a statutory floor;
• Plaintiffs could bring claims under The California Age-Appropriate Design Code Act, or other similar acts, and litigate up to the Supreme Court, which could potentially establish a nationwide precedent on the issue; and/or
• More intensive acts than the Children’s Online Privacy Protection Rule (“COPPA”) could be proposed in Congress that regulate the standards of, g., condensed and simplified terms of service, geolocation tracking of children, and the remedies made available to adolescent users and their parents, such as invalidating adhesion consumer contracts with binding arbitration clauses.

What is clear is that the health needs of children utilizing social media are not currently being met, and it’s time for our legislative representatives to take action.

While notably and most commonly hailed for its expansion of abortion rights, Roe v. Wade was noteworthy in its deference to a doctor’s professional decision making. In contrast, the Dobbs leak reveals the current Court’s empowerment of states to develop abortion laws that comport to a state’s respective interests in fetal life. This decentralization is justified through the notion that the medical needs of Californians may be different from Minnesotans or Texans. However, the extent to which local governments adapt their healthcare priorities to the needs of their citizens is unclear. Since 2005, the US Congress has only had 27 physicians elected to office while data on local physician representation in local government is relatively difficult to ascertain. Without local, state, and federal representatives who understand the complexities of medical decision-making first-hand, the interests of patients may be undermined. Alternatively, having medical professionals participate in specific reforms may offer insight and perspective in an area that requires an advanced degree to practice.

Most recently, some state governments have aggressively moved to restrict and criminalize access to abortion while simultaneously banning gender-affirming care. These health policies may be in line with cultural and political prerogatives, but their draconian limitations fly in the face of a broad consensus of medical research. Left to evaluate these policies, the Court may need to rethink its approach to medical decision-making when state governments override scientifically supported treatment for short-term political gains.

While the Court deliberated over the landmark Roe v. Wade decision, Justice White dubbed the initial drafts as creating a “‘medical question doctrine’ … [holding]…doctors, rather than the Court had the final authority on certain medical-legal questions.” While mocked at the time, the encroachment of government into the doctor’s office may require looking to the guidance of Justice Blackmun in determining how much discretion physicians should have in dispensing treatment for their own patients.

In a brief review of literature, the term “medical question doctrine” has only appeared four times, and only in the decade following the Roe decision. However, the Court’s skepticism regarding the competency of physicians at interpreting the law should be juxtaposed with broad physician concern about the Court and other political branches making medical decisions. Even as Justice Blackmun sought to “vindicate[] the right of the physician to administer medical treatment according to his professional judgment,” the collision of state interests have threatened his goal.

The Court is right in some respect: the needs of patients in individual states differ across the country. But so do the needs of patients in individual counties, cities, and even wards. In seeking decentralization, the Court does not go far enough in deferring to local interests. Given the complexity of the human body, and the broad diversity of needs, treatments, and experimentation that comes with health policy, the Court should be cautious in allowing states to overregulate the medical industry.

This is not to say that state legislatures do not have a place in deciding the permissibility of experimental treatments, setting licensing standards, or any other sort of regulations. A concerning history of underregulated medical experimentation demonstrates the need to be prudent in developing a new theory of medical deference. The examples that demonstrate the dangers of a lack of oversight in the medical community color the United States’ history: the Tuskegee Experiments where black men became an unwilling control group in testing the effects of untreated syphilis; the Opioid Epidemic where millions across America were overprescribed painkillers leading to addiction and death; and the “[systematic undertreatment] for pain” amongst Black Americans.

However, when these policies are challenged, the Court should keep a watchful eye for state policies whose purported interest lacks the backing of the scientific community. In developing a medical question doctrine, the Court should look to the breadth of science on the policy, the good faith justification by the physician, the interest convergence of industry in pushing the treatment, the effectiveness of the treatment in past experimentation, and the interests of the state in regulating the treatment. While this list is incomplete, it offers a means for doctors to justify and defend themselves against overbroad policies that constrain good faith efforts to improve the health outcomes of patients.

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.