Twentieth century biology began with the rediscovery of Gregor Mendel's work on peas and ended with the sequencing of the human genome. In between came Thomas Morgan's studies of fruit flies, the grand synthesis between genetics and evolutionary biology in the 1930s, and Watson and Crick's publication in 1953 of the double helix structure of deoxyribose nucleic acid (“DNA”), the substance in the nucleus of cells, which carries the genetic code of all eukaryotic life.

The genetics of the second half of the century focused on learning how DNA coded for proteins, how to splice, clone, and recombine pieces of DNA, and how genetic mutations caused disease. In the late 1980s, a project to identify the actual sequence of all 3.2 billion base pairs of the human genome began. In June 1999, President Clinton and Prime Minister Blair announced that a working draft of the human genome was complete, with the final completed draft to 99.9% accuracy expected in May 2003, fifty years after the publication of Watson and Crick's landmark paper.

In the 2002 Term, the U.S. Supreme Court will hear the case of Pharmaceutical Research and Manufacturers of America (PhRMA) v. Concannon, in which PhRMA, the plaintiff-appellant, will argue that the State of Maine's program to supply low-cost prescription drugs to its citizens (the Maine Rx Program) violates the dormant Commerce Clause doctrine. After the Program became law in 2000, PhRMA sought and obtained an injunction from a federal district court preventing the law from going into effect. Shortly thereafter, the First Circuit unanimously reversed the district court and lifted the injunction. In June 2002, the Supreme Court granted certiorari.

This Article argues that the Maine Rx Program violates the dormant Commerce Clause doctrine because it links a facially nondiscriminatory tax with a subsidy in a way that, in combination, burdens out-of-state drug sellers. The Supreme Court has found similar programs to be invalid in past cases, most recently in the 1994 case West Lynn Creamery, Inc. v. Healy.

Mental illness is a serious problem in the United States. Based on “current epidemiological estimates, at least one in five people has a diagnosable mental disorder during the course of a year.” Fortunately, many of these disorders respond positively to psychotropic medications. While psychiatrists write some of the prescriptions for psychotropic medications, primary care physicians write more of them. State legislatures, seeking to expand patient access to pharmacological treatment, granted physician assistants and nurse practitioners prescriptive authority for psychotropic medications. Over the past decade other groups have gained some form of prescriptive authority. Currently, psychologists comprise the primary group seeking prescriptive authority for psychotropic medications.

The American Society for the Advancement of Pharmacotherapy (“ASAP”), a division of the American Psychological Association (“APA”), spearheads the drive for psychologists to gain prescriptive authority. The American Psychological Association offers five main reasons why legislatures should grant psychologists this privilege: 1) psychologists’ education and clinical training better qualify them to diagnose and treat mental illness in comparison with primary care physicians; 2) the Department of Defense Psychopharmacology Demonstration Project (“PDP”) demonstrated non-physician psychologists can prescribe psychotropic medications safely; 3) the recommended post-doctoral training requirements adequately prepare psychologists to prescribe safely psychotropic medications; 4) this privilege will increase availability of mental healthcare services, especially in rural areas; and 5) this privilege will result in an overall reduction in medical expenses, because patients will visit only one healthcare provider instead of two–one for psychotherapy and one for medication.

California is not alone in turning its back on the severely mentally ill. Because of financial incentives from the federal government, every state continues to close state-run psychiatric hospitals, leaving those who are poor and severely mentally ill with no treatment or care. Many cities have areas similar to San Francisco where the mentally ill suffer in public because it is cheaper to abandon the mentally ill to an open-air asylum than it is to build and fund psychiatric hospitals.

As more same-sex couples enter into civil unions and domestic partnerships, the courts and other institutions are beginning to consider the implications of these partnerships in several areas of the law. A Georgia appeals court, for example, recently published the first opinion addressing this issue, ruling that a civil union of two women, obtained in Vermont, was not equivalent to a marriage for the purposes of interpreting a child custody agreement entered into in Georgia. As many observers predicted, the enactment of legislation recognizing same-sex partnerships has profound implications on the practice of family law, trust and estate law and healthcare law.

This Article focuses on an area of healthcare law in which the legal status of a civil union or domestic partnership could have significant consequences—organ donations. In particular, it explores whether a civil union or domestic partner is an appropriate party to consent to an organ donation.

The use of pharmaceutical products in the United States has increased more than the use of any other health resource from 1960 to 1990. In excess of 9,600 drugs were on the market in 1984, and the Food and Drug Administration (“FDA”) approves approximately 30 new drugs and countless new applications for alterations of already existing drugs each year. In 2001, the $300 billion pharmaceutical industry sold $154 billion worth of prescription drugs in the United States alone, nearly doubling its $78.9 billion in sales in 1997. With such a rapid increase in market domination and expenditures, the U.S. government and many hospitals have focused their attention on the sales and pricing practices of pharmaceutical companies, as well as other potential factors contributing to these escalating prices. One such cause of the steadily increasing prices of brand name pharmaceuticals is the sale of fake or counterfeit pharmaceuticals (also called “look-alike” drugs).

Mental illness affects the health status of about one in five Americans each year. More than five percent of adult Americans have a “serious” mental illness—an illness that interferes with social functioning. About two and one-half percent have “severe and persistent” mental illness, a categorization for the most disabling forms of mental illness, such as schizophrenia and bipolar disorder. All mental illness interferes to some degree with social activities. Left untreated, serious mental illness can be disabling—disrupting family life, employment status and the ability to maintain housing. Nevertheless, privately insured people in the United States (that is, the majority of insured people in the United States) are not covered for mental health services to the same extent that they are covered for physical health services. Second-class coverage of mental health services reduces access to care for people with mental illness because cost becomes a significant barrier to service. The resulting lack of treatment fuels the disabling potential of mental illness.

In 1997, the U.S. Supreme Court tacitly endorsed terminal sedation as an alternative to physician-assisted suicide, thus intensifying a debate in the legal and medical communities as to the propriety of terminal sedation and setting the stage for a new battleground in the “right to die” controversy. Terminal sedation is the induction of an unconscious state to relieve otherwise intractable distress, and is frequently accompanied by the withdrawal of any life-sustaining intervention, such as hydration and nutrition. This practice is a clinical option of “last resort” when less aggressive palliative care measures have failed. Terminal sedation has also been described as “the compromise in the furor over physician-assisted suicide.”

Medical literature suggests that terminal sedation was a palliative care option long before the Supreme Court considered the constitutional implications of physician-assisted suicide. Terminal sedation has been used for three related but distinct purposes: (1) to relieve physical pain; (2) to produce an unconscious state before the withdrawal of artificial life support; and (3) to relieve non-physical suffering.

The Institute of Medicine Report, Unequal Treatment: Confronting Racial and Ethnic Disparities, affirms in its first finding: “Racial and ethnic disparities in healthcare exist and, because they are associated with worse outcomes in many cases, are unacceptable.” The mechanisms that generate racial and ethnic disparities in medical care operate at the levels of the healthcare system and the clinical encounter. Research demonstrates the role of healthcare system factors, including differences in insurance coverage and other determinants of healthcare access, in producing disparities. Research also shows, however, that even when insurance status and other measures of access are controlled for by statistical methods, racial and ethnic disparities persist. These disparities remain when researchers try by various methods to control for patients’ clinical characteristics. Disparities are especially well documented through comparisons between white patients and African Americans and Latinos, but they are believed to affect other minority groups. As a result, many members of minority racial and ethnic groups receive less or inferior care.

Recent advances in understanding the genetic basis of disease has inspired hope but also fear. While establishing a link between a person's genetic makeup and a propensity to disease may lead to better treatment, many scientists, physicians and genetic counselors also worry that it may lead to discrimination. Although access to health insurance is the primary concern, people also fear discrimination in life and disability insurance, employment and other contexts, such as child custody decisions or adoption. In response to this concern, many state legislatures have passed laws forbidding genetic discrimination. While most of these laws focus on health insurance, some also prohibit genetic discrimination in employment or in life or disability insurance coverage.

These laws have been the subject of both praise and criticism. Defenders of the laws see them as important and necessary, though arguably incomplete. Critics view them as unjustified and unwarranted. However, the question that dominates current literature is whether genetic discrimination is meaningfully different from discrimination on the basis of general health status; or as the debate is often framed, whether anti-discrimination laws ought to be genetic or generic.

Susan Carter has not been feeling well for days. She would like to see a doctor about her chest pain and wheezing, but Susan knows that missing work will leave her client without a replacement and, worse, she could be fired. Susan is a home healthcare worker in Illinois. Like many of her fellow workers, Susan has no health insurance and cannot afford to risk losing her job by going to see a doctor.

Often, Susan feels unable to handle the constant stress of her job. She helps her clients bathe and dress, prepares their meals and assists them with their medications and housekeeping. Susan travels by bus daily to care for two to five clients. She carries a pager day and night in case a client needs help with a plugged catheter or another emergency. Susan often has to work seven days a week, and she steps in to care for patients whose caregivers have left for better-paying jobs.

The past decade witnessed unprecedented growth in medical research involving human subjects, promising the development of new treatments that extend and improve the quality of life, as well as prevent disease. Recent biomedical breakthroughs such as the mapping of the human genome, improved understanding of pharmacokinetics and molecular biology, and novel theories about the mechanisms of diseases such as cancer have led to a proliferation of clinical trials. Such research provides the necessary bridge from scientific theory to practical medical application, and it is essential that these efforts benefit all persons who suffer from the studied diseases.

In addition to the potential long-term pay-offs, clinical trials may offer immediate dividends to enrolled subjects. The opportunity to participate in medical research carries with it a variety of potential risks and benefits. Because clinical trial participation potentially results in significant individual benefits, including access to state-of-the-art care and improved disease monitoring, fairness demands equal opportunity for inclusion whenever scientifically appropriate.

This Article examines the extent to which the U.S. healthcare system is equitable for older Latinos, using the World Health Organization (WHO) and the related Organization for Economic Cooperation and Development (OECD) criteria on health outcomes, access/responsiveness and financing. We argue that improving health equity requires more than actions aimed at health behavior and culturally-based beliefs targeted at the individual. Improving equity also requires changes in broader social and political processes affecting entire populations and organizations of care, paying special attention to how these changes affect the Latino elderly.

Healthcare is particularly important for the older population. Persons age 65 and older have the highest overall rates of death, disease and disability, as well as the most frequent and intense use of medical services. U.S. public policy has acknowledged the high medical care needs of many elderly by establishing Medicare as a universal health insurance starting at age 65, and supplementing it with Medicaid, the public-assistance program for low-income older persons.

Main Street in Sarasota, Florida. A high-tech medical arts building rises from the east end, the county's historic three-story courthouse is two blocks to the west and sandwiched in between is the First Church of Christ, Scientist. A verse inscribed on the wall behind the pulpit of the church reads: “Divine Love Always Has Met and Always Will Meet Every Human Need.” This is the church where William and Christine Hermanson worshipped. It is just a few steps away from the courthouse where they were convicted of child abuse and third-degree murder for failing to provide conventional medical care for their seven-year-old daughter.

This Article is about the intersection of “divine love” and “the best interests of the child.” It is about a pluralistic society where the dominant culture reveres medical science, but where a religious minority shuns and perhaps fears that same medical science. It is also about the struggle among different religious interests to define the legal rights of the citizenry.

There is perhaps no greater tragedy in a parent's life than learning that one's child is terminally ill. Today, more than at any time in the past, when conventional treatment fails, dying children are given access to experimental treatment. To a surprising extent, society takes for granted the participation of dying children in medical experiments. In part, this is because we have come to view participation in clinical trials as a potential benefit. This view contrasts sharply with the dominant perception of the mid to late 20th century, which viewed medical research as a potential threat to vulnerable populations. Upon closer scrutiny, both of these perspectives carry with them some important truths. This Article seeks to build upon those truths by undertaking a critical analysis of contemporary ethical and legal policies governing the inclusion of terminally ill children in clinical research.

Medical research is heavily funded: the National Institutes of Health had a budget of over $20 billion in 2001, and even more money was spent by the pharmaceutical industry on research. Children's health issues, however, receive only a small fraction of these funds. In 2001, for example, less than $1 billion of NIH funding was allocated to the National Institute of Child Health and Human Development (NICHD). In part, the problem stems from a modern predisposition to protect children from participating in research.

Several federal policies in the 1990s changed the face of the “typical research subject.” Historically, researchers sought “white men,” but the NIH announced in 1994 that all research would need to include women and minorities, and in 1998, the NIH added the requirement of including children. The shift in policies reflects a shift in focus. When the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research addressed fairness in subject selection in the Belmont Report of 1979, the main concern was ensuring fairness in the distribution of risks.

Anyone who reads numerous statutes is frequently left scratching his or her head: is this provision a deliberate, rational requirement or filler thrown in for no apparent reason? One puzzling requirement peppering state surrogacy statutes is the limitation of surrogate parenting arrangements to couples in which the intended mother is infertile, unable to bear a child or unable to carry the child without unreasonable risk to the mother or child. The legislative history of these statutes offers no explanation for this emphasis on maternal infertility.

The only attempted justification for such a requirement comes from commentators who argue that it bars women who want to avoid the nuisance of being pregnant and giving birth from using a surrogate.