When states’ rights and healthcare access clash

Episode Notes

Transcript

Lee Rawles:

Welcome to the Modern Law Library. I’m your host, the ABA Journals Lee Rawles. And today I’m joined by Leslie p Francis and John G. Francis. Authors of the book, states of Health, the Ethics and Consequences of Policy Variation in a Federal System. Leslie John, thanks so much for joining us.

Leslie P. Francis:

Thank you for having us.

John G. Francis:

Thank you for having us.

Lee Rawles:

So it says in the introduction, the two of you started writing this book as a response to states refusing access to Medicaid, turning down access to Medicaid. And it really has evolved because many more major questions about healthcare and federalism have arisen. Most notably, we’re coming up on the two year anniversary of Dobbs v Jackson Women’s Health, and we are seeing what that decision has done to reproductive health access around the country. Leslie, I’d love to start with you. Could you explain to listeners a little bit about your own background and how you two came to write this book?

Leslie P. Francis:

So I am both a law professor and a philosophy professor at the University of Utah, and I specialize in bioethics health, law, disability, law, privacy, and many things applied ethics. John and I have had a long partnership. We’ve been married a long time, had children together, and this is actually not our first book together. We’ve written about land policy, we’ve written about privacy together, we mixed together the empirical sensibilities of a political scientist with my legal and philosophical training. We actually met in a graduate class in philosophy at the University of Michigan. So we’re multidisciplinary, interdisciplinary, and as the Medicaid expansion rolled out and failed in many states, we were talking about the extraordinary variation that you see. This was deepened as we wrote our book on privacy together because we could see states with very different protections. So we thought, let’s think more generally about federalism and healthcare bioethics and public health.

We’ve written a book on public health surveillance and that brought up federalism issues too. And we had pitched it to Oxford, we were under contract, we were almost done. And then Dobbs was on the horizon and the Supreme Court changed the question for people to look at that they were going to decide in Dobbs from can a 16 or 15 week abortion ban pass constitutional muster to should Roe v. Wade the liberty right as it had been misunderstood in Casey. Be overruled. So we looked at each other with an almost finished manuscript and we said we got to wait until the court decides stops.

Lee Rawles:

And can I ask John, where in the process of this did Covid happen? Because a major section of your book, I very much enjoyed one of the subheads of a chapter, contagious diseases pandemics do not respect political boundaries. At what part during the writing process did you realize you were going to have to get into talking about public health and pandemic control when it came to what state powers should be, what federalism can, can’t do when it comes to protecting citizens from pandemics?

John G. Francis:

Yeah, no, I think it is a first great question in general, probably there are two reasons, right from the early stages of the Republic, there was interest in the notion of epidemics or pandemics hitting a port city, and that was seen as a federal responsibility. And so there was a backdrop to that. And then of course the 1918 flu was another example that we knew we had to discuss it. And I think as particularly with the shift in administrations, it became an intensely political issue in the US about what are the role of governors. There were of course a number of firing of essentially public health officials. There was essentially President Trump who on the one hand led the way and in doing Resa, having funding research for a vaccine and on the other hand was hesitant to assume a major federal role in doing that. So you had all these things that raised all the questions that were of interest to us and also the gradually deepening and risk of the pandemic, not only here but globally had enormous implications. So it was something that we knew we had to address and to also recognize that the end of the story is still in some respects unfolding.

Lee Rawles:

And the question that you are looking at when it comes to what Federalism can do to protect people’s rights and also what states can do to protect people’s rights, as you say that there’s a dual responsibility there. That’s something that lawyers love to talk about, states’ rights versus federalism. And I think that anyone who’s interested in that philosophical discussion is going to find a lot in this book States of Health. But I would love Leslie to get into two of the major overarching claims that you make in this book. I think they’re important. The first is that state differences go too far when they make basic decisions about who counts at all and what it means to count, that’s number one. And number two, movement is a critical aspect of who counts the ability to come and go or to leave one state more permanently for another. So for listeners, can you explain a little bit more how you came to decide that these were two important principles to include in this book about bioethics?

Leslie P. Francis:

So first of all, I have to say it took a lot of discussion because we disagreed on some important aspects of how to reach those conclusions. And I hope our readers will be pressed to think about the kinds of tensions that really exist in a federal system. So one thing about a federal system is that it is a system that is a single country. And one of the quotes that we start the book with is the famous quote from President Lincoln. A house divided cannot stand that there are some divisions that are just so deep slavery, the obvious example, but completely ignoring the possibility of ill health. So grave that people cannot flourish at all and cannot even move for better health within the country is we think over the, you’re not a single country if there isn’t some kind of minimum floor of rights protection.

We’d actually written a political science paper about rights protection in a federal system that was published three or four years before we started on this book. So some kind of minimum floor. On the other hand, part of the justification for federalism is for a variety of reasons, the importance of respect for difference among subnational units. Now one of the things that there has to be in common is the ability to move freely across internal borders. And that means both ways to go back and forth. And that value too has been a critical feature in the US federal system. So what we’re trying to articulate in the book is at the level of rights, some kind of basic minimum, we do have a bill of rights that applies across the land, a commitment to movement. And within that, a commitment to the very real importance of differences among states.

Lee Rawles:

One aspect of the right to movement that hadn’t occurred to me really until I read States of health, obviously post jobs, the discussions about pregnant people being able to travel to receive the care that they need or people worrying about can I even go to this state if an emergency happened to me, would I be guaranteed care that I came to the book already thinking about, one aspect I hadn’t really considered is the role that licensing plays for providers and the right to movement among us. As you guys know very well for lawyers, you have to pass theBar exam in whatever state you want to practice in, and that is a limiter on movement. But I was interested, and I will go to you for this, Leslie, since you’re the attorney, when it comes to licensing as a restriction of movement and state’s roles in that, I would love to hear more about why that was included in the book and have my listeners hear more from you about that aspect of a right to movement.

Leslie P. Francis:

So first of all, one of the things that I hadn’t anticipated neither one of us had anticipated is that there are major differences among states even in the types of providers that they license. So there are states that license various kinds of alternative health providers. There are states that do not license independent practice nurse practitioners. If you’re going to be a licensed advanced practice nurse in some of these states, you still have to have a practice agreement with a physician, which of course affects access to care. Now human bodies are pretty much the same around the country, although you can anticipate that there would be different disease patterns, disease patterns associated with various sorts of mosquitoes or ticks might vary by state, but basically bodies don’t vary. So it seems that licensing ought to be in common, but states still want their own standards and those include moral standards.

So there are now some states that would take away the license or refuse to grant a license to someone who has violated, and I’m going to put this very specifically, their views about abortion because these statutes, these licensing rules don’t actually say whether the refusal of a license for abortion related reasons has to do with whether you violated the law of the states. So it’s actually an open question, which we would argue is problematically extraterritorial. That is a state reaching out beyond its borders inappropriately to try to regulate what goes on in a fellow state for a state to say, look, when you were in training, you learned how to perform abortions in Massachusetts or in Washington state. So we’re not going to license you in Idaho. Now that’s probably, this is a point John makes a lot. That’s very counterproductive for Idaho to say because they’re going to have fewer physicians who would be willing to come or able to come into Idaho.

In fact, they’re leaving Idaho pretty regularly at this point. But Justice Alito said, we’re putting all these issues to bed now that we’re overruling Roe v Wade. But this is just one of the many illustrations of issues that just might verbal up legally in the next few years. And it’s going to be particularly important for providers who are licensed in more than one state and live in one of those cities that crosses state lines. The best example is St. Louis. Imagine a provider who is licensed in East St. Louis, Illinois where abortion is legal. And in St. Louis, Missouri, where it is not who holds licenses in both states, it’s unresolved legally, whether Missouri could say if you perform abortions in Illinois, we’re going to take away your Missouri license.

Lee Rawles:

And John, another outstanding question when it comes to states reaching beyond their borders is involving patient’s right to privacy, at least in my view. We just saw a recent issue come out of Texas where the Texas Attorney General, I believe, is requesting health records from other states to find out what care their residents received when they went to that state. You have a privacy background. I’d love to hear you talk a little bit about this issue. Can a state demand another state turn over these records?

John G. Francis:

Yeah, it actually is the heart of one of the major questions is a state wanting to pursue a person in another state to gather information that they could use adversely concerning licensing, concerning taking legal action against them. So that clearly is ongoing. In the case of Texas, the Attorney General who has very much seen his reputation resting on the enforcement of an anti-abortion approach and tracking people into other states. Having said that, the Attorney General of Texas is also run into difficulties because he wanted information from Washington state and Washington State essentially said, no, that’s not going to happen. And they finally resolved the issue by essentially saying Texas isn’t pursuing that in Washington state. So you do have that important question. It also, of course, ties into our conception of privacy and medical records and what that may mean in varying states and how that is enforced or not.

So one of the clear issues that stands out is that privacy matters to people. And as I’m sure you know, and everyone else listening to this knows the number of violations or seizing by people hoping to make money holding records at ransom in different states by seizing records or breaking into computer systems to do that has become a big issue throughout the nation. So the question of privacy keeping records also states who essentially support abortion, wanting to make sure that the states that do not seek to intervene is an issue. And I would say it’s an issue that seems to be working in the direction of granting or recognizing the autonomy of states in a number of these issues. So I think the attorney General of Texas who’s having some actually legal issues of his own is probably, I would guess the political future is to reinforce the autonomy of states and not having them supply information that could put a resident of another state at risk for prosecution.

Leslie P. Francis:

Could I just add a little bit to that for listeners? The Texas Washington State controversy didn’t involve abortion. Actually, it involved gender affirming care and Texas thought that there might be some Texas families taking their children to Seattle Children’s Hospital to get the care and sought the records claiming maybe they’d been misled. There was a violation of Texas consumer protection law and Washington State said, no, this information is shielded and this controversy could happen again because they settled. Seattle Children’s Hospital is no longer going to have any employees in Texas or be registered to do business in Texas. They don’t provide medical care in Texas, but the Attorney general backed off. We’ve got greater separation between the states and we could get this fight again, not only about abortion, but about other kinds of care.

Lee Rawles:

And just to quickly add another element there, I actually had not realized that Arkansas said providers would not be allowed to make referrals to other states where gender affirming care was a possibility, which seems to really be in my non-lawyer opinion interfering with the provider’s rights to communicate and speak with their patients.

Leslie P. Francis:

Yes, and interestingly though, that kind of regulation is within the state and then there are states also trying to seek to prevent people from getting to the border. There are even local jurisdictions in Texas where interstate highways go through getting into the act saying you can’t drive somebody through our city to get to New Mexico for an abortion.

John G. Francis:

I think in fairness, we should point out that apparently many Texans in Oklahomans are easily getting to New Mexico, which is seeing a vast increase in the number of abortions, but they are making it something of an issue. Well, this road is the road, you can’t travel Now how far that goes in time is up in the air.

Lee Rawles:

Well, we are going to take a quick break to hear from our advertisers when we return. I’ll still be speaking to the authors of states of health, the ethics and consequences of policy variation in a federal system, and we’re going to get into those laboratories of democracy. Welcome back to the Modern Law Library. I’m your host, Lee Rawles here with Leslie and John Francis. So we’ve talked about abortion, we’ve talked about gender affirming care. One thing that we may look to when it comes to states being these little laboratories of democracy when it comes to healthcare is medical marijuana. This is an issue that popped up within the last few decades along with other right to try issues. And I think that we can see when you look at the spread of legal cannabis, either for medical purposes or recreation, that this seems to be one of those areas in which there was a successful experiment that is spreading. Can we talk a little bit about how federalism impacted medical marijuana studies? And in particular, it doesn’t seem to have stopped states from allowing this even though the federal government calls it a controlled substance. John, would you like to take this one?

John G. Francis:

Sure, I’ll certainly begin and then Leslie can follow through. One of the things that stands out about, well, of course, remember there’s two sorts of legalization. One is more as a source of enjoyment and the other is medical marijuana. And you can see those in various states, not necessarily competing, but reflecting the amount of regulation and what has happened. And of course there is this backdrop that federally, you’re not supposed to take cannabis over state lines and it should be something entirely within the state. But as more and more states opt to have medical marijuana and also establishing their own regulatory regime, governing it about what is the standard, what is the nature of the product, all those questions that can also vary a great deal. There are own state where we live prides itself on the quality control of the product, but I think a number of other states would do that as well.

So it’s the interesting problem is this very much is the laboratory of democracy at work states moving in that direction. And now of course there’s some discussion in Congress about essentially legitimizing federally marijuana crossing the borders. That’s not there yet, but that’s certainly on the table. So I’d say that might be an example. Not everybody would be happy with the notion of having greater access to cannabis, but I think it’s clearly is something that has captured people’s attention and frankly, lots of people across state lines and bring various product back with them. So it is an example if you are for experimentation and trying things out, medical marijuana may be that sort of example. And will this ultimately lead to a kind of federalization? I think at some point that could easily happen.

Leslie P. Francis:

So a general theme in the book is what issues should be for the federal government and what issues should be for the states. So to go back to public health, public health surveillance, you need information from all over the country if you’re going to do it effectively. In fact, you need international information. Now think about regulation. We have the Federal Food and Drug Administration, which is a single place to approve drugs that has the advantage that we don’t have 50 states with different drug approval situations. So can you imagine if your high blood pressure medication was okay in your state, but not when you went on vacation in the state next door? I mean, that just doesn’t make sense, right?

Lee Rawles:

Well, and not to who went out for the drug industries financial assets, but just imagine a regulatory process where you needed to get a separate approval in 50 different states and then the territories, the money that it would take.

Leslie P. Francis:

It’s just crazy. So we have, on the other hand, the fact that we have the Federal Controlled Substances Act stifles innovation, it made it very difficult and still not easy to do good research on the medical benefits of marijuana or the lack thereof. So in fact, when physicians are trying to make recommendations about medical marijuana, they’re not able to proceed with a particularly good evidence space. So the question, yeah, we need the federal government, it’s really beneficial, but is it sometimes intervening in ways that go too far? So that’s a theme we want to keep people continuing to think about. I mean, something we should both be emphasizing about this book is that we’re a society in progress, and this book was written at a particular point in time and things are continuing to change. I mean, we may get the end of the current federal controlled substances standard for marijuana fairly shortly. We don’t know, but it’s pressure from what’s gone on in the states that’s led to that change. So there’s a tension between what should be for the federal government and what should be for the states and have we got it right.

John G. Francis:

Yeah, I think it’s fair to say there’s a tension, but the tension isn’t always there or it changes over time. The better example might be aid in dying, which has also been adopted by a number of states. And one of the things that stood out is when the first couple of states were doing that, notably Oregon, there was a lot of concern that this was leading to almost enforced suicide. It brought up a darker image of what was going on as opposed to people who were seriously ill wanting to end their lives. And as more states have come to adopt aid and dying, then all of a sudden the discussion changes. Well, how much or what should happen or should it be federally regulated? And those kind of questions are what really drives federal innovation. And it is maybe the argument for encouraging innovation both in cannabis and in aid and dying in that it allows a kind of geographic experimentation without necessarily moving to a national adoption. And that I think is an argument for American federalism, but it also raises questions at some point. What would a federal standard look like in aid and dying? Could we actually achieve one? And I don’t know if we could or not, or should there be a certain way of calculating the strength of cannabis, which is actually much stronger than it was when I was in college. So you have all these interesting problems and they don’t always have a perfect solution. I think I would want to emphasize,

Lee Rawles:

And John, our readers probably don’t know this, but you have a background in the UK and European policies and political science. When you look at the discussions happening in the United States versus say the United Kingdom where you’ve got a nationalized health system, are they trying to answer similar questions or are they really in a different realm of discussion when it comes to political realities and the healthcare system?

John G. Francis:

It’s an excellent question. And of course, particularly now with the United Kingdom that is now once again an independent country, so to speak, right? It’s no longer not part of the European Union. In the European Union. And that one of the things that stood out about essentially the pandemic was it rose. Certain conditions emerged or certain questions emerged in a number of these countries. Because if you have a national health system, one of the things that you tend to get out of that system is a model of prediction. Well, this year we had so many people coming down with disease A or disease B, and so many people were having heart transplants, whatever it is. You could often come up with predictive models in planning. But what slightly took back Europe and the EU and the UK was people hadn’t quite anticipated how the pandemic was spread and its impact.

And maybe the best example of that in both sides of the Atlantic was to essentially look at where a number of deaths occurred. And in France and in the United States and in Italy and in the uk, a lot of deaths occurred in nursing homes. So there was something that took a while for people to realize how serious this was. And I don’t know. I mean, when you have a national system, you may not fully be avid as nuanced in the gathering of data as you would like. There were significant loss of life at the beginning in the uk. There was a significant loss of life both in France and in Italy in nursing homes. So that having a national system doesn’t necessarily solve all problems or are all data gathered as effectively as they should be. So I think there are lessons that the Europeans have learned, and I’m not sure how we’re going to ultimately learn the nursing home question in the United States. Leslie, do you have a view on that?

Leslie P. Francis:

So we have trouble getting data nationally. The way we get it is through the spending power. The CDC offers carrots to states to share data. And surprisingly, states don’t collect data always in the same way. And not all states even collect data on things that might be really important like cancer rates. So if you look at cancer registries, we don’t even have the level of data that would be ideal there. You had a common national policy in the UK and cooperation. Anyway, John might correct me on this within the eu, which is how much that looks like a federal system is an interesting set of questions that we’ve spent a lot of time talking about actually. And in the US we had a mess because if you looked at those registries about data that Johns Hopkins and others tried to collect the information from many states was imperfect.

Lee Rawles:

And you see similar things within the legal profession, the criminal justice system. There are states that track, for example, police involved shootings and states that don’t report those. I mean, I think that it’s a larger question as well for the legal community as well as the medical community. Well, we’re going to take a quick break to hear from our advertisers when we turn. We’ll still be speaking about the book States of Health. Welcome back to the Modern Law Library. I’m your host, Lee Rawles here with Leslie and John Francis. And Leslie is a bioethicist. I would love to come to you first for this. A very important part of this book is talking about care quality and life expectancies and what are acceptable variations. And I’m going to just bring up maternal mortality here. There are, as we all know, very different life expectancies and health results in various states.

And there can be a number of reasons for that. The health of the population can be impacted by a lot of different things from environment to the amount of money that the state allocates to various health systems. When you look at the role of federalism in protecting citizens, and you look at how different some of the results for healthcare are in different states, does that push you more towards there is a greater responsibility to federalize more parts of healthcare because as I brought up maternal mortality, those are wildly different in a variety of states, outcomes for women who give birth.

Leslie P. Francis:

Yes. Outcomes for infants too. And I don’t know if our readers would be surprised to know this. I must confess I was surprised to observe the following. There’s an almost perfect correlation between very high maternal and infant mortality rates. I mean, well higher than what you’d find in all the advanced industrialized countries in some states in the United States, their failure to license independent practice nurses, advanced practice nurses to practice independently, and the failure to expand Medicaid. So you have lack of access to providers, no funding if you’re poor and very high infant and maternal mortality rates. And then you add on to that, the most restrictive abortion regulations. So you can’t even get birth control readily, much less an abortion if you get pregnant unintentionally or get into trouble with a pregnancy. So part of what we’re trying to do is just show these coalescences.

And I would add another coalescence to that. Several of these states, Mississippi, would be a prime example, are among the states that have the highest proportion of federal dollars going into the state in comparison to tax revenues. They’re giving back to the national pool. So they’re also taker from the federal government states. Now, we hope that calling that to more widespread attention may help to have people see that Mississippi’s failure to expand Medicaid is not just hurting people grievously in Mississippi, but it’s costing us as a country a lot of money that maybe we might be able to spend for better things. So we’re trying to call attention to this. I mean, we also think, and we make an argument that the differences are approaching unsustainability ethically.

Lee Rawles:

And John, as we kind of close out our conversation, what are you hoping are the questions readers will come away from your book, asking themselves, asking their legislators, what are you hoping comes out of this book?

John G. Francis:

I think it’s the heart of the matter. Thank you for the question. In general, I think I’ll give you maybe two examples and then reach what I hope people will follow. One of the things that emerged from the AIDS HIV AIDS Plague that existed and still continues to people come down with HIV, has essentially been made worse in a number of states who essentially criminalized the transmission of HIV. And in many cases, people were unaware that they had it. There was insufficient public health, and then people end up in prison for something. They were only partially aware that was going around. And so one of the goals that I come out of here, and it kind of relates to the earlier question you had on how we address questions of pandemics and epidemics, is what is it we’re seeking to do and what is the best way of containing the spread of a disease?

And that is with HIV. We still know some states still have, particularly in rural areas, a very high rate of infection. So one of the things I think we should be reflecting on as a nation is what should be our expectation for all states in dealing with a number of public health issues and how that might, and so that we actually have people we know, most Americans don’t really understand what public health does. They should not be surprised since it varies enormously from state to state. But we need to essentially say what are some standards as a nation we ought to have for public health? And what are some standards we should have for essentially having encounters or beneficial encounters with doctors, with nurses in rural and in urban areas for the nation. I don’t think we actually have that discussion. We essentially have a lot of variation.

And this is not the notion of innovation like in medical marijuana. This is what should be a reasonable expectation as a resident of the United States. Is that something we should be considering in terms of access to care? And if so, how would we go about doing it? So I’d say if people come away thinking about this that the country looks very different state to state, and in some areas very sad and disappointing, what more can we do? Not every state can be like Massachusetts, which I think does a good job. Not every state can be like public health in California, but can we begin to say what states set as models and how can we apply that to other states if that discussion is furthered? I think we’ve done a good job.

Lee Rawles:

And Leslie, if any of my listeners are interested in hearing more in discussing these issues, can they reach out to you and John? Are there any areas that you’d point them towards, whether it’s a website or the University of Utah in general? Sure.

Leslie P. Francis:

We both have active email and social media presences at the University of Utah, and we would be delighted to hear from anybody to talk further about the issues in this book. We’re actually actively writing these days on the right to travel and extraterritoriality, and we’re keeping on thinking because this is an evolving set of very difficult issues in a nation that values differences among the states. Experimentation that’s grappling with deep moral disagreements. I mean, I don’t think we’re ever going to all think the same thing about abortion. It’s just hard. And we think at the end of the day, continuing to talk about whether we’ve got the right pieces or the best pieces we can have under the current circumstances is what this book is all about. And we would love to continue the conversation with anybody who listens to your podcast. So thank you for having us

Lee Rawles:

And thank you the listener of the Modern Law Library for joining Leslie John and I for this discussion of their book, states of Health, the Ethics and Consequences of Policy Variation in a Federal System. If you enjoyed this episode, please rate, review and subscribe in your favorite podcast listening service. And if you have a book that you’d like me to feature on a future episode, please reach out to us at books at ABA Journal com.