Literature Review: Recent Scholarly Works in Global Health Law

The Limits of Health Care Reform

Ani B. Satz
Emory University – School of Law

Alabama Law Review, Vol. 59, 2008

In this Article, I argue that many of the shortcomings of health care in the United States can be linked to the inherent limitations of the dominant paradigms of health care distribution. These approaches seek to provide a threshold level of services to everyone (basic minimums) or to ration services among covered patients. Over seventy years, both approaches have consistently failed to cover a sufficient number of individuals, to provide adequate basic health care, and to control costs. Further, basic minimum and rationing approaches, which restrict access to health care services to meet budget constraints, are particularly ill-suited to address patient demand for innovative medical services or to account for the benefits of modern, predictive technologies. The limitations of these dominant distribution schemes become clear when examining their theoretical foundations. Contractarian approaches, from which basic minimum schemes are derived, cannot address resource drain and patient demand for a broad range of basic health care services, including some forms of high technology. Rationing, a consequentialist approach, has the potential to accommodate a broad range of basic health care services, but it employs restrictive eligibility criteria. Rationing schemes using Quality Adjusted Life Year measurements discriminate against those of advanced age and with poor health status and rely on a narrow scale of well-being that makes trade-offs between health care and other goods difficult. In place of paradigms derived from contractarian and cost-utility frameworks, I propose a new legal paradigm-Basic Capability Equality of Health Care (BCEHC)-which both considers patient demand for a broad range of basic health care services and operates within budget limitations. Under BCEHC, individuals would have access to all clinically effective services-traditional and high technology-that support basic health care. Operating under insurance budget limitations and with physician guidance, individuals would make trade-offs and choose from among these goods to maximize their health.

Available at SSRN.


FDA approves human embryonic stem cell research study

embryos_stem_cell2The US Food and Drug Administration (FDA) has approved California based Geron Corporation to carry out the world’s first human embryonic stem cell (hESC)-based clinical. Geron will test the stem cells on eight to 10 patients with severe spinal cord injuries.

The trials are set to begin at seven medical centers aims to mainly determine the safety of the cells in human subjects. Researchers will also look for any signs that the therapy restored sensation or movement.

“This is obviously an extraordinarily exciting event,” Geron chief executive Thomas B. Okarma said. “It marks the dawn of a new era in medical therapeutics. This approach is one that reaches beyond pills and scalpels to achieve a new level of healing.”

President Barack Obama is set to lift restrictions on federal funding for such research imposed by former President George W. Bush in 2001. Geron’s work had not been restricted by the Bush administration policy. The cells being used by the company were derived from leftover embryos at fertility clinics before 2001.

Obama overturns anti-abortion funding policy

Obama signed the memorandum without coverage by the media on a day following the 36th anniversary of the 1973 landmark Supreme Court ruling in Roe v. Wade that legalized abortion.

The move by Obama to reverse the Mexico City Policy received both praise and criticism from both sides of the abortion debate.

“Women’s health has been severely impacted by the cutoff of assistance. President Obama’s actions will help reduce the number of unintended pregnancies, abortions and women dying from high-risk pregnancies because they don’t have access to family planning,” said Tod Preston, a spokesman for Population Action International.

“Yesterday, President Obama issued executive orders banning the torture of terrorists but today signed an order that exports the torture of unborn children around the world,” said Tony Perkins of the Family Research Council.

“President Obama not long ago told the American people that he would support policies to reduce abortions, but today he is effectively guaranteeing more abortions by funding groups that promote abortion as a method of population control,” said Douglas Johnson, legislative director of the National Right to Life Committee.

In a statement issued with the memorandum Obama said the limitations on funding were “excessively broad” and adding that “they have undermined efforts to promote safe and effective voluntary family programs in foreign nations.” He added that “For too long, international family planning assistance has been used as a political wedge issue, the subject of a back and forth debate that has served only to divide us.I  have no desire to continue this stale and fruitless debate.” Obama also said that he would ask his administration to initiate a “fresh conversation” on family planning and to seek common ground with abortion opponents.

In an accompanying statement, President Obama said he would also work with Congress to restore U.S. funding support for the United Nations Population Fund “to reduce poverty, improve the health of women and children, prevent HIV/AIDS and provide family planning assistance to women in 154 countries.”

According to the Washington Post, lifting the Mexico City Policy would not permit U.S. tax dollars to be used for abortions, but it would allow funding to resume to groups that provide other services, including counseling about abortions.

Hospitals Attacked as Gaza’s health and humanitarian crisis worsens

On Saturday 10th January, a church run clinic funded by Christian Aid, was given 15 minutes to evacuate before missiles it turned into rubble.


Photo credit: AP

The latest blow in the worsening humanitarian and health crisis in Gaza is the attack on hospitals. The latest hospitals to be attacked are the Al Wafa and Al Fata Hospitals, and the Al Quds which is run by the Palestinian Red Crescent Society were.

Sixteen health facilities, including hospitals and clinics, have been damaged by shelling and fighting during the 3-week-old Israeli offensive, said Tony Laurance, head of the World Health Organization office in Gaza.

“These latest attacks on hospitals in Gaza are an outrage and have put at risk the lives of patients and staff and prevented access to health care for a system that is already coping with a flood of seriously wounded people,” Laurance said.

The World Food Programme has reported an acute shortage of food in the Gaza Strip. Gazans said farmers were afraid to go to their fields to collect produce, while the Israeli military’s ground troops, which were still present in Gaza, were dividing the enclave into sections and preventing transport between different areas, making it difficult to transport fresh goods from agricultural areas to the urban centers.

Many groups including International Committee of the Red Cross (ICRC), the EU and Switzerland condemned the violations of international humanitarian law in Gaza, as civilians have been targeted and attacked, humanitarian assistance blocked and health centers shelled.

Last week Navi Pillay, the United Nations High Commissioner for Human Rights and a former ICC judge, called for independent investigations into possible war crimes committed by Israeli forces in Gaza. She told a special session of the UN Human Rights Council that Israel and Palestinian militants had an obligation under international law to care for the wounded, and protect ambulances, hospitals and health workers.

The violence in Gaza has continued despite Friday’s UN resolution calling for an immediate cease fire in Gaza as well as unimpeded provision of humanitarian assistance. The UN General Assembly (GA), on Friday 16 January, concluded a two-day emergency special session by sending a strong message to the world demanding an immediate end to the Gaza conflict.

The United Nations reports more than one thousand Palestinians have been killed and more than 5,000 wounded since the Israeli offensive (Operation Cast Lead), launched on 27 December with the stated aim of ending Hamas rocket attacks into Israel.

UNICEF estimates that 300 children have been killed and that 840,000 children in Gaza are under extreme stress, traumatized by the violent events of the past few weeks. UNICEF warns of long-lasting psychological consequences for thousands of children caught up in the Israeli- Hamas conflict in Gaza.

The U.S. House of Representatives Votes to Expand Health Care Coverage for Children

On January 13, 2009, the U.S. House of Representatives voted 289-139 to expand health care coverage to 4 million children of working families through the government-sponsored State Children’s Health Insurance Program (SCHIP). 

The bill will foot the $32.3 billion cost of expanding SCHIP for 4 1/2 years by increasing federal taxes on cigarettes by $0.61-$1.00 per pack. 

Departing President George W. Bush vetoed similar legislation twice in 2007.

Obama hopes that the U.S. Senate acts with the “same sense of urgency so that it can be one of the first measures I sign into law when I am president. … In this moment of crisis, ensuring that every child in America has access to affordable health care is not just good economic policy, but a moral obligation we hold as parents and citizens.”

The Congressional Budget Office projected that nearly 83 percent of the 4.1 million uninsured children who would gain coverage if the bill becomes law are in families with incomes below current eligibility limits. About 700,000 children would gain coverage because their states broadened eligibility. The measure passed by the House included a provision that would expand coverage to children of legal immigrants as well as pregnant immigrants.

The Senate Finance Committee is scheduled to begin focusing on the matter on January 14, 2009.

Opponents suggested that the tobacco tax increase would not keep pace with rising health care costs; particularly as the number of smokers is decreasing and is likely to decrease further as a result of the tax increase.  Ultimately, these critics suggest, the government will have to cut children’s health care, recruit new smokers, or raise taxes.

Health Crisis in Zimbabwe Deepens; Could Be Referred to International Criminal Court

Physicians for Human Rights have suggested that the health crisis in Zimbabwe should be referred to the International Criminal Court for further investigation.  Although the report recognizes that criminal prosecution at the International Criminal Court has not yet “addressed crimes against humanity in the context of willful and state-sponsored actions that lead to massive loss of life resulting from, for example, failures to respond to epidemics, active obstruction of humanitarian aid, or the deliberate destruction of health systems,” such action is not beyond the scope of the Court’s jurisdiction.  Physicians for Human Rights has also called upon the UN to take control of Zimbabwe’s health service.


The report was signed by South African Archbishop Desmond Tutu, former UN High Commissioner for Human Rights Mary Robinson and Richard Goldstone, a former chief prosecutor at the International Criminal Tribunal for Rwanda.


Under Robert Mugabe‘s rule, Zimbabwe has battled a cholera outbreak that, according to new numbers from the U.N. World Health Organization, has killed 2,024 since August.  The total number of people infected has surged passed 40,000.  The life expectancy fell from 62 years for both men and women in 1990 to 34 years for men and 37 years for women in 2006, the world’s lowest. Zimbabwe experiences around 400 deaths a day from HIV/AIDS.  Maternal mortality in Zimbabwe has risen from 168 deaths per 100,000 in 1990 to 1,100 per 100,000 in 2005.


Under international law, Zimbabwe is obligated to provide a minimum level of access to health care to its citizens.  Zimbabwe is a party to the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination against Women, and the African Charter on Human and Peoples’ Rights. The Government has a legally binding obligation to respect, protect, and fulfill these rights for all people within its jurisdiction.


The Mugabe-led government has exacerbated the problems facing Zimbabweans blocking international humanitarian organizations from delivering food aid and humanitarian aid to populations in the worst-affected rural areas.

Zimbabwe‘s cholera outbreak has sparked fears that the epidemic has spread to northern neighbor Zambia and southern neighbor South Africa who have seen an increase in cholera-related deaths.

Scholar’s Corner: Recent Scholarly Works in Global Health Law

Flawless or Fallible? A Review of the Applicability of the European Union’s Cosmetics Directive in Relation to Nano-Cosmetics

Diana Megan Bowman
Monash University – Faculty of Law
Geert Van Calster

Studies in Ethics, Law, and Technology, Vol. 2, No. 3, 2008

Consumer demand for new products within the cosmetics and toiletries industry has encouraged the industry increasingly to incorporate and experiment with new products and processes, including nanotechnologies. A number of cosmetic products which claim to incorporate engineered nano-materials have already entered the market and include, for instance, anti-ageing creams, make up, hair care products, cleansers and moisturisers. While the use of engineered nano-materials within cosmetics offers a range of benefits, including increased transparency and solubility, there has been increasing debate over the potential risks associated with a number of the nano-materials already found in these products. While such concerns are not unique to the cosmetics sector, due to the direct application of these products onto the human skin, concern has been expressed over the potential health effects of nanotechnology-based cosmetics. This is despite the fact that cosmetic products are subject to regulatory controls within every jurisdiction in which they are sold. With debate over the safety of cosmetics containing nano-materials likely to escalate in line with the number of products entering the marketplace, this article examines the adequacy of the current regulatory framework for cosmetics containing nanoscale materials within one of the world’s largest cosmetic’s market, the European Union. Two case studies are presented, and the effectiveness of the Cosmetics Directive is examined by reference to these two products. By drawing on this analysis, the article articulates the strengths and weaknesses of the current regulatory regime, and discusses how these may be addressed under the proposed new regulatory framework.

Available at SSRN.