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Recent Developments in Health Law

Published online by Cambridge University Press:  01 January 2021

Abstract

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Copyright © American Society of Law, Medicine and Ethics 2012

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Footnotes

The American Journal of Law & Medicine has been tracking and contributing to the development of health law since its inception at Boston University School of Law in 1975. The Journal publishes articles authored by professors, attorneys, physicians, and other health care professionals on subjects ranging from health law and policy to the legal, ethical, and economic aspects of medical practice, research, and education.

The Harvard Law & Health Care Society is a student-operated health law organization at Harvard University Law School. In addition to contributing to this column, the Harvard Law & Health Care Society also hosts speakers from private practice and academia, presents career panels, and promotes interdisciplinary dialogue with other Harvard University graduate schools.

References

References

Flynn v. Holder, 10–55643, 2011 WL 5986689 (9th Cir. Dec. 1, 2011).Google Scholar
Appellee's Petition for Rehearing and Rehearing En Banc at 3, Flynn v. Holder, 10–55643, 2011 WL 5986689 (9th Cir. Dec. 1, 2011).Google Scholar
Festle, M. J., “Enemies or Allies? The Organ Transplant Medical Community, the Federal Government, and the Public in the United States, 1967–2000,” Journal of the History of Medicine and Allied Sciences 65, no. 1 (2010): 4880.CrossRefGoogle Scholar
Joralemo, D., “Shifting Ethics: Debating the Incentive Question in Organ Transplantation,” Journal of Medical Ethics 27 (2001): 3033.CrossRefGoogle Scholar
42 U.S.C. § 273, 274 (1984) (amended 2004).Google Scholar
S. Rep. No. 98–382, at 4.Google Scholar
42 U.S.C. § 274(b)(2)(A).Google Scholar
§ 274(e).Google Scholar
§ 274(c)(1) (emphasis added).Google Scholar
S. Rep. No. 98–382 at 16–17.Google Scholar
Hematopoietic stem cells, which give rise to mature blood cells, should not be confused with embryonic stem cells, which can develop into a full human or any organ. For an in depth overview of hematopoietic stem cell transplantation, see Copelan, E. A., “Hematopoietic Stem cell Transplantation,” New England Journal of Medicine 354 (2006): 18131826.CrossRefGoogle Scholar
National Marrow Donor Program website, “The Search Process,” available at <http://marrow.org/Patient/Transplant_Process/Search_Process/The_Search_Process.aspx> (last visited April 26, 2012).+(last+visited+April+26,+2012).>Google Scholar
Kollman, C. et al. , “Assessment of Optimal Size and Composition of the U.S. National Registry of Hematopoietic Stem cell Donors,” Transplantation 78, no. 4 (2004): 8995.CrossRefGoogle Scholar
Editorial, “Consider Paying Organ Donors,” Denver Post, available at <http://www.denverpost.com/opinion/ci_19513100> (last visited April 26, 2012).+(last+visited+April+26,+2012).>Google Scholar
See Copelan, , supra note 11.Google Scholar
National Marrow Donor Program website, “Myths & Facts about Bone Marrow Donation,” available at <http://marrow.org/Join/Myths_and_Facts/Myths___Facts_about_Donation.aspx> (last visited April 26, 2012).+(last+visited+April+26,+2012).>Google Scholar
Miller, J. P. et al. , “Recovery and Safety Profiles of Marrow and PBSC Donors: Experience of the National Marrow Donor Program,” Biology of Blood and Marrow Transplantation 14 (2008): 2936.CrossRefGoogle Scholar
Miller, J.P. et al. , “Recovery and Safety Profiles of Marrow and PBSC Donors: Experience of the National Marrow Donor Program,” Biology of Blood and Marrow Transplant 14 (2008): 2936.CrossRefGoogle Scholar
Institute for Justice website, “Institute Profile: Who We Are,” available at <http://www.ij.org/about> (last visited April 26, 2012).+(last+visited+April+26,+2012).>Google Scholar
McCulloch v. Maryland, 17 U.S. 316 (1819).Google Scholar
Brief of the Appellants at 12, Flynn v. Holder, 10–55643, 2011 WL 5986689 (9th Cir. Dec. 1, 2011).Google Scholar
Flynn, 10–55643, 2011 WL 5986689, at 20556 (citing Fed. R. Civ. P. 12(b)6). The district court held that as a matter of law, there were several satisfactory rational bases to justify the statutory distinction between blood and bone marrow. Flynn v. Holder, 2:09-cv-07772-VBF-AJW at 12–16 (C.D. Cal. March 12, 2010). Therefore no trial was warranted.Google Scholar
Brief of the Appellants at 14–31.Google Scholar
Brief of the Appllees at 20–24, Flynn v. Holder, 10–55643, 2011 WL 5986689 (9th Cir. Dec. 1, 2011).Google Scholar
Flynn, 10–55643, 2011 WL 5986689, at 20565Google Scholar
Id., at 20566.Google Scholar
Id., at 20566–20568.Google Scholar
Id., at 20568.Google Scholar
Although both the Brief of the Appellants at 4 and the Brief for the Amici Curie at 21 mentioned that apheresis is analagous to blood donation, neither made the argument that apheresis does not fall under the statutory prohibition to compensate for “bone marrow.”Google Scholar
Flynn, 10–55643, 2011 WL 5986689 at 20571.Google Scholar
Id., at 20572.Google Scholar
See supra note 9.Google Scholar
Flynn, 10–55643, 2011 WL 5986689, at 20570.Google Scholar
Id., at 20565–7.Google Scholar
S. Rep. No. 98–382, at 16–17.Google Scholar
See supra note 36.Google Scholar
Oral Argument at 27:59, Flynn v. Holder.Google Scholar
See supra note 34.Google Scholar
H.R. Rep. No. 98–1127, at 16–17.Google Scholar
While endorsing textualism the court still acknowledged: “Knowing the purpose behind a rule may help a court decode an ambiguous text.” Nat'l Tax Credit Partners, L.P. v. Havlik, 20 F.3d 705, 707 (7th Cir. 1994).Google Scholar
See Appellee's Petition for Rehearing and Rehearing En Banc at 9–10.Google Scholar
Appellee's Petition for Rehearing and Rehearing En Banc.Google Scholar
Postrel, V., “…With Functioning Kidneys for All,” The Atlantic, available at <http://www.theatlantic.com/magazine/archive/2009/07/with-functioning-kidneys-for-all/7587/> (last visited April 26, 2012); Berger, A., “Why Selling Kidneys Should be Legal,” New York Times, available at <http://www.nytimes.com/2011/12/06/opinion/why-selling-kidneys-should-be-legal.html> (last visited April 26, 2012); Opinion, “A Lifesaving Legal Ruling on Organ Donation,” Wall Street Journal, available at <http://online.wsj.com/article/SB10001424052970204770404577078881082590516.html> (last visited April 26, 2012; subscription required); Opinion, “Bone-Headed on Bone Marrow,” Wall Street Journal, available at <http://online.wsj.com/article/SB10001424052970204301404577171312231062158.html?mod=googlenews_wsj> (last visited April 26, 2012; subscription required).+(last+visited+April+26,+2012);+Berger,+A.,+“Why+Selling+Kidneys+Should+be+Legal,”+New+York+Times,+available+at++(last+visited+April+26,+2012);+Opinion,+“A+Lifesaving+Legal+Ruling+on+Organ+Donation,”+Wall+Street+Journal,+available+at++(last+visited+April+26,+2012;+subscription+required);+Opinion,+“Bone-Headed+on+Bone+Marrow,”+Wall+Street+Journal,+available+at++(last+visited+April+26,+2012;+subscription+required).>Google Scholar
Flynn, 10–55643, 2011 WL 5986689, 20565–20566.Google Scholar
Kass, Leon R., Life, Liberty and the Defense of Dignity: The Challenge for Bioethics 177 (New York: Encounter Publishing, 2002) at 177.Google Scholar
Matas, A. J., “The Case for Living Kidney Sales: Rationale, Objections, and Concerns,” American Journal of Transplantation 4 (2004): At 2014.CrossRefGoogle Scholar
supra note 17.Google Scholar
See Postrel, , supra note 45.Google Scholar
Id. (quoting Matas).Google Scholar

References

Ass'n for Molecular Pathology v. U.S. Patent & Trademark office, 653 F.3d 1329 (Fed. Cir. 2011).Google Scholar
Isolated DNA is DNA that has been “excised or amplified” from genomic DNA's “cellular environment using a number of well-established laboratory techniques.” Id., at 1338.Google Scholar
Myriad also asked the court to review whether complementary DNA was patentable, whether Myriad's method patents on analyzing genetic mutations were patentable, and whether plaintiffs had standing to sue under the Declaratory Judgment Act. See id., at 1333, 1339, 1355.Google Scholar
Id., at 1334.Google Scholar
See Ass'n for Molecular Pathology, Pl.'s Compl. ¶ 92–93, 2009 WL 1343027 (May 12, 2009).Google Scholar
Ass'n for Molecular Pathology v. U.S. Patent & Trademark Office, 702 F. Supp. 2d 181, 184 (S.D.N.Y. 2010).Google Scholar
Ass'n for Molecular Pathology, 653 F.3d at 1351, 1365 (Fed. Cir.).Google Scholar
Ass'n for Molecular Pathology, 702 F. Supp. 2d at 184 (S.D.N.Y.).Google Scholar
35 U.S.C. § 101 (2011).Google Scholar
Diamond v. Chakrabarty, 447 U.S. 303, 308–09 (1980) (citations omitted).Google Scholar
See Am. Fruit Growers v. Brogdex Co., 283 U.S. 1, 11 (1931).Google Scholar
Chakrabarty, 447 U.S. at 310.Google Scholar
Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130 (1948).Google Scholar
Ass'n for Molecular Pathology v. U.S. Patent & Trademark office, 653 F.3d 1329, 1351 (Fed. Cir. 2011) (quoting Funk Bros., 333 U.S. at 130).Google Scholar
Funk Bros., 333 U.S. at 131.Google Scholar
Ass'n for Molecular Pathology v. U.S. Patent & Trademark Office, 702 F. Supp. 2d 181, 185 (S.D.N.Y. 2010).Google Scholar
Id., at 229.Google Scholar
Id., at 185.Google Scholar
Ass'n for Molecular Pathology v. U.S. Patent & Trademark office, 653 F.3d 1329, 1350 (Fed. Cir. 2011).Google Scholar
Id., at 1351.Google Scholar
Id., at 1365 (Moore, J., concurring in part).Google Scholar
Id., at 1366.Google Scholar
Id., at 1367.Google Scholar
See Ass'n for Molecular Pathology v. U.S. Patent & Trademark office, 702 F. Supp. 2d 181, 229 (S.D.N.Y. 2010).Google Scholar
See Ass'n for Molecular Pathology, 653 F.3d at 1375 n.3 (Fed. Cir.) (Bryson, J., dissenting).Google Scholar
Cf. In re Marden, 47 F.2d 958, 959 (C.C.P.A. 1931) (holding that purified vanadium is a product of nature and not patentable).Google Scholar
See Ass'n for Molecular Pathology, 702 F. Supp. 2d at 229 (S.D.N.Y.).Google Scholar
C.f. Roberts v. Ryer, 91 U.S. 150, 157 (1875) (“It is no new invention to use an old machine for a new purpose.”).Google Scholar
Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 132 (1948).Google Scholar
Ass'n for Molecular Pathology, 653 F.3d at 1350 (Fed. Cir.).Google Scholar
Id., at 1368 (Moore, J., concurring in part).Google Scholar
Cf. Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 739 (2002).Google Scholar
See, e.g., Arnold P'ship v. Dudas, 362 F.3d 1338, 1340 (Fed. Cir. 2004) (“This court reviews statutory interpretation… without deference.”).Google Scholar
See Institute for Intellectual Property and Information Law, University of Houston Law Center, Full Calendar Year 2008 Report, available at <http://www.patstats.org/2008_Full_Year_Posting.rev3.htm> (last visited April 26, 2012).+(last+visited+April+26,+2012).>Google Scholar
In re Fisher, 421 F.3d 1365, 1379 (Fed. Cir. 2005).Google Scholar
In re Fisher, Appellant Br. 40, 2004 WL 4996614 (Sept. 27, 2004).Google Scholar
See, e.g., DeMott, J. Thomas, E., “Test-Tube Life: Reg. U.S. Pat. Of. The Supreme Court Protects the Genetic Engineers,” Time, June 30, 1980, at 52 (describing criticism of Chakrabarty); Burk, D. L., “Biotechnology and Patent Law: Fitting Innovation to the Procrustean Bed,” Rutgers Computer & Technology Law Journal 17 (1991): 185, at 84–85 (arguing for changes to the patent law in the area of biotechnology).Google Scholar
See In re Fisher, 421 F.3d at 1378 (stating that policy concerns over encouraging medical research were properly the domain of Congress rather than the courts).Google Scholar
See, e.g., Yoon, M., “Gene Patenting Debate: The Meaning of Myriad,” John Marshall Review of Intellectual Property Law 9 (2010): 953974, at 970–971 (proposing a framework for “compulsory licensing of human gene patents”).Google Scholar
See Pfaf v. Wells Electronics, Inc., 525 U.S. 55, 63 (1998).Google Scholar
See Jane Radin, M., “Market-Inalienability,” Harvard Law Review 100 (1987): 18491937, at 1885 (“In our understanding of personhood we are committed to an ideal of individual uniqueness that does not cohere with the idea that each person's attributes are fungible, that they have a monetary equivalent, and that they can be traded of against those of other people.”); see also Dworkin, R., “Comment on Narveson: In Defense of Equality,” Social Philosophy & Policy 1 (1983): 24–40, at 39 (“We might well wish to… adopt[] a prophylactic line that comes close to making the body inviolate, that is, making body parts not part of social resources at all.”)CrossRefGoogle Scholar
See Flynn v. Holder, 665 F.3d 1048, 1056 (9th Cir. 2011).Google Scholar
See Javitt, G., “Why Not Take All of Me? Reflections on the Immortal Life of Henrietta Lacks and the Status of Participants in Research Using Human Specimens,” Minnesota Journal of Law, Science & Technology 11 (2010): 713754, at 750.Google Scholar
Bowers v. Hardwick, 478 U.S. 186, 217 (1986) (Stephens, J, dissenting) overruled by Lawrence v. Texas, 539 U.S. 558 (2003).Google Scholar
Fleming, J. E., “Securing Deliberative Autonomy,” Stanford Law Review 48 (1995): 171, at 20.CrossRefGoogle Scholar
Satz, Debra, Why Some Things Should Not Be for Sale (New York: Oxford University Press, 2010): At 200–201 (describing how allowing a market in human body parts, such as kidneys, “has effects on the nature of the choices that are available to people,” with the potential to “reduce or change the available choices” for some and to make those people “worse of”).CrossRefGoogle Scholar
See Locke, J. Laslett, P., ed., Two Treatises of Government (Cambridge: Cambridge University Press, 1967): At 305 (“Through the Earth and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person.”).Google Scholar
See Milot, L., “What Are We-Laborers, Factories, or Spare Parts? The Tax Treatment of Transfers of Human Body Materials,” Washington and Lee Law Review 67 (2010): 10531108, at 1091–1093.Google Scholar
Hecht v. Superior Court, 20 Cal. Rptr. 2d 275, 283 (Ct. App. 1993); but see Moore v. Regents of the Univ. of Cal., 271 Cal. 3d 120, 134–148 (1990) (denying conversion claim of plaintif whose body cells had been used to create profitable commercial cell line); see also Rao, R., “Genes and Spleens: Property, Contract, or Privacy Rights in the Human Body?” Journal of Law, Medicine & Ethics 35, no. 3 (2007): 371380, at 372 (describing recent cases holding that people do not have a property right in their own bodies).CrossRefGoogle Scholar
Flynn v. Holder, 665 F.3d 1048, 1059 (9th Cir. 2011).Google Scholar
See Ass'n for Molecular Pathology v. U.S. Patent & Trademark Office, 653 F.3d 1329, 1338 (Fed. Cir. 2011).Google Scholar
See Chui, J. S., “To What Extent Can Congress Change the Patent Right without Effecting a Taking?” Hastings Constitutional Law Quarterly 34 (2007): 447476, at 447 (“A patent gives the patent holder the right to prevent others from making, using, [and] selling… the protected invention…. A patent, as an intellectual property right, exhibits most of the attributes that comprise the “bundle of sticks” of real property rights.”).Google Scholar
See Javitt, , supra note 44, at 736, 749.Google Scholar
Id., at 749.Google Scholar
See Whitt, L. A., “Indigenous Peoples, Intellectual Property & the New Imperial Science,” Oklahoma City University Law Review 23 (1998): 211259, at 222–223.Google Scholar
Ching, K. H., “Indigenous Self-Determination in an Age of Genetic Patenting: Recognizing an Emerging Human Rights Norm,” Fordham Law Review 66 (1997): 687730, at 697–698.Google Scholar
Id., at 698–99.Google Scholar
See Yoon, , supra note 40, at 970–971.Google Scholar

References

There is no clear regulatory definition of cosmetic medicine. This Note considers the field to comprise “operations or other procedures that revise or change the appearance, colour [sic], texture, structure or position of bodily features to achieve what patients perceive to be more desirable.” The British Academy of Cosmetic Practice, Memorandum of Association, 2009.Google Scholar
Ng Chee Lian, L., “Aesthetic Medicine: Medicolegal and Professional Issues,” Developments in Diagnosis and Management (2005), available at <www.cfps.org.sg/sfp/31/314/314_op4.pdf> (last visited April 26, 2012).+(last+visited+April+26,+2012).>Google Scholar
The American Society for Aesthetic Plastic Surgery, Cosmetic Surgery National Data Bank Statistics 2010 (2010), available at <www.surgery.org/sites/default/files/Stats2010_1.pdf> (last visited April 26, 2012). ASAPS estimates that only $6.6 billion was spent on surgical procedures. Injectable procedures accounted for roughly $1.9 billion spent, while skin rejuvenation processes constituted another $1.8 billion. Nearly $500 million was spent on other non-surgical procedures including laser hair removal and laser treatment of leg veins. Id.+(last+visited+April+26,+2012).+ASAPS+estimates+that+only+$6.6+billion+was+spent+on+surgical+procedures.+Injectable+procedures+accounted+for+roughly+$1.9+billion+spent,+while+skin+rejuvenation+processes+constituted+another+$1.8+billion.+Nearly+$500+million+was+spent+on+other+non-surgical+procedures+including+laser+hair+removal+and+laser+treatment+of+leg+veins.+Id.>Google Scholar
See generally, International Association for Physicians in Aesthetic Medicine, Top Aesthetic Medicine Trends for 2012 (2011), available at <http://www.aestheticmedicinenews.com/iapam-reports-on-the-top-aesthetic-medicine-trends-for-2012.htm> (last visited April 26, 2012) (estimating that minimally-invasive procedures will continue to grow in popularity in the foreseeable future).+(last+visited+April+26,+2012)+(estimating+that+minimally-invasive+procedures+will+continue+to+grow+in+popularity+in+the+foreseeable+future).>Google Scholar
Boon, K. Tan, H., “Aesthetic Medicine: A Health Regulator's Perspective,” Clinical Governance: An International Journal 12 (2007): 1325, at 16.CrossRefGoogle Scholar
Cf. Murphy, K., “Ear Doctors Performing Face-Lifts? It Happens,” New York Times, January 30, 2012, at Health. (“It's now common to find gynecologists offering breast augmentation, ophthalmologists doing liposuction, even family practice physicians giving Botox injections.”).Google Scholar
See Nahai, F., “Minimizing Risk in Aesthetic Surgery,” Clinical Risk 15 (2009): 232236, at 234 (“Although some [physicians] may have had a measure of formal training and be competent to perform certain procedures, others have only taken weekend courses or spent time observing surgery without any hands-on experience.”).CrossRefGoogle Scholar
660 F.3d 1 (1st Cir. 2011).Google Scholar
See Laws Ann, P.R., tit. 20, § 34. The Board can “deny, suspend, cancel or revoke any license and to issue an order fixing a probationary period for a doctor for a specific term.” Id.Google Scholar
See Gonzales-Droz, 660 F.3d at 6–7. In general, many physicians practicing aesthetic medicine claim certification by boards that have names similar to the American Board of Plastic Surgery but are not endorsed by the American Board of Medical Specialties, due to their lower requirements for certification and less rigorous training methods. While each of the 24 specialty certifications approved by the American Board of Medical Specialties requires a minimum three-year residency in the chosen area of concentration and extensive oral and written exams, these cosmetic surgery boards have no such standards. See Murphy, , supra note 7.Google Scholar
See Gonzales-Droz v. Gonzalez-Colon, 573 F.3d 75, 77 (1st Cir. 2009).Google Scholar
See Gonzales-Droz, 660 F.3d at 7.Google Scholar
See Gonzales-Droz, 573 F.3d at 77.Google Scholar
See Gonzales-Droz, 660 F.3d at 7.Google Scholar
Id., at 8.Google Scholar
See Gonzales-Droz, 573 F.3d at 79–82.Google Scholar
Gonzalez-Droz v. Gonzalez-Colon, 717 F.Supp.2d 196, 201 (Puerto Rico, D. 2010).Google Scholar
Id., at 207–16.Google Scholar
Selya, Judge was joined by Boudin, Judges Dyk, .Google Scholar
See Gonzales-Droz, 660 F.3d at 9.Google Scholar
Brief for Appellants, 2010 WL 5623170 at 36–37.Google Scholar
Id., at 36.Google Scholar
Id., at 10–11.Google Scholar
Id., at 13 (citing Aponte–Torres v. Univ. of P.R., 445 F.3d 50, 56 (1st Cir. 2006)) (alterations, internal quotation marks, and citations omitted).Google Scholar
Id., at 13–14.Google Scholar
Id., at 15.Google Scholar
Id., at 17 (citing Powell v. Alexander, 391 F.3d 1, 17 (1st Cir. 2004)).Google Scholar
E.g., Dijkema, S. J. Van der Lei, B., “Long-Term Results of Upper Lips Treated for Rhytides with Carbon Dioxide Laser,” Plastic & Reconstructive Surgery 115 (2005): 1731–135.CrossRefGoogle Scholar
E.g. Carruthers, J. A. et al. , “A Multicenter, Double-Blinded, Randomized Placebo-Controlled Study of the Efficacy and Safety of Botulinum Toxin Type A in the Treatment of Glabellar Lines,” Journal of the American Academy of Dermatology 4 (2002): 840849.CrossRefGoogle Scholar
E.g., Egido, J. et al. , “Middle Cerebral Artery Embolism and Unilateral Visual Loss After Autologous Fat Injection into the Glabellar Area,” Stroke 24 (1993): 615616.CrossRefGoogle Scholar
E.g., Monheit, G. D., “Chemical Peels,” Skin Therapy Letter 9 (2004): 611.Google Scholar
See Handel, N. et al. , “A Long-Term Study of Outcomes, Complications, and Patient Satisfaction with Breast Implants,” Plastic and Reconstructive Surgery 117 (March 2006): 757765, at 765.CrossRefGoogle Scholar
See Tan, , supra note 6, at 14.Google Scholar
See Medical News Today, “Some Physicians Find Aesthetic Medicine Helps Make their Practices More Financially Viable,” July 13, 2007, available at <http://www.medicalnewstoday.com/releases/76602.php> (last visited April 26, 2012) (“The combination of reducing reimbursements, increasing costs, and longer working hours is leaving many family physicians no choice but to leave their traditional practice behind and open an aesthetic medicine practice or add aesthetic medicine procedures to their existing practices.”).+(last+visited+April+26,+2012)+(“The+combination+of+reducing+reimbursements,+increasing+costs,+and+longer+working+hours+is+leaving+many+family+physicians+no+choice+but+to+leave+their+traditional+practice+behind+and+open+an+aesthetic+medicine+practice+or+add+aesthetic+medicine+procedures+to+their+existing+practices.”).>Google Scholar
Currently, only Texas, California, Louisiana and Florida mandate that cosmetic practitioners specify in advertising which specialty board certifications they have. See Murphy, , supra note 7.Google Scholar
Cf. id. (“Freedland, Michael, a medical malpractice lawyer in Weston, Fla., said that since 2008 he had seen a steady rise in the number of patients incapacitated or even fatally injured by cosmetic surgery performed by unqualified doctors.”).Google Scholar
Many general practitioners believe that setting external limitations on the ability to practice cosmetic medicine simply is a means of allowing certain specialties to monopolize the profitable aesthetic medicine market. See, e.g., Handley, R. T., “The Medi-Spa: A Current Cosmetic Dermatology Public Safety Concern,” Internet Journal of Academic Physician Assistants 7 (2009) (discussing how non-specialized practitioners assert that the motivation behind pushes for restrictive regulation “is politically driven” by desire to “corner a larger market share”). As a consequence, industry groups predominantly comprised of such doctors often assert that the imposition of relatively few professional standards are sufficient to rectify existent problems in the industry. Cf. American Society for Aesthetic Plastic Surgery, Ethics and Plastic Surgery, Press Release, July 20, 2000, available at <http://www.surgery.org/media/news-releases/ethics-and-plastic-surgery–asaps-position> (last visited April 26, 2012) (implying that industry problems derive from failure of others to comply with professional Code of Ethics ASAPS members pledged to).Google Scholar
Cf. Bowdler, N., “Botox Industry Register Launched,” BBC News, September 12, 2010 (recounting the British Association of Aesthetic Plastic Surgeons president Nigel Mercer's sentiment that “Self-regulation hasn't worked in the Houses of Parliament has it, and it hasn't worked in the banking industry, so why would it work in cosmetic medicine?… Self-regulation effectively means it's a free for all” and promotion of governmental regulations as a more “robust alternative”).Google Scholar
See Tan, , supra note 6, at 17.Google Scholar
Id. See also Ring, A. L., “Using ‘Anti-Ageing’ to Market Cosmetic Surgery: Just Good Business, or Another Wrinkle on the Face of Medical Practice?” Medical Journal of Australia 176 (2002): 597599.CrossRefGoogle Scholar
Latham, M., “A Poor Prognosis for Autonomy: Self-Regulated Cosmetic Surgery in the United Kingdom,” Reproductive Health Matters 18 (2010): 4755, at 52.CrossRefGoogle Scholar
See generally Nightingale, K . S., “Cosmetic Surgery Receives a Facelift,” Law Society Gazette (March 8, 2002).Google Scholar
van Bogaert, K. Ogunbanjo, G. A., “Cosmetic Surgery and the Practice of Medicine,” SAFP 50 (January/February 2008): 5052, at 51.Google Scholar
Miller, F. G. et al. , “Cosmetic Surgery and the Internal Morality of Medicine,” Cambridge Quarterly of Healthcare Ethics 9 (2000): 353364, at 359.CrossRefGoogle Scholar
Cf. Nahai, supra note 8, at 233 (“Some patients have been known to hide their medical history for fear of being denied cosmetic surgery. Others ‘doctor shop’ until they are accepted for surgery, regardless of risk.”).Google Scholar
Id. (“Preference and the ability to pay may be necessary for access to medical care in our society, but they are not sufficient.”).Google Scholar

References

Lombardo, P. A., ed., A Century of Eugenics in America: From the Indiana Experiment to the Human Genome Era (Indiana University Press, 2011): At ix.Google Scholar
Severson, K., “Payment Set for Those Sterilized in Program,” New York Times, January 10, 2012, at A13.Google Scholar
Dunn, A., “Human Betterment League of North Carolina,” North Carolina History Project, available at <http://www.northcarolinahistory.org/commentary/314/entry> (last visited April 26, 2012).+(last+visited+April+26,+2012).>Google Scholar
Brewer v. Valk, 204 N. C. 186, 167 S. E. 638 (1933).Google Scholar
Buck v. Bell, 274 U.S. 200 (1927).Google Scholar
See Lombardo, , supra note 1, at 143.Google Scholar
See Dunn, , supra note 4.Google Scholar
Severson, K., “Thousands Sterilized, A State Weighs Restitution,” New York Times, December 9, 2011, at A1.Google Scholar
See Lombardo, , supra note 1, at 143.Google Scholar
Kickler, T. L., Eugenics Board, North Carolina History Project, available at <http://www.northcarolinahistory.org/commentary/315/entry> (last visited April 26, 2012).+(last+visited+April+26,+2012).>Google Scholar
See Severson, , supra note 2.Google Scholar
Helms, A. D. Tomlison, T., “Wallace Kuralt's Era of Sterilization,” Charlotte Observer, September 26, 2011.Google Scholar
See Lombardo, , supra note 1, at 143.Google Scholar
See Helms, Tomlison, , supra note 14.Google Scholar
See Lombardo, , supra note 1, at 145.Google Scholar
Id., at 145–146.Google Scholar
Editorial, “A Shameful Little Secret,” Newsweek Magazine, March 27, 2005, available at <http://www.thedailybeast.comnewsweek/2005/03/27/a-shame-ful-little-secret.html> (last visited April 26, 2012).+(last+visited+April+26,+2012).>Google Scholar
See Severson, , supra note 10.Google Scholar
See Helms, , supra note 14.Google Scholar
See Lombardo, , supra note 1, at 147.Google Scholar
Id., at ix.Google Scholar
Id., at 26.Google Scholar
See Severson, supra note 10.Google Scholar
Lombardo, P., Eugenic Sterilization Laws, Image Archive on American Eugenics Movement, available at <http://www.eugenicsarchive.org/html/eugenics/essay8text.html> (last visited April 26, 2012).Google Scholar
Black, E., “Eugenics and the Nazis – the California Connection,” San Francisco Chronicle, November 9, 2003, at D-1.Google Scholar
See Lombardo, , supra note 27.Google Scholar
See Black, , supra note 28.Google Scholar
See Lombardo, , supra note 1, at 146.Google Scholar
Buck v. Bell, supra note 7.Google Scholar
Id., at 207.Google Scholar
Skinner v. OK, 316 U.S. 535 (1942).Google Scholar
See Lombardo, , supra note 1, at 147–148.Google Scholar
Id., at 148.Google Scholar
Woodruff, J. Suarez, R., “North Carolina Moves to Compensate People Sterilized Against Their Will,” PBS Newshour, January 10, 2012, available at <http://www.pbs.org/newshour/bb/law/jan-june12/sterilization_01–10.html> (last visited April 26, 2012).+(last+visited+April+26,+2012).>Google Scholar
Paul, J., “…Three Generations of Imbeciles Are Enough,” State Eugenic Sterilization Laws In America Though and Practice, Walter Reed Army Institute of Research, at 428.Google Scholar
See e.g., Associated Press, “Virginia Governor Apologizes for Sterilization Law,” USA Today, May 2, 2002.Google Scholar
Kessel, M. Hopper, J., “Victims Speak Out about North Carolina Sterilization Program, Which Targeted Women, Young Girls, and Blacks,” MSNBC Rock Center, November 7, 2011, available at <http://rockcenter.msnbc.msn.com/_news/2011/11/07/8640744-victims-speak-out-about-north-car-olina-sterilization-program-which-targeted-women-young-girls-and-blacks> (last visited April 26, 2012).+(last+visited+April+26,+2012).>Google Scholar
See Severson, , supra note 2.Google Scholar
Poe v. Lynchburg Training Sch. & Hosp., 518 F. Supp. 789 (W.D. Va. 1981).Google Scholar
See Poe, , supra note 45, at 793.Google Scholar
Id., at 794.Google Scholar
Associated Press, “Va. Sterilization Suit Settlement Is Approved,” Washington Post, January 19, 1985, at D-2.Google Scholar
Article III standing requirements do not apply to cases brought in state courts. However, for reasons beyond the scope of this note, plaintiffs may have reasons to prefer bringing their case in federal court.Google Scholar
Laughlin, H. H., “Eugenical Sterilization in the United States,” Psychopathic Laboratory of the Municipal Court of Chicago, 1922, at 35–36.Google Scholar
See Severson, , supra note 2.Google Scholar
See e.g., Vozzella, L. Kumar, A., “McDonnell Readies Virginia Budget Plan,” Washington Post, December 15, 2011, available at <http://www.washingtonpost.com/local/dc-politics/mcdonnell-readies-virginia-budget-plan/2011/12/15/gIQAHYsrwO_story.html> (last visited April 26, 2012).+(last+visited+April+26,+2012).>Google Scholar