In Smith v. Rasmussen, an Eighth Circuit case from 2001, the original opinion upheld Iowa’s Medicaid ban on coverage for gender confirming surgery, finding it was reasonable and consistent with the federal Medicaid Act. Craig Konnoth’s feminist rewrite finds that the ban on gender confirming surgery is discriminatory on its face and impermissibly relies on gender stereotypes because it permits coverage of particular procedures for individuals perceived as sufficiently cisgender—such as those who are intersex but have conformed to expectations associated with their sex assigned at birth—but not for others. Konnoth draws on empirical research showing that enforcing gender roles in this context seeks to prevent men from debasing themselves as women and to prevent women from claiming the privileges of men. Heather Walter McCabe’s commentary highlights how litigation related to transgender issues reveals the socially constructed nature of gender and provides useful insight into how gender and sex relate to each other and to theories of antidiscrimination.

Moore v. Regents of University of California was a California Supreme Court case from 1990 adjudicating the claims of a patient whose tissues were used to produce an immortal cell line. Though Moore consented to several procedures, his physician did not inform him that his cells were valuable to the physician’s research and economic interests. The original opinion recognized Moore’s claims for breach of fiduciary duty and informed consent but rejected his claim for conversion (a tort claim for theft). Professor Lisa Ikeomoto’s feminist judgment illuminates the role of informed consent in transforming the doctor-patient relationship from one that is paternalistic to one premised on patient rights and recognizes the role of the women’s health movement in achieving that transformation. In recognizing the plaintiff’s property-based tort claim, she also discusses how the grievance Moore is expressing is about exploitation by an industry based on commercializing cells and tissues. In her commentary, Professor Jessica Roberts highlights that courts have recently become more receptive to recognizing robust legal rights for individuals who provide tissue and data for research purposes.

Bouvia v. Superior Court was a California decision from 1985 in which a twenty-eight-year-old quadriplegic woman sought to have a feeding tube removed and to refuse any further lifesaving measures. The original opinion held that a competent adult has the right to refuse life-sustaining treatment but its description of “the ignominy, embarrassment, humiliation and dehumanizing aspects created by her helplessness” prompts this chapter’s authors to question whether the original court supported Bouvia’s decision because of her right to choose or because the justices believed her life was not, in fact, worth living. Professor Barry Furrow proffers a poetic feminist rewrite focusing on the factors that were important to Bouvia, rather than her inability to perform the roles that concerned the original court. Furrow also considers whether recognizing an autonomy “right” in this case ignores the larger issue of lack of resources to support disabled people. Professor Joan Krause’s commentary illuminates the original court’s decision to focus on the principle of personal autonomy to resolve this dispute - and thus to ignore any broader public responsibilities to the disabled community.

In Does v. Gillespie, Medicaid beneficiaries sued the director of the Arkansas Department of Human Services claiming that terminating Planned Parenthood’s Medicaid provider agreements violated their federal right under the Medicaid Act to choose any “qualified” provider that offers covered services. The Eighth Circuit held that the free choice of provider provision in the federal Medicaid Act did not create rights enforceable by individual beneficiaries. In their feminist judgment, Melissa Alexander and Jennifer Oliva argue that the clear language of the Medicaid Act unambiguously demonstrates that Congress intended to confer a private right of enforcement under the free choice of provider provision. Elizabeth Kukura’s commentary emphasizes the importance of focusing on the lived experience of Medicaid beneficiaries who rely on Planned Parenthood for basic health care needs. Kukura highlights the influence of anti-abortion politics and ideology on health care access and the structural forms of discrimination that shape it.

Conservatorship of Valerie N. is the next case in this volume. The original 1985 opinion from the California Supreme Court concerned an “adult developmentally disabled daughter,” whose parents wished to have her surgically sterilized because she was (according to the parents) sexually aggressive towards men. Although the original opinion held that the California law did not authorize the sterilization of Valerie the case is nonetheless ripe for a feminist rewrite. Professor Doriane Lambelet Coleman’s feminist judgment demonstrates how feminism requires attention not only to women’s issues in general but also to the woman herself, and not only to childbearing (or not) but also to sexuality separate from its procreative aspects. Professors Cynthia Soohoo and Sofia Yakren’s commentary situates the case in terms of how sexism and ableism shape attitudes towards sexuality, reproduction, and health care decision-making powers of women with disabilities. It also discusses the evolving understanding of capacity to make medical treatment decisions and alternatives to traditional surrogate decision-making.

Reynolds v. McNichols is a 1973 opinion from the Tenth Circuit Court of Appeals. Although the plaintiff was never convicted of prostitution or diagosed with an infection, she was held, examined, and involuntarily treated for sexually transmitted infections under the city of Denver’s “hold and treat” ordinance. The Tenth Circuit rejected her due process and equal protection challenges to the ordinance. In her feminist rewrite, Professor Wendy Parmet questions the health officials’ assumptions that female sex workers are “the primary source of venereal disease” and that the city can only protect the public’s health by forcibly treating them. She holds that the application of the ordinance to the plaintiff was discriminatory and that, under the circumstances, the defendants’ forced treatment of the plaintiff violated her right to privacy and their failure to obtain a warrant before forcing her to submit to a medical examination or remain in detention constituted an unreasonable search. In her commentary, Professor Aziza Ahmed situates the case in terms of historical responses to sex work under the banner of public health.

In National Institute of Family & Life Advocates v. Becerra, the Court held that the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act, which required licensed clinics to notify patients that California provides free or low-cost services, including abortion, and give them a phone number to call and required unlicensed clinics to notify patients that they are not licensed to provide medical services was not sufficiently tailored because the state could achieve its purpose of informing low-income women about available services without burdening the plaintiff’s expression. Sonia Suter’s rewritten opinion reasons that the disclosure requirements do not raise such concerns because the FACT Act fits squarely within the goals of informed consent. Brietta Clark’s commentary contextualizes the case by discussing the asserted goals and service model of crisis pregnancy centers and the troubling practices of some centers, which delay patients’ access to abortions and provide false information about the risks of abortion. Clark emphasizes how the original NIFLA decision exceptionalizes abortion and how the feminist judgment corrects that mistake.

As a distinct field of study and practice, health law is still relatively new, and its boundaries continue to be contested. As recently as 2006, Einer Elhague questioned whether health law could “become a coherent field of law.”1 The fact that Elhague’s musings appeared in a symposium dedicated to the idea that the “once vibrant … and fresh” subject of health law was haunted by a “specter of exhaustion” indicates the contested nature of the “field-ness” of this field.2 Its boundaries are even more hotly disputed. Is health law limited to the relationships among health care professionals, patients, the institutions where they meet, and the payers who finance their encounters? Or does it also encompass legal issues related to public health and the social determinants of health, which social epidemiology demonstrates3 play an even greater role than health care in shaping outcomes?4 As feminist health law scholars, we “view health law as an inherently … expansive field.”5 For the purposes of this volume, however, and in light of the potential for other areas – such as poverty law, housing law, and employment law – to generate Feminist Judgments books of their own, we have narrowed our focus to more traditional health law topics. Nonetheless, we view the insights of social epidemiology regarding the influence of social, economic, and environmental factors on health as “an invitation to engage with the rich literature of critical legal theories that view law as an expression of social power.”6

In National Federation of Independent Business v. Sebelius, decided in 2012, twenty-six states as well as private individuals and an organization of independent businesses challenged the constitutionality of two key components of the Affordable Care Act. The Court upheld the individual mandate but converted the Medicaid eligibility expansion from mandatory to optional for states. Elizabeth Weeks’ feminist rewrite breaks down the public law-private law distinction to get beyond the traditional view of health insurance as a commercial product providing individual financial protection against risk and instead to view it as effecting a risk pool premised on cross-subsidization of the health-care “haves” by the health-care “have-nots.” Weeks also rejects the original opinion’s dichotomy between “old” and “new” Medicaid as an artifice evidencing a fundamental discomfort with extending public assistance to able-bodied people who are judged capable of providing for themselves on the private market. In their commentary, Mary Ann Chirba and Alice Noble assess the original opinion and Weeks’ feminist rewrite in terms of their concrete effects on women’s lives.

The plaintiff in Means v. United States Conference of Catholic Bishops sought to hold the US Conference of Catholic Bishops responsible for promulgating Ethical and Religious Directives for Catholic Health Care Services that dictated the substandard care she received after her water sbroke when she was eighteen weeks pregnant. The Sixth Circuit dismissed her case for lack of personal jurisdiction and failure to state a claim under state negligence law, reasoning that the defendants’ promulgation and adoption of the Directives was passive conduct providing no basis for foreseeing harm to patients. Leslie Griffin’s feminist judgment grants Means’ request to recognize that the defendants owed her a duty not to promote an ethical theory that foreseeably harms patients by actively interfering with their access to needed medical treatment. Maya Manian’s commentary situates the case in the ongoing conflict between religious freedom and access to appropriate miscarriage management, treatment for ectopic pregnancies, abortion care, tubal ligation surgery, and access to contraception—highlighting that abortion care is interconnected with health care more broadly.

Linton v. Commissioner of Health & Environment was a 1965 case from the Sixth Circuit Court of Appeals in which the plaintiffs alleged disparate-impact racial discrimination. The Tennessee Medicaid program covered the skilled nursing facility care but allowed facilities to certify a limited number of beds for Medicaid patients (for whom the facilities typically received lower rates). The plaintiffs argued that the limited bed policy violated the federal Medicaid statute and had a disparate impact on black Medicaid recipients in violation of Title VI of the Civil Rights Act. In the original opinion, the court side-stepped the discrimination issue, relying instead on the finding that the state had violated the Medicaid statute. Professor Gwendolyn Majette’s feminist concurrence corrects the Sixth Circuit’s failure to address the Title VI issue and provides a fuller, more comprehensive analysis that addresses the intersection of gender, race, class, and age. Professor Ruqaiijah Yearby’s commentary explores whether the opinion in Linton could have done more to ensure that the unique harms experienced by patients because of their race would be fully addressed in the remedial plan.

In Doe v. Mutual of Omaha Insurance, a Seventh Circuit case from 1999, the plaintiffs challenged lifetime coverage caps for AIDS-related conditions, which blocked patients with HIV/AIDS from accessing antiretroviral therapies and other lifesaving medical care. Doe and Smith alleged that the caps violated the public accommodations clause of the ADA. The original opinion sided with the insurance company, finding the caps permissible under the ADA, even though the defendant offered no proof they were supported by sound actuarial data. Professor Valarie Blake’s feminist judgment focuses on the plain text of the disability rights statute, relevant legislative history, and valid guidance from the Department of Justice. Blake also highlights the social and cultural context in which gay men and people with AIDS have been subjugated and stigmatized. Professor Christina Ho’s commentary contrasts the disability-rights approach the plaintiffs advanced before the court with the statutory restrictions on health insurance underwriting based on health status-related factors eventually included in the Affordable Care Act passed more than a decade later.

Olmstead v. L.C. was a 1999 Supreme Court case concerning disability discrimination in a state Medicaid program. The Supreme Court held that the Americans with Disabilities Act (ADA) prohibits states from unnecessarily institutionalizing disabled people as a condition of receipt of publicly assisted medical care. The original opinion requires states to provide community-based treatment for persons with mental disabilities when the state’s treatment professionals determine that such placement is appropriate, the affected individuals do not oppose such treatment, and the state can reasonably accommodate the placement. Professor Becka Rich’s rewritten opinion rejects the defendants’ arguments that the costs of community care limit their obligations under the ADA. Rich indicates that the courts will hold states to task for taking full advantage of the flexibility and funding provided by Medicaid to support compliance with the ADA’s integration mandate. Professor Doron Dorfman’s commentary highlights how the plaintiffs’ claims to community-based care generate tension between financial constraints and the needs of people with disabilities and other chronic health conditions.

In Burton v. State, a case from 2010, the Florida District Court of Appeals overturned a trial judge’s order requiring a pregnant woman with two children and two jobs who experienced premature rupture of membranes and onset of contractions at 25 weeks pregnant to submit to any medical treatment that her obstetrician deemed necessary—including detention in the hospital, administration of intravenous medications, and surgical delivery by cesarean section. Burton was prohibited from obtaining a transfer to another hospital where she might have gotten a second opinion because the trial court determined that moving her was not in the best interest of the child she carried. Nadia Sawicki’s feminist concurrence agrees with the majority’s determination that the trial court failed to apply the correct legal standard but writes separately to highlight that the trial court’s order was not supported by competent and substantial evidence. Greer Donley’s commentary highlights how the state’s efforts to dictate Burton’s health care “treatment” not only deprived her of dignity and bodily autonomy but also disregarded her right to make end-of-life decisions for her potential child.