In the aftermath of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, several corporations signaled their support for reproductive rights by announcing expanded abortion care coverage and/or travel stipends for employees who are forced to travel out of state to receive care, including abortion care. While such moves may be celebrated and recognized as a commitment to pro-choice politics, these decisions require scrutiny and suspicion. This article details why.

Part I of this paper will discuss the corporate response to Dobbs. It will discuss the type of benefits that corporations offered, and the class of employees these benefits were offered to (for instance, “independent contractors” were mostly excluded from availing of these benefits). Part II will discuss the movement for reproductive rights, some of the harms it reinforced, and the criticisms it received from the Reproductive Justice movement. Against this backdrop, Part III will discuss the possible intentions behind corporations conferring these benefits, including those related to staff retention, microeconomic logics, and DEI efforts. It will review them against large corporations’ histories of (not) providing reproductive supports, including a living wage, paid leave, sick leave, and childcare. It will also analyze some of the evidence in the public sphere that shows the roles some of these large corporations have played in supporting antiabortion agendas and politicians. Part IV will discuss the long-term harms that this new crop of workplace policies and benefits might create. Mainly, it will discuss how the provision of abortion care without other reproductive supports reemphasizes a reproductive rights approach despite its criticisms, which were highlighted by the Reproductive Justice movement. For instance, this section will discuss the expanding role corporations are assuming in providing healthcare, and how that may lead to the exclusion of certain historically marginalized classes of workers and people. It will also discuss the impact of these policies on the deprioritization of certain types of care, which have been overlooked for decades, including gender-affirming care and fertility treatments. Part V will suggest a few steps corporations can take to mitigate the harm created by Dobbs.

Despite recent reforms, “balance billing” – the practice of charging patients exorbitant list prices for out-of-network or uninsured care – remains a potentially devastating feature of American healthcare. Most proposed solutions have been statutory or regulatory. But the common law offers an important intervention, consistent with private law theory, through a doctrine developed by a number of state courts and recently endorsed by the Eleventh Circuit in an adjacent area of law. Under traditional tort principles, injured plaintiffs are entitled to recover the “reasonable” costs of their medical expenses, regardless of whether they were covered by insurance. Reasoning that because, in the contemporary healthcare market, neither the amount billed by healthcare providers nor the amount paid by insurers is necessarily reasonable, these courts hold that the question of reasonable damages is for the jury, on consideration of the amount billed, the amount paid, and any other relevant evidence the parties present. A similar approach could be imported into the balance billing context, leaving to juries to determine the reasonable price of services, considering all relevant evidence. This wouldn’t solve all problems related to balancing billing, and the “reasonable price” determined by juries may still be out of reach of many patients. But unlike other judicial solutions, this proposal is thoroughly consistent with common law theory, translating basic private law principles to new contexts, rather than policy reasoning. Moreover, it may even improve the public legitimacy of the industry, ensuring that providers can never collect arbitrary post-facto amounts.

The fast-growing clinical research outsourcing over the course of the past decade has attracted the active involvement of private equity buyers to the “business” of Clinical Research Organizations (CROs). The fragmentation of pharmaceutical services through CROs offers an opportunity to lower the financial risk of drug development in a highly critical industry. Justified by the operational efficiency that integrating assets and services to decrease costs even further may represent, private equity has recently demonstrated an appetite for vertical integrations to expand the geographic, patient, and service reach of clinical research sites. Since private equity managers have the incentive to maximize financial returns, gaining greater access and control of patient identification, enrollment and retention, and quality protocols may pose significant equity-based risks to biopharmaceutical stakeholders, fundamentally, drug end users.

The proliferation of CROs and their plans to gain further operational control of clinical trials pose the potential tradeoff between drug development efficiency and equitable development and access to drugs and research knowledge. This reasonable concern is most present in the efficiency-based scholarship debate on shareholder and stakeholder governance of recent years. The discussion centers on whether new corporate leaders and investors might be paying too much attention to shareholder value while not enough to stakeholder value. A balance, the debate seems to suggest, is critical to generating long-term shareholder wealth, shifting the long-standing “shareholder value” corporate governance model toward an equity-based, “deliver value” type, commitment.

By observing the lay of the land of CROs in the United States and using as a theoretical framework the increasingly influential stakeholderism approach to corporate governance, this essay offers a critical view of the use of stakeholder factors in stewardship decisions made by CROs’ corporate leaders and private equity investors. Ultimately, it aims to identify key areas of organizational and governance concerns in medical research and the shortcomings they represent to equitable access to medical innovation.

Health care today is the most regulated industry in America. Statutes and regulations govern everything from licensing and insurance to privacy and emergency care. In pursuit of the iron triangle of improved access, better quality, and lower cost, health law scholars have long focused on “public law,” or law that involves governmental action, including action by administrative agencies at both the state and federal levels.

This research explores the extent of private law and the influence of private entities in healthcare in Europe. The three-part analysis reveals a complex interplay between different health system structures, laws, and influences. First, it highlights four distinctions between Europe and the United States (US) concerning universal health care, the role of government, private insurance, and the legal framework for disputes. Second, it considers the role of private law in resolving disputes in Europe. Ultimately, this research calls for further research to close those gaps in the literature concerning the number and scope of health disputes governed under contract law and the laws that health lobbies have influenced. Third, it emphasizes the influence of private healthcare lobbies in Europe and provides a case study of their influence on the United Kingdom’s (UK) health landscape.

Fiduciaries abound in health care. Employers pretend they can act in the best interests of employees when maintaining health plans – even though they pay (directly or indirectly) for claims against those plans. Physicians pretend they can act in the best interests of patients – even when hospitals and group practices pressure them to see more patients and spend less time with them, and even though physicians and their employers are incentivized to order expensive tests and procedures. But what if, instead of ignoring these conflicts of interest, the American healthcare system abandoned the fiduciary fallacy?

Building on recent scholarship showing that targeted legislation, regulation, and self-policing – rather than broad fiduciary duties – better manage these conflicts, I use game theory to analyze different scenarios relating to the financing and provision of health care involving two actors – a provider and a payor. For this analysis, I assume that the actors are rational and behave in their own self-interest until constrained by external rules and social and professional norms. My goal is to advance this scholarship by arguing that broad fiduciary duties are inadequate to address conflicts in our healthcare system, while also proposing paths forward.