The Impact of Neuroscience on Health Law
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ORIGINAL PAPER
The Impact of Neuroscience on Health Law Stacey A. Tovino
Received: 10 February 2008 / Accepted: 25 March 2008 / Published online: 23 April 2008 # Springer Science + Business Media B.V. 2008
Abstract Advances in neuroscience have implications for criminal law as well as civil and regulatory law, including health, disability, and benefit law. The role of the behavioral and brain sciences in health insurance claims, the mental health parity debate, and disability proceedings is examined. Keywords Health insurance . Disability . Mental health parity . Neuroscience . Neuroimaging . Neuroethics . Neurolaw . Public . Media The burgeoning neurolaw literature focuses heavily on the impact of advances in neuroscience for criminal law,1 criminal procedure,2 and evidence law,3 as well as tort law,4 property law,5 intellectual property,6 confidentiality and privacy,7 protection of
1 See, e.g., Owen D. Jones et al., Law, Responsibility, and the Brain, 5 PLOS BIOLOGY 693 (2007); O. Carter Snead, Neuroimaging and the “Complexity” of Capital Punishment, 82 N.Y. U. L. Rev. 1265 (2007); O. Carter Snead, Neuroimaging, Entrapment, and the Predisposition to Crime, 7(9) AM. J. BIOETHICS-NEUROSCIENCE 60 (2007); Jay D. Aronson, Brain Imaging, Culpability and the Juvenile Death Penalty, 13 PSYCH. PUB. POL’Y & L. 115 (2007); Melissa S. Caulum, Postadolescent Brain Development: A Disconnect between Neuroscience, Emerging Adults, and the Corrections System, 2007 WIS. L. EV. 729 (2007); Abram S. Barth, A Double-Edged Sword: The Role of Neuroimaging in Federal Capital Sentencing, 33 AM. J. L. & MED. 501 (2007); Debra Niehoff, Invisible
S. A. Tovino (*) Drake University Law School, Des Moines, IA, USA e-mail: [email protected]
human subjects,8 and the regulation of neurosciencebased technologies.9 Little attention has been paid, however, to the implications of neuroscience for more traditional civil and regulatory health law issues. In this essay, I explore the ways in which neuroscience impacts a range of American health, disability, and benefit law issues, including the scope of public and private health insurance benefits, the mental health parity debate, and the distribution of benefits under social security and other programs. I find that patients, patient advocacy organizations, litigants, lobbyists, legislators, and scholars are relying on advances in neuroscience to characterize differences in brain structure and function as health conditions worthy of insurance coverage, protected civil status, and disability and other benefits. Al-
Scars: The Neurobiological Consequences of Child Abuse, 56 DEPAUL L. EV. 847 (2007); Owen D. Jones, Law, Evolution, and the Brain: Applications and Open Questions, in LAW & THE BRAIN 57 (Semir Zeki & Oliver Goodenough eds., 2006); Joshua Greene and Jonathan Cohen, For the Law, Neuroscience Changes Nothing and Everything, in LAW & THE BRAIN (Semir Zeki & Oliver Goodenough eds., 2006); Owen D. Jones & Timothy H. Goldsmith, Law and Behavioral Biology, 105(2) COLUMBIA L. EV. 405 (2005);
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