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State medical boards have been stymied in their ability to take disciplinary action against physicians who engage in serious misconduct, in part because hospitals and other health care organizations rarely report such misconduct. This Article offers a proposal for incentivizing hospital reporting of physician misconduct, inspired by an existing but flawed model in the federal Health Care Quality Improvement Act. This Article proposes that state legislatures link state medical practice act reporting requirements with state laws establishing an evidentiary privilege for peer review activities.

This Article presents the first empirical study of state conscience laws that establish explicit procedural protections for medical providers who refuse to participate in providing reproductive health services, including abortion, sterilization, contraception, and emergency contraception. Scholarship and public debate about law's role in protecting health care providers' conscience rights typically focus on who should be protected, what actions should be protected, and whether there should be any limitations on the exercise of conscience rights. This study, conducted in accordance with best methodological practices from the social sciences for policy surveillance and legal mapping, is the first to provide concrete data on the vital but unanswered question of how these laws actually operate--that is, the precise procedural mechanisms by which laws protect medical providers who decline to provide services that violate their deeply held conscientious beliefs. This Article demonstrates that state laws vary dramatically in the types of protections they offer. States may immunize health care providers from a range of potential adverse consequences including civil liability, criminal prosecution, professional discipline, employment discrimination, discrimination in educational opportunities, and denial of public or private funding, among others. Of these, immunity from civil liability, or "civil immunity," is by far the most common procedural protection. In a majority of states, civil immunity is absolute--providing no exceptions in cases of malpractice, denial of emergency treatment, or even patient death. In practice, these laws eliminate patients' common law right to recover monetary damages when they suffer physical injury as a result of a health care provider's conscience-based deviation from the standard of care. While many scholars have examined the impact of conscience laws on patient access to medical care, there has been no comprehensive analysis of these laws' impact on patients' right to a tort law remedy when they are denied care. This Article not only raises awareness of the previously unrecognized breadth of protections established by U.S. conscience law, but also challenges basic assumptions about tort law's ability to remedy harms suffered by victims of medical malpractice in reproductive health care contexts. These findings create an important opportunity for further policy discussion about the scope of health care conscience laws.

Policy makers frequently use arational appeals and nudges—such as those relying on emotion, cognitive biases, and subliminal messaging—to persuade citizens to adopt behaviors that support public goals. However, these communication tactics have been widely criticized for relying on arational triggers rather than reasoned argument. This article develops a fuller account of the nonconsequentialist objection to arational persuasion by state actors, focusing on theories of decisional autonomy and metadecisional voluntariness. The article concludes by proposing ethically justifiable limitations on state communications that should be compelling to both critics and advocates of arational persuasion.

Informed consent law's emphasis on the disclosure of purely medical information – such as diagnosis, prognosis, and the risks and benefits of various treatment alternatives – does not accurately reflect modern understandings of how patients make medical decisions. Existing common law disclosure duties fail to capture a variety of non-medical factors relevant to patients, including information about the physician's personal characteristics; the cost of treatment; the social implications of various health care interventions; and the legal consequences associated with diagnosis and treatment. Although there is a wealth of literature analyzing the merits of such disclosures in a few narrow contexts, there is little broader discussion and no consensus about whether there the doctrine of informed consent should be expanded to include information that may be relevant to patients but falls outside the traditional scope of medical materiality. This article seeks to fill that gap. I offer a normative argument for expanding the scope of informed consent disclosure to include non-medical information that is within the physician's knowledge and expertise, where the information would be material to the reasonable patient and its disclosure does not violate public policy. This proposal would result in a set of disclosure requirements quite different from the ones set by modern common law and legislation. In many ways, the range of required disclosures may become broader, particularly with respect to physician-specific information about qualifications, health status, and financial conflicts of interests. However, some disclosures that are currently required by statute (or have been proposed by commentators) would fall outside the scope of informed consent – most notably, information about support resources available in the abortion context; about the social, ethical, and legal implications of treatment; and about health care costs.

Policymakers frequently use arational appeals – such as those relying on emotion, cognitive biases, and subliminal messaging – to persuade citizens to adopt behaviors that support public goals. However, these communication tactics have been widely criticized for relying on arational triggers, rather than reasoned argument. This Article develops a fuller account of the non-consequentialist objections to arational persuasion by state actors, as well as the arguments in favor of such tactics, that have been presented by scholars of rhetoric, political theory, and cognitive science. The Article concludes by proposing ethically justifiable limitations on state communications that should be compelling to both critics and advocates of arational persuasion.

Legislation requiring the display of emotionally compelling graphic imagery in medical and public health contexts is on the rise-two examples include the Food and Drug Administration's recently abandoned tobacco labeling regulations, which would have imposed images of diseased lungs and cancerous lesions on cigarette packaging, and state laws requiring physicians to display and describe ultrasound images to women seeking abortions. This Article highlights the disconnect between the constitutional challenges to these laws, which focus on the perils of compelling speakers to communicate messages with which they may disagree, and the public's primary objections, which are grounded in ethical concerns about the state's reliance on emotion to persuade. This Article argues that, despite inconsistent judicial precedent in the tobacco and ultrasound contexts, concerns about the emotional impact of government mandated images on viewers can and should be incorporated in First and Fourteenth Amendment analyses. In making this argument, the Article relies on the body of First Amendment jurisprudence in which the Supreme Court suggests that images are uniquely dangerous because they are less rational, less controllable, and more emotionally powerful than textual communications.