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Volume 109, Issue 2


Penalizing Prevention: The Paradoxical Legal Treatment of Preventative Medicine

Doron Dorfman

Associate Professor of Law, Seton Hall Law School Faculty. 

23 Feb 2024

Preventive medicine, which includes interventions intended to preempt illnesses before they surface, has long been a priority for furthering public health goals and improving quality of care. Yet, preventive medicine also sends strong signals about the possible risks associated with the users’ behavior and character. This signaling effect intersects with existing stigma and pervades law and policy. Thus, the law endorses and encourages prevention on one hand and penalizes it on the other, creating the paradoxical legal treatment of preventive medicine. A spectrum of penalties is assigned to those using preventive medicine including, for example, insurance discrimination, exclusion from civic practices or the legal profession, and stigmatization. Laws, policies, and court decisions that penalize users deter them from using life-saving preventive health measures, hindering the promise of preventive medicine. This Article introduces an original typology and conducts three in-depth case studies on the regulation of the HIV prophylactic drug, PrEP, mental health treatment, and the public use of the opioid reverser naloxone to demonstrate how the law penalizes prevention. It then calls for harmonizing the legal regulation of preventive medicine to allow for preventative medicine’s important goals to come to fruition.

To read this Article, please click here: Penalizing Prevention: The Paradoxical Legal Treatment of Preventative Medicine.