Position Paper
on Genetic Discrimination Legislation
March 4, 2002
National Council on Disability
1331 F Street, NW, Suite 850
Washington, DC 20004
202-272-2004 Voice
202-272-2074 TTY
202-272-2022 Fax
Introduction
The National Council on Disability (NCD) is an independent federal
agency that advises the President and Congress on issues affecting
54 million Americans with physical and mental disabilities. NCD's
fundamental purpose is to promote policies, programs, practices,
and procedures that guarantee equal opportunity for all individuals
with disabilities, regardless of the nature or severity of the disability;
and to empower individuals with disabilities to achieve economic
self-sufficiency, independent living, inclusion, and integration
into all aspects of society.
For a number of years, NCD has recognized the harmful effects of
discrimination based on individuals' genetic information and supported
the need for federal legislation prohibiting genetic discrimination
as well as the enforcement of existing legislation that may prohibit
certain types of genetic discrimination. It has addressed the issue
of genetic discrimination in several reports, including the following:
- Achieving Independence: The Challenge
for the 21st Century. July 26, 1996 (expressing
serious concern about the quandaries and implications of obtaining
and using genetic information; calling for further examination
of the interface of genetic testing practices with antidiscrimination
law and access to health insurance for people with disabilities).
- National Disability Policy: A Progress
Report. July 26, 1996-Oct. 31, 1997 (noting the
potential for discrimination based on genetic information in employment,
health care and other areas, and urging the President to work
with Congress to enact legislation outlawing genetic discrimination
and restricting access to genetic information by employers, insurance
carriers and others).
- National Disability Policy:
A Progress Report. Nov. 1999-Nov. 2000 (applauding
the Clinton Administration for issuing an executive order prohibiting
certain types of genetic discrimination by federal employers,
and urging the prompt reintroduction of legislation prohibiting
genetic discrimination by employers and health insurers).
- Promises to Keep: A Decade of Federal
Enforcement of the Americans with Disabilities Act.
June 27, 2000 (supporting the U.S. Equal Employment Opportunity
Commission's (EEOC) position on genetic discrimination in its
guidance on the definition of disability, which considered an
individual discriminated against based on a genetic predisposition
to disease or disability to be a person with a disability protected
by the Americans with Disabilities Act (ADA) by virtue of being
"regarded as" substantially limited in a major life activity;
calling for technical assistance from federal agencies in emerging
areas of ADA policy and enforcement such as genetic discrimination).
NCD's interest in genetic discrimination legislation stems partly
from the fact that the need for this legislation arises due to narrow
judicial interpretations of ADA, and these same interpretations
also create the need for legislation to restore protections for
individuals who have actually developed health conditions. NCD believes
that the concerns of individuals with actual health conditions have
not been fully addressed in the dialogue about legislative proposals
to address genetic discrimination.
The Need for Federal Legislation Prohibiting Genetic Discrimination
Recent Advances in Genetic Research Have Brought Increasing
Potential for Genetic Discrimination
Recent years have brought dramatic scientific advances in the study
of human genetics. Scientists have mapped out DNA sequences in the
human body and have identified many genes that cause disease. Consequently,
they have been able to use genetic testing to identify individuals
who may be susceptible to many diseases that are genetically linked.1
Tests now exist that are able to detect genetic predispositions
for many diseases and illnesses, such as Huntington's disease, breast
cancer, cystic fibrosis, Alzheimer's disease, colon cancer, and
Parkinson's disease.2 The number of conditions that may
be detected by genetic tests is rapidly growing.3 While
these genetic advances hold tremendous potential for early identification,
prevention and treatment of disease, they also create opportunities
for discrimination against individuals based on their genetic information,
even where individuals have no symptoms of disease.
In recent testimony before Congress, Dr. Francis Collins, Director
of the National Human Genome Research Institute at the National
Institutes of Health, observed:
while genetic information and genetic technology hold great
promise for improving human health, they can also be used in ways
that are fundamentally unjust. Genetic information can be used
as the basis for insidious discrimination.
. . . The misuse of genetic information has the potential to be
a very serious problem, both in terms of people's access to employment
and health insurance and the continued ability to undertake important
genetic research.4
Genetic Discrimination is a Historical and Current Reality
Discrimination based on genetic information is not a new phenomenon.
During the early 1970s, employers used genetic screening to identify
and exclude African Americans carrying a gene mutation for sickle
cell anemia.5 These individuals were denied jobs despite
the fact that many of them were healthy and never developed the
disease.6 During the same time period, individuals who
were carriers of sickle cell anemia were also discriminated against
by several insurance companies despite the fact that they were asymptomatic.7
Genetic discrimination by employers and insurers has continued
to be a systemic problem. According to a 1989 survey conducted by
Northwestern National Life Insurance Company, 15 percent of the
companies surveyed indicated that by the year 2000, they planned
to check the genetic status of prospective employees and their dependents
before making employment offers.8
A 1996 survey of individuals at risk of developing a genetic condition
and parents of children with specific genetic conditions indicated
more than 200 instances of genetic discrimination reported by the
917 respondents. The discrimination was practiced by employers,
insurers, and other organizations.9 Another survey of
genetic counselors, primary care physicians, and patients identified
550 individuals who were denied employment or insurance based on
genetic information.10 A study on genetic discrimination,
published in 1996, found that health and life insurance companies,
health care providers, blood banks, adoption agencies, the military,
and schools engaged in genetic discrimination against asymptomatic
individuals.11
Science magazine reported that in a study of 332 individuals with
one or more family members with a genetic disorder who are affiliated
with genetic support groups, 40 percent of the respondents recalled
being specifically asked about genetic diseases or disabilities
on their applications for health insurance.12 Twenty-two
percent of the respondents said they or a family member were refused
health insurance as a result of the genetic condition in the family.13
Fifteen percent of the respondents reported that they or affected
family members had been asked questions about genetic diseases or
disabilities on employment applications.14 Thirteen percent
reported that they or a family member had been denied a job or fired
from a job because of a genetic condition in the family, and 21
percent reported being denied a job or fired due to their own genetic
disorder.15
In addition to these and other studies, numerous anecdotal examples
of genetic discrimination by employers and insurers have been detailed
in testimony before Congress in hearings about genetic discrimination.
Genetic Discrimination Undermines the Purposes of Genetic Research
and Testing
The misuse of genetic information not only excludes qualified individuals
from employment and denies insurance coverage to individuals without
justification, but also undercuts the fundamental purposes of genetic
research. Such research has been undertaken with the goals of early
identification, prevention and effective treatment of disease. These
goals will be undermined if fear of discrimination deters people
from genetic diagnosis and prognosis, makes them fearful of confiding
in physicians and genetic counselors, and makes them more concerned
with loss of a job or insurance than with care and treatment.16
The fears engendered by genetic discrimination--fears of disclosure
of genetic information to physicians and of participation in genetic
testing and research--have been well documented in numerous studies.
In one study, 83 percent of the participants indicated that they
would not want their insurers to know if they were tested and found
to be at high risk for a genetic disorder.17 In a 1997
survey of more than 1,000 individuals, 63 percent of the participants
reported that they would not take genetic tests for diseases if
health insurers or employers could get access to the results.18
Additionally, researchers conducting a Pennsylvania study to determine
how to keep women with breast cancer gene mutations healthy reported
that nearly one third of the women invited to participate in the
study declined out of fear of discrimination or loss of privacy.19
The results of a national survey released by the California HealthCare
Foundation in 1999 indicate that 15 percent of adults surveyed took
steps to keep genetic information private, such as paying for testing
out of pocket rather than using their insurance coverage, constantly
switching doctors to avoid the compilation of a comprehensive medical
history, refusing to seek needed medical care, and/or providing
false or incomplete information to physicians.20 Another
study showed that 57 percent of surveyed individuals at risk for
breast or ovarian cancer had chosen not to take a needed genetic
test, and 84 percent of those individuals who had decided to forego
the test cited fear of genetic discrimination as a major reason
for their decision.21
These fears eliminate people's opportunities to learn that they
are not at increased risk for the genetic disorder in the family
or to make lifestyle changes to reduce risks.22 They
may also affect the number of people willing to participate in scientific
research.23
Genetic Test Information Has Little Value for Purposes of Making
Employment Decisions and Insurance Decisions
There is no consensus on the scientific validity of genetic tests
or their usefulness for predicting an individual's susceptibility
to exposure.24 The results of genetic-based diagnosis
and prognosis are uncertain for many reasons. First, the sensitivity
of genetic testing is limited by the known mutations in a target
population. Many individuals with a genetic predisposition for a
particular disease will not be identified because these markers
are not among the known genetic mutations.25 Secondly,
many individuals are falsely labeled "at risk" due to the genetic
screening of family members.26 Thirdly, genetic markers
are generally not valid predictors of the nature, severity and course
of disease. For most genetic disease, the onset date, severity of
symptoms, and efficacy of treatment and management are highly variable,
with some people identified by screening remaining symptom-free
and others progressing to disabling illness.27 Genetic
tests alone cannot predict with certainty whether an individual
with a particular genetic error will actually develop a disease.28
These tests evaluate people according to stereotypes of future ability
to function and the probability that disease will occur, rather
than evidence of actual disease and ability.29
Existing Laws Are Insufficient to Protect Individuals from Genetic
Discrimination
There are existing laws that may prohibit genetic discrimination
in some contexts. However, these laws do not reach much of the discrimination
that occurs and, in some cases, may be interpreted not to apply
to genetic discrimination at all.
The Americans with Disabilities Act30
The Americans with Disabilities Act (ADA), an anti-discrimination
law, protects individuals who have an impairment that substantially
limits them in a major life activity, who have a record of such
an impairment, or who are regarded as having such an impairment.31
Congress intended ADA to cover individuals with a broad range of
diseases, and some members of Congress explained at the time of
ADA's passage that it would protect people who experience discrimination
on the basis of predictive genetic information where those individuals
were regarded as having a disability.32 ADA has also
been interpreted by EEOC to prohibit some forms of genetic discrimination.
In 1995, the EEOC issued enforcement guidance advising that an employer
who takes adverse action against an individual on the basis of genetic
information may regard the individual as having a disability and,
therefore, may be violating ADA.33 EEOC recently settled
its first court action challenging an employer's use of genetic
testing34 and also issued a finding of cause in an administrative
complaint filed by a woman who was terminated based on a genetic
test result.35
Nonetheless, ADA is a highly problematic vehicle for fully addressing
genetic discrimination. At recent Senate hearings, EEOC Commissioner
Paul Steven Miller testified that while ADA could be interpreted
to prohibit employment discrimination based on genetic information,
it "does not explicitly address the issue and its protections are
limited and uncertain."36
ADA could be interpreted to protect individuals with genetic markers
for disease in two ways. First, as described above, such individuals
may be protected if they are regarded as substantially limited in
a major life activity B for example, if they are regarded as substantially
limited in working due to their genetic predisposition. However,
recent Supreme Court cases discussing what it means to be regarded
as substantially limited in working suggest that such claims are
extremely unlikely to succeed. In Sutton v. United Airlines,
Inc.37 and Murphy v. United Parcel Service, Inc.,38
the Court stated that a job requirement excluding individuals based
on their impairments does not necessarily establish that the employer
regards individuals excluded by this requirement as substantially
limited in working. To be covered under the "regarded as" prong,
the plaintiffs would have to prove that they were regarded as substantially
limited in performing a broad class of jobs, not merely their own
jobs. It may prove extremely difficult for plaintiffs with genetic
markers who are denied employment due to an employer's concern about
health insurance premiums or productivity losses to show that the
employer regarded them as substantially limited in performing not
only the job in question but a broad class of other jobs as well.
Individuals who experience genetic discrimination may also be covered
under ADA if they are regarded as substantially limited in other
major life activities besides working. It is unlikely that most
plaintiffs will be able to establish the requisite proof to prevail
on such claims. Most courts have interpreted "substantially limited"
so restrictively that an individual must be extremely debilitated.39
Moreover, the courts have interpreted ADA to require consideration
of any measures that an individual takes to control the effects
of her limitations.40 Thus, it is unlikely that an individual
with a genetic predisposition for a disease, but who has not actually
developed the disease, will be able to show that he was regarded
as substantially limited in any major life activity.
An individual who experiences genetic discrimination may also be
covered by ADA under the first prong of the definition of disability--that
is, by showing that she has an actual impairment that substantially
limits her in a major life activity. In Bragdon v. Abbott,41
the Supreme Court held that an individual with asymptomatic HIV
was covered under the first prong because she was substantially
limited in reproduction due to the risk of transmitting HIV to a
fetus. The Court found that the asymptomatic HIV was a physical
impairment based on the physiological effects of the infection.
It is unclear, however, whether courts would find a genetic marker
to constitute an actual impairment.
Even assuming ADA did apply, in many situations it might not prevent
employers from accessing genetic information. While ADA does bar
medical inquiries before a conditional offer of employment is made,
it would permit employers to request genetic information if they
could establish that the information was job-related and consistent
with business necessity.42
The Health Insurance Portability and Accountability Act
The Health Insurance Portability and Accountability Act (HIPAA)
prohibits genetic discrimination by insurers in very limited circumstances.
It prohibits group health plans from using any health status-related
factor, including genetic information, as a basis for denying or
limiting coverage or for charging an individual more for coverage.43
However, a plan may still establish limitations on the amount, level,
extent or nature of benefits or coverage provided to similarly situated
individuals.44 Thus, plans may still provide substantially
fewer services even though they may not charge more for coverage.
In addition, privacy regulations issued pursuant to HIPAA require
patient consent for most sharing of personal health information
by health insurers, providers, and health care clearinghouses. Companies
that sponsor health plans are prohibited from accessing personal
health information for employment purposes unless the patient consents.
These provisions do little to prevent genetic discrimination in
the workplace and, while they do prohibit some forms of genetic
discrimination by insurers, that protection is extremely limited.
Title VII
Race and gender discrimination laws may apply to certain forms
of genetic discrimination as well.45 For example, Title
VII of the Civil Rights Act of 1964, which prohibits employment
discrimination based on race or gender, may prohibit employers from
denying employment based on genetic markers linked to race, such
as that for sickle cell anemia, or linked to gender, such as those
for breast or ovarian cancer. Some courts have said in dicta that
employment classifications based on sickle cell anemia would create
a disparate impact on African Americans, but no lawsuit has successfully
been brought challenging such classifications under Title VII.46
At least one court has rejected such a claim.47
State Laws
A number of states have passed state laws that prohibit certain
forms of genetic discrimination. These laws, however, vary widely
in the scope of their protection.48 Many are narrowly
targeted to particular genetic conditions, some prohibit only certain
types of screening but do not prohibit adverse employment actions
based on genetic information, and some only address genetic counseling
and confidentiality.49 These laws have been described
as "a patchwork of provisions which are incomplete, even inconsistent,
and which fail to follow a coherent vision for genetic screening,
counseling, treatment and prevention of discrimination."50
In light of the inadequacies of federal and state law to address
genetic discrimination issues, comprehensive federal legislation
that specifically addresses these issues is necessary.
Principles for Genetic Discrimination Legislation
NCD believes that it is crucial for any proposed legislation addressing
genetic discrimination to reflect the following principles:
Workplace Discrimination:
Any proposed legislation must provide effective prohibitions against
discrimination by employers based on genetic information. Employers
must not be permitted to use predictive genetic information as a
basis for hiring, firing, or taking any other employment action,
or as a term or condition of employment. Nor should an employer
be permitted to use this information, or be permitted to limit,
segregate or classify employees or job applicants. This information
should not be permitted to play a role in an employment agency's
referral of individuals for employment; in decisions by a labor
organization about admission to its membership; or in admission
to or employment by a training program.
Collection and Disclosure of Genetic Information by Employers:
Any proposed legislation must contain strict limits on the collection
and disclosure of genetic information by employers so as to prevent
that information from being used for discriminatory purposes. Employers
must not be permitted to collect genetic information except under
very limited circumstances that will be used only to benefit employees
and only on a voluntary basis.
Specifically, employers should be permitted to request predictive
genetic information only: (1) for the purpose of monitoring effects
of toxic substances in the workplace, and only if an employee has
provided written consent to such monitoring, the employee is informed
of the results, the monitoring conforms to national standards, and
the employer does not receive results for particular individuals
but rather receives only aggregate results for all individuals monitored;
and (2) for the purpose of providing genetic services to employees,
but only if such services are provided with the employee's written
consent and only the employee receives the results.
Additionally, employers must maintain strict confidentiality of
genetic information of applicants or employees that is in the employers'
possession. Genetic information should be kept confidential and
maintained separately from personnel files and other non-confidential
information. It should be disclosed only to the employee, to officials
enforcing this legislation, or as required by other federal laws.
Insurance Discrimination:
Any proposed legislation should contain comprehensive protection
against genetic discrimination by providers of health, life, disability,
and other types of insurance. Legislation must bar insurers from
making decisions about enrollment based on genetic information.
It must also prohibit insurers from using genetic information in
determining premium or contribution rates, or other terms or conditions
of coverage. Finally, it must bar insurers from requesting or requiring
an individual to undergo genetic testing.
Collection and Disclosure of Genetic Information by Insurers:
Any proposed legislation must prohibit insurers from requiring,
requesting, collecting, or buying genetic information about individuals
who are covered or seeking coverage.
Insurers should be permitted, however, to obtain this information
only for the limited purpose of paying for claims for genetic testing
or other genetic services. Strict protections must be in place to
ensure that when such information is requested, it is not used to
affect an individual's enrollment, premiums, or terms or benefits
of coverage.
Insurers must also be prohibited from disclosing genetic information
to health plans or issuers of health insurance (except in the limited
circumstances described above where the information is used for
purposes of payment of claims), employers, and entities that collect
and disseminate insurance information.
Health Care Provider Discrimination:
Any proposed legislation should protect against genetic discrimination
by health care providers. Health care providers must not be permitted
to refuse treatment to individuals, or treat them differently, based
on genetic information. For example, "futile care" policies, under
which medically indicated treatments may be denied based on determinations
that such treatments would be "futile" in light of an individual's
expected quality of life, should be prohibited to the extent that
they result in denials of treatment based on genetic information.
Collection and Disclosure of Genetic Information by Health Care
Providers:
Any proposed legislation must prohibit health care providers from
requiring, requesting, or collecting genetic information about individuals
who are seeking treatment. Providers may only collect this information
for the purpose of providing genetic testing or other genetic services.
Health care providers must not be permitted to disclose genetic
information except to the patient, to insurers only for the limited
purpose of seeking payment for genetic testing or genetic services
rendered, to officials enforcing this legislation, or as required
by other federal laws.
Education and Technical Assistance:
Any proposed legislation should include funding to permit education
and technical assistance to be provided by appropriate organizations
in order to ensure that individuals affected by the legislation
are aware of its requirements. Such assistance is important to ensure
effective enforcement of the legislation.
Effective Enforcement Mechanisms:
Any proposed legislation must contain a private right of action
for individuals to enforce its provisions. Additionally, EEOC should
have the authority to investigate and resolve complaints of violations
of the employment provisions of the law. In order to be effective,
the legislation must provide for the full panoply of legal remedies,
including attorney's fees.
Relationship to Other Laws:
Any proposed legislation must serve as a set of minimum standards
that do not preempt more stringent standards that may exist in other
laws. Thus, the legislation must not preempt stronger state laws.
Similarly, it must not preempt other federal laws that may be applicable
where those laws provide stronger protection against genetic discrimination.
Addressing Protections for Individuals with Actual Health Conditions:
As discussed above, courts have interpreted ADA in a number of
ways that severely restrict the number of people protected.51
They have interpreted ADA to protect only individuals who are so
limited in major life activities that they are extremely debilitated,
and to exclude protection for many individuals who take mitigating
measures to control the effects of their impairments. They have
made it extraordinarily difficult for individuals to establish that
an employer regards them as substantially limited in working. These
interpretations of ADA have resulted in far more limited protection
than Congress envisioned when it passed ADA.
The same interpretations that make ADA difficult to enforce by
individuals with genetic markers make it difficult to enforce by
individuals with a range of health conditions. When Congress considers
protections for individuals who experience discrimination based
on genetic information, it should also ensure that if these individuals
are eventually diagnosed with medical conditions, they will be protected
against discrimination.
1 Deborah Gridley, Note,
Genetic Testing Under ADA: A Case for Protection from Employment
Discrimination, 89 Georgetown Law Journal 973, 976 (2001).
2 Id. at 975; Testimony of Mary Davidson, Executive
Director of Genetic Alliance, before U.S. House of Representatives
Subcommittee on Commerce, Trade and Consumer Protection of the Committee
on Energy and Commerce (July 11, 2001).
3 Testimony of Mary Davidson, supra note 2.
4 Congressional Research Service, Genetic Information:
Legal Issues Relating to Discrimination and Privacy, Report
No. RL30006 (July 19, 2001) (hereafter "Congressional Research Service
Report"), at 2.
5 Department of Labor, Department of Health and Human
Services, Equal Employment Opportunity Commission, Department of
Justice, Genetic Information and the Workplace (Jan. 20,
1998) (hereafter "Joint Government Report"), at 3.
6 Id.
7 E. Virginia Lapham et al., Genetic Discrimination:
Perspectives of Consumers, 274 Science 621 (1996).
8 Larry Gostin, Genetic Discrimination: The Use of
Genetically Based Diagnostic and Prognostic Tests by Employers and
Insurers, 17 American Journal of Law & Medicine 109, 116 (1991).
9 Joint Government Report, supra note 5, at 2.
10 Id.
11 Congressional Research Service Report, supra
note 4, at 3.
12 Lapham et al., supra note 7, at 622.
13 Id. at 624.
14 Id. at 626.
15 Id.
16 Gostin, supra note 8, at 113.
17 Lapham et al., supra note 7, at 622.
18 Joint Government Report, supra note 5, at
2.
19 Id.
20 Genetic Alliance, The Insured, the Underinsured,
and the Uninsurable: the Role of Genetics in Health Care Coverage
(Oct. 2001) (unpublished), at 2-3.
21 Caryn Lerman et al., BRCA1 testing in families
with hereditary breast-ovarian cancer. A prospective study of patient
decision making and outcomes, 275 Journal of American Medical
Ass'n 1885 (1996). In another study, concern about health insurability
was the leading reason for individuals' decisions to decline cancer
genetic counseling services. Katherine P. Geer et al., Factors Influencing
Patients' Decisions to Decline Cancer Genetic Counseling Services,
10 Journal of Genetic Counseling 25 (2001).
22 Lapham et al., supra note 7, at 622.
23 Id.
24 Joint Government Report, supra note 5, at
3.
25 Gostin, supra note 8, at 113.
26 Id. at 114.
27 Id.
28 Joint Government Report, supra note 5, at
1; Elaine Draper, The Screening of America: The Social and Legal
Framework of Employers' Use of Genetic Information, 20 Berkeley
Journal of Employment & Labor Law 286, 290-91 (1999).
29 Draper, supra note 28, at 290.
30 The analysis of ADA's application to genetic discrimination
in employment also applies to Section 504 of the Rehabilitation
Act, which applies to federal employers and entities receiving federal
funds. Section 504 has the same definition of disability as that
contained in ADA.
31 42 U.S.C. § 12102(2).
32 136 Cong. Rec. H4627 (statement of Rep. Waxman).
33 Joint Government Report, supra note 5, at
6; EEOC Compliance Manual § 902, Order 915.002, 902-45 (1995).
34 EEOC v. Burlington Northern Santa Fe Railroad,
Civ. No. 01-4013 MWB (N.D. Iowa Apr. 23, 2001) (Agreed Order). The
Railroad, which had tested for carpal tunnel syndrome propensity,
agreed to stop requiring genetic tests, using genetic information
relating to its employees, and disclosing such information to the
public.
35 Congressional Research Service Report, supra
note 4, at 9 (describing complaint filed by Terri Sergeant alleging
a violation of ADA based on her termination after being diagnosed
with Alpha 1 Antitrypson Deficiency).
36 Id.
37 527 U.S. 471, 473-74 (1999).
38 527 U.S. 516, 516-17 (1999).
39 For a discussion of how the courts have interpreted
ADA far more restrictively than Congress intended, see Chai Feldblum,
Definition of Disability Under Federal Anti-Discrimination Law:
What Happened? Why? And What Can We Do About It?, 21 Berkeley
Journal of Labor & Employment 91 (2000).
40 Sutton v. United Airlines, Inc., 527 U.S.
at 481-88; Murphy v. United Parcel Service, 527 U.S. at 521.
41 524 U.S. 624 (1998).
42 42 U.S.C. § 12112(c); Congressional Research
Service Report, supra note 4, at 13.
43 29 U.S.C. § 1182(a)(1), 1182(b)(1).
44 Id. § 1182(a)(2)(B).
45 See Gostin, supra note 8, at 109; Congressional
Research Service Report, supra note 4, at 30 n.8.
46 Gostin, supra note 8, at 138.
47 Id. at 138-39.
48 Joint Government Report, supra note 5, at
8.
49 Gridley, supra note 1, at 980-81.
50 Gostin, supra note 8, at 142.
51 See Feldblum, supra note at 39. |