In this part two of a two-part blog, the co-authors Professor Cerminara and Dr. Petrucci explore further examples of the topic addressed in the first part.

As we discussed in the preceding post, peace-of-mind laws comprise those:

(a) whose absence creates constant worry and concern

(b) over the long-term

(c) for the quality of life

(d) of defined groups of people.

The presence of a peace-of-mind law:

(a) reduces stress and

(b) improves quality of life

(c) which brings about peace of mind.

We discussed aid-in-dying laws and laws ensuring healthcare coverage as two examples of such laws. In this post, we add a few brief thoughts and further examples.

First, the aid-in-dying statutes earlier identified as peace-of-mind laws may be unusual in that a great deal of publicly available data supports our illustration of the peace of mind they can provide, as predicted in the year 2000 (Cerminara & Perez, 2000). Data from many states indicates that the vast majority of patients who request prescriptions to use to end their lives pursuant to those laws do so to achieve the feeling of control identified in the previous blog post. Moreover, many patients who request those prescriptions either never fill them or never ingested them after filling them. Their family members and friends say later that once they had the medication in their hands, so that they had the power to end their lives if they found existence intolerable, they did not need to actually exercise the control by using the medication. The vast majority of the states in which aid-in-dying is legalized collect and publicize their data to that effect, as one can easily see from the annual reports filed in Oregon during each of the 23 years that its law has been in effect (Oregon Health Authority Public Health Division, 2021).

Earlier we also noted that “[p]eace-of-mind laws may be relevant based on one’s socio-economic status, age, gender identity, sexual orientation, or race-ethnicity.” Once again, there exists data to support that intuition. One recent study demonstrated that what one might call “anti-peace-of-mind laws” result in mental distress. It demonstrated that “merely having state laws permitting denial of services on the books in their states resulted in a forty-six percent increase in sexual minority adults experiencing mental distress.” (Cerminara, 2020, p. 13, citing to Raifman et al., 2018).

Two other laws may satisfy our definition of peace-of-mind laws. They deserve further study in this regard, although we are unaware of the existence of initial sources of evidence supporting that conclusion. First is the short-lived Community Living Assistance Services and Supports Act (the “CLASS Act”), which was a portion of the Affordable Care Act passed in 2010 in the U.S. The CLASS Act was intended to assist consumers with long-term-care costs, a source of great worry for many elderly persons and persons with disabilities in America (where, as with health care in general, ability to pay is a necessary but not sufficient pre-condition to access). Within a year, government officials had determined that the CLASS Act could not simultaneously be self-sustaining, financially sound, and affordable to consumers. Therefore, the CLASS Act was repealed three years after passage, and the window for collection of data on peace of mind may not have been open wide enough during that time to support a conclusion that the presence of a law intended to help assure access to long-term care produced peace of mind.

The second such law is the Genetic Information Nondiscrimination Act (“GINA”). GINA was passed in the U.S. in 2008, after public concern about potential discrimination based on one’s genetic makeup grew in the wake of great genetic research advances. Scholars criticized GINA a great deal as having been unnecessary because there existed no evidence of actual employer or insurer discrimination on the basis of genetic information. Movies such as the film Gattaca had inspired fears among the public, but data demonstrated no link between the results of genetic testing and insurer or employer discrimination (Hall & Rich, 2000). Nevertheless, advocates supported, and continue to support, the law as “reassuring” individuals that participating in genetic research or testing would not harm them in insurance coverage or workplace decisions (American Society of Human Genetics, 2019).

Perhaps these further examples will whet the reader’s interest in peace-of-mind laws and inspire further research into both concept and examples. Definitional work rooted in the social sciences could – and, we hope, will – merge with legal examples in future theoretical and empirical endeavors. The result would be a fruitful branch of TJ analysis.

Kathy Cerminara, JD, LLM, JSD

Email: cerminar@nova.edu

Professor Cerminara began her academic career at the University of Miami School of Law, where she worked with the late Bruce Winick. Since that time, she has written about therapeutic jurisprudence, co-organized a number of therapeutic jurisprudence streams at the annual Congress of the International Academy of Mental Health, and served on the board of the International Society of Therapeutic Jurisprudence.

Carrie Petrucci, MSW, Ph.D.

Email: carrie.petrucci@gmail.com

Dr. Petrucci has been doing evaluation research for the last 20 years, specializing in criminal justice and social welfare programs. She has also conducted research and published several chapters on therapeutic jurisprudence.

American Society of Human Genetics (2019). Prohibiting Genetic Discrimination to Promote Science, Health, and Fairness. American Journal of Human Genetics 102(1): 6-7. https://doi.org/10.1016/j.ajhg.2018.12.005.

Cerminara, K. (2020). Today’s Crusades: A Therapeutic Jurisprudential Critique of Faith-Based Civil Rights in Health Care, Albany Government Law Review. Albany Government Law Review 13(1): 1-24. (Can be found through a link on this page: https://works.bepress.com/kathy_cerminara/).

Cerminara, K. L. & Perez, A. (2000). Therapeutic Death: A look at Oregon’s Law. Psychology, Public Policy, and Law. 6(2): 503-525. https://doi.org/10.1037//1076-8971.6.2.503.

Hall, M.A. & Rich, S. (2000). Laws Restricting Health Insurers’ Use of Genetic Information: Impact on Genetic Discrimination. American Journal of Human Genetics 66(1): 294-307. https://doi.org/10.1086/302714.

Oregon Department of Health Authority Public Health Division (2021), Oregon’s Death With Dignity Act: Death With Dignity Annual Reports. Viewed May 21, 2021. https://www.oregon.gov/oha/PH/PROVIDERPARTNERRESOURCES/EVALUATIONRESEARCH/DEATHWITHDIGNITYACT/Pages/ar-index.aspx.

Raifman J., et al. (2018). Association of State Laws Permitting Denial of Services to Same-Sex Couples With Mental Distress in Sexual Minority Adults. JAMA Psychiatry 75(7): 671-677. https://doi.org/10.1001/jamapsychiatry.2018.0757.

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