Scientific Understandings of Postpartum Illness: Improving Health Law and Policy?
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Scholarly Commons @ UNLV Boyd Law Scholarly Works Faculty Scholarship 2010 Scientific Understandings of ostparP tum Illness: Improving Health Law and Policy? Stacey A. Tovino University of Nevada, Las Vegas -- William S. Boyd School of Law Follow this and additional works at: https://scholars.law.unlv.edu/facpub Part of the Health Law and Policy Commons, Law and Gender Commons, Law and Psychology Commons, and the Science and Technology Law Commons Recommended Citation Tovino, Stacey A., "Scientific Understandings of ostparP tum Illness: Improving Health Law and Policy?" (2010). Scholarly Works. 10. https://scholars.law.unlv.edu/facpub/10 This Article is brought to you by the Scholarly Commons @ UNLV Boyd Law, an institutional repository administered by the Wiener-Rogers Law Library at the William S. Boyd School of Law. For more information, please contact [email protected]. \\server05\productn\H\HLG\33-1\HLG108.txt unknown Seq: 1 27-JAN-10 12:46 SCIENTIFIC UNDERSTANDINGS OF POSTPARTUM ILLNESS: IMPROVING HEALTH LAW AND POLICY? STACEY A. TOVINO* TABLE OF CONTENTS I. Scientific Understandings of Postpartum Illness ............ 103 R A. Early Medical Observations .......................... 103 R B. Psychoanalytic Theories.............................. 106 R C. Hormone-Based Theories............................. 107 R D. The Role of Neurotransmitters ........................ 110 R E. Neuroimaging Findings .............................. 111 R F. Genetic Bases ....................................... 114 R G. Evolutionary Theories................................ 116 R H. Psychosocial and Sociocultural Models ............... 118 R I. Current Understandings.............................. 121 R II. Legal Understandings of Postpartum Illness ............... 122 R A. Criminal Infanticide Legislation ...................... 123 R B. Judicial Interpretation of Health Insurance Policies .... 133 R C. Postpartum Awareness Legislation .................... 137 R D. A Contemporary Legal Understanding of Postpartum Illness .............................................. 140 R III. Legal Implications of Advances in the Scientific Understanding of Postpartum Illness ...................... 146 R A. Implications for Mental Health Parity Law ............ 147 R B. Implications for Disability Discrimination Law ........ 155 R C. A Limited, Legal Merger of Physical and Mental Illness .............................................. 161 R D. Conclusion .......................................... 171 R * J.D., Ph.D. Associate Professor of Law and Director, Health Law and Policy Center, Drake University Law School, Des Moines, Iowa. I thank John Edwards, Sara Lowe, Sherry VonBehren, and Karen Wallace at the Drake University Opperman Law Library for their generous assistance in locating many of the medical and scientific sources referenced in this Article. I also thank Martha Farah and the University of Penn- sylvania Center for Neuroscience & Society for the invitation to attend the 2009 Neuros- cience Summer Institute, which helped shape this Article, as well as the participants of the 32nd Annual Health Law Professors Conference sponsored by the American Society of Law, Medicine & Ethics at Case Western Reserve University School of Law for their helpful comments and suggestions. \\server05\productn\H\HLG\33-1\HLG108.txt unknown Seq: 2 27-JAN-10 12:46 100 Harvard Journal of Law & Gender [Vol. 33 In its broadest sense, this Article examines the relationship between science and the law in the context of postpartum illness.1 From classical antiquity to the present day, physicians and scientists have investigated the causes, correlates, and consequences of the depressions and psychoses that develop in some women following their transition to motherhood.2 The sci- entific investigation of postpartum illness has been characterized by an open-ended search for knowledge with the recognition that scientific find- ings published one day are subject to revision the next.3 Legislators and judges also have sought to understand postpartum illness as necessary to make laws that affect and adjudicate disputes involving new mothers,4 al- though legal inquiries regarding postpartum illness have yielded factual find- ings that are fixed in time.5 When the results of scientific research and legal research are compared in the context of postpartum illness, several differ- ences emerge,6 perhaps because science and law share neither a common process nor common goals.7 This Article resolves these differences and de- velops a new organizing principle for understanding illness; that is, a unified health law framework that limits distinctions between physical and mental illness. This Article has three Parts. Part I examines the scientific understand- ing of postpartum illness from 400 B.C. to the present day. From classical antiquity to the late nineteenth century, scientific understandings of postpar- tum illness were based primarily on observed temporal relationships be- tween childbirth or lactation and the symptoms of mental illness.8 At the turn of the twentieth century, psychoanalytic theories of postpartum illness, including theories that explained causality in terms of female intra-psychic 1 As discussed in more detail at text accompanying note 27, infra, postpartum depres- R sion is characterized by sadness, crying, self-blame, loss of control, irritability, anxiety, tension, and sleep difficulties that may develop in new mothers between two weeks and six months postpartum and that may last as long as six to twelve months. Postpartum psychosis is characterized by extreme emotional liability, mania, disorganization, and/or the experience of hallucinations and delusions with an onset of three to fourteen days postpartum. See infra text accompanying note 28. R 2 See infra Part I. 3 See infra Part I; see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590 (1993) (“Science is not an encyclopedic body of knowledge about the universe. Instead, it represents a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement.”) (emphasis in original) (in- ternal references and citations omitted); NAT’L RESEARCH COUNCIL, A CONVERGENCE OF SCIENCE AND LAW: A SUMMARY REPORT OF THE FIRST MEETING OF THE SCIENCE, TECHNOL- OGY, AND LAW PANEL 1 (2001) [hereinafter NRC] (discussing the process of fact finding in science). 4 See infra Part II. 5 See infra Part II; see also Vern R. Walker, Epistemic and Non-epistemic Aspects of the Factfinding Process in Law, 5 J. PHIL., SCI. & L., 1–2 (2005), http://www.psljournal. com/archives/all/walkerpaper.cfm (examining the process of fact finding in law). 6 See infra Part II. 7 See, e.g., David Goodstein, How Science Works, in REFERENCE MANUAL ON SCIEN- TIFIC EVIDENCE 67, 80–81 (2nd ed. 2000). 8 See infra Part I(A). \\server05\productn\H\HLG\33-1\HLG108.txt unknown Seq: 3 27-JAN-10 12:46 2010] Scientific Understandings of Postpartum Illness 101 conflict surrounding gender and interpersonal relationships and roles, gained popularity.9 In the second half of the twentieth century, unicausal hormone- based theories10 were followed by theories explaining causality in terms of a reduction in neurotransmitters11 and the influence of psychosocial and soci- ocultural factors.12 In the first decade of the twenty-first century, a number of neuroanatomical and neurofunctional findings13 as well as genetic find- ings14 and evolutionary theories15 contributed to the scientific understanding of postpartum illness. Part I concludes by summarizing postpartum illness’s current (and still incomplete) scientific understanding and outlining a con- temporary multifactorial model for postpartum illness that gives weight to hormonal, neurochemical, neuroanatomical, genetic, evolutionary, psychosocial, sociocultural, and other biological and environmental factors.16 Because Part I provides scientific support for the legal arguments presented in Parts II and III, Part I is necessarily technical. Part II examines the legal understanding, incorporation, and utilization of postpartum illness. Part II finds that a range of past, current, and pro- posed legal authorities, including criminal infanticide laws, judicial opinions interpreting health insurance policy provisions, and postpartum awareness laws expressly reference postpartum illness, its probable causes, and its ob- served effects.17 Part II discovers that the science lawmakers use to support and interpret postpartum law and policy is not always accurate,18 and sug- gests that lawmakers who rely on outdated scientific findings risk develop- ing inappropriate postpartum laws and policies, encouraging the introduction of expert testimony that will not meet evidentiary standards for use in litiga- tion, establishing conflicts between different health laws and policies, and supporting the public misunderstanding of postpartum illness.19 Part II con- cludes by arguing that lawmakers, judges, and other stakeholders need to recognize the complexity of illness etiology, including the etiology of post- partum illness.20 To assist with these efforts, Part II proposes a contempo- rary legal explanation of postpartum illness that emphasizes the illness’s incomplete understanding and likely multifactorial etiology.21 Part II also proposes the repeal or reformulation of outdated common law tests designed to distinguish physical and mental illness. 9 See infra Part I(B). 10 See infra Part I(C). 11 See infra Part I(D). 12 See infra Part I(H). 13 See infra Part