The most important issue facing Canadian health care today is access to services. But who decides what services will be publicly funded, and how? The essays in Just Medicare explore the diverse means by which law influences what should and should not be covered by publicly-funded Medicare.

Edited by Colleen M. Flood, the collection demonstrates three analytical approaches to the question of what services attract public funding. The first describes the existing processes for determining what is in and out of the publicly-funded sector and what is left to the private sector. The second approach suggests the principles that should guide decision-making and then investigates existing decision-making processes to see whether or not such principles are applied. The third analytical approach focuses on the processes of determining what services are publicly funded and, in particular, the right to review or appeal those decisions.

The role of law is usually underestimated by those in health policy. Just Medicare illustrates that legal scholars can also contribute to the issue of how to allocate scarce health resources by determining what constitutes fair processes for decision-making, and by challenging unjust processes. In re-evaluating the potential of the law, this collection adds an important new dimension to the issue of health care in Canada.

Colleen Flood is a Canada Research Chair in health law and policy in the Faculty of Law and the Department of Health Policy, Management and Evaluation at the University of Toronto.

Table of Contents

Acknowledgments

Introduction
COLLEEN M. FLOOD

Part One: Constitutional and Administrative Law Challenges
to the Boundaries of Medicare

1. What Is In and Out of Medicare? Who Decides?
   COLLEEN M. FLOOD, CAROLYN TUOHY, and MARK STABILE
2. Charter Challenges and Evidence-Based Decision-Making in the Health Care System: Towards a
   Symbiotic Relationship
   DONNA GRESCHNER
3. Misdiagnosis or Cure? Charter Review of the Health Care System
   MARTHA JACKMAN
4. Claiming Equity and Justice in Health: The Role of the South African Right to Health in Ensuring Access to HIV/AIDS Treatment
   LISA FORMAN

Part Two: Access to Abortion and Reproductive Health Services

5. Abortion Denied: Bearing the Limits of Law
   SANDA RODGERS
6. Protecting Fairness in Women’s Health: The Case of Emergency Contraception
   JOANNA N. ERDMAN and REBECCA J. COOK
7. Achieving Reproductive Rights: Access to Emergency Oral Contraception and Abortion in Quebec
   ROBERT P. KOURI

Part Three: Access for the Vulnerable: Case Studies from Aboriginal Health and Mental Health

8. Jurisdictional Roulette: Constitutional and Structural Barriers to Aboriginal Access to Health
   CONSTANCE MACINTOSH
9. The Rural Aboriginal Health Gap: The Romanow Solutions?
   JANESCA KYDD
10. Access to Treatment of Serious Mental Illness: Enabling Choice or Enabling Treatment?
    SHEILA WILDEMAN

Part Four: Rationing Access: The Role of the Physician Gatekeeper

11. The Legal Regulation of Referral Incentives: Physician Kickbacks and Physician Self-Referral
    SUJIT CHOUDHRY, NITEESH K. CHOUDHRY,
    and ADALSTEINN D. BROWN
12. The Costs of Avoiding Physician Conflicts of Interest: A Cautionary Tale of Gainsharing Regulation
    RICHARD S. SAVER

Part Five: Free Trade Agreements: Strengthening or Undermining
Access to Health Care?

13. The Agreement on Trade-Related Aspects of Intellectual Property Rights and Its Implications for Health Care
    ROXANNE MYKITIUK and MICHELLE DAGNINO
14. Patient Mobility in the European Union
    ANDRÉ DEN EXTER

Part Six: Manufacturing Demand for Access: The Role of
the Media and the Commercialization of Research

15. The Power of Illusion and the Illusion of Power: Direct-to-Consumer Advertising and Canadian Health Care
    PATRICIA PEPPIN
16. The Media, Marketing, and Genetic Services
    TIMOTHY CAULFIELD
17. Commercialized Medical Research and the Need for Regulatory Reform
    TRUDO LEMMENS
18. Grasping the Nettle: Confronting the Issue of Competing Interests and Obligations in Health Research Policy
    JOCELYN DOWNIE

Conclusion
COLLEEN M. FLOOD

Contributors