HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Thursday, May 19, 2022

When a Delay Is a Denial: The Role of Scientific Evidence in the World Health Organization’s Response to the COVID-19 Pandemic

Margherita Melillo (Georgetown University), When a Delay Is a Denial: The Role of Scientific Evidence in the World Health Organization’s Response to the COVID-19 Pandemic in Epidemics and International Law 189-204 (Shinya Murase and Suzanne Zhou eds., 2021):

This paper discusses the role of scientific evidence in the World Health Organization’s (WHO) Covid-19 pandemic response. It shows that there exist two competing views on the role of scientific evidence in WHO’s activities: a traditional view, perpetuated by the WHO’s institutional culture, where scientific evidence is the sole focus of WHO’s activities; and a more modern view, where the WHO still acts as an epistemic authority, but where it is acknowledged that considerations other than scientific evidence can play a role in WHO’s decision-making. The paper takes the examples of the recommendation on facemasks to show that the former, more traditional view has been predominant at the WHO during the Covid-19 pandemic – preventing it from providing effective epistemic guidance to its State Parties. If the WHO wants to be an important point of reference for global health and pandemic response, it should start a reflection on the scope and threshold of sufficient evidence for recommending public health measures.

May 19, 2022 | Permalink | Comments (0)

Co-creating a Legal Check-up in a School-based Health Center Serving Low-income Adolescents

Lisa P. Kessler (Health Justice Alliance), Yael Cannon (Georgetown University), Nicole Tuchinda (University of Memphis), Ana Caskin (MedStar Georgetown Division of Community Pediatrics), Christina Balz Ndjatou (MedStar Georgetown Division of Community Pediatrics), Vicki W. Girard (Georgetown University), Deborah F. Perry (Health Justice Alliance), Co-creating a Legal Check-up in a School-based Health Center Serving Low-income Adolescents, 15 Progress in Health Partnerships: Rsch., Educ., & Action 203 (2021):

The Problem: Marginalized populations experience health-harming legal needs—barriers to good health that require legal advocacy to overcome. Medical–legal partnerships (MLPs) embed lawyers into the healthcare team to resolve these issues, but identifying patients with health-harming legal needs is complex, and screening practices vary across MLPs.

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May 19, 2022 | Permalink | Comments (0)

An International Agreement on Pandemic Prevention and Preparedness

Lawrence O. Gostin (Georgetown University), Sam Halabi (University of Missouri), Kevin A. Klock (Georgetown University), An International Agreement on Pandemic Prevention and Preparedness, J. Am. Med. Assoc. (2021):

During late 2021, national delegations are meeting, or have met, at the United Nations General Assembly, the G20, and, most importantly, the Special Session of the World Health Assembly in November to determine whether the world needs a new international agreement to address pandemic prevention, preparedness, and response. The current international agreement, the International Health Regulations (2005), failed to work effectively – SARS-CoV-2 was not detected sufficiently early, relevant information was not shared efficiently, and the global response has not been coordinated. Even the most basic investigations were inadequate such as to discover the origins of SARS-CoV-2. Current proposals focus on the possibility of a soft law international instrument adopted through the World Health Organization, or a binding treaty formed under the United Nations or WHO. One bold possibility is to negotiate a pandemic treaty.

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May 19, 2022 | Permalink | Comments (0)

COVID-19, Corrections, and Early-Release: Implications and Solutions for Populations with Opioid and Substance Use Disorders

Ernie Fletcher (Fletcher Group, Inc), Robin Thompson (Fletcher Group, Inc), Grace Clancy (Fletcher Group, Inc), David Johnson (Fletcher Group, Inc), Jennifer White (Fletcher Group, Inc), John Rees (Fletcher Group, Inc), COVID-19, Corrections, and Early-Release: Implications and Solutions for Populations with Opioid and Substance Use Disorders, SSRN (2022):

As the United States continues to feel the weight of the delta variant, it is a time of reflection. This global pandemic serves as a reminder that infectious diseases pose an existential threat to our way of life and the way we operate institutions. Correctional facilities are one of many institutions that are high-risk environments and require a nuanced approach to policies and practices. Epidemic planning, as part of a robust disaster/crisis response, may include correctional early releases in order to reduce census and subsequent risk associated with congregate living. However, early release planning must equitably balance inherent risks that marginalized people face, including those with opioid and other substance use disorders (OUD/SUDs). The majority (80-85%) of individuals incarcerated have reported illicit substance use in their lifetime, but only 20% receive treatment while incarcerated. Releasing individuals with OUD/SUDs early due to COVID-19 or another epidemic or pandemic, without a robust reentry plan may result in a return to substance use, fatal and nonfatal drug overdose, and recidivism. This report describes the risks associated with this practice and provides comprehensive policy recommendations incorporating a COVID-19 risk assessment, considerations for OUD/SUD, mental health (MH), healthcare access and resources, recovery housing, and employment. COVID-19 variants and emerging infectious diseases pose an ongoing threat; therefore prevention/planning and response efforts should take place in all sectors. This policy may be adapted to future early release planning scenarios to adequately balance risk and support successful transitions.

May 19, 2022 | Permalink | Comments (0)

Expanding the List of Protected Grounds within Anti-Discrimination Law in the EU

Sarah Ganty (Yale University), Juan Carlos Benito Sanchez (Independent), Expanding the List of Protected Grounds within Anti-Discrimination Law in the EU, SSRN (2022):

Article 19 of the Treaty on the Functioning of the European Union enshrines a list of protected grounds limited to sex, racial or ethnic origin, religion or belief, disability, age, and sexual orientation and it served as the basis for the adoption of EU Directives in the field of equal treatment. At national level, some European states have adopted lists of protected grounds which go (far) beyond this list. However, many people discriminated against are still left out of the protection of anti-discrimination law in Europe. The fact that a list of protected grounds is limited and excludes some characteristics entails an important gap in the protection of some vulnerable people in society when they are victims of discrimination. It also stands in contrast with the EU’s ambitions expressed in the Charter of Fundamental Rights, to protect everyone from discrimination on any protected ground.

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May 19, 2022 | Permalink | Comments (0)

Cannabis Derivatives and Trademark Registration: The Case of Delta-8-THC

Michael Schuster (University of Georgia), Cannabis Derivatives and Trademark Registration: The Case of Delta-8-THC, Ind. L. J. (Forthcoming):

The legal environment surrounding the cannabis industry is ambiguous and constantly changing. While the drug is prohibited under federal law, a 2018 statute legalized a variant of the cannabis plant (“hemp”) that is low in its most common intoxicating agents. Recognizing this, entrepreneurs began to process hemp to extract and sell chemicals contained therein. Included in this trend is the extraction of Delta-8 Tetrahydrocannabinol (“Δ8-THC”)—a psychoactive drug with an increasing market presence in states where most cannabis (e.g., “marijuana”) is illegal.

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May 19, 2022 | Permalink | Comments (0)

Different Pokes for Different Folks: The Importance of Ensuring Mandatory Vaccinations Remain a State Police Power Even in the Midst of a Pandemic

Edrius Stagg (Southern University), Different Pokes for Different Folks: The Importance of Ensuring Mandatory Vaccinations Remain a State Police Power Even in the Midst of a Pandemic, SSRN (2022):

In an effort to combat the COVID-19 pandemic, the federal government sought to issue an emergency temporary standard through its federal agency, OSHA, as a way to mandate employers with 100+ employees to create policy that will mandate those employees to become vaccinated or submit to weekly testing and wearing face masks. However, Jacobson v. Massachusetts has long established that mandatory vaccinations of Americans is a police power that belongs to the states, not the federal government. How should one feel when it is the government, whether federal or state, giving direction as to what should be injected in their body?

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May 19, 2022 | Permalink | Comments (0)

Disturbing the Modern Plantation: How COVID-19 is Reinforcing the Food Supply Chain’s Function as a Social Sorting Tool

Stephen Wilks (University Detroit Mercy), Disturbing the Modern Plantation: How COVID-19 is Reinforcing the Food Supply Chain’s Function as a Social Sorting Tool, 30 Cornell J. Law & Pub. Pol’y (2021):

This paper captures the plight of workers within the U.S. food supply chain. It describes the zero-sum thinking in our social discourse about the food and agricultural workers well call heroes. This thinking presumes the miseries of their marginalization as essential workers are somehow essential to society’s survival and that we use the language as a self- soothing device to put moral distance between ourselves and those our dependencies actively marginalize. The discussion begins by canvassing statistical data outlining the structure and composition of this workforce as well as the nature of their working conditions. It examines how the impeachment fight and China’s trade war with China factored in the slow U.S. response to the pandemic before chronicling covid19’s immediate impacts – all of which produce dramatic supply chain disruptions. The paper links these disruptions to law’s role in narrowly limiting the autonomy of workers inside the food supply chain while giving license to anti-lockdown protests. The paper culminates in an argument about heroism’s role in glossing over these disparate treatments of autonomy as a kind of balm that both essentializes and ignores oppression.

May 19, 2022 | Permalink | Comments (0)

Tuesday, May 17, 2022

Medical Professionals, Excessive Force, and the Fourth Amendment

Osagie K. Obasogie (University of California), Anna Zaret (University of California), Medical Professionals, Excessive Force, and the Fourth Amendment, 109 Cal. L. Rev. (2021):

Police use of force is a persistent problem in American cities, and the number of people killed at the hands of law enforcement has not decreased even as social movements raise greater awareness. This context has led to reform conversations on use of force that seek less violent ways for police to engage the public. One example of how this might occur is through partnerships between police and medical professionals to use chemical restraints—drugs traditionally used in hospital settings to calm agitated or aggressive patients—to sedate people who refuse or are unable to comply with law enforcement. The injury and, at times, death that can result gives rise to a key yet unexplored constitutional issue: does the Fourth Amendment allow medical professionals to collaborate with police and use chemical restraints during routine arrests? When, if at all, does the use of powerful sedatives by paramedics to facilitate an arrest become an unreasonable use of force? Federal courts have been inconsistent on these issues and overly deferential to medical professionals and law enforcement. In this Article, we provide the first scholarly analysis of how Fourth Amendment rules concerning use of force apply to medical practitioners who partner with law enforcement to chemically subdue arrestees—not for their medical benefit, but to assist police. After analyzing the legal, medical, and ethical contours of this novel constitutional issue, we argue that Fourth Amendment limits on chemical restraints in policing should mirror existing federal regulations on using such drugs in healthcare settings found in Title 42 of the Code of Federal Regulations. In this way, medical necessity, individual autonomy, and the person’s wellbeing would be prioritized over convenience to law enforcement. This approach might also clarify medical practitioners’ role during police stops and arrests and provide guidance on how they may participate in a way that conforms with both Fourth Amendment norms and their professional commitment to promoting patient health and safety.

May 17, 2022 | Permalink | Comments (0)

Pandemic 'Disability Cons'

Doron Dorfman (Seton Hall University), Pandemic 'Disability Cons', 49 J. L., Med. & Ethics 401 (2021):

Disability rights law has made issues of access and accommodations much more visible in American life. Yet a byproduct of the increased awareness of disability rights has been “fear of the disability con,” that is, the common apprehension that people are abusing the law to gain an unfair advantage. Many times, this moral panic creates an invisible, oft-overlooked barrier for people with disabilities who desire to utilize their rights. They either are refused the right altogether or give up asking for it in the first place because they are afraid of being accused of being fakers. This Article shows how fear of the disability con surfaced along the progression of the COVID-19 pandemic. It describes the schism between the ways in which people with disabilities generally fared under the pandemic and some popular perceptions regarding the “privileges” they allegedly received because of their protected legal status. Those so-called privileges include mask exemptions, vaccination priority, and permission to continue remote work. The Article concludes with lessons the COVID-19 pandemic experience can teach us about the nature and scope of the fear of the disability con.

May 17, 2022 | Permalink | Comments (0)

Telehealth to Address Health Disparities: Potential, Pitfalls, and Paths Ahead

David A. Simon (Harvard Law School), Carmel Shachar (Harvard Law School), Telehealth to Address Health Disparities: Potential, Pitfalls, and Paths Ahead, 49 J. L., Med. & Ethics 415 (2021):

Telehealth has the potential to address health disparities, but not without deliberate choices about how to implement it. To support vulnerable patients, health policy leaders must pursue creative solutions such as public-private partnerships, broadband infrastructure, and value-based payment. Without these initiatives or others like them, health disparities are likely to persist despite telehealth’s tantalizing potential.

May 17, 2022 | Permalink | Comments (0)

Amplifying Their Voices: Equity and Assistive Technology For Children With Disabilities

Rosemary Queenan (Albany Law School), Amplifying Their Voices: Equity and Assistive Technology For Children With Disabilities, Dickenson L. Rev. (Forthcoming):

Assistive technology devices are crucial to the educational development of children who suffer from hearing loss. For some hearing-impaired children, access to hearing aids is vital to their ability to acquire language, develop speech, and socialize. Yet many hearing-impaired children are unable to acquire hearing aids because most insurance policies do not cover them. Access to assistive technology devices for hearing-impaired individuals has been the subject of long-standing controversy.

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May 17, 2022 | Permalink | Comments (0)

Monday, May 16, 2022

China's New Tort Law: The Promise of Reasonable Care

Ellen M. Bublick (University of Arizona), China's New Tort Law: The Promise of Reasonable Care, 3 J. Asian-Pacific L. & Pol. (2011):

This paper enters the unfolding dialogue about Chinese and American tort law. The paper addresses some similarities and differences between the written provisions of China's Tort Liability Law and U.S. tort law provisions. It then commends a principle that has become central to American tort law—building a tort system that functions to encourage reasonable care for the physical safety of others. Finally, the paper suggests a way in which American tort law could be improved by considering China's adoption of uniform guidelines for certain issues that do not require individuation—an approach which could reduce litigation costs and increase consistency.

May 16, 2022 | Permalink | Comments (0)

Law, Criminalization and HIV in the World: Have Countries That Criminalize Achieved More or Less Successful Pandemic Response?

Matthew Kavanagh (Georgetown University), Schadrac C. Agbla (University of Liverpool), Marissa Joy (Georgetown University), Kashish Aneja (Georgetown University), Mara Pillinger (George Washington University), Alaina Case (Talus Analytics), Ngozi A. Erondu (Centre for Universal Health), Taavi Erkkola (UNAIDS), Ellie Graeden (Talus Analytics), Law, Criminalization and HIV in the World: Have Countries That Criminalize Achieved More or Less Successful Pandemic Response?, SSRN (2021):

How do choices in criminal law and rights protections affect disease-fighting efforts? This long-standing question facing governments around the world is acute in the context of pandemics like HIV and COVID-19. The Global AIDS Strategy of the last 5 years sought to prevent mortality and HIV transmission in part through ensuring people living with HIV (PLHIV) knew their HIV status and could suppress the HIV virus through antiretroviral treatment. This article presents a cross-national ecological analysis of the relative success of national AIDS responses under this strategy, where laws were characterised by more or less criminalisation and with varying rights protections. In countries where same-sex sexual acts were criminalised, the portion of PLHIV who knew their HIV status was 11% lower and viral suppression levels 8% lower. Sex work criminalisation was associated with 10% lower knowledge of status and 6% lower viral suppression. Drug use criminalisation was associated with 14% lower levels of both. Criminalising all three of these areas was associated with approximately 18%–24% worse outcomes. Meanwhile, national laws on non-discrimination, independent human rights institutions and genderbased violence were associated with significantly higher knowledge of HIV status and higher viral suppression among PLHIV. Since most countries did not achieve 2020 HIV goals, this ecological evidence suggests that law reform may be an important tool in speeding momentum to halt the pandemic.

May 16, 2022 | Permalink | Comments (0)

Artificial Intelligence and Big Data in the Age of COVID-19

Francisco J. Bariffi (Universidad Carlos III de Madrid), Julia M. Puaschunder (Columbia University), Artificial Intelligence and Big Data in the Age of COVID-19, SSRN (2021):

The view that the COVID19 pandemic has set in motion profound changes in our modern societies is practically unanimous. The global effort to contain, cure, and eradicate COVID19 has been greatly benefited by the use, development and/or adaptation of technological tools for mass surveillance based on artificial intelligence and robotics systems. The management of the COVID19 pandemic yet has also revealed many shortcomings generated from the need to make decisions “in extremis”. Systematic lockdowns of entire populations pushed humans to increase exposure to digital devices in order to achieve some sort of social connection. Some nations with the capable technology development used AI systems to access individual digital data in order to control and contain the SARS-CoV-2. Massive surveillance of entire populations is now possible. In this way, the problem arises of how to establish an adequate balance and control between the utility and the results offered by mass surveillance systems based on artificial intelligence and robotics in the fight against COVID19 on the one hand, and the protection of personal and collective fundamental rights and freedoms, on the other.

May 16, 2022 | Permalink | Comments (0)

Older Persons’ Rights to Physical and Mental Health

Alan Gutterman (Older Persons' Rights Project), Older Persons’ Rights to Physical and Mental Health, SSRN (2022):

The right to health has been provided for and/or recognized in most of the core international human rights treaties as well as other international and regional instruments and declarations, and is closely related to and dependent upon the realization of other human rights such as the rights to food, housing, work, education, human dignity, life, non-discrimination, equality, privacy and access to information. Older persons are entitled to all of the recognized civil, political, economic, social and cultural rights, including the right to health, since such rights are universal and thus belong to all human beings. Both the United Nations and the World Health Organization (“WHO”) have taken noting of the ageing of the population globally and the WHO has observed that while a longer life brings with it opportunities, not only for older people and their families, but also for societies as a whole, realizing those opportunities and harvesting the contributions that older people can make to their families and communities depends heavily on health, and the WHO expressed concern that there was little evidence to suggest that older people today are experiencing their later years in better health than their parents. This chapter covers the human rights to health for older persons, various initiatives of the WHO relating to healthy and active aging, ageism and health, rights to health among older women and older people with disabilities, long-term care, palliative care, health-related lessons from the COVID-19 pandemic and necessary improvement to the training and practice of geriatric medicine.

May 16, 2022 | Permalink | Comments (0)

Sunday, May 15, 2022

Reinforcing Dispute Settlement Mechanism Under the Framework Convention on Tobacco Control as an Option to Solve Trade/Investment-Related Tobacco Disputes

Pei-Kan Yang (National Chengchi University), Reinforcing Dispute Settlement Mechanism Under the Framework Convention on Tobacco Control as an Option to Solve Trade/Investment-Related Tobacco Disputes, 16 Asian J. WTO & Int’l Health L. and Pol. 369 (2021):

The liberalization of international trade in tobacco products has been criticized for the spread of tobacco epidemics worldwide. Tobacco control policies have been legally challenged for violations of international trade and investment agreements. Trade and investment issues have long been one of the controversies fiercely debated among delegates of the Framework Convention on Tobacco Control (hereinafter “FCTC”) since the initiation of negotiation in 1999, and continue to be an issue in relation to the implementation of the FCTC since its entering into force in 2005. The tobacco-related dispute settlement mechanism and its relationship with other trade or investment dispute settlement mechanisms remains one of the significant issues due to the potential impacts of such trade or investment rulings on the formation and implementation of tobacco control policies. With a brief overview of how international trade issues evolved under the FCTC, this paper focuses on the examination of problems of current dispute settlement provision (namely Article 27) of the FCTC. While the use of Article 27 dispute settlement mechanism has limited implications for initiation of a trade or investment dispute, establishing an enhanced ad hoc arbitration mechanism avails Parties to the FCTC an alternative forum for solving tobacco disputes within the realm of the international health law. This paper explores possible options for the reinforcement of the current system to encourage the use of a pro-health settlement of tobacco disputes under the FCTC.

May 15, 2022 | Permalink | Comments (0)

COVID-19, Co-Production and Governance of Japanese Healthcare Providers

Victor Pestoff (Ersta Sköndal Bräcke University College), Yayoi Saito (University of Osaka), COVID-19, Co-Production and Governance of Japanese Healthcare Providers, 10 J. Entrepreneurial and Organizational Diversity 54 (2021):

The COVID-19 pandemic underlines the importance of citizen support for and compliance with public health goals. This paper explores the contribution of governance to the staff’s work environment, and patient participation in public financed healthcare services. More staff control over their daily work-life tasks will promote greater work satisfaction; in turn, more satisfied staff will provide better quality services than dissatisfied staff. Therefore, it considers three models for governing public financed services: a democratic, multi-stakeholder model, a stewardship model, and a more traditional “command and control” model. The paper investigates whether a participatory governance model allows the staff greater autonomy and promotes a multi-stakeholder dialogue that facilitates greater user/citizen participation. It also asks how public financed service providers can develop institutions that facilitate, foster and institutionalize user/citizen participation. Furthermore, the paper presents a case study from the Minami Medical Co-op in Nagoya, Japan and concludes that participatory governance can serve as a “best practice” for other public and private healthcare providers.

May 15, 2022 | Permalink | Comments (0)

Repositioning for Rare Diseases – Too Much, Too Little or Just Right?

Jakob Wested (University of Copenhagen), John Liddicoat (University of Cambridge), Repositioning for Rare Diseases – Too Much, Too Little or Just Right?, Nordic Intell. Prop. L. Rev. (2021):

“Drug repositioning” refers to the idea of expanding the use of an already authorised drug, for the treatment of new patient categories with the same diseases as well as the treatment of new diseases. Repositioning is considered an important innovation modality to increase treatments for patients with rare diseases. Yet, two recent EU studies have raised concerns that developers who reposition drugs are financially overcompensated to the detriment of national healthcare systems and patients and, therefore, suggest limiting the benefits provided by the orphan drug regulation. In this study, we show that the number of drugs repositioned for rare diseases (22%) is more modest than predicated and argue this indicates that developers may not be overcompensated, otherwise we would expect a much higher number. Furthermore, we argue that changing the incentives provided by the orphan drug regulation to address overcompensation is not the option if policymakers want to realise the benefits of repositioning. Instead, we suggest policymakers consider other legal and regulatory tools to address overcompensation issues, such as competition law and novel mechanisms emerging in Canada.

May 15, 2022 | Permalink | Comments (0)

International Food Law: Historical Development and Need of Comprehensive Law

Sadiya S. Silvee  (Zhengzhou University), Ximei Wu (Zhengzhou University), International Food Law: Historical Development and Need of Comprehensive Law, 16 Asian J. WTO & Int’l Health L. and Pol. 421 (2021):

Zero hunger is one of the Sustainable Development goals that the global leaders need to accomplish by 2030. However, the World Economic Forum (WEF) in its Global Risk Report 2020 stated, “food insecurity” will remain as a “societal risk” for the next 10 years and the number of hungry people worldwide can exceed 840 million by 2030. Despite 100 years since the emergence of the concept “food security” and the development of numbers of international guidelines and enactments, “food insecurity” is still a persisting global issue. In this context, this paper examines 100 years of the concept “food security” from which the contemporary international food law has developed. In carrying out this qualitative research, the paper argues the contemporary international food instruments mostly lacks legal significance and addresses food trade, food safety and development. Hence, the contemporary international food law has failed to acknowledge “food security” issues and provide a systematic conceptualization and normative endeavour along with ethical, humanitarian, environmental, and social dimensions. A comprehensive international food law is essential to build a global food system to resolve the global food security issues, and food governance.

May 15, 2022 | Permalink | Comments (0)