HealthLawProf Blog

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

Tuesday, January 18, 2022

Do Reason-Based Abortion Bans Prevent Eugenics?

Sital Kalantry (Seattle University), Do Reason-Based Abortion Bans Prevent Eugenics?, 107 Cornell L. Rev. (forthcoming):

Two judges of the U.S. Supreme Court, Amy Coney Barrett and Clarence Thomas, as well as several other U.S. Federal Court of Appeals judges have argued that reason‑based abortion bans are designed to prevent eugenics. Eleven states currently prohibit doctors from performing an abortion if they know that the reason the patient is seeking one is because of the predicted gender, race, and/or disability of the fetus. These prohibitions apply from the moment the biological sex and genetic defects of the fetus can be identified, which is well before viability.

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January 18, 2022 | Permalink | Comments (0)

Ending the Charade: The Fifth Circuit Should Expressly Adopt the Deliberate Indifference Standard for ADA Title II and RA § 504 Damages Claims

Derek Warden (Louisiana Supreme Court), Ending the Charade: The Fifth Circuit Should Expressly Adopt the Deliberate Indifference Standard for ADA Title II and RA § 504 Damages Claims, Tex. A&M L. Rev. (forthcoming):

While the Americans with Disabilities Act (“ADA”) has been law for over 30 years, the Fifth Circuit Court of Appeals has yet to adopt a definitive standard for how plaintiffs win damages under Title II of that law. Further, while the Rehabilitation Act (“RA”) has been law for almost 50 years, the Fifth Circuit has failed to announce any specific standard for how plaintiffs obtain damages under that law as well. I previously wrote an article in the pages of this journal that sought to “clarify” the Fifth Circuit’s jurisprudence on the issue. In Fifth Indifference: Clarifying the Fifth Circuit's Intent Standard for Damages Under Title II of the Americans with Disabilities Act, 7 Tex. A&M L. Rev. Arguendo 1 (2019), I argued (1) that the Fifth Circuit should adopt the “deliberate indifference” standard and (2) that no Fifth Circuit precedent should be read as explicitly forbidding the adoption of that standard. My paper has seen great success in its downloads and its recent citation in a brief to the Fifth Circuit. However, the Fifth Circuit has still failed to adopt any specific standard and continues to use phrases like “seem to have required” and “something more than deliberate indifference.” Fortunately, what the Fifth Circuit has said and what it has done have been two different things. In reality, the Fifth Circuit has been using nothing more, less, or different than a standard deliberate indifference analysis. Thus, the “seem to have required more than deliberate indifference” standard is a mere charade. This charade should now be abandoned, and the Fifth Circuit should explicitly adopt the deliberate indifference standard. That standard being (1) a defendant knew of facts that presented a substantial risk of harm to an ADA or RA right and (2) the actor or entity failed to act appropriately on that risk.

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January 18, 2022 | Permalink | Comments (0)

Monday, January 17, 2022

Indictability of Early Abortion c. 1868

John Finnis (University of Oxford), Robert George (Princeton University), Indictability of Early Abortion c. 1868, SSRN (2021):

Aaron Tang posted on Sep. 13, 2021 "The Originalist Case for an Abortion Middle Ground," arguing that "originalist pro-life advocates," including the present authors in our amicus curiae Brief in the Dobbs case, have made significant mistakes in assessing how many states in 1868 criminalized elective abortion at all stages of pregnancy. When the historical facts about the various statutes and cases are correctly reported and understood, the number of such states must, he argued, be reduced from 27 to 15 – from a clear majority to a minority of the then 37 states. Pro-life advocates had mischaracterized 12 states. His paper was immediately very widely circulated, and called for a response, however preliminary. So on Sep. 20 we posted on SSRN "A Preliminary Rejoinder to Aaron Tang," arguing that the first five we looked at from his list of 12 turn out not to have been mischaracterized by pro-life advocates or us, but by Professor Tang.

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January 17, 2022 | Permalink | Comments (0)

A Hub-and-Spoke Model of Multidistrict Litigation

Theodore Rave (University of Texas at Austin), Francis E. McGovern (Duke University), A Hub-and-Spoke Model of Multidistrict Litigation, 84 L. and Contemporary Problems 21 (2021):

Consolidating mass tort cases in federal multidistrict litigation (MDL) has been a successful strategy for efficiently managing, facilitating the maturation of, and resolving nationwide disputes. This has been particularly true for cases involving single-event mass disasters or defective products sold by a single defendant, even when thousands of plaintiffs are involved. But in "mega mass torts"--those involving multiple defendants and multiple products and activities over an extended period of time (e.g., asbestos, silicone gel breast implants, opioids)--comprehensive resolution in an MDL has proven elusive. In these mega mass torts, the MDL judge can become a bottleneck, as there are only so many motions, discovery disputes, and bellwether trials a single judge can decide. But while these types of mega mass torts may be too varied for a single simultaneous trial or global settlement, eschewing aggregation would result in massive losses of efficiency and consistency.

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January 17, 2022 | Permalink | Comments (0)

Sunday, January 16, 2022

Adaptive Approval of Drugs for Rare Diseases

Wendy Olsder (Eindhoven University of Technology), Tugce Martagan (Eindhoven University of Technology), Jan C. Fransoo (Tilburg University), Adaptive Approval of Drugs for Rare Diseases, SSRN (2021):

Problem definition: Adaptive approval is a new concept that aims to enable earlier patient access to new drugs. The concept of adaptive approval has been specifically proposed for rare diseases with unmet clinical needs. Although some stakeholders believe that adaptive approval is a promising opportunity for patients and pharmaceutical firms, others remain skeptical about its feasibility. This paper examines various concepts of adaptive approval that will likely impact its implementation in the upcoming years.

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January 16, 2022 | Permalink | Comments (0)

Culture and Attitudes Towards Euthanasia: An Integrative Review

A. Karumathil (Indian Institute of Management), Ritu Tripathi (Indian Institute of Management), Culture and Attitudes Towards Euthanasia: An Integrative Review, OMEGA J. Death and Dying 1 (2021):

We examine and integrate last two decades of research on euthanasia from a cultural perspective. After an exhaustive search from Scopus and Web of Science, 40 studies matching our criteria are included in the review. We qualitatively summarize the literature country-wise and use text map of co-occurring terms in the titles, keywords, and abstracts of these articles to determine the similarities and differences among sub-themes in continental clusters. Research done in Asian, European, North American, and multi-cultural studies suggests that attributes unique to each culture are instrumental in shaping public attitudes towards euthanasia. We also find that some cultures, despite the prevalence of euthanasia, are underrepresented in empirical research. This review of literature on the cultural nuances in end-of-life decisions such as euthanasia is pertinent to social scientists, healthcare professionals and social workers in any given time, but more so during such critical events as worldwide COVID-19 pandemic.

January 16, 2022 | Permalink | Comments (0)

Saturday, January 15, 2022

Licensed to Kill? Contextualising Medical Misconduct, Malpractice and the Law in Ghana

Joel Zutah (Ankaful General Hospital), Elijah Tukwariba Yin (University of Cape Coast), Peter Atudiwe Atupare (University of Cape Coast), Francis Kofi Korankye-Sakyi (University of Cape Coast), Licensed to Kill? Contextualising Medical Misconduct, Malpractice and the Law in Ghana, U. Cape Coast L. J., 1(2), 49-118 (2021):

Now, more than ever, the Ghanaian patient is better informed, more discerning and increasingly aware of his/her healthcare rights and options. Despite the rate of awareness, scholars have paid less attention to some medicolegal issues in the country. This paper examines the prevailing regime of healthcare delivery and regulation, and attempts to construct the context of medical misconduct and malpractice in Ghana. Using a desktop approach, the study made use of secondary data such as news articles, journal publications, and statutes, among others. The analysed data indicate that what determines professional-patient relationship outcomes are contextual issues of regulatory, institutional, political, socio-cultural, and legal. It is proposed that any prosecution or adjudication of malpractice claims, or considerations for medical law reforms, must be done with due regard to the prevailing context, if just and suitable ends are envisaged.

January 15, 2022 | Permalink | Comments (0)

State Use Provisions for Patent Law, and Expropriations: Some Comparative Law Guidelines for South Africa during the COVID-19 Crisis and Beyond

Mikhalin du Bois (University of South Africa), State Use Provisions for Patent Law, and Expropriations: Some Comparative Law Guidelines for South Africa during the COVID-19 Crisis and Beyond, SSRN (2021):

This article views section 4 of the Patents Act 57 of 1978 against section 25 of the Constitution of the Republic of South Africa, 1996 and Article 31 of the Agreement on Trade-Related Aspects of Intellectual Property Rights of 1994 (hereafter TRIPS). The purpose is to find a suitable framework for the state/government use/utilisation of patented products or processes for public purposes. A comparison is done with the Crown use provisions in United Kingdom, Australian and Canadian law to find a suitable approach to questions relating to remuneration for state use, the prior negotiations requirement set by Article 31 of TRIPS, and the public purposes and exclusive patent rights that would be included under state use. The COVID-19 international pandemic has caused a state of national disaster in South Africa, which is exactly the kind of situation of extreme urgency envisioned by the exception in Article 31 of TRIPS, which permits the state use of patents without requiring prior negotiations with the patent owner. In the battle against COVID-19 and its concomitant fallout, the South African government (and authorised private parties) would be permitted to utilise patent rights without explicit authorisation from the patent owner and without prior negotiations, but subject to the payment of reasonable remuneration by the government and other terms and conditions as agreed upon or as determined by a court. This may include making (manufacturing), using, exercising, and importing patented products (for example, personal protective equipment, pharmaceuticals, ventilators and diagnostic tests) deemed necessary in the fight against COVID-19. Foreign jurisdictions considered in this article indicate that section 4 of the Patents Act 57 of 1978 may certainly benefit from an update to provide detailed guidance on the state use of patented products or processes for public purposes. In the interest of a timeous offensive against the COVID-19 virus, the patent provisions need a speedy update to allow state use compliant with TRIPS and the Constitution of the Republic of South Africa, 1996.

January 15, 2022 | Permalink | Comments (0)

Friday, January 14, 2022

Ageism, Race and Ethnicity

Alan Gutterman (Ageism Project), Ageism, Race and Ethnicity, SSRN (2021):

23% of the persons in the US who were age 65 and over in 2017 (11.8 million) were members of racial or ethnic minority populations—9% were African-Americans (not Hispanic), 4% were Asian (not Hispanic), 0.5% were American Indian and Alaska Native (not Hispanic), 0.1% were Native Hawaiian/Pacific Islander, (not Hispanic) and 0.8% of persons age 65 and over identified themselves as being of two or more races. Racial and ethnic minority populations are projected to increase to 27.7 million in 2040 (34% of all older adults). The UN Independent Expert on the Enjoyment of All Human Rights by Older Persons has noted that “[a]ge and race combined create aggravating forms of discrimination and can cause an increased risk of dehumanization of older persons with minority ethnic background”. She reported that “racial and ethnic minority groups are more likely to enter old age in poorer health and at greater risk of vulnerability owing to chronic inequalities and widespread racial discrimination and exclusion” and that “[o]lder members of ethnic minorities are more likely to live in poorer quality, unsafe and overcrowded accommodation in severely deprived areas that have poor access to facilities, thereby maximizing loneliness and social exclusion”. The Independent Expert argued that systematic disparities at the intersection of ageism and racism are rarely addressed in policy and practice and that racism exists in care settings and older members of ethnic minorities experience worse conditions in employment, such as lower wages, longer hours, unsafe environments and higher risk of unemployment, all of which create additional risks for health and poverty in old age. This chapter describes minority rights in international human rights law and discusses the impact of the intersection of age, race and ethnicity on the lives and experiences of African Americans, Hispanic Americans, Asian Americans and Indigenous Peoples in the US.

January 14, 2022 | Permalink | Comments (0)

The Child’s Right to Be Vaccinated

Katherine Hunt Federle (Ohio State University), The Child’s Right to Be Vaccinated, Ohio St. U.  Sch. L. Legal Stud. (Research Paper No. 659, 2021):

Vaccine hesitancy highlights a problem within current rights constructs under U.S. law. Refusal to vaccinate is ineluctably cast as a contest between parental choice, to which the law traditionally defers, and state concerns for public safety and the individual welfare of children. But rarely is the discussion cast in terms of the child’s right to be vaccinated because our rights talk revolves around the capacity (or lack thereof) of the rights holder. If, however, we recast rights in terms of empowerment, then we can see that rights flow to the child not because she has the requisite capacity but because she is less powerful. In this sense, rights exist for children because they are children. The authority of the state to mandate immunization under U.S. law also may reconsidered because the state is acting to protect the rights of those less powerful—the children who cannot be vaccinated.

January 14, 2022 | Permalink | Comments (0)

Thursday, January 13, 2022

Chosen Family, Care, and the Workplace

Deborah A. Widiss (Indiana University), Chosen Family, Care, and the Workplace, Ind. U. Sch. L. Legal Stud. (Research Paper No. 463, 2021):

Employees often request time off work to care for the medical needs of loved ones who are part of their extended or chosen family. Until recently, most workers would not have had any legal right to take such leave. A rapidly growing number of state laws, however, not only guarantee paid time off for family health needs, but also adopt innovative and expansive definitions of eligible family.

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January 13, 2022 | Permalink | Comments (0)

Is This the Time to Harmonize the Required Minimum Distribution Rules?

Albert Feuer (Law Offices of Albert Feuer), Is This the Time to Harmonize the Required Minimum Distribution Rules?, SSRN (2021):

In September, the House of Representatives Ways and Means Committee released proposals requiring many employers without retirement plans to establish and automatically enroll employees in IRAs with the default contributions going to Roth IRAs or in simple 401(k) plans. The proposals would also require a person whose employee benefit plans, Roth IRAs, and traditional IRAs have an aggregate balance in excess of $10 million to withdraw at least 50% of the excess balance. Broadening those proposals to require Roth IRAs to comply with the same required minimum distribution (RMD) rules that now govern employee benefit plans and traditional IRAs, would better implement the common-sense policy of using tax incentives to encourage adequate retirement savings by focusing on retirement savings.

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January 13, 2022 | Permalink | Comments (0)

Wednesday, January 12, 2022

Allocating Scarce Medical Resources During a Pandemic: Can States and Healthcare Systems Consider Sex? Should They?

Diane E. Hoffmann (University of Maryland), Katherine E. Goodman (University of Maryland), Allocating Scarce Medical Resources During a Pandemic: Can States and Healthcare Systems Consider Sex? Should They?, U. Md. Sch. L. Legal Stud. (Research Paper No. 2021-13, 2021):

Nearly two years into the pandemic, COVID-19 has touched all U.S. states and populations. However, severe outcomes and deaths have not been borne equally. As is now well recognized, there have been significant demographic disparities by age and race: nearly 80% of all U.S. COVID-19 deaths have been among persons aged 65 or older, and hospitalization and death rates for Black and Hispanic patients with COVID-19 are two to three times higher than the rate for White patients. What has received much less attention, however, is an additional demographic disparity evident in the COVID-19 pandemic — sex. Nationally there are 20% more COVID-19 deaths among men, and men have higher COVID-19 mortality rates in every U.S. state with publicly available data. Numerous studies have established that male sex imposes an independent, approximately 30 percent higher risk of death, even when accounting for other risk factors, such as hypertension and obesity, that are more common among men.

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January 12, 2022 | Permalink | Comments (0)

Pandemic Governance

Yanbai Andrea Wang (University of Pennsylvania), Justin Weinstein-Tull (Arizona State University), Pandemic Governance, SSRN (2021):

The COVID-19 pandemic created an unprecedented need for governance by a multiplicity of authorities. The nature of the pandemic—globally communicable, uncontrolled, and initially mysterious—required a coordinated response to a common problem. But the pandemic was superimposed atop our decentralized domestic and international governance structures, and the result was devastating: the United States has a death rate that is eighteenth highest in the world, and the pandemic has had dramatically unequal impacts across the country. COVID-19’s effects have been particularly destructive for communities of color, women, and intersectional populations.

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January 12, 2022 | Permalink | Comments (0)

Tuesday, January 11, 2022

Mass Shootings, Mental 'Illness,' and Tarasoff

J. Thomas Sullivan (University of Arkansas for Medical Sciences), Mass Shootings, Mental 'Illness,' and Tarasoff, 82 U. Pitt. L. Rev. 685 (2021):

The continuing public attention focused on acts of mass violence, including mass shootings, has understandably created significant concerns over the ability to protect individuals from death and injury attributable to these acts. At least two generalized explanations for this kind of violence have been put forward, based on the nature of the acts and apparent motivation of the perpetrators, who are often killed in the process by themselves or law enforcement officers. Many acts of mass violence are committed by individuals confirmed to be terrorists, acting with political or religious-political motivations. Others are assumed to be committed by individuals acting out of mental instability. For at least the latter, evidence of prior mental health problems or treatment affords support for the notion that mental health professionals may offer the potential for prevention in some cases or instances. While looking to the mental health professions for solutions to some cases of mass violence may seem logical and has resulted in legislative responses that recognize or create a duty for mental health professionals to warn or take other protective action to prevent injury to third persons, it is far from clear that this approach can be counted on to yield favorable results, and certainly not with respect to all, or even a majority of episodes of mass violence.

January 11, 2022 | Permalink | Comments (0)

Excluding Non-Citizens from the Social Safety Net

Wendy E. Parmet (Northeastern University), Excluding Non-Citizens from the Social Safety Net, NE U. Sch. L. Legal Stud. (Research Paper No. 408, 2021):

This paper, based on a talk I gave at the University of Georgia’s conference on the Future of Global Healthcare Governance, examines the mechanisms through which the exclusion of noncitizen immigrants from the social safety net undermine public health, especially, but not only during the pandemic. The paper reviews the pandemic’s disparate on immigrants, and discusses how several different laws and policies, including the Personal Responsibility and Work Opportunity Reconciliation Act, the Affordable Care Act, and the Trump Administration’s public charge rule, have erected barriers to noncitizens’ access to health care and other critical components of the social safety net. The article concludes by discussing steps that the Biden Administration and Congress should take to reduce these barriers and improve public health.

January 11, 2022 | Permalink | Comments (0)

Friday, January 7, 2022

COVID-19 Vaccine Scarcity and Prioritization

Jessica R. Gunder (University of Idaho), Lauren Ballenger (University of Idaho), COVID-19 Vaccine Scarcity and Prioritization, SSRN (2021):

Over the initial months of the vaccine rollout, demand for COVID-19 vaccines exceeded supply. Although the CDC issued data-based guidance for how to prioritize access to the vaccines, it was non-binding, and many state and local governments set different priorities.

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January 7, 2022 | Permalink | Comments (0)

Motherhood, Abortion, and the Medicalization of Women’s Poverty

Michelle Oberman (Santa Clara University), Motherhood, Abortion, and the Medicalization of Women’s Poverty, 46 J.L. Med. & Ethics 665 (2018):

This article considers the impact of laws and policies that determine who experiences unplanned pregnancy, who has abortions, and how economic status shapes one’s response to unplanned pregnancy. There is a well-documented correlation between abortion and poverty: poor women have more abortions than do their richer sisters. Equally well-documented is the correlation between unplanned pregnancy and poverty. Finally, the high cost of motherhood for poor women and their offspring manifests in disproportionately high lifelong rates of poverty, ill health and mortality for offspring and mothers, alike. Read together, these factors offer a vivid illustration of the medicalization of poverty.

January 7, 2022 | Permalink | Comments (0)

Thursday, January 6, 2022

Data Privacy in the Time of Plague

Cason Schmit (Texas A&M University), Brian Larson (Texas A&M University), Hye-Chung Kum (Texas A&M University), Data Privacy in the Time of Plague, SSRN (2021):

Data privacy is a life-or-death matter when it comes to public health. From late fall 2019 until summer 2021, two series of events unfolded, one that everyone was talking about, and one that hardly anyone noticed. The most reported news story of that period related to the greatest world-health crisis in at least 100 years, the COVID-19 pandemic. Meanwhile, in a story that received next to no news attention, the Personal Data Protection Act Committee of the Uniform Law Commissioners in the United States was busy working on a new model law. By July 2021, each of these stories had reached a turning point. In the developed, Western world, most people who wanted to receive the vaccine against COVID-19 could do so, and nearly 60% of people in the United States had received at least one vaccine dose. Nevertheless, the COVID pandemic surged in late summer. Meanwhile, the Uniform Law Commission adopted the Uniform Personal Data Protection Act (UPDPA) at its annual meeting, paving the way for state legislatures to consider adopting the uniform act in 2022 legislative sessions. At roughly the same time, Virginia and Colorado state legislatures also adopted comprehensive data privacy acts.

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January 6, 2022 | Permalink | Comments (0)

A Critical Appraisal of the COVID-19 TRIPS Waiver

Peter K. Yu (Texas A&M University), A Critical Appraisal of the COVID-19 TRIPS Waiver, Tex. A&M U. Sch. L. Legal Stud. (Research Paper No. 21-32, 2021):

In October 2020, India and South Africa submitted an unprecedented proposal to the Council for Trade-Related Aspects of Intellectual Property Rights of the World Trade Organization, calling for a temporary waiver to combat the global pandemic. This waiver aims to suspend Sections 1, 4, 5 and 7 of Part II of the TRIPS Agreement and related enforcement under Part III "in relation to prevention, containment or treatment of COVID-19." Lasting for a finite period to be determined by the General Council, the waiver would cover not only patents, but also other forms of intellectual property rights. In May 2021, the proponents, along with over 60 cosponsors, submitted a revised proposal, which set the duration to "at least 3 years" and narrowed the range of products and technologies covered.

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January 6, 2022 | Permalink | Comments (0)