HealthLawProf Blog

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

Tuesday, November 29, 2022

Solidarity as a Practical Craft: Cohesion and Cooperation in Leveraging Access to Medical Technologies within and Beyond the Trips Agreement

Antony Scott Taubman (University of Melbourne), Solidarity as a Practical Craft: Cohesion and Cooperation in Leveraging Access to Medical Technologies within and Beyond the Trips Agreement, 29 Asia-Pacific Sustainable Development J. (2022):

The COVID-19 pandemic has precipitated an unprecedented call for global solidarity that included a proposal to waive key obligations under the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights. The governance of intellectual property in a global health crisis entails consideration of the effective and coordinated agency of domestic governments to foster solidarity through practical action. This paper lays out the context for solidarity and considers its practical operation by focusing on the mechanism of interaction between the intellectual property system and access to medicines, historically and during the pandemic: authorization of the use of patented subject matter without right holders' consent.

November 29, 2022 | Permalink | Comments (0)

Pioneering Safe & Inclusive LGBT Specific Retirement Accommodation. Exploring Models in the USA, UK, & Spain

Liam Concannon (Independent), Pioneering Safe & Inclusive LGBT Specific Retirement Accommodation. Exploring Models in the USA, UK, & Spain (2022):

With significant advances in equal rights for lesbians, gay men, bisexual and transgender (LGBT) citizens, achieved across the western world during the past few decades, one group that continues to be overlooked is LGBT elders. This article examines the unique discrimination and homophobia faced by older LGBT people living in nursing and residential care homes. It investigates ways in which these environments construct and perpetuate heteronormativity by addressing the needs of heterosexual residents, while at the same time, failing to meet the specific preferences of their LGBT residents. The assumption of heterosexuality in residential care is the ‘norm’ whereby non-normative sexualities are negated. For those considering long-term care, the fear of alienation and having to go back into the ‘closet’ is of profound concern. The argument most frequently presented to counter this is training managers and care staff to deliver non-discriminatory health and social care practices, targeting the unique needs of LGBT residents. However, from within the gay community has come a solution to end the type of homophobic behavior often encountered in mainstream care environments. This has seen the radical and sometimes controversial growth in alternative forms of retirement housing for gay older adults, in the United States of America, the United Kingdom, and across Europe. This article explores these schemes, taking into account criticism that deems such positive discrimination is contrary to the principles of equality legislation and the spirit of social inclusion.

November 29, 2022 | Permalink | Comments (0)

Monday, November 28, 2022

Lessons from ArriveCAN: Access to Information and Justice during a Glitch

Matt Malone (Thompson Rivers University), Lessons from ArriveCAN: Access to Information and Justice during a Glitch, Intell. Prop. J. (Forthcoming):

In summer 2022, ArriveCAN, Canada's border app mandated during the COVID-19 pandemic for travelers entering the country, began sending certain users erroneous notifications to quarantine. On July 14, 2022, the Government identified a glitch that was responsible for sending these erroneous notifications and patched it six days later. However, the Government only publicly acknowledged a glitch was responsible for sending the erroneous orders four days after that — a full 10 days after it had become aware of the problem. During that time, 10,200 people received erroneous quarantine orders. These orders were not minor inconveniences. They were physical restraints on mobility enforced through the maximum penalties of the Quarantine Act. The issuance of mandatory quarantine orders by an app reliant on automated decision-making and artificial intelligence raised elevated concerns about the mandatory use of such technologies by Government. This article describes this episode from the perspective of a party seeking transparency and accountability of ArriveCAN's decision-making and highlights the interrelated access to information and justice concerns generated by the glitch and the Government's response to it. Recommendations are discussed for moving forward in the context of governmental insistence on the use of mandatory data collection, retention, and use in automated decision-making and artificial intelligence systems.

November 28, 2022 | Permalink | Comments (0)

Implementation of the International Health Regulations: Evolving Reforms to Address Historical Limitations

Dr. Benjamin Mason Meier (University of North Carolina), Implementation of the International Health Regulations: Evolving Reforms to Address Historical Limitations, Forthcoming (2023):

This chapter examines the evolving implementation of the International Health Regulations (IHR) in responding to public health emergencies. Analyzing implementation obligations under global health law, Part II outlines the national and global governance expectations inherent in the IHR. Part III chronicles the evolving implementation of the IHR in responding to infectious disease threats since the establishment of WHO, with early efforts seen as largely ineffective in speaking to the emerging disease threats of a globalizing world. Drawing from the sweeping changes in implementation expectations promulgated by IHR (2005), Part IV examines the implications of the revised IHR in responding to a rapid succession of public health emergencies of international concern. Yet despite continuing advancements in IHR (2005) implementation over fifteen years, the COVID-19 pandemic overwhelmed the world, and Part V examines the limitations of the IHR in responding to this cataclysmic threat, raising an imperative for further reforms of global health law. As the world considers IHR revisions anew, with these revisions taking place amid an interconnected series of multisectoral reforms in global health law and governance, this chapter concludes that past limitations point the way forward in revising institutional mechanisms, ensuring IHR implementation as a foundation for global health security under global health law.

November 28, 2022 | Permalink | Comments (0)

Saturday, November 19, 2022

Better Regulation of End Of Life Care: A Call for a Holistic Approach

Ben White (Queensland University of Technology), Lindy Willmott (Queensland University of Technology), Eliana Close (Queensland University of Technology), Better Regulation of End Of Life Care: A Call for a Holistic Approach, Bioethical Inquiry (2022):

Existing regulation of end-of-life care is flawed. Problems include poorly-designed laws, policies, ethical codes, training, and funding programs, which often are neither effective nor helpful in guiding decision-making. This leads to adverse outcomes for patients, families, health professionals, and the health system as a whole. A key factor contributing to the harms of current regulation is a siloed approach to regulating end-of-life care. Existing approaches to regulation, and research into how that regulation could be improved, have tended to focus on a single regulatory instrument (e.g., just law or just ethical codes). As a result, there has been a failure to capture holistically the various forces that guide end-of-life care. This article proposes a response to address this, identifying “regulatory space” theory as a candidate to provide the much-needed holistic insight into improving regulation of end-of-life care. The article concludes with practical implications of this approach for regulators and researchers.

November 19, 2022 | Permalink | Comments (0)

Friday, November 18, 2022

Experimental Jurisprudence of Health and Disability Law

Doron Dorfman (Seton Hall University), Experimental Jurisprudence of Health and Disability Law, Cambridge Handbook of Experimental Jurisprudence Disability Law (Forthcoming): 

Health law is in its heyday. The COVID-19 pandemic has made health law and disability law prominent in every area of life, including the law school classrooms and faculty meetings. Discussions of vaccine policies, remote teaching, masking as reasonable disability accommodations, rationing of scarce medical equipment, FDA authorization of new treatments, and public health regulation across federal, state, and local levels of governance, dominated many of the [Zoom] conversations in law schools during the last few years. Health law and disability law were therefore upgraded to the status of popular law school classes as well as to more mainstream legal scholars’ research agendas.

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November 18, 2022 | Permalink | Comments (0)

The Debate on Protecting Intellectual Property Rights for COVID-19 Vaccines & Therapeutics

Brian Zupruk (Independent), The Debate on Protecting Intellectual Property Rights for COVID-19 Vaccines & Therapeutics (2022):

COVID-19 is proving a durable obstacle to global public health and to the world’s economies. And while the battle against COVID has largely been waged in laboratories and clean rooms of pharmaceutical giants seated in the world’s largest economies, the populations most in need do not have anywhere near proportional access to the fruits of those laboratory victories. The cutting-edge vaccines and therapeutics that are permanently changing the public health landscape are carefully guarded intellectual property in which major states, multilateral organizations, and the global pharmaceutical industry all have interest and stakes.

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November 18, 2022 | Permalink | Comments (0)

The Unfulfilled Promise of Indian Water Rights Settlements

Heather Tanana (University of Utah), Elisabeth Parker (University of Utah), The Unfulfilled Promise of Indian Water Rights Settlements, Utah L. Res. Paper (2022):

Access to clean water is critical for any community, particularly the 48% of tribal homes in the United States that lack safe drinking water, reliable water sources or basic sanitation. Tribes throughout the West have significant water rights through treaty and trust claims, many of which have yet to be quantified. This article will discuss federal Indian reserved water rights and how water is necessary to fulfill the purpose of Indian reservations. The article will then explore the promise and limits of Indian water rights settlements and how such settlements can be used as a tool to further tribal interests in water. Finally, the article will identify other options available to provide for tribal water access.

November 18, 2022 | Permalink | Comments (0)

Wednesday, November 16, 2022

The Distribution of In-Person Public K-12 Education in the Age of COVID: An Empirical Perspective

Michael Heise (Cornell University), The Distribution of In-Person Public K-12 Education in the Age of COVID: An Empirical Perspective, Cornell Leg. Stud. Res. Paper (2022):

In response to the COVID-19 pandemic, most schools across the United States abruptly transitioned to remote, virtual learning in the spring of 2020. For the 2020–21 school year, however, school districts’ instructional mode decisions (in-person, hybrid, and remote) varied across districts and throughout the school year. This study focuses on factors that informed school district instructional mode decisions and how student access to in-person instruction, in turn, distributed across districts and students (and their families).

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November 16, 2022 | Permalink | Comments (0)

The Mask Wars and Social Control: Lessons from the 1927 Unveiling Campaign in Soviet Uzbekistan

Robert Kahn (University of St. Thomas), The Mask Wars and Social Control: Lessons from the 1927 Unveiling Campaign in Soviet Uzbekistan, Cal. W. Int'l Int'l L.J. (Forthcoming):

During the late 1920s Soviet authorities embarked on the hujum, a campaign to encourage women in Uzbekistan to unveil. As with the COVID mask wars, the hujum was highly politicized. For some, the hujum was a campaign of personal liberation; for others it was an attempt by the Soviet Union to impose imperial control over its Muslim subjects. To explore the relevance of the hujum for our mask wars, this essay looks at two accounts of the hujum. Douglas Northrop’s Veiled Empire: Gender and Power in Stalinist Central Asia views the hujum as a failed attempt to impose Soviet values on an unwilling Uzbek population. Has the COVID mask, like the veil, become a symbol of failed state overreaching? Marianne Kamp, in the New Woman in Uzbekistan: Islam, Modernity and Communism (2006), sees the hujum as trapping Uzbek women between supporting the Soviets and following patriarchal veiling norms. Have COVID masking campaigns likewise stripped us of our agency? Taken together, Northrop and Kamp’s accounts help shift the debate over COVID mask wearing away from mask authoritarianism toward a world where people should be free, most of the time, to decide whether or not to cover their face.

November 16, 2022 | Permalink | Comments (0)

Protecting Tribal Public Health from Climate Change Impacts

Heather Tanana (University of Utah), Protecting Tribal Public Health from Climate Change Impacts, Nw. U. L. Rev. (2022):

The COVID-19 pandemic brought national attention to challenges that tribal communities have been facing for decades, such as limited health services and lack of water access. Although the end to the pandemic seems to be in sight, climate change will continue to threaten the public health and survival of tribal communities. Since time immemorial, Native Americans have recognized the sanctity of water. Water is life. However, climate change impacts are shifting the landscape across the country and many tribes lack the necessary infrastructure to protect their communities. For example, located in the Southwest, approximately 30-40 percent of homes on the Navajo Nation lack plumbing and drinking water access. These households must haul water long distances from wells and other community point sources. Due to climate change, the region is experiencing prolonged droughts in the region and groundwater supplies are drying up. As a result, residents must increasingly compete for limited water resources to fulfill all of the community’s needs—from agricultural to domestic.

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November 16, 2022 | Permalink | Comments (0)

Tuesday, November 15, 2022

Constitutional Confidentiality

Natalie Ram (University of Maryland), Jorge L. Contreras (University of Utah), Laura M. Beskow (Vanderbilt University), Leslie E. Wolf (Georgia State University), Constitutional Confidentiality, Utah L. Res. Paper. (2022):

Federal Certificates of Confidentiality protect sensitive information about human research subjects from disclosure and use in judicial, administrative, and legislative proceedings at both the state and federal levels. While Certificates originally covered sensitive information collected in research about drug addiction use when they were authorized by Congress in the 1970s, today they extend to virtually all personal information gathered by biomedical research studies. The broad reach of Certificates, coupled with their power to override state subpoenas and warrants issued in the context of law enforcement, abortion regulation, and other police powers reserved to the states under the Tenth Amendment, beg the question whether Certificates are constitutional.

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November 15, 2022 | Permalink | Comments (0)

Monday, November 14, 2022

Timely Dying in Dementia: To Help Persuade Physicians to Honor Requests to Cease Assisted Feeding, and to Prevent Harm Due to Fraud, Add Advanced Security Technology to Advance Directives and Future POLSTs

Stanley Terman (Independent), Timely Dying in Dementia: To Help Persuade Physicians to Honor Requests to Cease Assisted Feeding, and to Prevent Harm Due to Fraud, Add Advanced Security Technology to Advance Directives and Future POLSTs (2022):

Physicians responsible for treating advanced dementia patients may refuse to honor advance directives that conditionally request cessation of assisted oral feeding and hydrating. Refusals can thwart incapacitated patients’ goals to reduce the duration and intensity of suffering.

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November 14, 2022 | Permalink | Comments (0)

Rights, Duties and the Common Good: How the Finnis-Fortin Debate Helps Us Think More Clearly about Abortion Today

Erika Bachiochi (Independent), Rights, Duties and the Common Good: How the Finnis-Fortin Debate Helps Us Think More Clearly about Abortion Today, Am. J. Juris. (Forthcoming):

Forty years ago, Fr. Ernest Fortin reviewed Natural Law and Natural Rights for the Review of Politics. In 2015, John Finnis published a lengthy response to Fortin’s review calling it “one of the most, and most enduringly, influential” reviews his book had ever received. The present article revisits Fortin’s review—situating it in his trenchant critique of modern rights theories more broadly—so as to better understand his disagreement with Finnis about the relationship between duties and rights. Though I will suggest that some of their debate was methodological, and some based on misunderstandings Fortin had of Finnis’s project, dissecting the debate in its entirety can teach much about the proper relationship between duties and rights, and the relationship of both to the common good. I argue it can also help us think more clearly about the fraught issue of abortion today.

November 14, 2022 | Permalink | Comments (0)

FDA Preemption of Conflicting State Drug Regulation and the Looming Battle Over Abortion Medications

Peter Grossi (Harvard Law School), Daphne O'Connor (Independent), FDA Preemption of Conflicting State Drug Regulation and the Looming Battle Over Abortion Medications (2022):

Over the past 25 years, Congress and the FDA have determined the safest and most beneficial way to regulate the use of mifepristone (Mifeprex), the medication that accounts for the majority of abortions in the United States. The Dobbs decision has renewed the importance of those scientific determinations, especially FDA's decisions -- implementing the Risk Evaluation and Mitigation Strategy (REMS) provisions of the Federal Food Drug and Cosmetic Act (FDCA) -- that mifepristone may be taken by patients outside the presence of any health care provider (often through telemedicine prescription and shipment across state lines).

November 14, 2022 | Permalink | Comments (0)

Saturday, November 12, 2022

The Significance of R(BG and Anor) v Suffolk CC (2021): Meeting ‘Eligible Need[s]’ in Social Care?

Alice Diver (QUB), Belinda Schwehr (CASCAIDr), The Significance of R(BG and Anor) v Suffolk CC (2021): Meeting ‘Eligible Need[s]’ in Social Care?, Liverpool L. R. (2022):

 

The recent decision in R(BG and Anor) v Suffolk CC (‘Suffolk’) is a significant one for several reasons. It can at the very least be given a cautious welcome by health and social care rights advocates. Its outcome suggests that, for now, such things as recreational activities and holidays, for both service users and those who provide care for them – often around the clock - can be framed as eligible care needs rather than regarded or dismissed as unwarranted, unnecessary ‘luxury’ items. The decision is a useful reminder that the very notion of ‘the holiday,’ for both carers and the cared-for, often represents as an entirely essential break from the rigours of daily life - and perhaps also from one’s caring duties, to some extent - in the sense of offering a short period of much-needed respite and engagement with the wider community.

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November 12, 2022 | Permalink | Comments (0)

Thursday, November 10, 2022

The State of Abortion Rights in the US

Martha F. Davis (Northeastern University), The State of Abortion Rights in the US, Int'l J. Gynecology &. Obstetrics 324 (2022):

In Dobbs v. Jackson Women's Health Organization (2022), the US Supreme Court reversed longstanding court precedents that protected abortion as a fundamental right. Without that federal baseline, many states are passing restrictive laws that threaten providers and complicate patient care. The legal issues raised by these state restrictions are complex, including questions such as the exterritorial application of state restrictions and federal authority to regulate access to medication abortion. Meanwhile, providers who risk criminal or civil penalties for violating these laws may be deterred from providing services to those seeking care, including for ectopic pregnancies and miscarriages. State variations are dramatic, with some states taking steps to strengthen their abortion protections while others are eliminating abortion access even in situations of rape or incest. As dire as these developments are, it is hoped that they can serve as a wake-up call heard worldwide, to avoid complacency and maintain vigilance to protect abortion rights.

November 10, 2022 | Permalink | Comments (0)

State Abortion Bans: Pregnancy as a New Form of Coverture

Caren Myers Morrison (Georgia State University), State Abortion Bans: Pregnancy as a New Form of Coverture, Va. L. Rev. Online (Forthcoming):

Since Dobbs, some conservative states have made abortion a felony from the moment of conception, threatening doctors with life sentences, all in the name of protecting fetal life. This Essay argues that these bans, rather than protecting life, work to suspend women’s legal existence while they are pregnant. In this way, what these restrictions resemble most is the common law doctrine of coverture.

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November 10, 2022 | Permalink | Comments (0)

Observations on 25 Years of Cannabis Law Reforms and Their Implications for the Psychedelic Renaissance in the United States

Robert A. Mikos (Vanderbilt University), Observations on 25 Years of Cannabis Law Reforms and Their Implications for the Psychedelic Renaissance in the United States, 18 Ann. Rev. L. & Soc. Sci. 155 (2022):

Interest in psychedelics is booming, heralding a possible psychedelic renaissance in the United States. But policy makers interested in expanding access to psychedelic substances would be wise to heed lessons gleaned from the past 25 years of marijuana law reforms. That experience suggests that it may prove impossible to repeal or narrow the federal ban on psychedelics in the near term, but that states provide an alternative pathway to reform. Still, to blunt the risk of a federal crackdown, policy makers may need to sacrifice certain policy goals. Furthermore, until the public warms to a broader psychedelic renaissance, policy makers may pursue narrow reforms. Policy makers will also need to address thorny questions over how psychedelics will be supplied once legalized.

November 10, 2022 | Permalink | Comments (0)

Wednesday, November 9, 2022

Good Law to Fight Bad Bugs: Legal Responses to Epidemics

Carol A. Heimer (Northwestern University), Clay Davis (Northwestern University), Good Law to Fight Bad Bugs: Legal Responses to Epidemics, 18 Ann. Rev. L. & Sco. Sci. 1 (2022):

Although epidemics are generally understood as lying within the domain of biomedicine, legal and social arrangements play crucial roles in determining whether or not infectious disease outbreaks grow into epidemics and even pandemics. Yet epidemics are challenging terrain for legal regulation. Because epidemics cross political borders and span jurisdictional boundaries, funding for epidemic prevention, preparedness, and response is always inadequate and coordination is difficult. Because epidemics require rapid and nimble responses, governments and international organizations often declare states of emergency, thereby evading some of the usual strictures of law. And because they involve massive uncertainty and rapidly evolving health crises, they require legal actors to work more quickly and with lower standards of proof than is common in law and to intrude on the turf of medical and scientific professionals. Legal contributions to pandemic management could be improved if legal measures such as global treaties and domestic public health law took account of these special features of epidemics.

November 9, 2022 | Permalink | Comments (0)