HealthLawProf Blog

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

Friday, September 17, 2021

A Precedent for the Unprecedented: Historical Reflections on Plague, Quarantine, and Islamic Law in Morocco

Ari Schriber (Harvard Law School), A Precedent for the Unprecedented: Historical Reflections on Plague, Quarantine, and Islamic Law in Morocco, 2 J. of Islamic L. 1 (2021):

Historical Reflections on Plague, Quarantine, and Islamic Law in Morocco, written as part of the Islamic Law Blog's 2020 Roundtable on pandemics.

September 17, 2021 | Permalink | Comments (0)

Pandemic Stress Indicator: Expert Panel 3

Brian J. Gaines (University of Illinois), Pandemic Stress Indicator: Expert Panel 3, SSRN (2021):

IGPA developed several Pandemic Stress Indicators, designed to evaluate the social and economic effects of the COVID-19 pandemic on Illinois residents. The Pandemic Stress Indicators grew out of the work on IGPA’s Task Force on the Impact of the COVID-19 Pandemic. One of these indicators has been a poll of three sets of experts about pandemic policies. Experts on economics, public health, and/or vulnerable populations from across Illinois have generously agreed to provide regular opinions on various pandemic policies.

September 17, 2021 | Permalink | Comments (0)

Thursday, September 16, 2021

The Trolley Problem in Relation to Medical Ethics

Janusz Sytnik-Czetwertyński, The Trolley Problem in Relation to Medical Ethics, SSRN (2021):

The trolley problem, first formulated by Philippa Foot, has become one of the primary tools used to explain the issues surrounding practical ethics, including medical deontology. This dilemma has seen many versions, though in keeping with the context of the original convention, namely a confrontation between absolutist and utilitarian morality. This boils down to an attempt to define the superiority of objective over subjective values, or the other way around.The trolley problem is a very interesting moral problem. Although this is only a product of fantasy, it still contains the source to which refer our way of reasoning. However, today it must be changed in this way, to suits to the present reality and be consistent with the latest scientific achievements.Above was presented such a proposal, taking into account the latest achievements of the theoretical sciences (including the humanities, especially philosophy) as well as the practical sciences. In this way, the trolley problem becomes a problem, which refer to the current moral reflections and present social relations.

September 16, 2021 | Permalink | Comments (0)

Proposals for a Smokefree Aotearoa 2025 Action Plan: A Submission to the New Zealand Ministry of Health

Matthew Rimmer (Queensland University of Technology), Proposals for a Smokefree Aotearoa 2025 Action Plan: A Submission to the New Zealand Ministry of Health, New Zealand Ministry of Health (2021):

Recommendation 1
As part of building upon Helen Clark’s legacy in respect of the Smoke-Free Environments Act 1990 (NZ), Jacinda Ardern’s New Zealand Government should pass bold and ambitious proposals for the Smokefree Aotearoa 2025 Action Plan. 

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September 16, 2021 | Permalink | Comments (0)

Wednesday, September 15, 2021

Compulsory License under the Patents Act

Satish Kumar (Galgotias University), Compulsory License under the Patents Act, SSRN (2021):

During the present COVID-19 pandemic the protection of intellectual property rights would have to be balanced with the public welfare. One such mechanism for balancing the rights of the intellectual property holder and the general public is compulsory licensing. Compulsory licensing allows production of affordable drugs and increases availability and supply. The present research paper seeks to discuss the broad principles governing compulsory licensing, the judicial view that has been taken on the same, and whether the same can be resorted in the present pandemic situation where hundreds of lives are being lost every minute, critical expensive drugs like Remdesivir, Tocilizumab, Favipiravir etc., which are expensive and in short supply, can be licensed to increase production and improve affordability.

September 15, 2021 | Permalink | Comments (0)

The Right to Express Milk

Mathilde Cohen (University of Connecticut), The Right to Express Milk, Yale J.L. & Feminism 33 (2021):

Breastfeeding in public has become more accepted, but milk expression—defined as removing milk from the breasts manually or using a breast pump—continues to be seen as a distasteful bodily function analogous to urination or sex, which should be confined to the private sphere. Few states explicitly exempt milk expression from their indecent exposure and obscenity laws. Yet, far from being a marginal activity, milk expression is often a necessary component of successful lactation. It allows parents with disabilities that challenge feeding at the breast to produce milk. It is instrumental in feeding babies who are unable to suckle at the breast or those who are temporarily separated from their parents, whether because the parents are ill, must report to work, have shared custody, or need to participate in political, social, and other aspects of life. In other words, milk expression is vital for human milk feeding in numerous circumstances and necessary for lactating parents to enjoy equal citizenship on par with non-lactating people.

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September 15, 2021 | Permalink | Comments (0)

Tuesday, September 14, 2021

Pandemic Stress Indicator: Expert Panel 2

Brian J. Gaines (University of Illinois), Pandemic Stress Indicator: Expert Panel 2, SSRN (2020):

IGPA developed several Pandemic Stress Indicators, designed to evaluate the social and economic effects of the COVID-19 pandemic on Illinois residents. The Pandemic Stress Indicators grew out of the work on IGPA’s Task Force on the Impact of the COVID-19 Pandemic. One of these indicators has been a poll of three sets of experts about pandemic policies. Experts on economics, public health, and/or vulnerable populations from across Illinois have generously agreed to provide regular opinions on various pandemic policies.

September 14, 2021 | Permalink | Comments (0)

Sex, Crime, and Serostatus

Courtney Cross (University of Alabama),  Sex, Crime, and Serostatus, 78 Wash. & Lee L. Rev. 71 (2021):

The HIV crisis in the United States is far from over. The confluence of widespread opioid usage, high rates of HIV infection, and rapidly shrinking rural medical infrastructure has created a public health powder keg across the American South. Yet few states have responded to this grim reality by expanding social and medical services. Instead, criminalizing the behavior of people with HIV remains an overused and counterproductive tool for addressing this crisis - especially in the South, where HIV-specific criminal laws are enforced with the most frequency.

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September 14, 2021 | Permalink | Comments (0)

Monday, September 13, 2021

Role of Human Rights in Advancement of Right to Health

Rupak Kumar Joshi (Kazi Nazrul University), Role of Human Rights in Advancement of Right to Health, SSRN (2021):

The right to health has inherent characteristics and qualities. It is crucial to the pursuit of justice and is a prerequisite for the realization of other rights. The first objective of the paper is to have a historical and theoretical overview of understanding and contemporary concepts of health and the right to health. The second objective of the paper is to track the shifting place of the international right to health and human rights-based approaches to health in the scholarly literature and United Nations.

September 13, 2021 | Permalink | Comments (0)

The Dangers of Disclosure: How HIV Laws Harm Domestic Violence Survivors

Courtney Cross (University of Alabama), The Dangers of Disclosure: How HIV Laws Harm Domestic Violence Survivors, 95 Wash. L. Rev. 83 (2020):

People living with HIV or AIDS must decide whether, how, and when to disclose their positive status. State laws play an outsized role in this highly personal calculus. Partner notification laws require that current and former sexual partners of individuals newly diagnosed with HIV be informed of their potential exposure to the disease. Meanwhile, people who fail to disclose their positive status prior to engaging in sexual acts-even acts that carry low to no risk of infection-can be prosecuted and incarcerated for exposing their partners to HIV. Although both partner notification laws and criminal HIV exposure laws were ostensibly created to combat the spread of the disease, they are ineffective at doing so. Instead, they threaten the safety and health of people living with HIV. This Article analyzes HIV laws through the lens of domestic violence and reveals that both compliance and failure to comply with these laws can endanger survivors of domestic violence. This previously ignored double bind is significant given the reciprocal relationship between HIV and domestic violence :people living with HIV are more likely to experience domestic violence, just as survivors of domestic violence experience higher rates of HIV. Yet nearly all state HIV laws fail to recognize this inextricable relationship and, in so doing, create additional, unwarranted dangers for many individuals living at the intersection of HIV and domestic violence. This Article exposes the pernicious shortsightedness of state HIV laws and proposes reforms that would better protect both individuals at risk of infection as well as those at risk of violence.

September 13, 2021 | Permalink | Comments (0)

Friday, September 10, 2021

The Role of Patents and Licensing in the Governance of Human Genome Editing: A White Paper

Duncan Matthews (Queen Mary University of London), Abbe Brown (Universtiy of Aberdeen), Emanuela Gambini, Timo Minssen (University of Copenhagen), Ana Nordberg (Lund University), Jacob S. Sherkow(University of Illinois), Jakob Wested (University of Copenhagen), Esther van Zimmeren (University of Antwerp), Aisling McMahon (NUI Maynooth), The Role of Patents and Licensing in the Governance of Human Genome Editing: A White Paper, Queen Mary L. Rsch. Paper 364 (2021):

On 12 July 2021 the World Health Organization (WHO) Expert Advisory Committee on Developing Global Standards for Governance and Oversight of Human Genome Editing published a set of reports entitled Human Genome Editing: A Framework for Governance and Recommendations. These reports provide valuable advice and recommendations on appropriate institutional, national and global governance mechanisms for human genome editing. The Expert Advisory Committee’s A Framework for Governance highlights explicitly the role that patents and licences can play as a form of governance of human genome editing. The Recommendations state that the Committee ‘believes that governance measures based on patents or [other forms of] intellectual property, when used together with other tools, may help strengthen the governance and oversight of human genome editing’ [and that] ‘It will be important to avoid using patents in ways that potentially prevent others from delivering similar capabilities at a cheaper cost’. This paper responds to the recommendations of the Expert Advisory Committee and elaborates further on the role that patents and licensing can play in the governance of human genome editing. It concludes with our own recommendations on how the role of patents and licensing can be considered further in the light of the WHO Expert Advisory Committee’s reports.

September 10, 2021 | Permalink | Comments (0)

Health Check: The NHS and Market Reforms

Kristian Peter Niemietz, Health Check: The NHS and Market Reforms, IEA Discussion Paper 54 (2014):

Since the early 2000s, the NHS has improved according to most measures of quality and performance. Survival rates for major diseases have increased, waiting lists have been shortened, and the prevalence of hospital infections has been reduced.

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September 10, 2021 | Permalink | Comments (0)

Thursday, September 9, 2021

Are Vaccine Lotteries Worth the Money?

Christopher T. Robertson (Boston University), K. Aleks Schaefer (Oklahoma State University), Daniel Scheitrum(University of Arizona), Are Vaccine Lotteries Worth the Money?, SSRN.

This research evaluates the effects of the twelve statewide vaccine lottery schemes that were announced as of June 7, 2021 on state vaccination rates. We construct a dataset that matches information on the timing and location of these lotteries with daily, county-level data from the U.S. Centers for Disease Control (CDC) on the cumulative number of people who have received at least one dose of an emergency-authorized COVID-19 vaccine. We find that 10 of the 12 statewide lotteries studied (i.e., all but Arkansas and California) generated a positive, statistically significant, and economically meaningful impact on vaccine uptake after thirty days. On average, the cost per marginal vaccination across these programs was approximately $55.

September 9, 2021 | Permalink | Comments (0)

Approach to Euthanasia in the Kingdom of the Nederlands

Viktor Shestak (MGIMO University), Elizaveta Ryabinina, Approach to Euthanasia in the Kingdom of the Nederlands, SSRN.

The article examines the legislation of the Kingdom of the Netherlands regulating the main issues of euthanasia. The author examines the various types of euthanasia and assisted suicide that exist in the Netherlands, the procedures for their implementation provided for by law, as well as the approach to the most difficult issues, such as the euthanasia of newborns and people suffering from chronic mental illness.

September 9, 2021 | Permalink | Comments (0)

Wednesday, September 8, 2021

'My Face, My Choice?' — Mask Mandates, Bans, and Burqas in the Covid Age

Robert Kahn (University of St. Thomas), 'My Face, My Choice?' — Mask Mandates, Bans, and Burqas in the Covid Age, 12 N.Y.U. J. L. & Liberty 2 (2021):

During the 2010s mask bans were on the rise. In the United States, the bans targeted environmentalists and Antifa; in Europe, country after country, offended by the burqa, banned face veils, which supposedly violated the European project of “living together.” Then came Covid-19, and mask mandates. Yet the mask and face veil bans did not go away, something that proved troublesome for both sides of the mask mandate debate. For supporters, mask bans have the potential to impede mask wearing; yet removing them goes against the ethos of state power the mandates rely on for their legitimacy. For opponents, bans run counter to the libertarianism that animates their opposition to mask mandates, yet the cry “my face, my choice” is rarely applied to those, including many burqa wearers, who voluntarily choose to don a mask as a rational response to an age of increasing mass surveillance. This essay explores the current juxtaposition of mask mandates and mask bans, while adv

September 8, 2021 | Permalink | Comments (0)

An Early Evaluation of the Privacy Impacts of the COVID-19 Pandemic

David Sella-Villa (William & Mary), An Early Evaluation of the Privacy Impacts of the COVID-19 Pandemic, 76 Bus. Law. 261 (2021):

At the time of this writing in mid-2020 the COVID-19 pandemic has gripped the world and frustrated health experts. In the interest of “flattening the curve” of new cases, state and local government officials have implemented a variety of legal measures including stay-at-home orders, social distancing requirements, and mandates to wear masks in public. These legal responses to the pandemic have created both new sources of data about people and new avenues for accessing existing data that may have been difficult to access before the pandemic. This survey will address four common scenarios related to these data streams that these policies have fostered. The impact of these data streams on people’s privacy is just starting to be understood. The term “privacy” in this survey refers to an individual’s ability to control disclosure of her personally identifiable information. This survey explores some early answers to the question of how the COVID-19 pandemic has impacted people’s privacy in the U.S context.

September 8, 2021 | Permalink | Comments (0)

Tuesday, September 7, 2021

Policing the Emergency Room

Ji Seon Song (UC Irving), Policing the Emergency Room, 134 Harv. L. Rev. 2646 (2021):

The problems of policing extend beyond the street and into areas of our lives that are often hidden from view. This Article focuses on how policing affects people in one such place where they are particularly vulnerable: the emergency room. It explores how the courts’ interpretation of the Fourth and Fifth Amendments has resulted in the criminalization of the emergency room. The ER is where people go when they are vulnerable and injured. ERs play a crucial “safety-net” function for those who do not have access to other types of medical care. Yet courts have interpreted the ER as an extension of the public street, generally permitting the police to engage in highly intrusive searches and questioning there. The doctrine cannot account for the unique characteristics of the ER and the medical vulnerability of patients. Further, police investigations in the ER are enhanced by the participation of medical professionals who have existing professional norms as well as their own history and current evidence of bias and discrimination. Finally, the courts’ treatment of the ER as an extension of the street raises the same concerns of racialized street policing because of the convergence of police and marginalized groups in safety-net emergency rooms. The presence of police in the ER has a particularly pernicious effect in emergency rooms that have large percentages of racial minority and poor patients. Especially in these ERs, the doctrine’s blind eye to medical vulnerability also renders invisible the race and class dynamics undergirding policing and access to healthcare. I conclude by suggesting that the reasonable expectation of privacy standard should incorporate considerations of medical vulnerability and medical privacy. Further, as we question the harm or necessity of police presence in communities, we should conceptualize ERs as patient sanctuaries to achieve a better balance between the rights of vulnerable patients and public safety.

September 7, 2021 | Permalink | Comments (0)

Medical Tourism and the Best Interests of the Critically Ill Child in the Era of Healthcare Globalisation

Neera Bhatia (Deakin University), Giles Birchley (University of Bristol), Medical Tourism and the Best Interests of the Critically Ill Child in the Era of Healthcare Globalisation, Med. L. Rev. 2020 (2020):

In this article, we examine emerging challenges to medical law arising from healthcare globalisation concerning disputes between parents and healthcare professionals in the care and treatment of critically ill children. We explore a series of issues emerging in English case law concerning children’s medical treatment that are signs of increasing globalisation. We argue that these interrelated issues present distinct challenges to healthcare economics, clinical practice, and the operation of the law. First, social media leverages the emotive aspects of cases; secondly, the Internet provides unfiltered information about novel treatments and access to crowdfunding to pay for them. Finally, the removal of barriers to global trade and travel allows child medical tourism to emerge as the nexus of these issues. These aspects of globalisation have implications for medicine and the law, yet child medical tourism has been little examined. We argue that it affects a range of interests, including children’s rights, parents’ rights as consumers, and the interests of society in communalised healthcare. Identifying putative solutions and a research agenda around these issues is important. While cases involving critically ill children are complex and emotionally fraught, the interconnectedness of these issues requires the law to engage and respond coherently to the impacts of healthcare globalisation.

September 7, 2021 | Permalink | Comments (0)

Monday, September 6, 2021

Unobserved Heterogeneity, State Dependence, and Health Plan Choices

Ariel Pakes (Harvard University), Jack R. Porter (University of Wisconsin), Mark Shepard (Harvard University), Sophie Calder-Wang (University of Pennsylvania), Unobserved Heterogeneity, State Dependence, and Health Plan Choices(Harv. Kennedy Sch., Working Paper No. RWP21-020, 2021):

We provide a new method to analyze discrete choice models with state dependence and individual-by-product fixed effects, and use it to analyze consumer choices in a policy-relevant environment (a subsidized health insurance exchange). Moment inequalities are used to infer state dependence from consumers’ switching choices in response to changes in product attributes. We infer much smaller switching costs on the health insurance exchange than is inferred from standard logit and/or random effects methods. A counterfactual policy evaluation illustrates that the policy implications of this difference can be substantive.

September 6, 2021 | Permalink | Comments (0)

Rethinking Competition in Healthcare – Reflections from a Small Island

Mary Guy (Lancaster University), Rethinking Competition in Healthcare – Reflections from a Small Island, CPI Antitrust Chron. 2021 (2021):

After approximately 30 years, and following a decisive move towards integrated care systems, competition reforms in English healthcare seem to be rejected, even though the underlying relationship between the public healthcare system and private healthcare market remains. This paper explains how competition in English healthcare has developed to involve the Competition and Markets Authority and a sectoral regulator (NHS Improvement), and how general UK merger control and the prohibition on anticompetitive agreements have been applied. Current legislative proposals call for a substantial refocusing of competition authority involvement and removal of the regulator’s competition powers. These proposals are developing against a backdrop of closer cooperation between public and private healthcare providers in response to COVID-19. This paper concludes by suggesting that the current opportunity to rethink how competition works in English healthcare is a welcome development.

September 6, 2021 | Permalink | Comments (0)