HealthLawProf Blog

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

Tuesday, May 17, 2022

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)

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)

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

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)

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)

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)

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)

Sunday, May 15, 2022

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)

Becoming an Internally Displaced Person in Australia: State Border Closures during the COVID-19 Pandemic and the Role of International Law on Internal Displacement

Kate Ogg (Australian National Univsersity), Olivera Simic (Griffith University), Becoming an Internally Displaced Person in Australia: State Border Closures during the COVID-19 Pandemic and the Role of International Law on Internal Displacement, Australian J. Hum. Rts. (Forthcoming):

In response to COVID-19, Australian states and territories have, at various times, restricted entry to returning residents. Consequently, many people have been unable to return to their homes, some for significant periods. While there have been discussions of the human rights implications of COVID-19 international travel bans and lockdowns, there has been little consideration of the application of international human rights law to those stranded by internal border closures. In this paper, we contend that these ‘stranded’ people are internally displaced persons (‘IDPs’) within the meaning of international law and examine how international law on internal displacement can inform domestic human rights law and processes. In doing so, this paper contributes to scarce scholarship on IDPs in higher-income nation-states and internal displacement associated with pandemics. We argue that while internal border closures were implemented to reduce the spread of COVID-19, the nature of the restrictions and the manner in which they were implemented were a disproportionate interference with rights to freedom of movement, family unity, education, healthcare and culture. Our analysis has lessons for responses to disaster displacement (a phenomenon likely to increase with acceleration of climate change), future pandemics and central themes in international scholarship on IDP protection.

May 15, 2022 | Permalink | Comments (0)

Transgender Conversion Practices and the Ethical Burden of Justification

Florence Ashley (University of Toronto), Transgender Conversion Practices and the Ethical Burden of Justification, SSRN (2021):

Transgender conversion practices seek to alter, discourage, or suppress a person’s gender identity or desired gender presentation. Some theorists and practitioners have defended these practices on account that their harmfulness has not been proven by those who oppose them. This paper argues that the defense mischaracterizes the burden of justification. Trans conversion practices are prima facie unethical because they suggest that trans lives are less valuable by constructing them as disordered and seeking to prevent them. Accordingly, the burden of justification lies on defenders or trans conversion practices to show that they are more beneficial than alternatives such as the gender-affirmative approach. The available evidence does not countenance the view that trans conversion practices have better outcomes than other clinical approaches. Accordingly, the paper concludes that trans conversion practices are unethical.

May 15, 2022 | Permalink | Comments (0)

The Main Factors for Retirement Preparation: The Case of SME Among Thai Elderly

Thanthai Tosuwan (Unitar International University), Prapaporn Yangprayong (Songkhla Rajabhat University), The Main Factors for Retirement Preparation: The Case of SME Among Thai Elderly, 1 J. Mgmt. in Bus., Healthcare, and Educ. 1 (2022):

Objective: This study identifies factors of retirement preparation among the Thai elderly in Thailand. Methodology: The sample of this study included five key informants who were experts in Thailand. Content analysis was performed to analyse the qualitative data through in-depth interviews. Findings: The study’s findings revealed the main factors for retirement preparation, which include mental-emotional element, physical factor, family and friend relationships, income, healthcare service and medical treatment, finance and monetary value, long-term investment, life insurance, and small and medium enterprise (SME) investment. The most critical factor in this study is SME investment among the Thai elderly. Implication: The study's findings may benefit business owners and marketers involved in SME management. Understanding the factors that influence retirement preparation among the Thai elderly may also aid in the development of effective strategic planning.

May 15, 2022 | Permalink | Comments (0)

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)

All Bets on the Executive(s)! The Australian Response to COVID-19

Marco Rizzi (The University of Western Australia), Tamara Tulich (The University of Western Australia), All Bets on the Executive(s)! The Australian Response to COVID-19, Routledge Handbook of Law and the COVID-19 Pandemic (2022):

This chapter examines the response of the Australian Federal and State governments to the COVID-19 pandemic. While successful in limiting the spread of the virus, the response caused significant challenges from a rule of law perspective. Executive powers were exercised after the declaration of states of emergency in a quasi-vacuum of checks and balances, with little parliamentary or judicial scrutiny and no clear end date. The prolonged international isolation, coupled with the uneven distribution of consequences attached to intermittent restrictions, put the institutional and legal framework of Australia to the test. The picture emerging is one where all bets are on the executives to exercise their significant emergency powers effectively and as reasonably as possible. But few substantive accountability mechanisms are in place while the pandemic (at the time of writing in July 2021) is still ongoing and so are the states of emergency.

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)

Friday, May 13, 2022

Adapting To a 4°C World

Karrigan Bork (University of California Davis), Karen Bradshaw (Arizona State University), Cinnamon Piñon Carlarne (Ohio State University), Robin Kundis Craig (University South Carolina), Sarah Fox (Northern Illinois University), Joshua Galperin (Pace University), Keith H. Hirokawa (Albany Law School), Shi-Ling Hsu (Florida State University), Katrina Fischer Kuh (Pace University), Kevin J. Lynch (University of Denver), Michele Okoh (Duke University), Jessica Owley (University of Miami), Melissa Powers (Lewis & Clark University), Shannon Roesler (University of Iowa), J. B. Ruhl (Vanderbilt University), James E. Salzman (University of California), David Takacs (University of California Hastings), Clifford Villa (University of New Mexico), Adapting To a 4°C World, 52 Env’t Law Rep. (2022):

he Paris Agreement’s goal to hold warming to 1.5°-2°C above pre-industrial levels now appears unrealistic. Profs. Robin Kundis Craig and J.B. Ruhl have recently argued that because a 4°C world may be likely, we must recognize the disruptive consequences of such a world and respond by reimagining governance structures to meet the challenges of adapting to it. In this latest in a biannual series of essays, they and other members of the Environmental Law Collaborative explore what 4°C might mean for a variety of current legal doctrines, planning policies, governance structures, and institutions.

May 13, 2022 | Permalink | Comments (0)

Nondelegation Limits on COVID Emergency Powers: Lessons from the Eviction Moratorium and Title 42 Cases

Ilya Somin (George Mason University), Nondelegation Limits on COVID Emergency Powers: Lessons from the Eviction Moratorium and Title 42 Cases, N.Y.U. J. of Law & Liberty (Forethcoming):

Two legal battles over Covid pandemic emergency measures highlight the dangers of excessive delegation of emergency power to executive branch agencies: the recently concluded litigation over the Centers for Disease Control nationwide eviction moratorium, and the still-ongoing legal battle over that same agency’s Title 42 “public health” expulsions of immigrants. While superficially different, the two legal battles actually raise very similar issues. Both involve exercises of power by the exact same federal agency, utilizing authority it claims was delegated to it under consecutive provisions of the Public Health Service Act of 1944. Both measures were first adopted under the Trump Administration, and later continued—with some modifications—under the Biden Administration. The bipartisan nature of the policies suggests that the problems they raise are not limited to one party, nor to one side of the political spectrum.

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May 13, 2022 | Permalink | Comments (0)

On Sea Monsters and Sandcastles: Revisiting International Legal Frameworks regarding Public Health and Human Rights in Global Health Emergencies

Alicia Ely Yamin (Harvard Law School), Stefania Negri (University of Salerno), Roojin Habibi (York University), On Sea Monsters and Sandcastles: Revisiting International Legal Frameworks regarding Public Health and Human Rights in Global Health Emergencies, Yearbook of Int’l Disaster Law Online (2022):

As a new coronavirus, sars-CoV-2, swept across the globe with unprecedented speed in 2020, countries were faced with navigating between the proverbial Scylla and Charybdis. In a quickly evolving situation, with limited and constantly changing scientific information, governments across varied income levels adopted an array of strategies across a spectrum of divergent approaches. Some, such as Italy and Peru, focused heavily on containing contagion, and protecting population health and health systems, quickly closing borders and adopting lockdowns; others, such as Brazil and Sweden, took more hands-off approaches whether in the name of “keeping economies open” or preserving individual choice (and responsibility). Both approaches exposed – and exacerbated – the endemic plague of social inequality in many countries: lockdowns disproportionately hurt workers in informal economies, children who could not study on-line, and marginalised groups, including persons living with disabilities. Allowing COVID-19 to rage and deflecting state responsibility onto individuals also disproportionately affected diverse poor and marginalised people who often live in overcrowded conditions and have the least access to health systems. As Amnesty International's report for 2022 stated, the pandemic revealed, and sometimes aggravated, existing patterns of human rights abuses and inequalities’. Oxfam’s 2021 report, ‘The Inequality Virus’, details the intersecting dimensions of the inequality unmasked by this virus, and notes economists predict the pandemic will only exacerbate gaping social divides, as while millions were thrown into extreme poverty the world’s richest ten people increased their wealth by a staggering usd $540 billion in 2020.

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May 13, 2022 | Permalink | Comments (0)

The Future of Cannabis in New Jersey: A Report Prepared by the Students of Rider University's Reefer Madness Course

Sarah Trocchio (Rider University), Marion McNabb (Cannabis Center of Excellence, INC), David Ritter (Cannabis Center of Excellence, INC), Marshall Ogen (CannabisBPO), Shekia Scott (Cannabis Control Commission), The Future of Cannabis in New Jersey: A Report Prepared by the Students of Rider University's Reefer Madness Course, SSRN (2022):

Background: In November 2020, 67% of New Jersey (NJ) residents voted yes to legalizing the adult use of cannabis. In 2019, 48% of all admissions to NJ substance abuse treatment centers were for opioids (Substance Abuse Statewide Report, 2020). From Sept-Dec 2020, Rider University, CannabisBPO, and the Cannabis Center of Excellence taught an Undergraduate course on cannabis legalization and conducted a research study together with the students as part of the course.

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May 13, 2022 | Permalink | Comments (0)