HealthLawProf Blog

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

Sunday, January 31, 2021

Towards Global Pandemic Resilience

Rajiv Sethi (Columbia University), Divya Siddarth, Alisha Caroline Holland (Harvard University), Belinda Archibong (Columbia University), Francis Annan (Georgia State University), Rohini Somanathan (University of Delhi), Juan-Camilo Cárdenas (Universidad de Los Andes), Towards Global Pandemic Resilience, White Paper 11 Harvard University Edmond J. Safra Center for Ethics (2020):

Across the world, the COVID-19 pandemic has been most devastating to already-vulnerable populations. At the same time, it has brought our interconnectedness into sharp focus. Policies chosen in one jurisdiction affect conditions in others, and even regions isolated from each other are linked through third parties. This calls for harmonization of strategies across countries worldwide. However, regions differ sharply in their levels of medical and public health infrastructure, population density, concentrated poverty, patterns of internal migration, access to communication technologies, ability to bid on global markets, protection of privacy and civil liberties, communal tensions, and institutions of social support. Hence, policy responses also need to be carefully tailored to local conditions. This paper considers varied experiences with tackling the pandemic, with particular focus on three regions -- India, Africa, and Latin America -- that are collectively home to forty percent of the world’s population. These regions face several challenges to adopting the testing, tracing, and supported isolation (TTSI) roadmap that we have proposed for the United States. We reflect on alternative policy trajectories that can help us transition back to work and social activity while safeguarding human lives worldwide.

January 31, 2021 | Permalink | Comments (0)

Compulsory COVID-19 Vaccination

Andrzej Drozd (University of Livonia), Compulsory COVID-19 Vaccination, SSRN:

Each vaccination may be compulsory unless compatible with Constitution. The regulation on method of COVID-19 counteracting (§ 2) established pertinent requirement. Each person aged 18 may be considered as required to get COVID-19 vaccine. However such requirement violates Constitution. Civil disobedience may be considered.

January 31, 2021 | Permalink | Comments (0)

Home Alone: The First English Coronavirus Lockdown and the Right to Liberty (Article 5 ECHR)

Eduardo Gracias Baptista (Maastricht University), Home Alone: The First English Coronavirus Lockdown and the Right to Liberty (Article 5 ECHR), ELSA Maastricht L. Rev. (Forthcoming):

The unprecedented situation caused by the Coronavirus was the justification for the lockdowns that were imposed across the globe. Inevitably, measures of this kind engaged individuals’ fundamental rights, namely the right to liberty. This paper focuses on The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, a statute which was in place in England. In a democratic society, it is essential to make sure legislation complies with the human rights we are entitled to and to hold the legislator accountable if it is not; especially in the case of important rights such as the right to liberty. As a result, the movement restrictions that were hastily put in place should be critically evaluated, in order to ascertain whether this right was overlooked; while public health is a vital consideration, intrusive measures can only ever be justified if individual rights have been taken into consideration.

January 31, 2021 | Permalink | Comments (0)

Public Health Surveillance in the Context of COVID-19

Jennifer D. Oliva (Seton Hall University), Public Health Surveillance in the Context of COVID-19, 18 Indiana Health L. Rev. 107 (2021):

This is a partial transcript of a virtual grand rounds summer series presentation.

January 31, 2021 | Permalink | Comments (0)

Saturday, January 30, 2021

Tribes are Public Health Authorities: Protecting Tribal Sovereignty in Times of Public Health Crisis

Aila Hoss (University of Tulsa), Tribes are Public Health Authorities: Protecting Tribal Sovereignty in Times of Public Health Crisis, SSRN:

The COVID-19 pandemic has highlighted existing gaps in public health systems across the country including federal Indian health systems. Despite treaty obligations to provide health care to American Indians and Alaska Natives, the federal government has consistently underfunded Indian health facilities. Federal Indian health programming remains piecemeal, often falling victim to Congressional politics for continued funding, requiring inter-Tribal competition for grant and cooperative agreement funding, or requiring Tribal cost sharing. Tragically, but, unsurprisingly given failures in federal Indian health policy, many American Indian and Alaska Native communities have experienced health inequities throughout the pandemic. In several states, American Indians have higher rates of COVID-19 infections as well as worse health outcomes, including higher mortality, than their non-Indian counterparts. By exercising their inherent sovereignty as Tribal Nations, many Tribes have been able to mitigate failings in federal Indian health policy in their COVID-19 response. Unfortunately, reports across Indian country have found instances of state and local governments failing to adequately engage Tribal governments in public health activities, even those implicating Tribal members on Tribal lands, citing lack of Tribal public health authority. Not only is this legally inaccurate, but it also limits Tribal public health response efforts, and infringes on Tribal sovereignty. This issue brief discusses the legal authority for Tribes to serve as public health authorities. First, it describes the inherent authority of Tribes to engage in public health activities. Second, it discusses the recognition of Tribal public health authority across federal law and programs. This issue brief ends by discussing strategies to reinforce Tribal authority in times of public health crisis.

January 30, 2021 | Permalink | Comments (0)

Federalism: Fault or Feature -- An Analysis of Whether the United States Should Implement a Federal Pandemic Statute

Stephanie Cooper Blum (Yale University), Federalism: Fault or Feature -- An Analysis of Whether the United States Should Implement a Federal Pandemic Statute, 60 Washburn L. J. (2020):

As COVID-19 plagues the world, countries grapple with a range of measures - such as quarantines, isolation, stay-at-home orders and masks - to limit its spread. In the United States, under the Tenth Amendment to the U.S. Constitution, states have taken the lead in implementing a variety of public health safety measures to address this contagious and deadly virus. In many instances, citizens have claimed a violation of their individual rights and raised numerous legal challenges. But given that the virus knows no borders, a pivotal question is what role the federal government should play in creating a more uniform response that respects individual rights. This Article addresses the legal and policy questions of enacting a federal pandemic statute. It provides guidance to public health experts and lawmakers should they decide that a national and more coordinated response would be helpful as the United States confronts COVID-19 and other pandemics.

January 30, 2021 | Permalink | Comments (0)

The Sorry State of Research on Public Opinion About Air Pollution: A Systematic Review

Sung Eun Kim (Korea University), Nada Maamoun (University of Hamburg), Narayan Gopinathan (University of British Columbia), Johannes Urpelainen (Johns Hopkins), The Sorry State of Research on Public Opinion About Air Pollution: A Systematic Review, SSRN:

Air pollution poses a serious problem to the public health, but governments have few incentives to implement costly pollution mitigation policy without the public support. We examine the current state of research on public opinion about air pollution by reviewing the three largest journal article databases for the entire period until 2018. We only identify 33 relevant articles. They are geographically biased toward a few developed countries, with limited attention paid to developing countries that face a greater level of challenges from air pollution. By conducting a meta-analysis with these articles, we report a few consistent predictors employed in these studies and summarize the findings. We find that education and income consistently appear to increase the public awareness of air pollution and support for air pollution mitigation policies, yet the evidence is less conclusive for less frequently examined variables. Our results call for a new wave of public opinion studies on air pollution that covers a broader geographical area and includes developing countries.

January 30, 2021 | Permalink | Comments (0)

A Global Health Action Agenda for the Biden Administration

Lawrence O. Gostin (Georgetown University), Donna E. Shalala, Margaret Hamburg, Barry R. Bloom, Jeffrey Koplan, Barbara K. Rimer (University of North Carolina), Michelle A. Williams (Harvard University), A Global Health Action Agenda for the Biden Administration, The Lancet Online 1 (2020):

Joe Biden will assume the US presidency at a time of unprecedented global health crises, with the COVID-19 pandemic and major setbacks in reducing poverty, hunger, and disease. The COVID-19 pandemic offers rare opportunities for the US President-elect to spearhead long-overdue structural changes and revitalise global health leadership. Building trust among global partners will be challenging, given the USA's withdrawal from, and disruption of, international cooperation under the presidency of Donald Trump. The USA will have to lead in a different, more collaborative way. Here, we offer a Global Action Agenda for the Biden Administration.

January 30, 2021 | Permalink | Comments (0)

Thursday, January 28, 2021

Ending Confinement and Segregation: Barriers to Realising Human Rights in the Everyday Lives of People Living with Dementia in Residential Aged Care

Linda Steele (University of Technology Sydney), Ending Confinement and Segregation: Barriers to Realising Human Rights in the Everyday Lives of People Living with Dementia in Residential Aged Care, Australian J. Human Rights 21 (2020):

Human rights are increasingly being considered in Australian law reform and policy discussions on how to improve the circumstances of people living with dementia in residential aged care facilities. This article enriches understanding of the views on human rights held by people living with dementia and those who support, advocate and care for them, in order to ensure that law and policy reforms which promote human rights can be meaningfully enjoyed in practice. Drawing on data from focus groups and interviews with people living with dementia, care partners, aged care workers and lawyers/advocates, this article argues there is general support for human rights. However, this support was qualified by their acknowledgement of entrenched economic, cultural and sociolegal barriers to their recognition in the everyday lives of people living with dementia. The article concludes that urgent action is required to transform the cultural, economic and social drivers of ambivalence and resistance towards dementia and human rights within aged care and the broader community.

January 28, 2021 | Permalink | Comments (0)

Defendants with Autism Spectrum Disorder in Criminal Court: A Judges' Toolkit

Colleen Berryessa (Rutgers), Defendants with Autism Spectrum Disorder in Criminal Court: A Judges' Toolkit, 13 Drexel L. Rev. (Forthcoming):

This Article acts as a toolkit for members of the judiciary on defendants with Autism Spectrum Disorder (ASD), and specifically looks to equip judges with knowledge, evidence, and resources on recognizing and understanding symptoms of ASD in order to better identify and evaluate diagnosed defendants and their offending behavior. This will allow judges to have impactful and beneficial interactions with defendants, potentially make appropriate procedural and sentencing adjustments before and during the legal process, and better ensure more positive and appropriate legal outcomes for defendants with ASD. First, this Article discusses ways in which judges can identify defendants with ASD in court by recognizing and understanding both distinctive characteristics of offending and courtroom behavior that may be exhibited in cases involving defendants with ASD. Recognizing the limited previous research on judges’ understanding of ASD’s legal relevance, this Article additionally provides judges guidance on three aspects of the legal process in which ASD may be forensically significant for defendants: fitness to stand trial, negating criminal elements necessary for criminal liability, and sentencing decisions. Finally, this Article puts forth recommendations for judges in order to improve the legal process for defendants with ASD.

January 28, 2021 | Permalink | Comments (0)

Methods of Administration

Derek Warden, Methods of Administration, 10 Houston L. Rev. (2020):

The Americans with Disabilities Act amounted to nothing less than a new Declaration of Independence for people with disabilities. Its five titles cover almost every aspect of human life. Title II, which prohibits discrimination by public entities, directs the Attorney General to issue implementing regulations. One such regulation is the methods of administration provision. That regulation prohibits public entities from employing discriminatory methods in the administration of their programs. This essay examines that provision and the doctrine surrounding it; places the provision in historical context; and, by reference to the pedagogical device of prison litigation, discusses the provision within the confines of civil rights class actions. This essay is offered as a short treatise, with the hope of it eventually being useful to courts and practitioners who encounter this rarely invoked, though highly powerful, regulatory provision.

January 28, 2021 | Permalink | Comments (0)

Disability Discrimination Using AI Systems

Nizan Geslevich Packin (City University of NY), Disability Discrimination Using AI Systems, Social Media and Digital Platforms: Can We Disable Digital Bias? SSRN:

Social media platforms and digital technological tools have transformed how people manage their day-to-day lives, socially as well as professionally. Big data algorithms help us improve our decision-making processes, and sophisticated social networks, enable us to get connected to other individuals and organizations, get exposed to information, and even learn about different opportunities. But as individuals come to be more and more comfortable with social networks and big data algorithms, fewer give much thought to how personal data gleaned from social networks and fed into algorithms affects the administration of government and the provision of private services. Algorithmic assessment of personal characteristics enables widescale discrimination by government and private entities, and such discrimination is particularly pernicious for persons with disabilities. According to the social model of disability, disability is not only inherent to the individual and determined by the impairment but is also a product of the social environment. Social expectations, conventions, and technology determine which traits are outside the norm and which traits are disabling. Whether a technology perpetuates or mitigates disability depends on social norms, including norms that are embedded in law. A wheelchair might mitigate the impairment, but only if legal rules dictate a built environment where wheelchair users and non-wheelchair users can move in a similar fashion, can the disability be mitigated. Similarly, digital technologies can limit the ways in which some traits are disabling only if bias and discriminatory features against individuals with disabilities are not embedded within their use. We must ensure that technology developments continue to improve the life quality and opportunities for individuals with disabilities, and that we design systems that better accommodate the disabled, enhance their access, and help level the playing field between them and the able-bodied. We should regulate to ensure that individuals with disabilities are legally protected from discrimination. Additionally, and not less importantly, we must make sure that individuals with disabilities are not left out of innovations because of the difficulty in detecting the different types of disabilities as well as disability bias, proving it, and designing around it.

January 28, 2021 | Permalink | Comments (0)

Disability Rights: Past, Present, and Future — 'A Roadmap for Disability Rights'

Marcy Lynn Karin (University of the District of Columbia), Lara Bollinger, Disability Rights: Past, Present, and Future — 'A Roadmap for Disability Rights', UDC L. Rev. (2020):

This foreward contextualizes the panels and papers of the UDC Law Review's 2019 symposium on Disability Rights: Past, Present, and Future. The multidisciplinary symposium focused on the 10th anniversary of the ADA Amendments Act and the progress made towards disability justice since its enactment. It was designed to explore the ways in which disability intersects with other identities such as race, national origin, sex, gender identity, immigration, incarceration, and military status. The symposium also situated disability matters in other contemporary subjects such as employment, access to public benefits, education, housing, and voting. In different ways, the symposium explored the history of the disability movement, the present status of disability laws, and hopes for the (uncertain) future of the disability rights movement. This essay captures the voices, central themes, and perspectives shared by 45 speakers and 12 authors. It concludes with a call to action to further advance disability justice.

January 28, 2021 | Permalink | Comments (0)

Wednesday, January 27, 2021

States of Inequality: Fiscal Federalism

Robert A. Schapiro (Emory University), States of Inequality: Fiscal Federalism, Unequal States, and Unequal People, 108(5) Cali. L. Rev. (2020):

The current system of federalism undermines the social and economic equality of the people of the United States. Although states have broad responsibilities to provide basic services, they have vastly different financial capacities. Some states are richer while others are poorer, and these differences have critical implications for the ability of states to meet the needs of their residents. Among developed federal nations, the United States alone does not seek to equalize resources among the states. The interstate disparities undermine the values commonly associated with federalism and have especially severe consequences for the realization of certain core commitments, such as education and health care. Focused on constitutional doctrine, scholars of federalism in the legal academy have largely ignored the significance of these interstate financial disparities. The growing attention to social and economic inequality, as evidenced by debates about the Affordable Care Act and proposals for “Medicare for All” and “College for All,” heightens the urgency of the issue. These programs require substantial state funds. Unless policy-makers attend to the reality of interstate financial disparities, the plans will fail to achieve their goals and will instead exacerbate the current savage inequalities among the people of different states. After illustrating the impact of interstate inequality on education and health care, this Article argues for a new approach to federalism that seeks to mitigate these inequalities while continuing to promote the benefits of decentralization. The New Deal required a revolution in conceptions of federalism, empowering the national government and the states. The civil rights era reconstructed federalism on a foundation of political equality. Similarly, the protection of basic commitments to education, health care, and other critical areas requires a new understanding of the federal system.

January 27, 2021 | Permalink | Comments (0)

Modern Genetic Technologies – A Danger in the Leakage of Confidential Information?

Viktor Shestak, Elizaveta Ulyanova, Modern Genetic Technologies – A Danger in the Leakage of Confidential Information? SSRN:

this article examines the issue of illegal dissemination of confidential genetic information because of the people's access to such modern genetic technology as genetic tests. The procedure of operation of these tests, their features and possible risks of passing these tests are considered. The article also analyzes American and Russian legislation in the sphere of regulating public relations in this area.

January 27, 2021 | Permalink | Comments (0)

The Private Option

Brendan S. Maher (Texas A&M University), The Private Option, Michigan St. L. Rev. (Forthcoming):

Health care reform is once again in the air. Virtually all Democrats favor some meaningful expansion of public insurance, whether through single payer or the creation of a “public option” that would allow consumers dissatisfied with the private market to buy into a public program. Republicans, not surprisingly, have pushed back, not only against single payer, but also against the public option, saying it will drive private payors to extinction. All the political jousting implicates a larger and serious policy question; namely, what should be the role of private payors in the nation’s health care system? Arguments to date on that subject have largely overlooked two crucial realities. First, payors (public and private) perform multiple functions regarding health care delivery. That the government is better at one function does not mean, or even imply, that the government is better at all of them. By disaggregating the services payors render in connection with health care financing, debates about the ideal roles for public and private payors — as well as whether one of them will or should compete the other into extinction — can be had on understandable terms. Second, although frequent references to the competitive virtues of a public option have been made, insufficient thought has been given to the conceptual specifics of why and how private payors faced with a public option might evolve. In terms of improving care delivery, observers have underexamined how private payors might serve as welfare-enhancing big data digesters, care evaluators, choice intermediaries, and incentive innovators — all proficiencies that not only rate to improve the cost and quality of care, but are entirely harmonious with modern experience about where private actors often create value: by collecting, analyzing, packaging, presenting, and deploying information. Once these two significant theoretical refinements are brought to bear, a richer analysis of the public-private question emerges — and one that supplies good reason to doubt that private payors should or will (at least in the short term) be put to the sword by either Congress or public-option-armed consumers.

January 27, 2021 | Permalink | Comments (0)

Tuesday, January 26, 2021

Bioethics Training in Reproductive Health in Mexico

Gustavo Millán, Frances Kissling, Bioethics Training in Reproductive Health in Mexico, 151(2) Int’l J. of OBGYN 308 (2020):

Bioethical approaches to reproductive health have been of utmost importance for the last three decades in Mexico. As Mexican laws regarding abortion, assisted reproduction, and conscientious objection have been modified, a number of social actors with an interest in these areas have realized that they have to educate the different agents who take part in these procedures in a bioethical approach to reproductive health and rights. This strategy was first used in Mexico by the Catholic Church and many Catholic universities. Advocates,scientists and feminist organizations,as well as some public universities,have also realized that grounding in bioethics could strengthen health providers comfort with abortion. Bioethics is also a good framework for supporting the legalization of abortion and for more liberal laws regarding assisted reproduction.So, for the last few years, one of the priorities of these two sides has been to train healthcare personnel, lawyers, and members of ethics committees and members of Congress in the application of their respective bioethical perspectives.

January 26, 2021 | Permalink | Comments (0)

Health Reform Reconstruction

Lindsay F. Wiley (American University), Elizabeth Y. McCuskey (University of Massachusetts), Matthew B. Lawrence (Emory University), Health Reform Reconstruction, Ga. St. U. College of L. Legal Studies Research Paper (Forthcoming):

This Article connects the failed, inequitable U.S. coronavirus pandemic response to conceptual and structural constraints that have held back U.S health reform for decades – and calls for reconstruction. For more than a half-century, an intellectually cramped “iron triangle” ethos has constrained health reform conceptually. The iron triangle centered individual interests in access to, quality of, and cost of medical care, while marginalizing equity and public health. In the iron triangle era, reforms unquestioningly accommodated four entrenched fixtures of American law—individualism, fiscal fragmentation, privatization, and federalism—that distort and diffuse any reach toward justice and solidarity. The profound racial disparities and public health failures of the U.S. pandemic response in 2020 agonizingly manifested the limitations of pre-2020 health reform and demand a reconstruction. Health reform reconstruction begins with the replacement of the iron triangle era with a new era in which reforms aim to realize health justice. Health justice does not itself overcome the fixtures of American law that constrain reform and propagate subordination. But it reveals the importance of doing so, despite the fixtures’ stubborn legal and logistical entrenchment. Because health reformers can no longer accept any conceptual goal short of health justice, incremental reforms must be measured chiefly by whether they confront or accommodate individualism, fiscal fragmentation, privatization, and federalism in health care. Through an uncompromising conceptual aspiration and a method of confrontational incrementalism focused on dismantling the legal structures that stand in the way of health justice, health reform reconstruction is possible. The Article describes how health reform reconstruction can chart the path of legal change and reflects on the usefulness of its methodology of confrontational incrementalism in other fields which recognize the necessity of reconstructive reform, along with its near impossibility, such as policing and drug policy.

January 26, 2021 | Permalink | Comments (0)

Frozen Embryos and the Obligation to Adopt

Bruce Blackshaw (University of Birmingham), Nicholas Colgrove, Frozen Embryos and the Obligation to Adopt, 34(8) Bioethics 857 (2020):

Rob Lovering has developed an interesting new critique of views that regard embryos as equally valuable as other human beings: the moral argument for frozen human embryo adoption. The argument is aimed at those who believe that the death of a frozen embryo is a very bad thing, and Lovering concludes that some who hold this view ought to prevent one of these deaths by adopting and gestating a frozen embryo. Contra Lovering, we show that there are far more effective strategies for preserving the lives of frozen embryos than adoption. Moreover, we point out that those who regard the deaths of frozen embryos as a very bad thing will generally regard the deaths of all embryos as a very bad thing, whether they are discarded embryos, aborted embryos or embryos that spontaneously abort. This entails that these other embryos must be taken into account when considering moral obligations, as well as other human lives at risk from preventable causes.

January 26, 2021 | Permalink | Comments (0)

The Secret Menu in Health Care: A Market for Imaging in California

Jordan Epstein, Sean Nicholson, Lucy Xiaolu Wang, Katherine Hempstead, Sam Asin, The Secret Menu in Health Care: A Market for Imaging in California, J of Health Care Org., Provision, and Financing (2021):

In addition to the prices they negotiate with private health insurers, most providers also have a cash price schedule for patients who have the wherewithal to ask and are willing to pay in full when they receive a service. This is the first study that estimates the potential cost saving of allowing privately-insured consumers to observe both in-network negotiated prices and cash prices, which is of particular interest given the growing importance of high-deductible health plans and a recent executive order mandating greater price transparency. Using data from five private health insurers and 142 imaging facilities in the San Francisco Bay Area, we estimate that patients could save between 10 percent and 22 percent of their insurer’s in-network price by paying cash. Potential savings are much larger (between 45 percent and 64 percent of their insurer’s in-network price) if consumers observe both cash and in-network prices and select the facility in the region offering the lowest price for a particular service.

January 26, 2021 | Permalink | Comments (0)