HealthLawProf Blog

Pandemic Stress Indicator: Expert Panel 6

Brian J. Gaines (University of Illinois), Pandemic Stress Indicator: Expert Panel 6, 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.

Rethinking What We Owe Each Other

Jane Loo (Singapore Management University), Yasmine Wong (Nanyang Technological University), Rethinking What We Owe Each Other, SMU Centre for AI & Data Governance Research Paper No. 08/2021 (2021):

This commentary explores our moral obligations to one another during COVID-19. It discusses the importance of social responsibility and how it maps onto the provisions and shortcomings of existing tracking technologies used to curb the spread of the virus. From the angle of beneficence – acting to promote good to others and the common good – we explore possibilities for our control strategies and the community going forward.

Grieving Should Not Be a Privilege: Recommended Changes to Bereavement Leave in Ontario

Riel Hishon, (York University), Grieving Should Not Be a Privilege: Recommended Changes to Bereavement Leave in Ontario, SSRN (2021):

This paper examines legislation and government policy regarding bereavement leave. The aim of this paper is to compare Ontario’s current bereavement leave policies to those in other jurisdictions, and provide recommendations on how Ontario’s policies can be improved. Recommendations provided include: 1) expand the definition of who the employee can take bereavement leave for (on the occasion of their death); 2) increase the total number of days of bereavement leave offered to five days; 3) require that one of the five days of leave be paid if the death is of an immediate family member; 4) remove the requirement that a person have been an employee for two consecutive weeks prior to taking bereavement leave; and 5) mirror Quebec’s categories of extended leave. Bereavement leave is critical to the mental health of those who have experienced a loss and these changes will improve the mental health of workers and contribute to the de-stigmatization of grief. Grieving should not be a privilege reserved for those who have enough savings and vacation days to afford it.

Vaccine Passports as a Constitutional Right

Kevin L. Cope, (University of Virginia), Ilya Somin (George Mason University), Alexander Stremitzer (ETH Zurich), Vaccine Passports as a Constitutional Right, George Mason Legal Studies Research Paper No. LS 21-11 (2021):

Does the U.S. Constitution guarantee a right to a vaccine passport? In the United States and elsewhere, vaccine passports have existed for over a century, but have recently become politically divisive as applied to COVID-19. A consensus has emerged among legal experts that vaccine passports are often constitutionally permissible. Yet there has been almost no serious analysis about whether a vaccine passport can be a constitutional right: whether a government is constitutionally obligated to exempt fully vaccinated people from many liberty-restricting measures. While some measures may be unconstitutional regardless of to whom they apply, we argue that there exist certain public-health restrictions from which the vaccinated must constitutionally be exempted, even if the unvaccinated need not be. The government is never constitutionally obligated to impose liberty-restricting measures in response to an epidemic. But where it does so, it often has an obligation to exempt those who, being successfully vaccinated, pose little danger of transmitting the disease or suffering serious illness. Under U.S. constitutional law, vaccinated people might be entitled to exemptions from six sets of restrictions: (1) domestic travel and movement; (2) international travel; (3) uncompensated shutdowns, under the Fifth Amendment takings clause; (4) abortion, under the constitutional right to privacy; (5) restrictions on access to gun stores, under the Second Amendment; and (6) assembly and worship, under the First Amendment freedom of assembly and free exercise clauses. Contrary to some social-justice and liberty-based arguments, this conclusion is also consistent with longstanding liberal principles of fair allocation of costs, equity, liberty, and non-discrimination.

Cannabis as Treatment for Chronic Pelvic Pain in Women: An Opportunity for the Cannabis Wellness Industry

Jamie Feyko (Ohio State University), Cannabis as Treatment for Chronic Pelvic Pain in Women: An Opportunity for the Cannabis Wellness Industry, Ohio State Legal Studies Research Paper No. 640 (2021):

In a healthcare landscape that routinely ignores women’s pain, many women turn to cannabis to manage their otherwise debilitating chronic pelvic pain caused by conditions such as endometriosis and polycystic ovary syndrome. This paper explores how the Controlled Substances Act wrongly characterized cannabis as having “no medicinal value” and the effects this federal illegality still has on women seeking alternative pain management therapies for chronic pelvic pain. Additionally, this paper explains why and how cannabis helps relieve such pain through discussing the effects of cannabinoids like THC and CBD on the body’s inflammatory response and the body’s endocannabinoid system. Women, as the leading consumers in our society, have expressed a need and a desire for products that provide relief from chronic pelvic pain and increase sexual pleasure. The 2018 Farm Bill opened the doors to CBD businesses looking to break into the women’s sexual and reproductive wellness market. The market for women-centric CBD pain relief and sexual enjoyment is far from saturated, and this paper encourages those in the CBD industry (or those looking to enter the industry) to take note.

Legal Interventions to Counter COVID-19 Denialism

James G. Hodge (ASU), Jennifer L. Piatt (ASU), Leila Barraza (ASU), Legal Interventions to Counter COVID-19 Denialism, J. L. Medicine & Ethics (forthcoming Aug. 25, 2021):

A series of denialist state laws thwart efficacious public health emergency response efforts despite escalating impacts of the spread of the Delta variant during the COVID-19 pandemic. However, public and private actors are fighting back to obstruct or reverse anti-public health maneuvers through legal challenges focused on (1) constitutional structural- and rights-based challenges; (2) use of conditional spending requirements; (3) federal preemption; (4) disability and other anti-discrimination laws; (5) waivers or routine uses of public health powers; and (6) civil liability claims.

When Exemptions Discriminate: Unlawfully Narrow Religious Exemptions to Vaccination Mandates by Private Colleges and Universities

Ronald J. Colombo (Hofstra University), When Exemptions Discriminate: Unlawfully Narrow Religious Exemptions to Vaccination Mandates by Private Colleges and Universities, 44 New Eng. L. Rev. (forthcoming July 26, 2021):

Numerous colleges and universities have imposed COVID-19 vaccination mandates upon their students. Most of these mandates have been accompanied by the purported recognition of medical and religious exemptions. With regard to religious exemptions, some are unjustly discriminatory. Most notably, they give preference to students who are members of organized religions over students who are not. And even facially neutral exemptions can be administered in an unjustly discriminatory way by, for example, giving preference to one set of religious denominations over another, or by engaging in “religious profiling” (whereby students of a particular denomination are held completely beholden to the beliefs of that denomination (as ascertained by the school’s administration), despite their own sincere and genuine religious beliefs to the contrary).

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COVID-19 Vaccination In The UK And Ireland: Ethics In Practice

Clayton Ó Néill (Queen's University), Mary-Elizabeth Tumelty (University College Cork), Mary Donnelly(University College Cork), Anne-Maree Farrell (University of Edinburgh), Rhiannon Frowde (University of Edinburgh), Linda Pentony (University College Cork), COVID-19 Vaccination In The UK And Ireland: Ethics In Practice, Edinburgh School of Law Research Paper No. 2021/16 (2021):

This working paper examines questions of values in relation to the COVID-19 vaccination programmes in the United Kingdom and Ireland. We first present a brief overview of developments in relation to COVID-19 vaccine development and rollout on a global basis. We then proceed with an examination of key ethical, policy and legal developments in these areas in the United Kingdom and Ireland, followed by the identification of commonalities and differences as between the two countries. In the final section, we consider the broader issue of values raised by the COVID-19 vaccination programmes in the UK and Ireland.

It's Alright, Ma, It's Life and Life Only: Have Universities Been Meeting Their Legal Obligations to High-Risk Faculty During the Pandemic?

Gary J. Simson (Mercer University), Mark L. Jones (Mercer University), Cathren Page (Mercer University), Suzianne D. Painter-Thorne (Mercer University), It's Alright, Ma, It's Life and Life Only: Have Universities Been Meeting Their Legal Obligations to High-Risk Faculty During the Pandemic?, 48 Pepp. L. Rev. (2021):

Even those universities most firmly committed to returning to in-person instruction in fall semester 2020 recognized that for health reasons some exceptions would need to be made. The CDC had identified two groups – people age sixty-five and over, and people with certain medical conditions – as persons “at increased risk of severe illness from COVID-19,” and it had spelled out various special precautions they should take to avoid contracting the virus. Given the CDC’s unique stature, universities very reasonably could have been expected to grant exceptions to faculty falling into either group, but that’s not what many universities did. 

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From Carrie Buck to Britney Spears: Strategies for Disrupting the Ongoing Reproductive Oppression of Disabled People

Robyn Powell (Stetson University), From Carrie Buck to Britney Spears: Strategies for Disrupting the Ongoing Reproductive Oppression of Disabled People, 107 Va. L. Rev. (forthcoming Aug. 10, 2021):

In June 2021, Britney Spears made news headlines when she testified to a judge that she was being prevented from having children because her conservator would not allow her to stop using contraception. Britney Spears’ dreadful experiences are a glaring reminder that nearly 100 years after the infamous Buck v. Bell decision, reproduction is still weaponized to subjugate people with disabilities. Indeed, the reproductive oppression experienced by Britney Spears and other people with actual or perceived disabilities is deeply entrenched in our laws, in our policies, and in our collective conscience. Confronting these persistent inequities will require us to radically transform our laws and policies. This Essay responds to the ongoing reproductive injustice experienced by disabled people by proposing a vision to assist activists, legal professionals, scholars, and policymakers conceive of and articulate the basic contours of a paradigm shift that supports the coalescence of the reproductive justice and disability justice movements. The guiding principles set forth herein are intended to advance a long-overdue conversation about reproductive justice for people with disabilities by providing a starting point for activists, scholars, legal professionals, and policymakers to use, critique, and improve upon. The need for action could not be more timely or clear.

Disabled Perspectives on Legal Education: Reckoning and Reform

Lilith A. Siegel (UC Berkeley), Karen Tani (University of Pennsylvania), Disabled Perspectives on Legal Education: Reckoning and Reform, 69 J. Legal Educ. (forthcoming Aug. 9, 2021):

This is an Introduction to a Journal of Legal Education symposium on "Disabled Law Students and the Future of Legal Education." The symposium's focal point is a set of first-person essays by disabled lawyers. Writing thirty years after the inclusive promise of the Americans with Disabilities Act, but also amidst powerful evidence (via the pandemic) of the devaluation of people with disabilities, contributors reflect on their experiences in law school and the legal profession. The symposium pairs these essays with commentary from some of the nation’s leading scholars of disability law. The overarching goals of the symposium are to help readers evaluate how well existing legal frameworks have met the needs of disabled law students, lawyers, and legal academics and to point the way towards a more just and inclusive educational experience for all aspiring lawyers.

Reciprocity and Liability Protections during the COVID-19 Pandemic

Valerie Gutmann Koch (University of Houston), Diane E. Hoffmann (University of Maryland), Reciprocity and Liability Protections during the COVID-19 Pandemic, 51 The Hastings Center Rep. (2021):

During the COVID-19 pandemic, as resources dwindled, clinicians, health care institutions, and policymakers have expressed concern about potential legal liability for following crisis standards of care (CSC) plans. Although there is no robust empirical research to demonstrate that liability protections actually influence physician behavior, we argue that limited liability protections for health care professionals who follow established CSC plans may instead be justified by reliance on the principle of reciprocity. Expecting physicians to do something they know will harm their patients causes moral distress and suffering that may leave lasting scars. Limited liability shields are both appropriate and proportionate to the risk physicians are being asked to take in such circumstances. Under certain narrow circumstances, it remains unclear that the standard of care is sufficiently flexible to protect physicians from liability. Given this uncertainty, the likelihood that physicians would be sued for such an act, and their desire for such immunity, this limited protection is morally legitimate.

Tort Law Implications of Compelled Physician Speech

Nadia N. Sawicki (Loyola University Chicago), Tort Law Implications of Compelled Physician Speech, Ind. L.J. (forthcoming June 16, 2021):

Abortion-specific informed consent laws in many states compel physicians to communicate state-mandated information that is arguably inaccurate, immaterial, and inconsistent with their professional obligations. These laws face ongoing First Amendment challenges as violations of the constitutional right against compelled speech. This Article argues that laws compelling physician speech also pose significant problems that should concern scholars of tort law.

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The Right to Special Education: Undocumented Children and the Promise of Plyler

Blakely Simoneau, The Right to Special Education: Undocumented Children and the Promise of Plyler, 30 Berkeley La Raza L. J. (2020):

Undocumented children in immigration detention facilities have the right to access education. Yet these children, on American soil and in the government's custody, remain unprotected by the Individuals with Disabilities Education Act. Changing immigration policies further compound this problem. This article argues that the potential value to our society cannot be assumed away by their uncertain immigration status, and that if the right to education is taken seriously, these children cannot be excluded from the receipt of special education merely because their legal status is unknown.

The Right to Special Education: Undocumented Children and the Promise of Plyler

Senthilkumaran Piramanayagam, Partho Pratim Seal (MAHE), Employers’ Attitudes and Hiring Intentions towards Persons with Disabilities in Hotels in India, Disability CBR & Inclusive Dev. (2020):

Undocumented children in immigration detention facilities have the right to access education. Yet these children, on American soil and in the government's custody, remain unprotected by the Individuals with Disabilities Education Act. Changing immigration policies further compound this problem. This article argues that the potential value to our society cannot be assumed away by their uncertain immigration status, and that if the right to education is taken seriously, these children cannot be excluded from the receipt of special education merely because their legal status is unknown.

Towards Universal Design in the Classroom

Ruth Colker (Ohio State University), Towards Universal Design in the Classroom, J. Legal Educ. (forthcoming July 19, 2021):

In this Article, I will discuss how we can make the law school classroom more accessible through the use of universal design features. I am sure my list is incomplete and that others, including the contributors to this issue, can add to this list. Nonetheless, I think there are two key benefits to a discussion of universal design principles. First, the use of universal design features will lessen the need for students to identify themselves as disabled and seek to use an often-clumsy accommodation process. It is expensive to receive a disability diagnosis from a trained professional, and some universities require documentation with adult norms that would not have been used for K-12 testing, when students were not yet adults. Further, some universities require students to renew their requests each semester. Even if the renewal request is automatically approved, it is time-consuming, anxiety-producing and disrespectful to one’s dignity to have to say “yes, I still have a visual impairment.” Second, I have found that all students benefit from many universal design features. On my end-of-year student evaluations, I often get comments from students thanking me for my use of a universal design feature, such as posting Powerpoint slides in advance of class, even though they do not identify as disabled. My students with disabilities often also thank me for allowing them to access instruction more fully without going through an accommodation process. The “universality” aspect of universal design has broad appeal. It saves time and money while respecting the dignity interests of students with disabilities.

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Why Disability Studies in Criminal Law and Procedure?

Jamelia Morgan (UC Irvine), Why Disability Studies in Criminal Law and Procedure?, U.C. Irvine L. Rev. (forthcoming July 15, 2021):

In recent years, police violence against disabled people has been a source of increased public attention and alarm. By some accounts, anywhere from twenty percent to over half of the people killed each year by law enforcement have at least one disability. Disabled people comprise a high proportion of incarcerated people, making up at least thirty percent of state prisoners and forty percent of detainees in jails. Yet, despite these vulnerabilities to criminalization, police violence, and incarceration, in-depth discussions on disability are relatively limited in law school courses on criminal law and criminal procedure. In this essay, I offer some ideas for how law professors can incorporate critical discussions of disability into their substantive criminal law and criminal procedure courses. Drawing from insights from Disability Studies and Critical Disability Theory, I show how law professors seeking to equip their students with tools for examining the limits of legal protections and provide students with a broader scope of the harms of the criminal legal system can incorporate disability as a lens for legal analysis.

CRISPR, Like any Other Technology: Shedding Determinism & Reviving Athens

Jon Khan (York University), CRISPR, Like any Other Technology: Shedding Determinism & Reviving Athens, 19 Can. J. L. & Tech. 173 (2021):

This article examines current narratives surrounding CRISPR (clustered regularly interspaced short palindromic repeats) and the current Canadian treatment of this novel biotechnology. It argues that Canada’s current approach to genetic research and CRISPR appear to have succumbed to the false narrative of technological determinism. It argues that Canada must buck the narrative and alter the current status quo in two principal ways: Canada should pursue more somatic CRISPR clinical trials in humans and permit pre-clinical germline editing. To design a regulatory regime for clinical germline editing and better guidance on somatic CRISPR clinical trials, Canada should engage Deliberative Polling to ensure Canadians’ views are represented in future legislation and regulations.

Parental Access to Children’s Raw Genomic Data in Canada: Legal Rights and Professional Responsibility

Michael J.S. Beauvais (McGill University), Adrian Thorogood (Universite du Luxembourg), Michael Szego (University of Toronto), Karine Sénécal (McGill University), Ma'n H. Zawati (McGill University), Bartha Maria Knoppers, Parental Access to Children’s Raw Genomic Data in Canada: Legal Rights and Professional Responsibility, Frontiers in Genetics (2021):

Children with rare and common diseases now undergo whole genome sequencing (WGS) in clinical and research contexts. Parents sometimes request access to their child’s raw genomic data, to pursue their own analyses or for onward sharing with health professionals and researchers. These requests raise legal, ethical, and practical issues for professionals and parents alike. The advent of widespread WGS in pediatrics occurs in a context where privacy and data protection law remains focused on giving individuals control-oriented rights with respect to their personal information. Acting in their child’s stead and in their best interests, parents are generally the ones who will be exercising these informational rights on behalf of the child. In this paper, we map the contours of parental authority to access their child’s raw genomic data. We consider three use cases: hospital-based researchers, healthcare professionals acting in a clinical-diagnostic capacity, and “pure” academic researchers at a public institution. Our research seeks to answer two principal questions: Do parents have a right of access to their child's raw WGS data? If so, what are the limits of this right? Primarily focused on the laws of Ontario, Canada’s most populous province, with a secondary focus on Canada’s three other most populous provinces (Quebec, British Columbia, and Alberta) and the European Union, our principal findings include (1) parents have a general right of access to information about their children, but that the access right is more capacious in the clinical context than in the research context; (2) the right of access extends to personal data in raw form; (3) a consideration of the best interests of the child may materially limit the legal rights of parents to access data about their child; (4) the ability to exercise rights of access are transferred from parents to children when they gain decision-making capacity in both the clinical and research contexts, but with more nuance in the former. We conclude by crafting recommendations for healthcare professionals in the clinical and research contexts when faced with a parental request for a child’s raw genomic data.

Prospective Oversight and Approval of Assisted Dying Cases in Victoria, Australia: A Qualitative Study of Doctors’ Perspectives

Ben White (Queensland University of Technology), Lindy Willmott (Queensland University of Technology), Marcus Sellars, Patsy Yates, (Queensland University of Technology), Prospective Oversight and Approval of Assisted Dying Cases in Victoria, Australia: A Qualitative Study of Doctors’ Perspectives, BMJ Supportive & Palliative Care (online first) (2021):

Background: Assisted dying (AD) is increasingly becoming lawful internationally. While all AD models have oversight mechanisms, Victoria, Australia is rare in requiring formal approval before AD is permitted. Other jurisdictions are now enacting or implementing prospective approval models yet little is known about their operation. This paper reports the first empirical research internationally analysing the operation of a prospective approval model. 

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