HealthLawProf Blog

Climate Change and Older Persons

Alan Gutterman (Older Persons' Rights Project), Climate Change and Older Persons, SSRN (2022):

Climate change, simply described as “any change in average weather that lasts for a long period of time”, has been called out for specific attention in commentaries on risks to health and human rights during emergency situations. Emergencies caused by climate change-induced drought, famine, rainfall variation and shrinkage of water supplies lead to catastrophic suffering, misery and humanitarian crises and invariably threaten rights to equal protection under international human rights and humanitarian law either as a result of human right violations associated with the emergencies themselves and the associated response or exacerbation of human rights problems that already existed before the emergency situation emerged. The UN Independent Expert on the Enjoyment of All Human Rights by Older Persons has written that “older persons are disproportionately affected in emergency situations” and has also given notice of the range of vulnerabilities of older persons in emergency contexts including intrinsic (i.e., poor health, disability or frailty), extrinsic (due to low income, low degree of literacy or the remoteness of the place of residence) or due to systemic factors (i.e., lack of disaggregated data, failure to assess the needs of older persons correctly or failure to monitor the effectiveness of assistance provided). The US Environmental Protection Agency has noted that climate change “threatens human health, and access to clean air, safe drinking water, nutritious food and shelter” for everyone, and that older adults are vulnerable to climate change-related health impacts due to normal changes in the body associated with aging that can limit their mobility and the higher likelihood that they will have developed chronic health conditions and/or require assistance with their daily activities.

Publicizing Corporate Secrets for Public Good

Christopher Morten (Columbia University), Publicizing Corporate Secrets for Public Good, U. 171 Penn. L. Rev. (forthcoming):

Federal regulatory agencies in the United States hold a treasure trove of valuable information essential to a functional society. Yet little of this immense and nominally “public” resource is accessible to the public. That worrying phenomenon is particularly true for the valuable information that agencies hold on powerful private actors. Corporations regularly shield vast swaths of the information they share with federal regulatory agencies from public view, claiming that the information contains legally protected trade secrets (or other proprietary “confidential commercial information”). Federal agencies themselves have largely acceded to these claims and even fueled them, by construing restrictively various doctrines of law, including trade secrecy law, freedom of information law, and constitutional law. Today, these laws—and fear of these laws—have reduced to a trickle the flow of information that the public can access. This should not and need not be the case.

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Impacts of the Affordable Care Act Medicaid Expansion on Health Insurance, Health Care Utilization, and Health Outcomes for Mexican Americans

Samsun Naher (University of New Mexico), Dinah Amoah (University of New Mexico), Kate Cartwright (University of New Mexico), David van der Goes (University of New Mexico), Impacts of the Affordable Care Act Medicaid Expansion on Health Insurance, Health Care Utilization, and Health Outcomes for Mexican Americans, SSRN (2022):

Latinos in the U.S. are the least likely to have health insurance compared to other racial and ethnic groups. Mexican Americans, the largest subgroup of U.S. Latinos, have particularly great barriers to healthcare access, and experience disparities in care and in health outcomes. The Affordable Care Act (ACA), enacted in 2010 and mostly implemented by January 1st, 2014, was designed in part to improve health insurance access for uninsured groups, including an option for states to expand Medicaid.

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Driving While Stoned in Virginia

Paul J. Larkin (The Heritage Foundation), Driving While Stoned in Virginia, Am. Crim. L. Rev. Online (2022):

In 2021, Virginia became the first state in the Old South to pass legislation beginning a multi-year process of legalizing the commercial sale of cannabis for recreational use. Unfortunately, the Virginia General Assembly did not adequately address the fact that THC impairs a driver’s ability to handle a vehicle safely. What is worse, a goodly number of individuals drive after using cannabis because they believe that it does not impair their ability to drive safely or actually improves their driving skills, a conclusion that is demonstrable false. Atop that, a large number of people commonly use marijuana and alcohol, and each drug amplifies the effect of the other. Fortunately, the 2021 legislation contained a provision requiring the General Assembly, which begins a new session in January 2022, to repass the 2021 legislation for its commercial legalization provisions to go into effect. The legislature should adopt several remedial measures to reduce the risk of highway crashes, serious injuries, and fatalities.

Midwifery Licensing: Medicalization of Birth and Special Interests

Steven Horwitz (Ball State University), Lauren Hall (Rochester Institute of Technology), Midwifery Licensing: Medicalization of Birth and Special Interests, SSRN (2021):

In this study we attempt to understand the relatively expensive and medicalized maternity care service industry in the United States by exploring the regulatory environment around alternatives to hospital births. We argue that a variety of existing regulations—restrictive licensing regulations, in particular—have raised the costs of providing these birthing alternatives and have thereby artificially reduced the supply. Such regulations exacerbate inappropriate medicalization of birth, escalate costs, create maternity deserts in rural and urban areas, and contribute to inequality by pricing diverse providers out of the maternity care market altogether. More troublingly, such regulations do little to increase the safety of maternity care but may actually make birth less safe by stymying integration and cooperation and preventing women from finding providers who can address their unique needs, contributing medical errors and racial disparities to maternity care outcomes. Safe alternatives exist to restrictive state licensing, alternatives that provide greater levels of freedom, more appropriate care, and reduced disparities for the most vulnerable birthing women.

Public Health Law and Policy in the Wake of NFIB v. OSHA: Probing Emerging Divides in the Supreme Court’s View of Public Health

Ana Santos Rutschman (Saint Louis University), Ruqaiijah Yearby (Saint Louis University), Public Health Law and Policy in the Wake of NFIB v. OSHA: Probing Emerging Divides in the Supreme Court’s View of Public Health, NYU J. Leg. & Pub. Pol’y Quorum (2022):

In early 2022, the Supreme Court struck down an emergency temporary standard enacted by the Occupational Safety and Health Administration. The standard directed large employers (defined as businesses with 100 or more employees) to develop and implement several measures to curb the spread of COVID-19 in the workplace, including the requirement that employees be vaccinated against COVID-19 or submit to regular testing.

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Toward Human Rights and Evidence-Based Legal Frameworks for (Self-Managed) Abortion: A Review of the Last Decade of Legal Reform

Patty Skuster (Temple University), Berrro Pizzarossa (Independent), Toward Human Rights and Evidence-Based Legal Frameworks for (Self-Managed) Abortion: A Review of the Last Decade of Legal Reform, 23 Health Hum Rights. 199 (2021):

Since the late 1980s, people have safely self-managed their abortions with medication, changing the landscape of abortion. This practice continues to evolve and expand and has been identified as a cause of decline in severe abortion-related morbidity and mortality. However, developments in medical abortion and self-management have yet to be reflected in the way abortion is regulated. Building on the need for evidence and human rights-based laws, this article explores developments in abortion laws from around the world between 2010 and 2020 to explore the extent to which they have contributed to an enabling environment for self-managed abortion. We focus on recent laws-those adopted in the past 10 years-for which we had access to information for analysis. We observe that laws in force still retain clinical settings and the involvement of medical professionals as the desirable circumstances for an abortion to take place and that even those that have liberalized access still retain some degree of criminalization for the pregnant person who carries out a self-managed abortion or for those who support the process. We conclude that there is enough evidence and support from international human rights standards to ground legal developments that enable self-managed abortion.

The Need to Reimagine Disability Rights Law Because the Medical Model of Disability Fails Us All

Angelica Guevara (Business Law and Ethics), The Need to Reimagine Disability Rights Law Because the Medical Model of Disability Fails Us All, 269 Wisconsin Law Review, Vol. 2021 (2021):

Disability is not a personal problem, but rather a social reaction to natural human variation and susceptibility to life circumstances. Current disability antidiscrimination law has been ineffective in overcoming this misleading understanding. The COVID-19 pandemic has highlighted that, in particular, disability antidiscrimination law lies within the paradigm known as the "medical model of disability." The medical model treats disabilities as defects in need of treatment. In doing so, it reinforces the able body as the norm and perpetuates stigma and discrimination against people with disabilities. After experiencing a pandemic in modern times, many of those recovering from COVID-19 have experienced, and will continue to experience, long-term health effects resulting in various disabilities. As young Americans without underlying conditions suffer from this virus, the pandemic has brought this reality to the forefront. Thus, as more and more Americans need to access its protection, disability antidiscrimination law is under greater scrutiny. For the first time on a massive scale, Americans experienced working from home and the reality that anyone-regardless of age, race, class, or gender-could be susceptible to the virus and might require workplace accommodations going forward. Vulnerability is universal and constant. Unfortunately, people of color are at a higher risk of contracting, experiencing complications, and dying from COVID-19. Therefore, this Essay uses a Disability Studies and Critical Race Theory (DisCrit) lens to shed light on the structural issues that perpetuate these disparities. Through this lens, the Essay explains the medical model's failings embedded in disability antidiscrimination law and the need to instead use the social model of disability in the law so that it recognizes society's role in constructing disability. The root of the problem is that the medical model essentializes disability and perpetuates "othering," affecting us all but even further impacting people of color.

Cogs in the Machine: Two Countries Attempt to Balance Individualized Concerns in the Pursuit of Public Health

Oliver Kim (University of Pittsburgh), Cogs in the Machine: Two Countries Attempt to Balance Individualized Concerns in the Pursuit of Public Health, Southern Illinois U. L. J., Vol. 44 (2019):

Just like an online video going viral, healthcare can now be crowdsourced, providing a new method for public health officials to follow and analyze trends in a community’s health. For example, data that might have been impossible to collect, sort, and analyze, may now be assembled and processed in large sets by actors such as Big Tech and Big Data. Doing so could help researchers, policymakers, and public health officials make better decisions on critical interventions to improve health across entire communities. But having vast amounts of information about individuals and their health status freely flowing may raise alarm if health information gathered by clinicians and medical researchers is used for unauthorized non-clinical purposes.

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Trust the Science But Do Your Research: A Comment on the Unfortunate Revival of the Progressive Case for the Administrative State

Mark Tushnet (Harvard Law School), Trust the Science But Do Your Research: A Comment on the Unfortunate Revival of the Progressive Case for the Administrative State, SSRN (2022):

This Essay offers a critique of one Progressive argument for the administrative state, that it would base policies on what disinterested scientific inquiries showed would best advance the public good and flexibly respond to rapidly changing technological, economic, and social conditions. The critique draws on recent scholarship in the field of Science and Technology Studies, which argues that what counts as a scientific fact is the product of complex social, political, and other processes. The critique is deployed in an analysis of the responses of the U.S. Centers for Disease Control and Food and Drug Administration to some important aspects of the COVD crisis in 2020.

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Big Data, Surveillance Capitalism, and Precision Medicine: Challenges for Privacy

Mark A. Rothstein (University of Louisville), Big Data, Surveillance Capitalism, and Precision Medicine: Challenges for Privacy, 49 J.L. Med. & Ethics 4 (2021):

Surveillance capitalism companies, such as Google and Facebook, have substantially increased the amount of information collected, analyzed, and monetized. including health information increasingly used in precision medicine research, present great challenges for health privacy. “Click through” consent online, compelled authorizations, and the development of algorithms that generate associations from diverse.

To Bryce Gowdy, with Love: Prioritizing Medicaid's 'EPSDT' Mandate for America's Most Vulnerable Youth

Victor M. Jones (NAACP Legal Defense and Educational Fund), To Bryce Gowdy, with Love: Prioritizing Medicaid's 'EPSDT' Mandate for America's Most Vulnerable Youth, Southern U. L. Rev., Vol. 48 (2021):

This Article joins the limited chorus of children's Medicaid scholarship by advocating for the prioritizing of the EPSDT program. Part I introduces an intersectional approach to understanding children’s mental health, and the need for public, preventative health care to address their mental health problems. Part II provides a review of American social and health insurance programs for indigent populations, as historical context for the development of the EPSDT program. Part III provides a detailed analysis of the EPSDT program as a civil rights mandate and the loadstar for national preventative health policy, positing that the intent and aims of the EPSDT program are undermined by the program’s placement under the statutory scheme of its parent Medicaid program. Part IV discusses the historical and systemic struggles by states in implementing the EPSDT program and the source of these problems. Lastly, Part V proposes as a solution, a federalized EPSDT program, to ensure the program’s enforcement and fulfillment as a civil rights mandate for America’s most vulnerable youth. For children like Bryce.

Sex Offender Registration in a Pandemic

Wayne A. Logan (Florida State University), Sex Offender Registration in a Pandemic, 18 Ohio St. J. Crim. L. (2021):

This Essay, part of a symposium examining how the COVID-19 pandemic has affected the criminal justice system, addresses whether, and how, state and local governments maintained their requirement that individuals convicted of sex offenses meet with authorities in person to confirm and update their registry information. Focusing in particular on the first months of 2020, the tale told highlights the distinctiveness of registration: while many governmental operations were suspended, or went online, in-person registration very often persisted. As a result, registrants were required to travel to a government office (perhaps by public transport), wait in a closed space very possibly with poor ventilation, sometimes for extended periods of time, where social distancing might not have been feasible. If they failed to satisfy the registration requirement they faced significant criminal punishment.

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Ebbs and Flows: Issues in Cross-Border Exchange and Regulation of Health Information

Oliver Kim (University of Pittsburgh), Ebbs and Flows: Issues in Cross-Border Exchange and Regulation of Health Information, 26 Annals Health L. 39 (2017):

The use of data—health, financial, commercial— has huge implications for our economic interests both domestically and globally. Information has as much currency as other goods and services, and even across borders, this data has use. In healthcare, the free exchange of such data may help consumers make better health decisions, patients engage in their care, practitioners avoid costly mistakes and duplicate test, and the government evaluate services for actual value. How we share data across borders is even more arduous due to barriers not only around interoperability but also legal concerns around issues such as privacy and security.

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Ohio Medical Marijuana Control Program at Three Years: Evaluating Satisfaction and Perception

Jana Hrdinova (Ohio State University), Ohio Medical Marijuana Control Program at Three Years: Evaluating Satisfaction and Perception, Ohio St. L. Stud. Research Paper No. 656 (2021):

Medical marijuana has been legal in Ohio since September 8, 2016, when House Bill 523 (HB 523) came into effect. The bill created the framework for the Ohio Medical Marijuana Control Program (OMMCP). Due to program delays, the first Ohio sales of medical marijuana at a licensed dispensary did not occur until January 2019. Since then, OMMCP has experienced a steep growth in the number of patients and the amount of cannabis flower and manufactured units sold. Yet, OMMCP has also experienced a stagnating number of physicians licensed to recommend and has battled persistent levels of dissatisfaction among patients and potential patients. This report, a third in an annual series, traces the evolution of OMMCP over the last three years both in terms of its growth and OMMCP patients’ and prospective patients’ satisfaction levels with the functioning and design of the program.

The Girl with the Cyber Tattoo: Applying a Gender Equity Lens to Emerging Health Technology

Oliver Kim (University of Pittsburgh), Tamara Kramer (Health Care Investment Program), The Girl with the Cyber Tattoo: Applying a Gender Equity Lens to Emerging Health Technology, Northeastern U. L. Rev. 327 (2020):

Often breakthrough technologies promise to disrupt healthcare, making care delivery more efficient, effective, and affordable. But such technology cannot be another task for patients to follow—in other words, innovations need to be “outvations,” too, and make care easier. For women, technology such as telehealth, digital apps, data analytics, and other advances promise to break down barriers to care. For example, many telehealth proponents believe it can eliminate geographic barriers for women in rural communities to receive reproductive care, and online pharmacies and drones similarly have allowed women in isolated areas to receive birth control.

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Last in Line: Vaccine Scarcity and the Americans with Disabilities Act

Jessica R. Gunder (University of Idaho), Last in Line: Vaccine Scarcity and the Americans with Disabilities Act, 10 Ind. J.L. & Soc. Equal. 1 (2022):

The distribution of the COVID-19 vaccine was not perfect, and in some states, it was so inequitable that the most in need of vaccination were sent to the end of the vaccination line. Over the initial months of the vaccine rollout, demand for COVID-19 vaccines exceeded supply. Although the CDC issued data-based guidance for how to prioritize access to the vaccines, it was non-binding, and many states set different priorities.

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Trying and Dying: Are Some Wishes at the End of Life Better Than Others?

Oliver Kim (University of Pittsburgh), Trying and Dying: Are Some Wishes at the End of Life Better Than Others?, 41 Dalhousie L. J. 93 (2018):

In 2015, Congress considered two legislative proposals related to care at the end of life. One proposal passed as part of a larger package, and this proposal paralleled a “right to try” movement. The other proposal, which would have assisted in advance care planning efforts, failed to pass as an amendment into a larger package being debated by the Senate.

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Physician Liability for Suicide after Negligent Tapering of Opioids

Mark A. Rothstein (University of Louisville), Julia Irzyk (Independent), Physician Liability for Suicide after Negligent Tapering of Opioids, J. Law, Med & Ethics (2022):

To dissipate the opioid crisis physicians have been urged not to prescribe opioids for new patients and to limit opioids prescribed for established patients. The precipitous and medically contraindicated reduction or “tapering” of opioids for patients with chronic pain due to serious medical conditions has caused needless suffering and, increasingly, suicide. A physician’s negligence in tapering opioids resulting in a patient’s suicide could be the basis of substantial legal liability.

Equality and Sufficiency in Health Care Reform

Gabriel Scheffler (University of Miami), Equality and Sufficiency in Health Care Reform, 81 Maryland L. Rev. 1 (2022):

Most Americans believe that health care is a right, not a privilege. Yet debates over health care reform frequently fail to distinguish between two distinct conceptions of the right to health care: one which focuses on sufficient access to health care—what I refer to as the Right to a Decent Minimum—and a second which focuses on equality in access to health care— what I refer to as the Right to Equal Access. These two conceptions of the right to health care in turn support two distinct categories of proposals for expanding health insurance coverage. The Right to Equal Access justifies a more radical set of reforms, such as Medicare for All, whereas the Right to a Decent Minimum justifies a more incremental approach to health care reform, such as by building on the Patient Protection and Affordable Care Act. Comparing these two conceptions of the right to health care to Medicare for All and the incremental reforms clarifies what it as stake in the debate over health care reform: not just concerns about political feasibility, but also different moral or political values. At the same time, it reveals that there are some surprising areas of convergence between these two conceptions of the right to health care, and accordingly, that there is room for greater convergence between these two types of reform proposals.