HealthLawProf Blog

Fixing the Randolph-Sheppard Act: Serving up Some Common Understanding

Collin Allan (Independent), Fixing the Randolph-Sheppard Act: Serving up Some Common Understanding, 230 Mil. L. Rev. 75 (2022):

Congress passed the Randolph-Sheppard Act (the Act) to give blind persons more economic and employment opportunities and to help them become more self-sufficient. To this end, the Act provides blind vendors with a priority for contracts for the operation of cafeterias for Federal agencies. Consequently, blind vendors often compete for cafeteria contracts on Federal installations, including military bases. Unfortunately, both the Act and its implementing regulations fail to define all key terms, such as “priority,” “operate,” “operation,” and “competitive range.” This creates confusion and disagreement among interested parties as to how to implement the statute properly, and that leads to lengthy arbitration and litigation.

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Including Disabled People in the Battle to Protect Abortion Rights: A Call-to-Action

Robyn Powell (Stetson University), Including Disabled People in the Battle to Protect Abortion Rights: A Call-to-Action, UCLA L. Rev. (2023):

The battle to protect abortion rights in the United States has not been this fierce in fifty years. From a precipitously growing number of states passing draconian laws that drastically limit—and in some states, entirely ban—access to safe and legal abortion services to a Supreme Court that is poised to overturn Roe v. Wade, reproductive freedom is under siege at every turn. Overturning Roe will have devastating consequences for all people, but most acutely for historically marginalized communities, including people with disabilities. Nonetheless, when disability is invoked in discourse concerning abortion, it is typically done to either support or oppose abortions based on fetal disability diagnoses. Critically, by framing disability and abortion only in the context of disability-selective abortions, activists, scholars, legal professionals, and policymakers fail to recognize that it is actual disabled people—not hypothetical fetuses with disability diagnoses—who abortion restrictions will harm. Indeed, disabled people disproportionately experience pervasive and persistent disadvantages that increase their need for abortion services. They also experience considerable structural, legal, and institutional barriers that already put access to safe and legal abortion out of reach for many.

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Disability as Metaphor in American Law

Doron Dorfman (Seton University), Disability as Metaphor in American Law, U. Penn. L. Rev. (Forthcoming):

In recent decades, the term disability has become associated with a legally protected minority group of people living with impairments and the social oppression that stems from them. Yet in the legal realm the term disability has also been used as a metaphor that carries over meaning beyond the scope defined in disability law. This article identifies such use of disability as metaphor in two legal contexts. The first is the linguistic use of disability as metaphor for disadvantage, inability and impediment generally. I show how courts and legislators have been using the term to describe an inability to file a claim, inability to continue in a legal role, and disadvantages inflicted by state action in equal protection jurisprudence. The second context is what I call “disability frame advocacy”: when scholars and advocates use disability rights framework, and disability as metaphor for other oppressed identities, to advocate for resources, recognition, and redress, for groups outside of people with impairments (like Black, trans, poor, and homeless people, students who experienced inflicted trauma, and others).

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Ageism and Gender

Alan Gutterman (Older Persons' Rights Project), Ageism and Gender, SSRN (2021):

According to estimates based on data compiled and analyzed by the World Bank, the global population of women aged 65 and over as of 2020 was 397 million (an increase of 106 million from a decade earlier), representing 55% of the total global population of persons aged 65 and over (722 million) and 10.35% of the world’s total female population (compared to 8.5% a decade earlier). In 2009, the UN projected that the number of older women living in less developed regions would increase by 600 million within the period 2010 to 2050. The World Health Organization has called the “feminization of aging” one of the central challenges to be addressed by its program of “active aging”, noting that while women have the advantage in length of life, they are more likely than men to experience domestic violence and discrimination in access to education, income, food, meaningful work, health care, inheritances, social security measures and political power, and thus more likely than men to be poor and to suffer disabilities in older age. The UN Independent Expert on the Enjoyment of All Human Rights by Older Persons has observed that the combination of ageism and sexism has a unique and aggravating effect on discrimination and inequality which leads to older women being disproportionately affected by some health conditions, including depression, and suffering from the impact of gender inequalities in older age that manifest in multiple aspects, including legal status, access and control of property and land, access to credit, and inheritance rights.

There is no international treaty or convention that specifically covers the human rights of older persons, but older women have been called out for special attention in various human rights instruments and declarations. Of course, older women are entitled to all of the rights enshrined in the UN Convention on the Elimination of Discrimination against Women, which are applicable to all stages of a woman’s life, and the UN Committee on the Elimination of Discrimination against Women has argued that full development and advancement of women, including the enjoyment of human rights by older women, can only be achieved through a “life-cycle approach that recognizes and addresses the different stages of women’s lives −from childhood through adolescence, adulthood and old age−“, since the cumulative impact of those stages is so readily apparent when assessing the lives and needs of older women from a human rights perspective. This chapter discusses ageism and gender and realization of the human rights of older women and covers a range of subjects including legal and policy frameworks, health, housing, work, education and lifelong learning, participation in political and decision-making processes, poverty, economic empowerment and property rights, participation in community activities, gender stereotyping and ageist myths, caregiving and families, abuse, violence and neglect, access to justice, emergencies, older women as members of various vulnerable sub-groups (e.g., rural older women, refugees and older lesbian, bisexual, transgender and intersex women) and intergenerational solidarity.

Textbook of Special Education

Syed Sajid Husain Kazmi (Amity University Lucknow), Textbook of Special Education, SSRN (2022):

“Disabled children are equally entitled to an exciting and brilliant future” Nelson Mandela

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Impact Assessment of COVID-19 on the Labour Forces in India

Ardhendu Sekhar Nanda (Independent), Manas Ranjan Panda (Independent), Impact Assessment of COVID-19 on the Labour Forces in India, SSRN (2021):

Even before the COVID-19 pandemic, India has been going through slower economic growth and unprecedented unemployment difficulties which were aggravated by the onset of pandemic and the due the imposition of lockdown. The number of labourers vulnerable due to the imposition of lockdown could face job losses, increment in their working hours, unprotected regular jobs(lacking social protection coverage), layoffs and reduction of income and fore some this could even extend beyond lockdown. Strengthening the stimulus packages and other policy responses, economic recovery will require a strategy that restores jobs and supports the income of the labourers, while protecting the health and rights of the labourers in the informal economy especially migrant workers. This article describes how the onset of the COVID-19 pandemic has forced the government of different states to alter the existing labour legislation so as to bring back the economy on track. This article also focuses on the adverse impact of those labour legislation changes, on the health of labourers as well as discussing the evolving ideologies in the domain of labour forces.

Emerging From the Lockdown: Insights from Women Domestic Workers' Lives in Delhi

Monika Banerjee (Institute of Social Studies Trust), Emerging From the Lockdown: Insights from Women Domestic Workers' Lives in Delhi, SSRN (2021):

Using a mixed-methods approach of telephone survey and in-depth interviews with stakeholders and women workers, this study aims to assess the impact that the pandemic and the subsequent lockdown had on women domestic workers and map the way their situation changed once the lockdown was lifted. It finds that the lockdown had a severe impact on work and income, with almost 80% of the respondents stating that they experienced job loss during that period. The study also highlights that even when the lockdown was lifted, workers were not able to return to work immediately due to fear of disease among their employers. For those who were able to get back to work, there was a significant decline in the number of houses where they were able to get employment compared to the number of houses where they used to work prior to the pandemic. The study also highlights the new COVID-19 norms that workers now have to follow when they go for work and argues that the paid work situation for these workers remains far from what it used to be before the lockdown was imposed. In terms of unpaid work, the report finds that workers now bear an increased burden in both inside household work as well as caring for young children. They were found to be under extreme stress due to the financial crisis that they were suffering and were also found to be struggling with accessing essential goods and services including, food, water, fuel, children’s education and healthcare services for diseases other than COVID-19. The study recommends that as immediate measures domestic workers should be provided with free ration kits until their paid work situation stabilises. It also recommends that the government must fast-track the registration of domestic workers to the Unorganized Workers Social Security Board as well as bring out a minimum wage notification for the workers to ensure that they are protected from social and economic vulnerabilities.

Medical Practitioners' Views and Experiences of Being Involved in Assisted Dying in Victoria, Australia: A Qualitative Interview Study Among Participating Doctors

Marcus Sellars (Independent), Ben White (Queensland University of Technology), Patsy Yates (Queensland University of Technology), Lindy Willmott (Queensland University of Technology), Medical Practitioners' Views and Experiences of Being Involved in Assisted Dying in Victoria, Australia: A Qualitative Interview Study Among Participating Doctors, Soc. Sci. & Med. (2021):

Rationale
On June 19, 2019, Assisted Dying (AD) was legalized in the Australian state of Victoria, joining a small but growing cohort of jurisdictions internationally where AD is permitted. Few studies have examined perspectives of doctors who have participated in AD in jurisdictions where it has become legal, despite their pivotal role in the system.

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Should I Stay (Open) or Should I Close? World Legislatures during the First Wave of COVID-19

Israel Waismel-Manor (University of Haifa), Ittai Bar-Siman-Tov (Bar-Ilan University), Olivier Rozenberg (Sciences Po), Asaf Levanon (University of Haifa), Cyril Benoît (Sciences Po), Gal Ifergane (Ben-Gurion University of the Negev), Should I Stay (Open) or Should I Close? World Legislatures during the First Wave of COVID-19 in Pol. Studies (2022):

COVID-19 has shocked governance systems worldwide. Legislatures, in particular, have been shut down or limited due to the pandemic, yet with divergence from one country to another. In this paper, we report results from a cross-sectional quantitative analysis of legislative activity during the initial reaction to this shock and identify the factors accounting for such variation. Exploring legislatures across 159 countries, we find no relation between the severity of COVID-19 and limitations on legislatures’ operation, thus suggesting that legislatures are at risk of being shut down or limited due to policy “overreaction” and that a health risk may serve as an excuse for silencing them. However, we find that legislatures in democratic countries are relatively immune to this risk, while those in frail democracies are more exposed. In partially-free countries, the use of technology can mitigate this risk. We also find that the coalitional features of the government may lead to legislatures’ closing.

COVID-19, the Principle of Legality and the 'Legislative Bulldozer' of the Biosecurity Act 2015 (Cth)

Samuel Walpole (TC Beirne School of Law), William Isdale (University of Queensland), COVID-19, the Principle of Legality and the 'Legislative Bulldozer' of the Biosecurity Act 2015 (Cth), 32 Pub. L. Rev. 287 (2021):

The COVID-19 pandemic has prompted wide-reaching and stringent public health measures, many of which draw their legal authority from the framework provided under the Biosecurity Act 2015 (Cth). Perhaps the most controversial measure has been the determination made by the Minister for Health and Aged Care (the Minister) under s 477 of the Biosecurity Act on 30 April 2021 that, for a period of two weeks, it would be prohibited for a person to enter Australian territory by aircraft without an exemption if that person had been in India within 14 days of the aircraft’s scheduled date of departure. Following the making of the determination, the applicant, Mr Newman, brought proceedings in the Federal Court challenging the validity of the determination and the statutory provision under which it was made. Mr Newman’s application raised a number of arguments, including that there existed in the Commonwealth Constitution an implied freedom of all citizens to enter Australia. Owing to the time limited nature of the determination, the Federal Court ordered that the hearing of grounds that did not involve a constitutional question be expedited.

On 10 May 2021, in Newman v Minister for Health and Aged Care, Thawley J dismissed the challenges to the validity of the determination based on administrative law grounds, giving extempore reasons. This note focuses on one of these grounds, which contended that – in accordance with the principle of legality – the Biosecurity Act had not abrogated the fundamental common law right of citizens to re-enter their country of citizenship with clarity sufficient so as to render the determination valid.

Potential Long-Term Consequences of the Coronavirus Crisis for the Transport Industry

Maria Matveeva (Russian University of Transport), Mattia Masolletti (National University of Science and Technology), Potential Long-Term Consequences of the Coronavirus Crisis for the Transport Industry, SSRN (2021):

The new coronavirus has had a profound impact on development and prospects transport industry. Falling demand for goods and services and a high risk of infection have led to a sharp and unprecedented reduction in the volume of transport services provided worldwide. By showing what a ‘stationary’ world looks like, the new reality emphasized the central role of transport in the global economy and in almost all aspects of human life.

Advance Care Directive Prevalence Among Older Australians and Associations with Person-level Predictors and Quality Indicators

Kim Buck (Independent), Linda Nolte (Austin Health), Marcus Sellars (Independent), Craig Sinclair (University of New South Wales), Ben White (Queensland University of Technology), Helana Kelly, Ashley Macleod (Austin Health), Karen Detering (Austin Health), Advance Care Directive Prevalence Among Older Australians and Associations with Person-level Predictors and Quality Indicators, 24 Health Expectations 1312 (2021):

Background: Advance care planning (ACP) conversations may result in preferences for medical care being documented.

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Municipal Vaccine Passport Regimes in the United States: A European Import Spreads Widely

Paul A. Diller (Willamette University), Municipal Vaccine Passport Regimes in the United States: A European Import Spreads Widely, 45 Fordham Int’l L. J. (2022):

Approximately two dozen municipalities in the United States adopted "vaccine passport" regimes between August 2021 and January 2022. These regimes required public accommodations such as restaurants, cafes, movie theaters, and gyms to check patrons for proof of vaccination against COVID-19 as a condition of entry. Some of these regimes applied to employees of such establishments as well. Most exempted at least some people, including persons too young to be vaccinated and those with religious or medical reasons for being unvaccinated. While most of these regimes have since been rescinded, most mayors and health officials reserve the authority to reinstate them should they deem conditions to require it.

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Remote vs. In-Person Testimony in Hong Kong Courts

Martin Kwan (OBOR Legal Research Centre), Remote vs. In-Person Testimony in Hong Kong Courts, Nw. U. L. Rev. (2021):

Should the pursuit of effective scrutiny of witnesses override public health considerations and the witness’s right to health?

This article explores the debate on whether a witness can choose to give evidence via video-conferencing facilities (VCF) during the COVID-19 pandemic. It explores the practices adopted in a number of jurisdictions, such as the UK, Hong Kong, Australia and Canada.

Vaccine Hesitancy Across Time: Legal and Policy Interventions from the Dawn of the Anti-Vaccination Movement to the Era of Social Media

Ana Santos Rutschman (Saint Louis University), Vaccine Hesitancy Across Time: Legal and Policy Interventions from the Dawn of the Anti-Vaccination Movement to the Era of Social Media, 23 N.C. J. L. & Tech. (2022):

This symposium article explores the intertwined topics of hesitancy and trust towards vaccines. It traces the evolution of anti-vaccine sentiments, their consolidation into organized movements, and their recent evolution as vaccine misinformation and disinformation circulates with unprecedented ease through digital channels. The Article then examines selected legal and policy interventions that have been used to counter vaccine hesitancy—sometimes through top-down or mandatory frameworks, other times through voluntary ones. In particular, the Article examines vaccination mandates, as well as rules imposing or promoting vaccination; mechanisms designed to increase the flow of information about vaccines; and nudges to vaccination, such as lotteries and other prize-like mechanisms.

Trust Alteration and the Dead Hand Paradox

Jeffrey Pennell (Emory University), Reid K. Weisbord (Rutgers University), Trust Alteration and the Dead Hand Paradox, ACTEC L. J. (Forthcoming):

Trusts are popular instruments for wealth transmission because they can be crafted to suit almost any imaginable estate planning goal that is not contrary to public policy. With the abrogation of the Rule Against Perpetuities in most states, settlors may impose trust terms that will be legally enforceable for scores of future generations, if not in perpetuity. Long-term and perpetual trusts, however, present a paradox of dead hand control, because the specificity and the durability of settlor-imposed restrictions tend to be inversely related. As donative preferences become increasingly specific and restrictive, trusts become less durable with the passage of time, as changing circumstances imperil the settlor’s original intent or render the trust unadministrable.

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Comments on the Proposed Health Data Retention Policy, 2021

Rishab Bailey (Independent), Harleen Kaur (National Institute of Public Finance and Policy), Brinda Lashkari (eGovernments Foundation), Ameya Ashok Naik (eGovernments Foundation), Comments on the Proposed Health Data Retention Policy, 2021, SSRN (2022):

In this paper we provide our comments on the National Health Authority's proposed Health Data Retention Policy (HDRP). We begin by setting out certain basic principles for design of a health data retention policy, followed by our suggestions pertaining to the specific issues raised in the consultation paper. We focus on the issues of (a) applicability of the HDRP, (b) methods of classification of health records, (c) manner and mode of retention, (d) governance framework, (e) mechanisms for capacity building.

Reproductive Justice and Transformative Constitutionalism

Cynthia Soohoo (City University of New York), Reproductive Justice and Transformative Constitutionalism, SSRN (2021):

Since the founding of the United States, women1 have fought for control over their bodies and the ability to make reproductive and parenting choices, free from control and coercion by the government, communities, institutions, private actors, and family. Reproductive oppression violates basic human rights to make decisions about one’s body, life, and future and, if one chooses, to have, parent, and nurture children. These rights go to the heart of what it means to be a human and live a life with dignity and respect. Yet, from the founding of the United States, our constitutional structure has failed to recognize--much less protect and prevent--reproductive oppression. Indeed, for much of U.S. history, the legal system sanctioned and furthered oppression, rather than remedied it.

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Index-Based Policy to Guide Mask-Wearing for SARS-CoV-2 and Other Pandemics

Sandeep Puri (Brooklyn Law School), Eli Perencevich (University of Iowa), Michael Weiner (Indiana University), Index-Based Policy to Guide Mask-Wearing for SARS-CoV-2 and Other Pandemics, U. Dayton L. Rev. (Forthcoming):

As the world experiences yet another surge in cases of COVID-19, many organizations and jurisdictions have reinstated or expanded mandates to protect workers, children, older people, and the public at large. Mandates to wear face masks in indoor public areas are often met with confusion, fear, anger, disagreement, and lack of knowledge about risks and benefits of action and inaction. To move towards an evidence-based approach, we propose that when five criteria collectively signal that a communicable disease poses greater harm to society than that of a benchmark, such as that of the average seasonal influenza during years 2010 to 2019, then the local, state, and federal government should introduce an indoor mask-wearing mandate, subject to certain exceptions. We suggest the following five measures and corresponding metrics comprising composite criteria for the requirement to wear a mask: contagiousness (R₀), vulnerability of communities to infection (rate of growth in the percentage of the national population that is infected), harm caused by the disease (cumulative deaths per week), severity of harm (infection fatality rate), and direction of harm (percentage change in cumulative deaths per week). Each criterion would be scored. An aggregate score would then signal when the social health risk exceeds that of seasonal influenza as a point of reference, based on methodology. Although additional details would require clarification, attention to validity and timeliness of measurement, and development of appropriate scoring thresholds, the criteria provide a foundation for action that goes beyond rhetoric, politics, impulsiveness, and guesswork. Pursuing measurement of these factors would yield an improvement over the current approach.

Economic Approaches to Insurance Law

Peter Molk (University of Florida), Economic Approaches to Insurance Law in Rsch. Handbook on Int’l Ins. L. & Regul. (Julian Burling & Kevin Lazarus eds., 2nd ed., Forthcoming 2022):

Law and economics has proven enormously influential across a wide range of American law. By providing a theory about how people will respond to the law, economics offers a framework to predict how law will impact behavior and, in turn, whether a particular legal rule will produce desirable outcomes. This law and economics perspective has influenced how judges decide cases, how regulatory policy is crafted and implemented, and even how the law is learned by students.

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