HealthLawProf Blog

Advancing Equity In The Pandemic Treaty

Lawrence O. Gostin (Georgetown University), Kevin A. Klock (Georgetown University), Katherine Ginsbach (Georgetown University), Sam Halabi (University of Missouri), et al., Advancing Equity In The Pandemic Treaty, Geo. U. L. Center Working Paper (2023): 

There is a broad consensus around equity’s importance. Even countries that hoarded supplies during the acute phase of COVID-19 seem to understand that the international community must find a means to ensure fairer allocation of medical resources when the next health crisis hits. But there has been little agreement about the concrete steps needed to operationalize fairer access and benefit sharing. That is, what are the workable mechanisms that could reduce the divide between richer and poorer populations?

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The Patient's Voice: Legal Implications of Patient-Reported Outcome Measures

Sharona Hoffman (Case Western Reserve University School of Law), Andy Podgurski (Case Western Reserve University), The Patient's Voice: Legal Implications of Patient-Reported Outcome Measures, 22 Yale J. Health Pol’y L Ethics (2023): 

In recent years, the medical community has paid increasing attention to patients' own assessments of their health status. Even regulatory agencies, such as the Food and Drug Administration and the Centers for Medicare and Medicaid Services, are now interested in patient self-reports. The legal implications of this shift, however, have received little attention. This Article begins to fill that gap. It introduces to the legal literature a discussion that has been ongoing in the health care field.

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Moving Beyond the Basics of the ADA and Section 504: Opportunities for Equitable and Inclusive Access to Law Libraries, Collections, and Services

Jessica de Perio Wittman (University of Connecticut), Moving Beyond the Basics of the ADA and Section 504: Opportunities for Equitable and Inclusive Access to Law Libraries, Collections, and Services (2023): 

The law library plays a role in the lives of people with disabilities by facilitating their full participation in society. Providing equitable access for persons with disabilities to library facilities and services is required by Section 504 of the Rehabilitation Act of 1973 (Section 504), applicable state and local statutes, and the Americans with Disabilities Act of 1990 (ADA).

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Surveilling Disability, Harming Integration

Prianka Nair (Brooklyn Law School), Surveilling Disability, Harming Integration, 124 Colum. L. Rev. (2023): 

Scholars, policy makers and the media acknowledge that surveillance can threaten privacy and increase the risk of discrimination. However, surveillance of people with disabilities is positioned as being beneficial - a simple way of averting a host of problems. Surveillance in group homes is seen as a way of protecting seemingly vulnerable people with disabilities from abuse and neglect. Surveillance systems are seen as the answer to preventing Medicaid fraud, by overseeing the provision of personal care services to people with disabilities in the community. Heightened surveillance over students with behavioral problems and psychiatric disabilities is positioned as being critical to the mission of keeping communities safe from incidents of violence. Increasingly, as surveillance systems become more sophisticated, state and federal laws have begun sanctioning, and occasionally mandating, the surveillance of people with disabilities for these purposes.

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Left Behind, Again: Intellectual Disability and the Resentencing Movement

Katie Kronick (University of Baltimore), Left Behind, Again: Intellectual Disability and the Resentencing Movement, 101 N.C. L. Rev. (2023): 

This Article examines the exclusion of individuals with intellectual disability from much of the current resentencing movement. Across the country, incarcerated individuals are filing motions in federal and state courts seeking release as part of a nationwide movement toward decarceration. These motions are possible because new legislation and case law have been moving away from the “law and order” policies that permeated the criminal legal system for the last several decades. Those eligible for release include individuals sentenced to long terms of imprisonment for non-violent drug offenses or offenses they committed as children. In addition, elderly and very sick incarcerated individuals can seek review of their sentences in many jurisdictions.

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Legal Accountability and Judicial Review During the COVID-19 Pandemic in Aotearoa New Zealand

Dean R. Knight (Victoria University of Wellington), Legal Accountability and Judicial Review During the COVID-19 Pandemic in Aotearoa New Zealand (2023): 

This paper looks at the use of judicial review of administrative action in Aotearoa New Zealand to hold the government accountable in law for the decisions made during the public health response during the Covid-19 pandemic.

The Principles and Guidelines on Human Rights and Public Health Emergencies

Roojin Habibi (York University), Luciano Bottini Filho (Sheffield Hallam University), Judith Bueno de Mesquita (University of Essex), Gian Luca Burci (University of Geneva), et al., The Principles and Guidelines on Human Rights and Public Health Emergencies (2023):

The COVID-19 pandemic posed a grave threat to health systems worldwide and brought to light the precarious state of human rights in times of public health emergency. The rapid spread of the novel coronavirus exposed deep-seated inequalities within and between societies and magnified the suffering of those already marginalized, including women, girls and disadvantaged communities. Despite urgent and persistent calls to foreground human rights in COVID-19 responses from international organisations, human rights advocates and civil society organizations, human rights were too often neglected or violated in public health prevention, preparedness and response in nearly every country in the world.

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Gamete Regulation and Family Protection in a Post-Dobbs World

Courtney G. Joslin (University of California), Gamete Regulation and Family Protection in a Post-Dobbs World, Bill of Health (2023): 

Increasing numbers of people are forming families through assisted reproduction. Recently, there has been a push to impose new regulations on various aspects of this process. Some of these new laws open up participants to a range of possible penalties—civil, criminal, and/or professional discipline—for past “misconduct.” Other laws seek proactively to regulate the fertility care process. For example, some laws regulate the collection and dissemination of medical and identifying information about gamete providers—that is, sperm and egg donors. Other proposals seek to require gamete providers to agree to the release of their medical records.

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Abortion at the Margins: The Constitutional Right to Abortion in the Case of Severe Fetal Abnormality

Teneille R. Brown (University of Utah), Abortion and the Extremism of Bright Line Rules, Nw. U. L. Rev. (2023): 

This essay uses the jurisprudence of abortion to explore how legislators and judges adopt black-and-white thinking to support extremist ideological views. Specifically, abortion-restrictive statutes and cases often take complex biological criteria and render them in black-and-white to dehumanize women and perpetuate gender norms.

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Health Services Use Among Formerly Incarcerated Louisiana Medicaid Members Within One Year of Release

Ashley Wennerstrom (Louisiana State University), Olivia K. Sugarman (Johns Hopkins University), Bruce Reilly (Voice of the Experienced), Andrea C. Armstrong (Loyola University), et al., Health Services Use Among Formerly Incarcerated Louisiana Medicaid Members Within One Year of Release, Loy. U. New Orleans C. L. Working Paper No. 2023-12 (2023): 

The authors of this article set out to determine the association between enrollment in Medicaid prior to release compared with post-release, and the use of health services and time to the first service use after release among Louisiana Medicaid members within one year of release from Louisiana state corrections custody.

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Privatizing Family Leave Policy: Assessing the New Opt-in Insurance Model

Deborah A. Widiss (Indiana University), Privatizing Family Leave Policy: Assessing the New Opt-in Insurance Model, Ind. L. Stud. Working Paper No. 506 (2023): 

Federal law fails to guarantee new parents or family caregivers paid time off from work. A growing number of blue-leaning states have addressed this gap by enacting comprehensive paid family and medical leave laws, typically funded by a small payroll tax. A new—and quite different—approach is expanding rapidly in red-leaning states: authorization of commercial “Family Leave Insurance” to be marketed to employers. In other words, this is an opt-in privatized approach to family leave policy.

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Menstrual Justice: A Human Rights Vision for Australia

Mike Armour (Western Sydney University), Dani Barrington (The University of Western Australia), Helen Connolly (Children and Young People Affairs), Beth Goldblatt (University of Technology Sydney), et al., Menstrual Justice: A Human Rights Vision for Australia (2023): 

In the past year alone, news reports have shown how menstrual injustice is linked to gender inequality, a lack of economic opportunity, poor health outcomes, and human rights violations. Here is a small sampling of the unjust treatment of women and other people who menstruate: locked bathrooms at schools, inadequate supply of free period products, harmful menstruation-avoidance options for athletes, the human and economic costs of the lack of menstruation and menopause employment leave policies, and the mistreatment of people imprisoned who menstruate.

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Advancing Disability Rights in India: From Fragmented Movements to Inclusive Policies

Shanaz Hajira (University of Mysore), Advancing Disability Rights in India: From Fragmented Movements to Inclusive Policies (2023): 

A disability is characterized by a malfunctioning, disturbance, or loss in the normal functioning of physical, mental, or psychological processes. The disability rights movement, influenced by political ideologies such as dignity, autonomy, and freedom of thought and expression, gained momentum during the 1960s and 70s. In the 1990s, disability rights activism found collective expression through the involvement of non-governmental organizations (NGOs). In India, the enactment of the Convention on the Rights of Persons with Disabilities (CRPD) in 2008 transformed the discourse surrounding disabilities. Despite the presence of welfare-based disability laws in India, notably the Persons with Disabilities (PWD) Act, several deficiencies persist. The disparity between the requirements of people with disabilities and the availability of essential services stems from widespread poverty and deeply ingrained social stigmas. Insufficient implementation of existing laws and guidelines exacerbates the challenges faced by individuals with physical and mental disabilities, affecting various aspects of their daily lives. This research aims to critically examine the rights of people with disabilities in India, focusing on legal issues and inclusion. By analyzing the legislative response to the protection of disability rights, the study seeks to shed light on the effectiveness and shortcomings of existing laws. The research will contribute to a comprehensive understanding of the obstacles faced by individuals with disabilities in their pursuit of equal rights, and will explore avenues for improving their inclusion and well-being within the legal framework.

Corporate Crimes in the Medical and Pharmaceutical Industry

Swanith Kapoor (UPES), Corporate Crimes in the Medical and Pharmaceutical Industry (2023): 

A corporate crime refers to a crime that is committed either by a corporation or by an individual or group of individuals representing the corporation or the other business entity, for benefitting or for the unauthorized gain of the corporation. These are the biggest risks that a company is exposed to and have been increasing at an alarming rate for the past few years. These crimes are well-organized and are also known as ‘white-collar crimes. Such crimes when exposed not only affect the companies committing them but also puts influence the various stakeholders of the company either directly or indirectly. These crimes are socio-economic crimes and directly affect society as a whole. Such crimes lower the trust of the public in companies committing these crimes. This paper will aim at the analysis of the Corporate Crimes committed in India with a special emphasis on the frauds committed by the Medical and Pharmaceutical industry. The paper will focus on how the Medical and Pharmaceutical Industry by their acts conducts unethical practices such as producing sub-standard medicines, improper disposal of unused and expired medicines, defrauding patients for wrongful gains, organ trade, etc., and other such ill practices committing corporate crimes. The paper will also mention the effect of such crimes on the public and what consequences the patients have to face due to such crimes. Further, this paper will also mention various laws and regulations which talk about such types of crimes and also the punishment provided for these crimes in those legislations. Along with this, the paper includes certain cases and actions of certain companies to illustrate such crimes and the consequences which those companies had to face.

Women’s Health Rights can Guide International Climate Litigation: KlimaSeniorinnen v. Switzerland before the European Court of Human Rights

Hannah van Kolfschooten (University of Amsterdam), Angela Hefti (Harvard Law School), Women’s Health Rights can Guide International Climate Litigation: KlimaSeniorinnen v. Switzerland before the European Court of Human Rights, Health Hum. Rts. J. Blog (2023): 

All over the world, individuals are taking governments to court for their role in climate change, or rather, their “climate inaction”. The 2022 Global Trends in Climate Change Litigation Policy Report shows that strategic litigation cases to enforce climate laws and policies have doubled since 2015. On 29 March 2023, the Grand Chamber of the European Court of Human Rights (ECtHR) heard its first climate case: KlimaSeniorinnen v. Switzerland. A group of senior women is suing Switzerland for failing to protect them from the harms of climate change. This case is likely the first climate case ever to be decided by a human rights court and is important for two reasons. First, it centers around health rights. Second, it is a case involving women’s health. It shows how women’s health rights could guide international climate litigation.

Using International Human Rights Law to Address Hunger in the U.S.

Denisse Cordova Montes (University of Miami), Using International Human Rights Law to Address Hunger in the U.S., 6 Bus. Entrepreneurship & Tax L. Rev. 1. (2022): 

International human rights law recognizes a right to adequate food. The Inter- national Covenant on Economic, Social and Cultural Rights (“ICESCR”) upholds “the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing, and housing, and to the continuous improvement of living conditions.”1 The right is further enumerated in international law through additional conventions and standards and is continuously being interpreted and an- alyzed by United Nations (“U.N.”) expert bodies.

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Aspirational Laws in Action: A Field Experiment

Ben Depoorter (University of California), Stephan Tontrup (New York University), Aspirational Laws in Action: A Field Experiment (2023): 

This article examines aspirational laws in a randomized field experiment. We analyze the impact of an unenforced public smoking ban on individual behavior and attitudes. The findings indicate, that aspirational laws can make rights-holders sensitive to behavior that violates their rights, irrespective of the material consequences of infringements and personal views of smoking.

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COVID-19, Visitation and Spiritual Care: Responding to the Silent Suffering of the Isolated in Times of Crisis

Lucia Ann Silecchia (Catholic University of America), COVID-19, Visitation and Spiritual Care: Responding to the Silent Suffering of the Isolated in Times of Crisis, Cath. U. Columbus Sch. L. Legal Stud. Working Paper No. 2023-1 (2022): 

COVID-19 took a terrible toll physically, emotionally, socially, and economically since it first grabbed headlines in early 2020. The years ahead will bring time to reflect on the many decisions made in attempts to stop its spread. One set of decisions forced dramatic, near-total isolation for vulnerable persons. Those living in nursing homes, assisted living communities, and other congregate settings were deprived of visitation and companionship for months. Although this isolation was initially imposed to protect residents and staff from COVID- 19 infection, the collateral consequences were devastating. While there were some limited exceptions for “compassionate care,” for all too many, the months of COVID-19 were dangerously lonely. Emerging evidence correlates this deprivation to an excess number of non- COVID-19 deaths and significant physical and cognitive decline, with a particularly devastating impact on those living with dementia. Moreover, this enforced isolation raises profound questions about fundamental human dignity and basic human rights. Depriving individuals of companionship in their own homes – communal though they may be – raises significant concerns when that deprivation endures for extended periods of time. This paper will begin with a brief overview of the ways in which the freedom of those in congregate residential settings to have visitation was curtailed. While there were often good intentions behind these restrictions, and some safeguards were and may again become necessary, the paper will argue that, over time, these measures became excessive when balanced against the unintended harm that they caused. After reviewing this general landscape, the paper will focus on the harm these visitation restrictions meant for the physical, emotional, and spiritual well-being of those living in congregate residential settings. It will argue that access to companionship is critically important with respect to both: General visitation of family and friends; and Specific visitation for the purpose of spiritual care. The paper will conclude with a comprehensive proposal for ensuring that access to both types of visitation are protected in the future. To do this, it will review initiatives already considered or adopted and propose a policy that respects both the need to protect against the harms of a pandemic and the harms of isolation.

Good Intentions Are Not Enough: A Critique of Elder Abuse Law

David Ray Papke (Marquette University), Good Intentions Are Not Enough: A Critique of Elder Abuse Law, Marq. L. Sch. Legal Stud. Working Paper No. 23-02 (2023): 

A failure to satisfactorily respect and understand older people has limited the effectiveness of lawmakers’ well-intentioned efforts to address physical and emotional elder abuse. Revised reporting statutes should be modeled not on those concerning child abuse but rather on those related to domestic abuse. New procedures should enable prosecutors to proceed more swiftly and to preserve the testimony of aging victims. Punishment should be as harsh as it is for other intentional felonies, and hate crime enhancements comparable to those for crimes motivated by racial, ethnic, religious, and sexual-orientation bias should be available. Without steps of this sort, physical and emotional elder abuse will continue to grow as a major public health and human rights problem.

Physicians Spreading Medical Misinformation: The Uneasy Case for Regulation

Richard S. Saver (University of North Carolina at Chapel Hill), Physicians Spreading Medical Misinformation: The Uneasy Case for Regulation, Minn. L. Rev. (2023):

Physicians have played a surprisingly prominent role in the current “infodemic” of false and misleading medical claims. Yet state medical boards, the governmental agencies responsible for professional licensure and oversight, have sanctioned remarkably few physicians. Pushing back against the widespread criticism of medical boards for insufficient action, this Article questions the overall suitability of licensure regulation to police medical misinformation. First, uncertainty exists about medical boards’ jurisdiction and legal authority. Many misinformation claims have involved physicians communicating publicly, not while treating patients. Given the primarily patient-centered legal and ethical frameworks governing the practice of medicine, serious challenges arise in making legally cognizable the wrongs arising from physicians, acting outside a doctor-patient relationship, spreading medical falsehoods to the community.

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