HealthLawProf Blog

Disabling Abortion Bans

Robyn Powell (University of Oklahoma), Disabling Abortion Bans, U.C. Davis L. Rev. (forthcoming 2024):

In the aftermath of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, states have rushed to enact restrictive abortion bans, often with vague and narrow health exceptions that disproportionately endanger the lives and well-being of people with disabilities. This Article argues that focusing on the disproportionate impact of these laws on disabled people is a critical strategy for dismantling the broader attack on reproductive freedom. It examines the deficiencies of current health exceptions, critiquing their subjective language, inconsistent application, and failure to account for the complexities of medical emergencies, particularly in the context of disability. The Article highlights the omission of mental health considerations and clashes between state and federal laws. Furthermore, it explores how these bans exacerbate existing barriers disabled people face when seeking healthcare while ignoring the disproportionately high risks of pregnancy-related complications and maternal mortality among the disability community. Drawing on constitutional arguments, the Article contends that even under rational basis review, these bans lack a legitimate governmental interest and instead perpetuate discrimination by contradicting core disability rights principles of bodily autonomy and self-determination. It explores potential avenues for challenging these laws, including leveraging state constitutional provisions, expanding health exceptions, and protecting abortion providers through statutory presumptions and burden-shifting provisions. The Article emphasizes the importance of moving beyond a purely medicalized framing of abortion rights and toward a more holistic, intersectional vision of reproductive justice that fully includes and empowers the disability community. It concludes with a call for robust coalition-building between the disability rights and reproductive justice movements to drive incremental change and ensure that reproductive autonomy is respected and protected for all.

New York Retirement Plans for Public Employees Can Leave Surviving Spouses With Nothing - It's Past Time To Change That

Albert Feuer, New York Retirement Plans for Public Employees Can Leave Surviving Spouses With Nothing - It's Past Time To Change That, 96 NYSBA J. (2024):

Surviving spouses of retired New York public employees may learn soon after burying their spouses that they will receive no plan survivor benefits because the default retirement benefits of all those plans is an annuity whose payments end at the retiree’s death. 

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Establishing Law in Context: An Insider's Perspective

Francis Snyder (Peking University), Establishing Law in Context: An Insider's Perspective (Peking U. Sch. of Transnat’l L. Rsch. Paper) (2024):

The Law in Context Movement was a revolution in legal studies. This blog traces its origins and development from the 1990s till today and outlines various contributions to law teaching and research, such as the International Workshop of Young Scholars (WISH) , the ELJ from 1995 to 2014 and today's journal published by Cambridge University Press, European Law Open.

Food as Culture: Framing, Legal Harmonization, and Transnational Law as a Regulatory Gateway

Lucas Lixinski (University of New South Wales), Food as Culture: Framing, Legal Harmonization, and Transnational Law as a Regulatory Gateway (UNSW L. Rsch. Paper No. 66) (2024):

This chapter engages with the challenges of legal harmonization, which is the design and implementation of uniform legal rules across multiple jurisdictions on a specific subject matter. Specifically, this chapter examines the challenges of harmonizing food law, and whether and how international law can help in this space. The chapter examines the multiple different legal framings of food in international law, each of which invoke different values and priorities, culminating with consideration of what it means to frame food as primarily a form of culture. Examining the example of Mexican traditional cuisine, this piece argues for greater engagement with culture in our conversations about legal harmonization more broadly, and specifically in the domain of food law.

Patent Laws and the Public Health Puzzle: Comparing India’s Well-Thought-Out Patent Opposition Model with the U.S. and EU Model

Muhammad Zaheer Abbas (Queensland University of Technology), Patent Laws and the Public Health Puzzle: Comparing India’s Well-Thought-Out Patent Opposition Model with the U.S. and EU Model, 13 Indian J. Intell. Prop. L. (2023):

Equitable access to essential medicines is a long-standing policy challenge. The patent opposition mechanism of India demonstrates how this procedural flexibility can be used to improve access to innovative health technologies. The Indian approach of linking its substantive patentability provisions with the procedural mechanism of patent opposition shows that this strategic use of public health flexibilities provided under the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) has the potential to reduce some of the financial burdens on governments because of its role in promoting generic competition. This article revisits how the Indian patent laws evolved while keeping a balance between conflicting interests. It offers an informative and analytical look at legislative changes in India in order to comply with the WTO TRIPS Agreement. This article considers the Indian patent opposition model in comparison with the U.S. and EU approaches towards patent opposition. This analysis of India’s TRIPS-compliant regime will help other WTO Member States to model their patent laws in line with their public health needs and national interests.

"Burn My Body with Water!": Legality of Water Cremation in Malaysia

Haeme Hashim (HAEME Asia LLP), "Burn My Body with Water!": Legality of Water Cremation in Malaysia (2023):

This article delves into the legality of aquamation, also known as water cremation, in Malaysia, while also examining potential amendments required in existing legal frameworks. It explores the intricate intersection of traditional cremation methods and emerging environmentally-friendly alternatives, highlighting the need for a comprehensive legal assessment in a contemporary context. By addressing the regulatory gaps surrounding aquamation, this discussion aims to shed light on the potential for harmonizing funeral practices with evolving societal and environmental values. Ultimately, it underscores the importance of adapting legal structures to accommodate innovative approaches to end-of-life rituals, promoting a more sustainable and compassionate approach.

Technology Specificity and Equitable Access to Pharmaceuticals

Ana Santos Rutschman (Villanova University), Technology Specificity and Equitable Access to Pharmaceuticals, Nw. J. Tech. and Intell. Prop. (forthcoming):

Current models of production of pharmaceuticals, particularly those dependent on intellectual property (and adjacent) protections, often contribute to the highly asymmetrical and inequitable distribution of resulting outputs. These problems are especially acute when emerging pathogens cause transnational public health crises in which there is concurrent demand for the same medicines in both lower- and higher-income countries, with populations in the Global South getting very limited timely access, if any, to preventatives and life-saving medicines—even when an outbreak disproportionately affects populations in these very countries.

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COVID-19 Pandemic Outbreak and Violation of Human Rights

Raveesha Illangaranthne, COVID-19 Pandemic Outbreak and Violation of Human Rights (2023):

Human Rights are standards that identify and protect the dignity of all human beings.They emphasize how human beings survive in the society with others. Moreover, maintainence of healthy relationships with the state and the obligations the state bears toward them are eloborated (Unicef ,2015). The Human Rights Law is responsible to make the governments to fulfill their responsibilities to the human beings. On the other hand, individuals also have the responsibility to use their human rights while respecting the rights of others. At the same time no one has the power in violating the rights of others. Accordingly, this study attempts to elaborate about the violation of human rights along with the imposition of the rules and regulations during the covid-19 pandemic. Subsequently, the findings revealed that human rights have been violated along with the implementation of covid-19 restrictions and prevention measures like curfew impositions.

Do Rural Places Matter?

Stephen Clowney (University of Arkansas), Do Rural Places Matter?, Conn. L. Rev. (forthcoming 2024):

Rural communities are at a crossroads. On one hand, small towns continue to receive robust support from the federal government. Congress sends billions of dollars in agricultural supports, homeownership subsidies, and infrastructure spending to rural places every year. Yet, despite ongoing federal investment, conditions in rural America have deteriorated. Economic growth, educational opportunities, and health outcomes in rural places all lag behind the rest of the country. 

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Are Public Health Policies Associated with Corporate Innovation? Evidence from U.S. Nonsmoking Laws

Adam J. Olson (University of Cincinnati), Christopher G. Yust (Texas A&M University), Brant E. Christensen (Brigham Young University), Are Public Health Policies Associated with Corporate Innovation? Evidence from U.S. Nonsmoking Laws, 52 Rsch. Pol’y (2023):

We use a natural experiment resulting from the staggered adoption of local workplace nonsmoking laws over the past fifty years to examine whether these public health policies also are associated with corporate innovation. We find a positive association between innovation and nonsmoking laws enacted near companies’ headquarters locations, particularly in earlier years when smoking rates were highest. We use multiple difference-in-differences specifications, matched samples, companies headquartered in contiguous counties across state lines, and falsification tests to establish the robustness of the observed association and reduce the likelihood of alternative explanations. We then use an inductive approach to explore multiple potential mechanisms behind this correlation. We find evidence suggestive of the following mechanisms: improved health; improvements to employee creativity, productivity, and absenteeism; and increases in the local employee pool. Other mechanisms likely exist, but the collective evidence suggests that policy-based efforts to improve health are associated with a positive externality - increased corporate innovation.

Legislative Gifts

Daniel Croxall (University of the Pacific), Legislative Gifts (2022):

The United States has a strange relationship with alcohol. Alcohol is the only specific subject that can claim two constitutional amendments (the Eighteenth Amendment and the Twenty-first Amendment), and alcohol is one of the most heavily regulated industries in the country. The Twenty-first Amendment left it to the states to regulate the three tiers of the alcohol market: manufacturing, distribution, and retail sales. Of course, disparate laws appeared among the states and created a morass of inconsistency. 

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The Interchangeable-Part Structure of Food and Drug Law

Adam I. Muchmore (Pennsylvania State University), The Interchangeable-Part Structure of Food and Drug Law, 19 FIU L. Rev. (forthcoming 2024):

This Article demonstrates that nested tiers of interchangeable parts serve as the foundation for the regulatory programs administered by the U.S. Food and Drug Administration. Core interchangeable parts used in FDA-administered programs include product categories, prohibitions on adulteration and misbranding, agency-registration requirements, current good manufacturing practices, product standards, marketing authorization requirements, postmarket requirements, and user fees. In each of these areas, Congress or the FDA has engaged in interchangeable-part lawmaking (IPL). IPL occurs when a government takes a portion of its law in one subject area and uses it as a model for its own law in another subject area.

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The Likelihood of Generic Confusion

Deven R. Desai (Georgia Institute of Technology), The Likelihood of Generic Confusion, Wis. L. Rev. (forthcoming):

Just as people are asking the government to resurrect a progressive era stance on anti-trust and consumer protection in the technology sector, we should ask the government to take on consumer protection efforts in agriculture. The growth of technology-driven food production for synthetic diary, meat, and other foods and for potential food substitutes is part of a global market expected to reach $162 billion in sales by 2030. Conflicts over whether a new product created in a lab or engineered to be a substitute can be called a milk or meat or grain will persist and are likely to grow. This paper uses the conflict between the multi-billion-dollar milk and plant-based beverage (PBB) industries as a lens to show how society can support both food production innovation and consumer protection.

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Protecting Public Health Amidst Data Theft, Sludge, and Dark Patterns: Overcoming the Constitutional Barriers to Health Information Regulations

Jon Garon (Nova Southeastern University), Protecting Public Health Amidst Data Theft, Sludge, and Dark Patterns: Overcoming the Constitutional Barriers to Health Information Regulations, 56 Akron L. Rev. (2023):

Public health has grown to over $4.1 trillion in spending in the past year, yet for millions of people, their health care is ineffective and sometimes harmful. New technologies have improved health access and treatment, but they can expose an individual’s personal health information to theft and misuse. There is little or no regulation for the reuse of data once it has been lawfully collected for general purposes. Any observer can create a detailed personal diary of an individual or a population by building from a mosaic of inferential data—such as lawfully obtained zip code information, non-regulated health care application data, purchasing patterns, location information, and social media engagement. Using behavioral economics, companies manipulate the public to make unhealthy lifestyle choices and promote health care scams. The FTC has labeled these practices as dark patterns, designed to nudge consumers into overpayments and choices that maximize revenue rather than wellness.

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Forced to Bear, Denied to Rear: The Cruelty of Dobbs for Disabled People

Robyn Powell (University of Oklahoma), Forced to Bear, Denied to Rear: The Cruelty of Dobbs for Disabled People, Geo. L.J. (forthcoming):

The history of the United States is marred by a shameful record of using reproduction to oppress disabled people through state-sanctioned legislation, policies, and programs that deprive them of their bodily autonomy and self-determination. Disabled people face structural, legal, and institutional barriers to accessing reproductive health services and information, including contraception and abortion care. They also experience high rates of violence and reproductive coercion, as well as stigma and discrimination from health providers. Consequently, people with disabilities are more likely to experience maternal morbidity and mortality, rendering pregnancy particularly dangerous for some.

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Seeing is Believing: The Effects of Optometrist Scope of Practice Expansion

Kihwan Bae (West Virginia University), Edward Timmons (West Virginia University), Protik Nandy (University of Minnesota), Seeing is Believing: The Effects of Optometrist Scope of Practice Expansion (2023):

We examine how the emergence of optometrists as new “eye doctors” due to a scope of practice expansion affected population eye health outcomes and optometrist earnings in the United States. Using the staggered adoption of optometrist prescription authority across states, we find suggestive evidence that optometrist scope of practice expansion reduced vision impairment and mitigated racial and ethnic disparities in eye health. We also find that the policy change is associated with an increase in hourly wages among optometrists who are not self-employed. These findings imply that allowing optometrists to use medications for eye treatments effectively expanded the primary eye care workforce and therefore improved public eye health.

Applying a Social Ecological Model to Medical Legal Partnerships Practice and Research

Susan McLaren (Georgia State University), Lisa Bliss (Georgia State University), Christina Scott (Georgia State University), Pam Kraidler (Atlanta Legal Aid Society), et al., Applying a Social Ecological Model to Medical Legal Partnerships Practice and Research, 51 J.L. Med. & Ethics (2023):

The social ecological model (SEM) is a conceptual framework that recognizes individuals function within multiple interactive systems and contextual environments that influence their health. Medical Legal Partnerships (MLPs) address the social determinants of health through partnerships between health providers and civil legal services. This paper explores how the conceptual framework of SEM can be applied to the MLP model, which also uses a multidimensional approach to address an individual’s social determinants of health.

No Smoking Gun: The Brady Act, Medical Cannabis, and Violent Gun Crime

Cameron Ellis (University of Iowa), J. Bradley Karl (Florida State University), Rhet A. Smith (University of Texas at El Paso), No Smoking Gun: The Brady Act, Medical Cannabis, and Violent Gun Crime (2023):

Under the federal regulations of the Brady Act, individuals using medical cannabis are prohibited from legally purchasing firearms. However, 36 states permit medical cannabis use, compelling individuals to choose between legally possessing cannabis or guns, but not both. This backdoor ban allows us to utilize the differential timing of cannabis legalization to identify the impact of gun purchase restrictions on gun crime. Using difference-in-differences and triple difference-in-difference models on FBI Uniform Crime Reports data, we find medical cannabis reduces assaults and robberies with firearms by 5\%, relative to knife crimes. We find no impact on knife crimes alone, suggesting substitution away from crime instead of towards other weapons. Further analysis shows the effect is concentrated near cannabis dispensaries, supporting our mechanism.

Some Economic Aspects of Artificial Intelligence Technologies and Their Expected Social Value

Davis S. Evans (Market Platform Dynamics), Some Economic Aspects of Artificial Intelligence Technologies and Their Expected Social Value, CPI TechREG Chron. (2023):

Artificial intelligence is a general-purpose technology which will result in disruptive innovation across the economy for many decades to come. AI deserves the superlatives that are often associated with it because it can create enormous social value. That is clear from just considering health care. Early evidence indicates that AI can dramatically improve the accuracy of diagnoses, such as for breast cancer. The deployment of AI as an internet-based technology could help billions of people who lack access to essential medical services. Artificial intelligence has come into its own at an important juncture in human history. Birth rates have fallen sharply for a long time, and below replacement rates, in many parts of the world including the EU, the US, and China. The populations of countries, such as Spain, Japan, and most recently China are declining. AI technologies, which can substitute for human brains, can alleviate the social cost of declining populations. Any discussion of the importance of AI comes with “buts” and the need for laws and regulations. There is no doubt about that. The design of public policy, however, must account for the impact of too little, misguided, or too much regulation on the long-run social value of artificial intelligence.

Psychedelic Capitalism and the Perceptual Threshold

Dustin Marlan (University of North Carolina), Psychedelic Capitalism and the Perceptual Threshold, 103 B.U. L. Rev. (2023):

As jurisdictions continue to reform psychedelics laws, lawmakers should consider how these new laws will impact the popular practice of microdosing — regularly taking very small amounts of a psychedelic, such as psilocybin, to improve one’s quality of life. That is the thesis of Mason Marks, I. Glenn Cohen, Jonathan Perez-Reyzin, and David Angelatos’s engaging and timely article, Microdosing Psychedelics Under Local, State, and Federal Law. The authors do an admirable job of making the case for the equitable and safe integration of microdosing practices into existing and future psychedelics legal reforms. I agree with their general claims and specific legislative recommendations, as applied to the current nascent state of psychedelics law and regulation. In this Response, however, I reflect on the possibility that, in the future, what will ultimately require legal preservation is not microdosing, but rather the non-ordinary states of consciousness that taking standard or large amounts of a psychedelic engenders.