Digital Commons Network^™

Hackers Made Me Lose My Job!: Health Data Privacy And Its Potentially Devastating Effect On The Lgbtq Population, Alex Lemberg

Golden Gate University Law Review

This Comment shows that because of an increasing rate and severity of data breaches, insufficient legal recourse for affected individuals, and lack of incentives for healthcare companies to strengthen their data security systems, leaked healthcare data will cause the substantive due process right of privacy of LGBTQ individuals to be disenfranchised. Because sexual orientation and gender identity are unprotected by heightened scrutiny under federal due process and equal protection jurisprudence, additional protections must be created for LGBTQ people. These protections should include a new legal right in tort under the Health Information Portability and Accountability Act of 1996 (HIPAA), increase …

State And Federal Powers Clash Over Medical Marijuana In United States V. Mcintosh, Cara E. Alsterberg

Golden Gate University Law Review

The unanimous opinion in United States v. McIntosh held that a spending rider approved by Congress in 2014 and 2015 prohibits the United States Department of Justice (the Department) from prosecuting marijuana suppliers who fully comply with state laws allowing the use of marijuana for medicinal purposes. The Department argued that the rider only prohibits litigation against the states themselves, rather than prosecution of individuals who provide marijuana for medicinal purposes, because the language of the rider indicates that the Department may not use appropriated money to prevent states from implementing their medical marijuana laws.

The three-judge panel of the …

Lost Souls: Constitutional Implications For The Deficiencies In Treatment For Persons With Mental Illness In Custody, Katherine L. Smith

Golden Gate University Law Review

This Comment explores systemic deficiencies of access to mental health care in prison systems and the Eighth Amendment implications of those deficiencies. Because the Eighth Amendment prohibits, among other things, infliction of cruel and unusual punishments, when denial of adequate mental health care results in undue suffering, the conditions of confinement may violate the Constitution. Therefore, there must be mechanisms in place to ensure necessary treatment is provided while protecting individual rights.

Part I of this Comment addresses the duty a state owes to those it incarcerates (e.g., to provide food, clothing, recreation, education, medical care) and what standards exist …

Not-So-Equal Protection: Securing Individuals Of Limited English Proficiency With Meaningful Access To Medical Services, Barbara Plantiko

Golden Gate University Law Review

This Comment focuses on how language discrimination manifests itself in various health care settings and how it deprives individuals with limited or no English proficiency of access to a variety of essential medical services. Part I of this article provides a brief overview of how courts and the legislature have dealt with language discrimination. Part II addresses the current conflict of the law regarding the difficulties in assessing and proscribing such discrimination in the medical context. Part III explores why the current case law and legislative efforts in this area are inadequate. Part IV proposes a solution as to how …

X Marks The Spot While Casey Strikes Out: Two Controversial Abortion Decisions, Sabina Zenkich

Golden Gate University Law Review

This article studies and defines abortion law in Ireland after X and in the United States after Casey. It addresses how these decisions affect Irish and American women's rights, respectively, to secure an abortion. It also scrutinizes the justices' opinions and criticizes the reasoning for their holdings. This article argues that both Courts changed their nations' straightforward abortion laws to reach decisions that the courts felt would be more palatable to their respective political constituencies and satisfy their own subjective beliefs. On the one hand, the Irish court declined to abide by the traditionally conservative position denying abortion rights as …

The Forgotten And Neglected: Pregnant Women And Women Of Childbearing Age In The Context Of The Aids Epidemic, Carol Beth Barnett

Golden Gate University Law Review

This article will explore why pregnant women with HIV disease have become the focus of some of the most deeply-rooted value judgments about women and HIV, and how certain governmental policies, including state statutes, and local medical practices by hospitals, doctors and health clinics, raise reproductive freedom issues for pregnant women and women of childbearing age in the context of AIDS and HIV infection. Part I discusses the overall demographic picture of women with HIV disease, particularly as it relates to the interconnection between substance abuse and the transmission of HIV disease to women, and its affect on the numbers …

Hiv Disease: Criminal And Civil Liability For Assisted Suicide, Ann Grace Mccoy

Golden Gate University Law Review

This article first traces the evolution of attitudes and subsequent laws regarding suicide and assisted suicide. Secondly, the criminal and civil liability of assisted suicide is assessed on the basis of California case law. Lastly, this paper will discuss the applicability of the defenses of the right of privacy and the right of autonomy to acts of suicide and assisted suicide. This discussion will focus on the right of a person with HIV disease to enlist the assistance of the medical profession to make his or her death as quick and as painless as possible, a practice which under the …

Searching For Proper Judicial Recognition Of Hospital Ethics Committees In Decisions To Forego Medical Treatment, Carol A. Murphy

Golden Gate University Law Review

The issue of withdrawing or withholding life-sustaining medical treatment arises with increasing regularity in the United States, prompted by a growing elderly population and constant technological advances. A Hospital Ethics Committee (HEC) may be utilized to assist in making treatment decisions for incompetent patients, but there is inconsistency in the deference given to HECs by courts. Neither federal nor state statutes have addressed the proper role of HECs in health care decisionmaking, and common law on the subject is conflicting. This comment will explore the levels of judicial scrutiny applied to HEC decisions regarding life-sustaining medical treatment and explore the …

The Regulation Of Electroconvulsive Therapy In California: The Impact Of Recent Constitutional Interpretations, David Whitcomb

Golden Gate University Law Review

This article will begin with a brief description of ECT. Those less interested in the medical aspects may ignore this section. Such information could be important to an attorney, however, especially in an ECT malpractice action or other direct dealings with an ECT patient. The existing California regulatory scheme of ECT will be detailed, followed by constitutional arguments regarding the review committee, risk disclosure, and substitute consent provisions of these laws. It is the purpose of this discussion not only to provide the reader with an introduction to the California ECT laws, but to argue that such laws are a …

Preventing The Spread Of Aids By Restricting Sexual Conduct In Gay Bathhouses: A Constitutional Analysis, Stephen L. Collier

Golden Gate University Law Review

This analysis of the state's authority to limit sexual behavior in gay bathhouses will begin by examining the precedents involving the use of quarantine and nuisance statutes to control the spread of communicable diseases. A discussion of common law limitations on the use of those statutes will follow. The constitutional analysis begins with the right to privacy embodied in the United States and California Constitutions, and its relationship to gay sexual intimacy generally. The application of rational basis and strict scrutiny standards will be analyzed and arguments presented in favor of applying strict scrutiny. The state's compelling interest in stopping …

Psychotherapists' Duty To Warn: Ten Years After Tarasoff, Leslie B. Small

Golden Gate University Law Review

This Comment discusses the Tarasoff decisions and subsequent cases defining the scope of the psychotherapists' duty to protect persons other than their patients. It examines the rationale behind A.B. 2900, and assesses the bill's effect upon the Tarasoff-related objections it addresses. In spite of the Governor's veto of A.B. 2900, there is a need for statutory guidelines to clearly and equitably define the scope of the psychotherapists' duty to protect. This Comment proposes a model statute that attempts to strike a favorable balance among the complex, overlapping interests of psychotherapists, patients, and the public.