Law Commons^™

Birthing Alone, Elizabeth Kukura

Washington and Lee Law Review

Throughout the COVID-19 pandemic, hospitals implemented restrictive visitor policies that have prevented many pregnant people from giving birth with their chosen support people. For some, this meant foregoing labor and delivery support by a birth doula, someone who serves in a nonclinical role and provides emotional, physical, and informational support to birthing people. Given that continuous labor support such as the care provided by doulas is associated with fewer cesareans and other interventions, less need for pain medication, and shorter labors, the promotion of doula care is a promising strategy to ease the maternal health crisis and, in particular, shrink …

Leave Them Kids Alone: State Constitutional Protections For Gender-Affirming Healthcare, Jessica Matsuda

Washington and Lee Law Review

State legislatures across the nation are continually targeting the rights of transgender individuals with a variety of laws affecting everything from bathrooms to medical care. One particularly invasive type of legislation, the gender-affirming healthcare ban, seeks to prohibit all forms of healthcare that align a person’s physical traits with their gender identity for individuals under eighteen. Bans like this severely impede the treatment necessary for transgender youth suffering from gender dysphoria, which carries serious physical consequences and sometimes fatal psychological repercussions. As legislative sessions pass, more and more states are introducing and actually enacting these bans

Striking down these bans …

Abortion Rights And Disability Equality: A New Constitutional Battleground, Allison M. Whelan, Michele Goodwin

Washington and Lee Law Review

Abortion rights and access are under siege in the United States. Even while current state-level attacks take on a newly aggressive scale and scope—emboldened by the United States Supreme Court’s June 2022 decision in Dobbs v. Jackson Women’s Health Organization to overturn Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey—the legal landscape emerging in the wake of Dobbs is decades in the making. In this Article, we analyze the pre- and post-Roe landscapes, explaining that after the Supreme Court recognized a right to abortion in Roe in 1973, anti-abortionists sought to dismantle that right, first …

Using Waller To Uphold First And Sixth Amendment Rights Throughout The Covid-19 Pandemic, Maya Chaudhuri

Washington and Lee Law Review Online

In The Right to a Public Trial in the Time of COVID-19, Professor Stephen Smith argued that the COVID-19 pandemic justified an almost categorical suspension of the right to a public trial. Judges have relied on Smith’s Article to justify closure decisions made without the constitutionally required specific findings. These are part of a larger pattern of improper closure determinations, many made without fully considering alternatives to closure, since the beginning of the pandemic that threatens the rights of individuals with criminal cases and the collective rights of the public. But the Constitution has no pandemic exception, and it …

Comment: On Patents And Appropriations—And Tragedies, David O. Taylor

Washington and Lee Law Review

I write to provide a few remarks concerning Sasha Hoyt’s illuminating work published in the pages of this journal. In it, Hoyt addresses the impact of the Supreme Court’s patent eligibility decisions on private investment in the development of medical diagnostic technologies. As an initial matter, I want to congratulate Hoyt for tackling an important topic. As Hoyt discusses, medical diagnostic technologies enable the diagnosis of diseases and other medical conditions such as genetic disorders, and early and accurate diagnosis may lead to early treatments and, ultimately, at least in some cases, saved lives. But the creation of medical diagnostic …

We Shouldn't Need Roe, Carliss Chatman

Scholarly Articles

In the face of state-by-state attacks on the right to choose, which result in regular challenges to Roe v. Wade in the U.S. Supreme Court, this essay asks whether Roe is needed at all. Decades of state law encroachments have caused Roe to fail to properly protect the right to choose. Building on prior works that challenge the premise of fetal personhood and highlighting the status of Roe-based rights after decades of challenges, this essay proposes an alternative solution to Roe. Federal legislative and executive efforts, including the Women’s Health Protection Act, are necessary to ensure the right …

Making An Offer That Can't Be Refused: The Need For Reform In The Rules Governing Informed Consent And Doctor-Patient Agreements, Timothy C. Macdonnell

Scholarly Articles

On a daily basis, throughout the country, patients are required to sign informed consent forms regarding the care they receive from their doctors. Informed consent forms are an important part of ensuring patients are making an intelligent, autonomous decision regarding their healthcare based on the facts related to their particular situation. However, frequently these consent forms contain what amount to contract-like terms that require patients to permit doctors to substitute other healthcare providers to care for the patient under the doctor’s supervision (substituted caregiver terms). Often these terms are presented to patients on the eve of surgery and on a …

Patent Eligibility And Cancer Therapy, Christopher B. Seaman

Washington and Lee Law Review

As an empirical legal scholar, I am pleased to report that Sasha Hoyt has done what very few law students—and even many law professors—could achieve. She successfully conducted a novel empirical study to assess the real-world impact of a U.S. Supreme Court decision, Mayo Collaborative Services v. Prometheus Laboratories, Inc., on venture capital (VC) investment in startups and other companies that develop medical diagnostic technology.

As Ms. Hoyt notes, patent protection is particularly important for startup companies, as it can help protect their innovations from unauthorized use, attract funding and other investments, and foster collaboration with third parties. In …

The Pandemic And The Public Nuisance: Judicial Intervention In The Era Of Covid-19 And The Collective Right To Public Health, Kyra Ziesk-Socolov

Washington and Lee Journal of Civil Rights and Social Justice

Amidst the unprecedented disruption caused by COVID-19, workplace lawsuits around the country began to apply a longstanding common law theory in a novel way: employee plaintiffs argued that their employers’ noncompliance with state and federal public health guidance designed to curb the spread of the virus should be enjoined as a public nuisance. Although some of these initial public nuisance suits were dismissed, others successfully forced defendant businesses to either alter their COVID safety practices or temporarily close. This Article explores the first pandemic-era public nuisance suit, Rural Community Workers Alliance v. Smithfield Foods, brought by meatpacking plant workers …

Reproductive Privacy In The World: Critical Examination Of June Medical Services, L.L.C. V. Russo And Buck V. Bell, Kumiko Kitaoka

Washington and Lee Journal of Civil Rights and Social Justice

Using insights from Professor Stephen A. Simon’s Universal Rights and the Constitution, this Article argues that national courts should continue to assume an active role in the protection of privacy rights by giving due consideration to the nature of the privacy right in combination with the merits of the universal right theory. This Article then demonstrates that both foreign national courts and domestic state courts have recognized the right to procreate and key aspects of the right to abortion as fundamental rights.

Part II introduces the universal right theory, explaining why the theory is particularly relevant to the protection …

The Impact Of Uncertainty Regarding Patent Eligible Subject Matter For Investment In U.S. Medical Diagnostic Technologies, A. Sasha Hoyt

Washington and Lee Law Review

Historically, 35 U.S.C. § 101, the statute governing patent eligible subject matter, has been construed broadly—with its legislative history indicating that it should cover “anything under the sun that is made by man.” The Supreme Court crafted three exceptions to § 101: (1) abstract ideas, (2) laws of nature, and (3) natural phenomena. In recent years, the Supreme Court’s eligibility jurisprudence has further narrowed § 101 to effectively exclude meritorious medical diagnostic methods. Indeed, since the Court’s decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc., the Federal Circuit has held every single diagnostic method claim brought before it …