Law Commons^™

(Re)Criminalizing Abortion: Returning To The Political With Stories, George J. Annas

Faculty Scholarship

Abortion stories have always played a powerful role in advancing women’s rights. In the abortion sphere particularly, the personal is political. Following the Court’s reversal of Roe v. Wade, abortion politics, and abortion storytelling, take on an even deeper political role in challenging the bloodless judicial language of Dobbs with the lived experience of women.

Dobbs V. Jackson Women’S Health: Undermining Public Health, Facilitating Reproductive Coercion, Aziza Ahmed, Dabney P. Evans, Jason Jackson, Benjamin Mason Meier, Cecília Tomori

Faculty Scholarship

Dobbs v. Jackson Women’s Health continues a trajectory of U.S. Supreme Court jurisprudence that undermines the normative foundation of public health — the idea that the state is obligated to provide a robust set of supports for healthcare services and the underlying social determinants of health. Dobbs furthers a longstanding ideology of individual responsibility in public health, neglecting collective responsibility for better health outcomes. Such an ideology on individual responsibility not only enables a shrinking of public health infrastructure for reproductive health, it facilitates the rise of reproductive coercion and a criminal legal response to pregnancy and abortion. This commentary …

Firearm Contagion: A New Look At History, Rachel Martin, Michael Ulrich

Faculty Scholarship

Gun violence is widely considered a serious public health problem in the United States, but less understood is what this means, if anything, for evolving Second Amendment doctrine. In New York Pistol & Rifle Association, Inc. v. Bruen, the Supreme Court held that laws infringing Second Amendment rights can only be sustained if the government can point to sufficient historical analogues. Yet, what qualifies as sufficiently similar, a suitable number of jurisdictions, or the most important historical eras all remain unclear. Under Bruen, lower courts across the country have struck down gun laws at an alarming pace, while …

American Public Health Federalism And The Response To The Covid-19 Pandemic, Nicole Huberfeld, Sarah Gordon, David K. Jones

Faculty Scholarship

This chapter is part of an edited volume studying and comparing federalist government responses to the COVID-19 pandemic. The chapter first briefly provides an overview of the American public health emergency framework and highlights key leadership challenges that occurred at federal and state levels throughout the first year of the pandemic. Then the chapter examines decentralized responsibility in American social programs and states’ prior policy choices to understand how long-term choices affected short-term emergency response. Finally, the chapter explores long-term ramifications and solutions to the governance difficulties the pandemic has highlighted.

The Public/Private Distinction In Public Health: The Case Of Covid-19, Aziza Ahmed, Jason Jackson

Faculty Scholarship

In this Essay, we argue that the paradigm of the public/private distinction is implicitly operating as a primary frame in the public health response to the pandemic. The public/private distinction is particularly evident in the guidance around masking and other risk-mitigation policies and advice issued by public health agencies. This public health approach reifies the notion of the home as an exceptional private space that exists outside of the possibility of COVID-19 transmission, obscuring the reality of the high risk of transmission in some households. 8 We argue that the manifestation of the public/private distinction in the COVID-19 response is …

Second Amendment Realism, Michael Ulrich

Faculty Scholarship

In District of Columbia v. Heller, the Supreme Court declared a constitutionally protected individual right to keep and bear arms. Subsequently, the scope of the right has been hotly debated, resulting in circuit splits and lingering questions about what, exactly, the right entails. Despite these splits, the Court has denied certiorari to the myriad gun cases to land on its doorstep. But the balance of the Court has shifted, and likely, too, its willingness to hear these cases. Among the most pressing questions in Second Amendment jurisprudence is the constitutionality of public carry restrictions. With a constitutional challenge inevitable given …

Where Is The “Public” In American Public Health? Moving From Individual Responsibility To Collective Action, Cecília Tomori, Dabney P. Evans, Aziza Ahmed, Aparna Nair, Benjamin Mason Meier

Faculty Scholarship

American individualism continues to prove incommensurate to the public health challenge of COVID-19. Where the previous US Administration silenced public health science, neglected rising inequalities, and undermined global solidarity in the early pandemic response, the Biden Administration has sought to take action to respond to the ongoing pandemic. However, the Administration's overwhelming focus on individual responsibility over population-level policy stands in sharp contrast to fundamental tenets of public health that emphasize “what we, as a society, do collectively to assure the conditions for people to be healthy”. When this misalignment of individual responsibility and public health initially became clear with …

Title 42, Asylum, And Politicising Public Health, Michael Ulrich, Sondra S. Crosby

Faculty Scholarship

President Biden has continued the controversial immigration policy of the Trump era known as Title 42, which has caused harm and suffering to scores of asylum seekers under the guise of public health.1 The Centers for Disease Control and Prevention (CDC) ordered the policy in March 2020 with the stated purpose of limiting the spread of the coronavirus into the U.S.; though, CDC and public health officials have admitted this policy has no scientific basis and there is no evidence it has protected the public.2,3 Instead, the impetus behind the policy appears to be a desire to keep out or …

Effects Of Political Versus Expert Messaging On Vaccination Intentions Of Trump Voters, Christopher Robertson, Keith Bentele, Beth Meyerson, Alexander Wood, Jacqueline Salwa

Faculty Scholarship

To increase COVID-19 vaccine uptake in resistant populations, such as Republicans, focus groups suggest that it is best to de-politicize the issue by sharing five facts from a public health expert. Yet polls suggest that Trump voters trust former President Donald Trump for medical advice more than they trust experts. We conducted an online, randomized, national experiment among 387 non-vaccinated Trump voters, using two brief audiovisual artifacts from Spring 2021, either facts delivered by an expert versus political claims delivered by President Trump. Relative to the control group, Trump voters who viewed the video of Trump endorsing the vaccine were …

Your Health Is In Your Hands? Us Cdc Covid-19 Mask Guidance Reveals The Moral Foundations Of Public Health, Cecília Tomori, Aziza Ahmed, Dabney P. Evans, Benjamin Mason Meier, Aparna Nair

Faculty Scholarship

In the second year of the COVID-19 pandemic, US public health policy remains at a crossroads. The US Centers for Disease Control and Prevention’s (CDC’s) May 28, 2021 guidance, which lifted masking recommendations for vaccinated people in most situations, exemplifies a troubling shift — away from public health objectives that center equity and toward a model of individual personal responsibility for health. CDC Director Rochelle Walensky emphasized that "your health is in your hands," undermining the idea that fighting COVID is a "public" health responsibility that requires the support of institutions and communities. The social impacts of this scientific guidance, …

Addressing Public Health’S Failings During Year One Of Covid-19, George J. Annas, Sandro Galea

Faculty Scholarship

By almost any measure, public health fell short during 2020. In retrospect, the list of what public health professionals, including federal and state public health officials, public health practitioners, and academics, could have done better is easy to articulate, and has already been the subject of angry books about the disasterous responses to the pandemic in Europe and the US [1,2]. It falls to all of us to pause, reflect, and ask: how do we move forward? We have five suggestions.

Paying Americans To Take The Vaccine - Would It Help Or Backfire?, Christopher Robertson, Daniel Scheitrum, K. Aleks Schaefer, Trey Malone, Brandon Mcfadden, Paul Ferraro, Kent Messer

Faculty Scholarship

This research investigates the extent to which financial incentives (conditional cash transfers) would induce Americans to opt for vaccination against COVID-19. We performed a randomized survey experiment with a representative sample of 1,000 American adults in December 2020. Respondents were asked whether they would opt for vaccination under one of three incentive conditions ($1,000, $1,500, or $2,000 financial incentive) or a no-incentive condition. We find that—without coupled financial incentives—only 58% of survey respondents would elect for vaccination. A coupled financial incentive yields an 8-percentage-point increase in vaccine uptake relative to this baseline. The size of the cash transfer does not …

The Need For A Strong And Stable Federal Public Health Agency Independent From Politicians, Jacqueline Salwa, Christopher Robertson

Faculty Scholarship

The COVID-19 pandemic has revealed the precariousness of federal public health institutions in the United States, and how disastrously things can go when those institutions are undermined by political forces. Such institutions can be disbanded, underfunded, populated with incompetent political hacks, manipulated, or sidelined. As a field, public health in particular needs some political space, given that it requires deep scientific expertise and needs to communicate to the public clearly, reliably, and with authority to engender trust. Key public health agencies, such as the Centers for Disease Control and Prevention (CDC) in particular, should be buttressed against future political encroachment, …

Race, Risk, And Personal Responsibility In The Response To Covid-19, Aziza Ahmed, Jason Jackson

Faculty Scholarship

The COVID-19 crisis has tragically revealed the depth of racial inequities in the United States. This Piece argues that the disproportion­ate impact of the pandemic on racial minorities is a symptom of a failing approach to public health, one that privileges individual behaviors over the structural conditions that generate vulnerability and inequitable health outcomes. Despite clear racial disparities in illness and deaths, the neoliberal ideology of personal responsibility shifts the onus for mitigation of risk away from the social and legal determinants of health and onto the individual. To understand how and why these disparate racial outcomes arise, this Piece …

The Future Of Facts: The Politics Of Public Health And Medicine In Abortion Law, Aziza Ahmed, Jason Jackson

Faculty Scholarship

While a great deal of public scrutiny has focused on how information circulates through online outlets including Twitter and Facebook, less attention has been devoted to how more traditional institutions traffic in factual assertions for the sake of setting a particular distributional agenda into motion.[1] Of these more traditional institutions, courts play a central role in legitimating legal and factual claims in the process of applying and clarifying legal rules. In public health-related adjudication, courts play at least two important roles: first, judges and juries make decisions between competing sets of public health and medical claims and second, courts …

Litigation As Education: The Role Of Public Health To Prevent Weaponizing Second Amendment Rights, Michael Ulrich

Faculty Scholarship

Tobacco litigation was unquestionably successful, but it is dangerous to expect that it can be easily duplicated. An unrealistic reliance on litigation as a regulatory measure can blind public health advocates to other mechanisms of change. And that includes litigation as a means of enabling actual regulation. Firearms and the gun violence epidemic provides a useful case study. The Protection of Lawful Commerce in Arms Act (PLCAA) essentially bars litigation as a regulatory tool for firearms. This legislation means every time someone pulls the trigger, they become the party to blame. Soto v. Bushmaster Firearms presents a rare exception based …

Privacy In Pandemic: Law, Technology, And Public Health In The Covid-19 Crisis, Tiffany Li

Faculty Scholarship

The COVID-19 pandemic has caused millions of deaths and disastrous consequences around the world, with lasting repercussions for every field of law, including privacy and technology. The unique characteristics of this pandemic have precipitated an increase in use of new technologies, including remote communications platforms, healthcare robots, and medical AI. Public and private actors are using new technologies, like heat sensing, and technologically-influenced programs, like contact tracing, alike in response, leading to a rise in government and corporate surveillance in sectors like healthcare, employment, education, and commerce. Advocates have raised the alarm for privacy and civil liberties violations, but the …

Medicaid's Vital Role In Addressing Health And Economic Emergencies, Nicole Huberfeld, Sidney Watson

Faculty Scholarship

Medicaid plays an essential role in helping states respond to crises. Medicaid guarantees federal matching funds to states, which helps with unanticipated costs associated with public health emergencies, like COVID-19, and increases in enrollment that inevitably occur during times of economic downturn. Medicaid’s joint federal/state structure, called cooperative federalism, gives states significant flexibility within federal rules that allows states to streamline eligibility and expand benefits, which is especially important during emergencies. Federal emergency declarations give the secretary of Health and Human Services temporary authority to exercise regulatory flexibility to ensure that sufficient health care is available to meet the needs …

Indemnifying Precaution: Economic Insights For Regulation Of A Highly Infectious Disease, Christopher Robertson, K Aleks Schaefer, Daniel Scheitrum, Sergio Puig, Keith Joiner

Faculty Scholarship

Economic insights are powerful for understanding the challenge of managing a highly infectious disease, such as COVID-19, through behavioral precautions including social distancing. One problem is a form of moral hazard, which arises when some individuals face less personal risk of harm or bear greater personal costs of taking precautions. Without legal intervention, some individuals will see socially risky behaviors as personally less costly than socially beneficial behaviors, a balance that makes those beneficial behaviors unsustainable. For insights, we review health insurance moral hazard, agricultural infectious disease policy, and deterrence theory, but find that classic enforcement strategies of punishing noncompliant …

Fda In The Time Of Covid-19, Elizabeth Mccuskey

Faculty Scholarship

Over the past century, Congress has made the Food & Drug Administration (FDA) responsible for regulating the safety and efficacy of drugs and devices being deployed in the fight against the COVID-19 pandemic. The FDA’s regulatory infrastructure was built for public health threats and to combat manufacturers' misinformation about treatments.

This article spotlights the ways in which FDA has been adapting to a new challenge during the COVID-19 pandemic: combating misinformation emanating from within the executive branch.

Revisionist History? Responding To Gun Violence Under Historical Limitations, Michael Ulrich

Faculty Scholarship

In the D.C. Circuit case Heller v. District of Columbia (Heller II), Judge Kavanaugh wrote that “Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” Now Justice Kavanaugh, will he find support on the highest court for what was then a dissenting view? Chief Justice Roberts, during oral arguments for Heller I, asked “Isn’t it enough to…look at the various regulations that were available at the time…and determine how these—how this restriction and the scope of this …

Quarantine And The Federal Role In Epidemics, Wendy K. Mariner, Michael Ulrich

Faculty Scholarship

Every recent presidential administration has faced an infectious disease threat, and this trend is certain to continue. The states have primary responsibility for protecting the public’s health under their police powers, but modern travel makes diseases almost impossible to contain intrastate. How should the federal government respond in the future? The Ebola scare in the U.S. repeated a typical response—demands for quarantine. In January 2017, the Department of Health and Human Services and the Centers for Disease Control and Prevention issued final regulations on its authority to issue Federal Quarantine Orders. These regulations rely heavily on confining persons who may …

(Public) Health And Human Rights: Of Bridges And Matrixes, George J. Annas

Faculty Scholarship

Responding to President Trump's anti-Muslim executive order restricting immigration, the American Public Health Association (APHA) issued a press release recommitting the organization to human rights, noting that "health and human rights are inextricably linked." The organization underlined the basic human rights norm of nondiscrimination, noting that "all people should be valued equally, no matter their race, gender, sexual orientation, religion, immigration status, income or geographic region" and that whenever any groups of people are prevented from "experiencing basic human rights, all of our communities suffer" (APHA 2017). Human rights, especially the right to health, have also been at the core …

Vaccines And Airline Travel: A Federal Role To Protect The Public Health, Christopher Robertson

Faculty Scholarship

This Article explores two ways in which airline travel is an important vector for the spread of infectious disease, and argues that airlines have market-based and liability-based reasons to require that passengers be vaccinated. Going further, the Article explores whether the federal government has the legal and constitutional authority — especially under the Commerce Clause — to encourage or mandate that airlines implement such a vaccine screen. By disrupting the spread of disease at key network nodes where individuals interact and then connect with other geographic regions, and by creating another incentive for adult vaccination, an airline vaccine screen could …

Ebola And Human Rights: Post-9/11 Public Health And Safety In Epidemics, George J. Annas

Faculty Scholarship

In public health practice, the concepts of health and safety are often conflated. However, protecting and promoting health is radically different from protecting and promoting safety. Since 9/11, the distinctions between health and safety have changed and are in the process of merging. In our terrorism-obsessed world, public health has been increasingly militarized and enlisted, often without protest, into the service of protecting the safety of the public and the security of the nation. But safety and security are the proper purposes of law enforcement and the military, not of public health. More importantly, using public health to combat terrorism …

Reconsidering Constitutional Protection For Health Information Privacy, Wendy K. Mariner

Faculty Scholarship

What kinds of health information should be reported to government for civil purposes? Several competing trends encourage efforts to reassess the scope of constitutional protection for health information: the social and commercial value of health information; the amount of data held by third parties, from health care providers to internet servers; critiques of the third party doctrine exception to Fourth Amendment protection; and concerns about the loss of privacy. This article describes a variety of civil purposes for which health information is collected today. A close analysis of cases applying the third party doctrine, administrative search principles, and the special …

Health Care And The Myth Of Self-Reliance, Nicole Huberfeld

Faculty Scholarship

Both pillars of the Affordable Care Act that are designed to facilitate universal coverage — the low-income tax subsidy and Medicaid expansion — have been subject to high-profile Supreme Court cases. While in King v. Burwell the Court saved the ACA’s low-income subsidy, in NFIB v. Sebelius the Court frustrated Medicaid expansion, at least temporarily. We argue that there is a deeper story about health care access for the poor. Drawing from the history of the American health care system, vulnerability theory, and demographic data, we demonstrate that all Americans lead subsidized lives and could find themselves quickly moving from …

Adjudicating Risk: Aids, Crime, And Culpability, Aziza Ahmed

Faculty Scholarship

The AIDS epidemic continues to pose significant public health challenges, especially given that the spread of the virus outpaces the AIDS response.¹ Importantly, HIV continues to disproportionately impact socially and economically marginalized communities. In countries with concentrated epidemics,² it is racial minorities, sex workers, men who have sex with men, and drug users who face the brunt of the epidemic.³ In the United States, the data is startling⁴ : 44% of new infections were among African-Americans, and among African-Americans contracting HIV, 57% were among gay and bisexual men.⁵ In 2016, the CDC found that one …

Criminal Laws On Sex Work And Hiv Transmission: Mapping The Laws, Considering The Consequence, Aziza Ahmed, Sienna Baskin, Anna Forbes

Faculty Scholarship

Lawmakers historically justify the mobilization of criminal laws on prostitution and HIV as a means of controlling the spread of disease. Over time, however, public health research has conclusively demonstrated that criminal laws on prostitution and HIV significantly impede the ability of sex workers to access services and to live without the stigma and blame associated with being a transmitter of HIV. In turn, mainstream public health approaches to sex work and HIV emphasize decriminalization as a way to improve the lives of sex workers in need of care, treatment, and services. Our current legal system, which criminalizes both prostitution …

Health Insurance Is Dead; Long Live Health Insurance, Wendy K. Mariner

Faculty Scholarship

Today, health insurance is no longer simply a class of insurance that covers risks to health, and it has not been so for many years. Health insurance has become a unique form of insurance — a mechanism to pay for healthcare that uses risk spreading as one of several pricing methods. The Affordable Care Act builds on this important payment function to create a complex social insurance system to finance healthcare for (almost) everyone. This article examines how the ACA draws on various conceptions of insurance to produce a quasi-social insurance system. This system poses new challenges to laws governing …