Law Commons^™

Immunity Through Bankruptcy For The Sackler Family, Daniel G. Aaron, Michael S. Sinha

All Faculty Scholarship

In August 2023, the U.S. Supreme Court temporarily blocked one of the largest public health settlements in history: that of Purdue Pharma, L.P., reached in bankruptcy court. The negotiated bankruptcy settlement approved by the court would give a golden parachute to the very people thought to have ignited the opioid crisis: the Sackler family. As the Supreme Court considers the propriety of immunity through bankruptcy, the case has raised fundamental questions about whether bankruptcy is a proper refuge from tort liability and whether law checks power or law serves power.

Of course, bankruptcy courts often limit liability against a distressed …

Public Health Consequences Of Appellate Standards For Hostile Work Environment Claims, Lauren Krumholz

Washington Journal of Social & Environmental Justice

No abstract provided.

Abortion Disorientation, Greer Donley, Caroline M. Kelly

Articles

The word “abortion” pervades public discourse in the wake of Dobbs v. Jackson Women’s Health Organization. But do we know what it means? Not only do law and medicine define it differently; state legislatures have codified wildly different definitions of abortion across jurisdictions. Our analysis exposes inherent ambiguities at the boundaries of the term, particularly as abortion intersects with other categories that we often think of as distinct: pregnancy loss, ectopic pregnancy, and other forms of medically necessary care. By juxtaposing statutory text next to real people’s experiences of being denied care in states with abortion bans, we reveal …

Ella P. Stewart And The Benefits Of Owning A Neighborhood Pharmacy, Randall K. Johnson

Faculty Works

This Essay is the first to explain how and why Ella P. Stewart, who was among the first Black women to earn a doctoral degree in Pharmacy, used her status as a small business owner to protect the limited set of legal rights that were available to African-Americans in the twentieth century. It also describes how Stewart’s early personal and professional experiences informed her subsequent public service career. Additionally, this Essay highlights the various ways that Stewart expanded the real freedoms that Black Americans enjoyed by guaranteeing they received a fair share of public goods or services. It concludes by …

Policy’S Place In Pedestrian Infrastructure, Michael L. Smith

Dickinson Law Review (2017-Present)

Angie Schmitt’s Right of Way: Race, Class, and the Silent Epidemic of Pedestrian Deaths in America delves into the complex, multi-layered phenomenon of how traffic infrastructure and policies systematically disadvantage pedestrians and contribute to thousands of deaths and injuries each year. Despite the breadth of the problem and its often-technical aspects, Schmitt presents the problem in an engaging and approachable manner through a step-by-step analysis combining background, statistics, and anecdotes. While Right of Way tends to focus on infrastructure design, it offers much for legal scholars, lawyers, and policymakers. Schmitt addresses several policy issues at length in the book. But …

Freedom Not To See A Doctor: The Path Toward Over-The-Counter Abortion Pills, Lewis Grossman

Articles in Law Reviews & Other Academic Journals

American courts and lawmakers are engaged in an epic struggle over the fate of abortion pills. While some anti-abortion activists are attempting to drive the pills off the market entirely, supporters of reproductive rights are striving to make them more easily accessible. This Article advances the latter mission with a bold proposal: FDA should consider allowing abortion pills to be sold over the counter (OTC). Abortion rights supporters argue that FDA should repeal the special distribution and use restrictions it unnecessarily imposes on mifepristone, one of two drugs in the medication abortion regimen. Even if FDA removed these restrictions, however, …

The Promise Of Telehealth For Abortion, Greer Donley, Rachel Rebouché

Book Chapters

The COVID-19 pandemic catalyzed a transformation of abortion care. For most of the last half century, abortion was provided in clinics outside of the traditional healthcare setting. Though a medication regimen was approved in 2000 that would terminate a pregnancy without a surgical procedure, the Food & Drug Administration required, among other things, that the drug be dispensed in person. This requirement dramatically limited the medication’s promise to revolutionize abortion because it subjected medication abortion to the same physical barriers of procedural care.

Over the course of the COVID-19 pandemic, however, that changed. The pandemic’s early days exposed how the …

Medicaid Expansion Expectations, Deborah Farringer

Law Faculty Scholarship

Although financial stability in rural hospitals has been a relatively long-standing national problem, in the last decade, hospital closures and the incidence of highly distressed hospitals in rural areas have disproportionately impacted certain states. States that have not expanded their Medicaid programs under the Affordable Care Act, which implemented a program to extend additional federal support to cover adults living below 138% of the federal poverty line (referred to herein as “Medicaid Expansion”), are bearing the brunt of this crisis. Although the reason for hospital closures is multi-faceted and complex, health policy experts have consistently identified the lack of Medicaid …

Copyright Protection For Works In The Language Of Life, Nina Srejovic

Washington Law Review

In 2001, the DNA Copyright Institute sought to capitalize on the fear of human cloning by offering celebrities the opportunity to use copyright to secure exclusive rights in their DNA. At the time, a Copyright Office spokesperson pointed out that a person’s DNA “is not an original work of authorship.” That statement is no longer self-evident. A scientist claims to have used CRISPR technology to create a pair of twin girls with human-altered DNA that may provide immunity to HIV infection and improved cognitive function. Through gene therapy, doctors can “author” changes to patients’ DNA to cure disease. Scientists “edit” …

The Rise Of Concentrated Animal Feeding Operations, Their Effects, And How We Can Stop Their Growth, Andrea Prisco

Dickinson Law Review (2017-Present)

Dramatic changes in the agricultural industry over the last century have led to the rise of concentrated animal feeding operations– industrial facilities that raise a large number of animals in confined spaces. Animals raised in these facilities suffer from poor quality of life and abuse. For humans, these facilities have had adverse effects on the environment and public health, but they are also associated with high productivity and low food costs. This Comment analyzes the effects of concentrated animal feeding operations on animal well-being, the environment, and public health. This Comment also analyzes current federal legislation that helps combat the …

Life After The Covid-19 Pandemic, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

After 2 years of a seemingly relentless pandemic that has upended work, education, and social interactions, the questions many are asking are when will we get back to normal and what will life be like after the COVID-19 pandemic? In truth, science cannot fully predict what SARS-CoV-2 variants will arise and the trajectory of the pandemic. Yet, history and informed scientific observations provide a guide to how—and when—society will return to pre-pandemic patterns of behavior. There will not be a single moment when social life suddenly goes back to normal. Instead, gradually, over time, most people will view COVID-19 as …

Teaching Constitutional Law, Administrative Law, And Health Law As Presidential Administrations Change, Renée M. Landers

Saint Louis University Law Journal

When elections bring about changes in the political party of the president, the shifts frequently involve a change in the philosophies that inform the approach to governing. In teaching constitutional law, administrative law, and health law, this author cautions students to consider the political content of agency actions underlying the judicial opinions studied. Examining the political and discretionary judgment government officials exercise may provide an explanation for the results or an analysis when the law does not seem to account for the agency action or court decision. This Article examines the opportunities available to an incoming administration to undo the …

More Money, More Problems: Why H.R. 1318 Is An Insufficient Fix To Remedy The Maternal Mortality Crisis

Florida A & M University Law Review

Between 1990 and 2013 maternal mortality has nearly doubled in the United States as opposed to other countries.6 Per every 100,000 live births, there are 26.4 deaths in the United States. In fact, the United States has the highest rate of maternal mortality in the industrialized world. Unfortunately, maternal mortality did not become a political issue until public figures, like Beyonc´e and Serena Williams, began speaking out about near-death experiences while giving birth. For example, T.V. phenomenon Judge Glenda Hatchett’s daughter-in-law, Kira Johnson, died due to pregnancy-related complications in 2016. Stories like Beyonc´e’s, Serena Williams, and Kira Johnson caused a …

Medication Abortion Exceptionalism, Greer Donley

Articles

Restrictive state abortion laws garner a large amount of attention in the national conversation and legal scholarship, but less known is a federal abortion policy that significantly curtails access to early abortion in all fifty states. The policy limits the distribution of mifepristone, the only drug approved to terminate a pregnancy so long as it is within the first ten weeks. Unlike most drugs, which can be prescribed by licensed healthcare providers and picked up at most pharmacies, the Food and Drug Administration only allows certified providers to prescribe mifepristone, and only allows those providers to distribute the drug to …

Righting Health Policy: Bioethics, Political Philosophy, And The Normative Justification Of Health Law And Policy, D. Robert Macdougall

Publications and Research

In Righting Health Policy, D. Robert MacDougall argues that bioethics needs but does not have adequate tools for justifying law and policy. Bioethics’ tools are mostly theories about what we owe each other. But justifying laws and policies requires more; at a minimum, it requires tools for explaining the legitimacy of actions intended to control or influence others. It consequently requires political, rather than moral, philosophy. After showing how bioethicists have consistently failed to use tools suitable for achieving their political aims, MacDougall develops an interpretation of Kant’s political philosophy. On this account the legitimacy of health laws does …

The Role Of State Attorneys General In Improving Prescription Drug Affordability, Michelle M. Mello, Trish Riley, Rachel Sachs

Scholarship@WashULaw

Impact litigation initiated by state attorneys general has played an important role in advancing public health goals in contexts as diverse as tobacco control, opioids, and healthcare antitrust. State attorneys general also play a critical role in helping governors and legislatures advance health policies by giving input into their drafting and defending them against legal challenges. State attorneys general have entered the prescription drug affordability arena in both these ways—for example, by initiating lawsuits relating to price fixing by generic drug manufacturers and defending state laws requiring disclosures of pharmaceutical prices. Yet the scope of their collective efforts is not …

Corporate Wealth Over Public Health? Assessing The Resilience Of Developing Countries' Covid-19 Responses Against Investment Claims And The Implications For Future Public Health Crises, Tim Hagemann

Pace International Law Review

In the wake of the Covid-19 pandemic, states around the world swiftly enacted a multitude of far-reaching emergency responses to contain the viruses’ spread and to cope with the economic repercussions of the ensuing crisis. However, these measures detrimentally impacted the operating conditions of many businesses or, at the least, decreased their profitability. As this inevitably affected foreign investments, investors could be tempted to invoke “Investor State Dispute Settlement” (“ISDS”) clauses in International Investment Agreements (IIAs) to initiate proceedings before arbitral tribunals and seek compensation for loss of profit caused by states’ Covid-19 responses. Due to the specific circumstances in …

“Incident To Service”: Narrowing The Scope Of The Feres Doctrine In Military Medical Malpractice, Thomas A. Campbell

Health Law Outlook

No abstract provided.

The Patient Assistance Problem, John Defuria

Health Law Outlook

No abstract provided.

Health Care Civil Rights Under Medicare For All, Valarie K. Blake

Law Faculty Scholarship

The passage of Medicare for All would go a long way toward curing the inequality that plagues our health care system along racial, sex, age, health status, disability, and socioeconomic lines. Yet, while laudably creating a universal right to access to health care, Medicare for All may inadvertently dampen civil rights protections that are necessary to ensure equality in health care delivery, an outcome its creators and supporters surely would not intend.

Federal money is typically requisite for civil rights enforcement. Title VI, Title IX, and the Age Discrimination Act of 1975 all apply to recipients of federal financial assistance. …

Commentary On Burton V. State, Greer Donley

Book Chapters

In March of 2009, Samantha Burton went into labor only 25 weeks into her pregnancy. This is a very serious pregnancy complication that not only risks the pregnant woman’s health, but also greatly reduces her potential child’s chance of survival despite the most aggressive care. Ms. Burton’s doctor prescribed, among other things, inpatient bed rest for the duration of her pregnancy, which would have required her to be separated from her two minor children at home. Ms. Burton found that recommendation unacceptable, and as a competent adult, asked to be discharged or to obtain a second opinion from another hospital. …

The Italian Model To Fight Covid-19: Regional Cooperation, Regulatory Inflation, And The Cost Of One-Size-Fits-All Lockdown Measures, Fernanda Giorgia Nicola Dr.

Articles in Law Reviews & Other Academic Journals

What has come to be known worldwide as the Italian model to fight COVID-19 was a series of governmental measures undertaken in early 2020 to reduce the contagion of a deadly virus ravaging the northern regions of Italy—especially Lombardy, Veneto, and Piedmont. These measures included quarantine or lockdown throughout the Italian territory, together with the revamping of hospitals, followed by economic recovery packages to address the standstill of the national economy. This Article focuses on the strengths and weaknesses of the Italian model. By highlighting the initial missteps, we can understand how this turned into a productive national and regional …

Territorial Exceptionalism And The American Welfare State, Andrew Hammond

UF Law Faculty Publications

Federal law excludes millions of American citizens from crucial public benefits simply because they live in the United States territories. If the Social Security Administration determines a low-income individual has a disability, that person can move to another state and continue to receive benefits. But if that person moves to, say, Guam or the U.S. Virgin Islands, that person loses their right to federal aid. Similarly with SNAP (food stamps), federal spending rises with increased demand—whether because of a recession, a pandemic, or a climate disaster. But unlike the rest of the United States, Puerto Rico, the Northern Mariana Islands, …

Encouraging Interagency Collaboration: Learning From Covid-19, Rachel Sachs

Scholarship@WashULaw

In the health innovation context, federal regulatory authority is sharply fragmented among different agencies. The National Institutes of Health, Food and Drug Administration, Centers for Medicare and Medicaid Services, and other agencies all share responsibilities in the development and dissemination of new healthcare technologies. Scholars have previously written about the importance of interagency collaboration both in the healthcare area and more generally, and about strategies for encouraging collaborative efforts to promote various policy goals. Under these accounts, a failure to collaborate between federal agencies may be unfortunate, but it does not typically result in or exacerbate a crisis. In the …

Drivers Of Health Policy Adoption: A Political Economy Of Hiv Treatment Policy, Matthew M. Kavanagh, Kalind Parish, Somya Gupta

Georgetown Law Faculty Publications and Other Works

Why do some countries rapidly adopt policies suggested by scientific consensus while others are slow to do so? Through a mixed methods study, we show that the institutional political economy of countries is a stronger and more robust predictor of health policy adoption than either disease burden or national wealth. Our findings challenge expectations in scholarship and among many international actors that policy divergence is best addressed through greater evidence and dissemination channels. Our study of HIV treatment policies shows that factors such as the formal structures of government and the degree of racial and ethnic stratification in society predict …

Introduction A Bold Agenda For The Next Steps In Health Reform, Lindsay Wiley

Articles in Law Reviews & Other Academic Journals

Introduction: In the aftermath of the largely failed Clinton-era health reform push and the build-up to Obamaera reforms, experts worried that another failed effort could cast a ten-year shadow. The tenth anniversary of the Affordable Care Act offered an opportunity for participants in the 2019 Next Steps in Health Reform conference to reflect. If the ACA proves resilient, what paths will it have paved for the next decade of reforms?

The Drug (Pricing) Wars: States, Preemption, And Unsustainable Prices, Isaac ("Zack") D. Buck

Scholarly Works

It is no secret: the prices of prescription drugs in the United States are unsustainable. A piercing example of the limits of America’s incomplete and disordered health care non-system, the crisis has only worsened in recent years. And not only do drug prices exact a toll on America’s consumers, they impact Americans’ access to life-enhancing (and sometimes life-saving) drugs. They constitute a real and present threat to the quality of health care in the United States in 2020.

Recognizing this harm, states are increasingly operating in this space, seeking diverse regulatory solutions to better protect their citizens — from gouging …

Doctrine Of Dignity: Making A Case For The Right To Die With Dignity In Florida Post-Obergefell

Florida A & M University Law Review

The discussions about the right to privacy have evolved, and the national landscape on physician-assisted suicide has changed since Krischer. Surely, it is time Floridian citizens are given the opportunity to decide whether the right to privacy guaranteed by the Florida constitution includes the right to die with dignity. Numerous states across the nation have adopted legislative provisions which afford those within that state’s borders the ability to die with dignity through physician-assisted suicide. In addition, the seemingly unrelated decision of the United States Supreme Court in Obergefell v. Hodges has reopened the discussion of Glucksberg and its holding. In …

The Birth Of Fertility Fraud: How To Protect Washingtonians, Sarah Chicoine

Washington Law Review Online

Doctors in multiple states have been accused of using their own sperm to impregnate patients without the patient’s consent. Because most states do not have laws prohibiting fertility doctors from using their own sperm to impregnate their patients, families have not been able to seek meaningful legal remedies. State legislatures enacted new fertility fraud laws to deter, criminalize, and provide a legal civil cause of action to those harmed by these actions—but only after these allegations came to light. If the Washington State Legislature creates a law before any similar allegations come to light in Washington, those patients harmed in …

Parental Autonomy Over Prenatal End-Of-Life Decisions, Greer Donley

Articles

When parents learn that their potential child has a life-limiting, often devastating, prenatal diagnosis, they are faced with the first (and perhaps, only) healthcare decisions they will make for their child. Many choose to terminate the pregnancy because they believe it is in their potential child’s best interest to avoid a short and painful life. I argue that these decisions should be protected in the same way that parental healthcare decisions are constitutionally protected after birth—including a parent’s refusal or withdrawal of life-saving treatment for an infant or child who is very sick or dying. Parental autonomy ensures that parents …