Disability Law Commons^™

In Her Words: Recognizing And Preventing Abusive Litigation Against Domestic Violence Survivors, David Ward

Seattle Journal for Social Justice

No abstract provided.

Persistence And Resistance: Women’S Leadership And Ending Gender-Based Violence In Guatemala, Serena Cosgrove, Kristi Lee

Seattle Journal for Social Justice

No abstract provided.

Reproductive Rights And Access To Reproductive Services For Women With Disabilities, Anita Silvers, Leslie Francis, Brittany Badesch

Utah Law Faculty Scholarship

Are women with disabilities owed equitable access to reproductive health services, including family planning, contraception, screening for sexually transmitted infections, maternal health services, and fertility services? Or are there circumstances in which disability is a reason to deny access to such services? Conversely, should women with certain disabilities have access to procedures such as caesarean section or sterilization? May these procedures be recommended just because a woman has a disability or imposed on her if she appears reluctant or unable to consent?

Helplessly Imprisoned: State V. Hammonds Holds Involuntarily Committed Patients To The Same Constitutional Restraints As Prisoners, Thomas C. Wolff

North Carolina Central Law Review

No abstract provided.

Politically Correct Eugenics, Seema Mohapatra

Faculty Scholarship

No abstract provided.

Use Of Facial Recognition Technology For Medical Purposes: Balancing Privacy With Innovation, Seema Mohapatra

Faculty Scholarship

No abstract provided.

Said I, 'But You Have No Choice': Why A Lawyer Must Ethically Honor A Client's Decision About Mental Health Treatment Even If It Is Not What S/He Would Have Chosen, Michael L. Perlin, Naomi M. Weinstein

Cardozo Public Law, Policy & Ethics Journal

The article argues that lawyers representing individuals with mental disabilities have an ethical responsibility to prioritize their clients' expressed preferences and autonomy, rejecting the presumption that substituted decisionmaking is acceptable. It critiques the legal system's reliance on paternalistic approaches and highlights the importance of supported decisionmaking, as mandated by international human rights law, particularly under the Convention on the Rights of Persons with Disabilities (CRPD). The analysis emphasizes the need for legal frameworks and attorney practices to align with therapeutic jurisprudence, which prioritizes psychological well-being and dignity while upholding due process principles.

Give Them A Reason They Can Understand: An Examination Of Rhode Island's Medicaid Ineligibility Notices To The State's Most Vulnerable Populations, Laura Pickering

Roger Williams University Law Review

No abstract provided.

From Development As Disaster To Disaster As Development: Lessons From The Marseille Plague Of 1720, Saptarishi Bandopadhyay

Articles & Book Chapters

No abstract provided.

Gambling Disorder, Vulnerability, And The Law: Mapping The Field, Stacey A. Tovino

Scholarly Works

This Article seeks to descriptively map the sub-field of gambling disorder and the law and ask whether individuals with gambling disorder are vulnerable under the law. Like other scholarship that descriptively maps ethical, legal, and social implications of lesser known conditions and developments, this Article seeks to describe the treatment of individuals with gambling disorder in a variety of illustrative, but not exhaustive, legal contexts, to identify the limited scholarship assessing the application of the law to individuals with gambling disorder, and to invite members of the health law academy to bring their significant expertise to bear on these issues …

Dying Fast: Suicide In Individuals With Gambling Disorder, Stacey A. Tovino

Scholarly Works

These published remarks carefully document the history of health insurance coverage of gambling disorder. They begin by providing examples of gambling disorder insurance benefit disparities in the contexts of public health care programs and private health plans. They proceed by reviewing the effect of three pieces of legislation, including the Mental Health Parity Act of 1996, the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, and the Affordable Care Act of 2010, on public and private insurance coverage of gambling disorder. They highlight the partial victory that will occur in some states beginning in …

Merchants And Thieves, Hungry For Power: Prosecutorial Misconduct And Passive Judicial Complicity In Death Penalty Trials Of Defendants With Mental Disabilities, Michael L. Perlin

Articles & Chapters

In spite of the Supreme Court’s decisions in Ford v. Wainwright (1986), Atkins v. Virginia (2002), and Hall v. Florida (2014), persons with severe psychosocial and intellectual disabilities continue to be given death sentences, in some cases leading to actual execution. Although the courts have been aware of this for decades -- dating back at least to the infamous Ricky Rector case in Arkansas -- these base miscarriages of justice continue and show no sign of abating. Scholars have written clearly and pointedly on this issue (certainly, more frequently since the Atkins decision in 2002), but little has changed.

I …

Organ Transplantation Eligibility: Discrimination On The Basis Of Cognitive Disability, Tien-Kha Tran

Journal of Law and Policy

Congress passed the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 in response to the extensive history of discrimination Americans with disabilities have faced. These federal statutes provide that no individual is to be precluded from enjoying the programs provided by certain entities solely on the basis of their disability. However, this is difficult in regards to organ transplantation and individuals with cognitive disabilities. The issue lies where a physician is faced with the difficult decision in pursuing their moral and ethical obligations to preserve life while determining whether a specific cognitive disability is a contraindication …

Defining The "Defined"—Problem Gambling, Pathological Gambling, And Gambling Disorder: Impact On Policy And Legislation, Sarah A. Hinchliffe

Barry Law Review

No abstract provided.

Between A Bed And A Hard Place: How Washington Can Keep Psychiatric Patients In Treatment And Off The Streets, Spencer Babbitt

Seattle University Law Review

On February 27, 2013, ten psychiatric patients were being involuntarily detained in hospital emergency departments located in Pierce County under Washington State’s Involuntary Treatment Act (ITA). Despite the name of the law that authorized their detainment, these individuals were not receiving any psychiatric treatment during their confinement. Nor were they there as the result of a criminal conviction. The only thing these ten detainees were guilty of was being mentally ill. Under what is now considered to have been a misinterpretation of the ITA, counties across Washington had for years been confining mentally ill patients in hospitals not certified to …

Neuroscience And Health Law: An Integrative Approach, Stacey A. Tovino J.D., Ph.D.

Akron Law Review

Neuroscience is one of the fastest growing scientific fields in terms of the numbers of scientists and the knowledge being gained. In recent years, both the scope of neuroscience and the methodologies employed by neuroscientists have broadly expanded, from biochemical and genetic analysis of individual nerve cells and their molecular constituents, to the imaging of brain structure and function. Perhaps the most significant recent neuroscientific achievement is the ability of neuroimaging technologies, including functional magnetic resonance imaging (fMRI), to image brain function. Clinicians and scientists use fMRI not only to map sensory, motor, and cognitive function, but also to study …

Classifying Obesity As A Disability Under The Americans With Disabilities Act: How Seff V. Broward County Is Incongruent With Recent Ada Litigation, Maura Flaherty Mccoy

Catholic University Law Review

This Note discusses how employer wellness programs are potential breeding grounds for Americans with Disabilities Act discrimination claims in light of recent ADA cases relating to obesity and how courts’ treatment of the safe harbor provision of the ADA is incongruent with the broadening of ADA claims. It looks at the provisions of the ADA and how courts have traditionally defined “disability” in obesity cases, describes the ADA safe harbor provision, and discusses the advent of corporate wellness programs. This Note then analyzes Seff v. Broward County, the most notable wellness program case to-date, and how the court’s decision …

Problem Gambling Is Funny, David M. Ranscht

UNLV Gaming Law Journal

No abstract provided.

A Failure To Rehabilitate: Leaving Disability Insurance Out Of The Mental Health Parity Debate, Christopher R. Wilson

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The Utility And Limits Of Self-Exclusion Programs, Keith C. Miller

UNLV Gaming Law Journal

No abstract provided.

Health Justice: A Framework (And Calll To Action) For The Elimination Of Health Inequity And Social Injustice, Emily A. Benfer

American University Law Review

No abstract provided.

The Intersection Of Agency Doctrine And Elder Law: Attorney-In-Fact Authority To Arbitrate Nursing Home Claims, 49 J. Marshall L. Rev. 39 (2015), Thomas Simmons

UIC Law Review

With the popularity of durable powers of attorney to manage the estates and personal affairs of individuals with diminished capacity, construction of the scope of powers with which agents are acting is of increasing importance. Some acts should be seen as so inherently personal or so dramatically inconsistent with the expected role of an agent as to be simply outside the scope of agency altogether. Others, such as those involving gifts, self-dealing transactions, or constitutional rights, should be never implied but honored when located within the express terms of an agent’s authority. The remaining powers should be construed and mapped …

An Americans With Disabilities Act Critique Of Advance Directive Override Provisions, Judy Ann Clausen

UF Law Faculty Publications

This Article argues many mental health advance directive statutes violate the Americans with Disabilities Act (ADA). Advance directives empower people to determine care to be administered when they lack capacity to provide informed consent. General advance directives typically address end-of-life care. Mental health directives govern treatment administered during periods of incapacity caused by acute episodes. Because end-of-life decision-making is different than planning for episodic mental illness, half of the states have enacted separate mental health directive statutes. These specialized statutes often provide doctors more leeway to force treatment on a patient in contravention of a directive than do generic directive …

Bring Ulysses To Florida: Proposed Legislative Relief For Mental Health Patients, Judy Ann Clausen

UF Law Faculty Publications

This Article urges the Florida legislature to give patients the right to form Ulysses arrangements, which are a special type of mental health advance directive authorizing a doctor to administer treatment during a future episode even if the episode causes the patient to refuse treatment. Acute mental illness episodes may disrupt a patient’s capacity to provide informed consent and cause the patient to refuse necessary intervention. In Florida, a physician cannot involuntarily examine, hospitalize, or treat a person unless she meets strict criteria, essentially requiring the person’s behavior to reveal that she is dangerous to herself or others. Even a …

The Impact Of Disability: A Comparative Approach To Medical Resource Allocation In Public Health Emergencies, Katie Hanschke, Leslie E. Wolf, Wendy F. Hensel

Faculty Publications By Year

It is a matter of time before the next widespread pandemic or natural disaster hits the United States (U.S.). The international response to the 2009 H1N1 influenza stands as a cautionary tale about how prepared the world is for such an emergency. Although the pandemic fortunately proved to be less severe than initially anticipated, it nevertheless resulted in shortages of medical equipment, overburdened hospitals, and preventable patient deaths, particularly among young people.

A pandemic will inevitably lead to difficult decisions about the allocation of medical resources, such as who will have priority access to ventilators and critical care beds when …

Medicaid At 50: No Longer Limited To The "Deserving" Poor?, David Orentlicher

Scholarly Works

Professor David Orentlicher considers the significance of the passage of the Affordable Care Act on the Medicaid program. He discusses the expansion of the program's recipients from merely children, pregnant women, single caretakers of children, and disabled persons to all persons up to 138% of the federal poverty level. Professor Orentlicher argues that the Medicaid expansion reflects concerns about the high costs of health care rather than an evolution in societal thinking about the "deserving" poor. As a result, the expansion may not provide a stable source of health care coverage for the expansion population.

Reproductive Justice, Public Policy, And Abortion On The Basis Of Fetal Impairment: Lessons From International Human Rights Law And The Potential Impact Of The Convention On The Rights Of Persons With Disabilities, Carole J. Petersen

Journal of Law and Health

This article argues that we should consider not only American constitutional law but also comparative law and emerging international human rights norms, in order to navigate the difficult issue of abortion on the basis of fetal impairment. The United States is a State Party to the International Covenant on Civil and Political Rights (ICCPR)13 and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). It is also a signatory (but not a full State Party) to several other relevant treaties, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the …

What Patients With Disability Teach Us About The Everyday Ethics Of Healthcare, Elizabeth Pendo

Articles

In Healers: Extraordinary Clinicians at Work, by David Schenck and Dr. Larry Churchill, and in What Patients Teach: The Everyday Ethics of Health Care, their follow-up with Joseph Fanning, the authors look at the everyday experience of health care and the relationships that shape it. They call attention to the ethical dimensions of the clinical encounter and the hope for, and desirability of, a genuine human engagement between the clinician and the patient. In their view, healers are clinicians who cultivate a therapeutic relationship with their patients. They identify a set of skills that accomplish this, including welcoming …

The Americans With Disabilities Act At 25: The Highest Expression Of American Values, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Enacted in 1990, the Americans with Disabilities Act (ADA) is a watershed piece of legislation which enshrines in law a social promise of equality and inclusion into all facets of life, while offering an inspiring model that much of the world has come to embrace. This editorial launches JAMA’s theme issue on the 25th anniversary of the ADA by detailing the Act’s history, main provisions, and far-reaching impacts on health, providing a context for the three Original Investigations and six scholarly Viewpoints that make up the theme issue. The editorial begins with a discussion of the ADA’s history, highlighting …

Perspectives On Outpatient Commitment, Richard C. Boldt

Faculty Scholarship

No abstract provided.