Health Law and Policy Commons^™

Time To Abolish The Dea: Evaluating The Agency’S Failures And Calling For Community Investments, Ifetayo Harvey

Fordham Law Review

No abstract provided.

Gender Regrets: Banning Abortion And Gender-Affirming Care, Margot J. Pollans, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

This Article analyzes the use of “regret” in the campaigns to ban GAC and abortion. It identifies two overlapping threads. First, both campaigns against medical care point to protection of patients from future regret as a legitimate state interest justifying restrictions on providing medical care. Second, both rely on concerns about regret to redefine the legal meaning of “informed consent” and make it easier for potential future plaintiffs to prevail in civil suits against providers of medical care. In doing so, both treat the emotion of regret as a distinct injury that may give rise to a range of legal …

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

Pacific Islands And The U.S. Military: The Legal Borderlands Of The Environmental Movement, Sonia Lei

Seattle University Law Review

Climate change remains an urgent, ongoing global issue that requires critical examination of institutional polluters. This includes the world’s largest institutional consumer of petroleum: the United States military. The Department of Defense (DoD) is a massive institution with little oversight, a carbon footprint spanning the globe, a budget greater than the next ten largest nations combined, and overly generous exemptions to environmental regulations and carbon reduction targets. This Comment examines how this lack of accountability and oversight plays out in the context of three Pacific islands that have hosted U.S. military bases for decades. By considering the environmental impact of …

Black Maternal Mortality Rate: Improving Outcomes For Black Mothers Using Legislation That Reverses The Effects Of Structural Racism In Medicine, Ashley Pattain

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Autism And Access To Healthcare, Amanda Forbes

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Delayed Emergency Care: How Professional Liability Insurance Affects Doctors’ Decisions After Dobbs And What Needs To Change, Erin Stuart

Marquette Law Review

In 2022, the U.S. Supreme Court overruled Roe v. Wade, ushering in a new era for abortion regulation. In some states, like Wisconsin, abortion was instantly re-criminalized. In rare but serious instances, health care providers faced the dilemma of deciding whether to delay care for emergency abortion services to save the life of a mother, for fear of criminal prosecution. As a result, some providers wondered if their professional liability insurance plan would provide a legal defense in the event of a criminal charge of illegally performing an abortion, though the facts may show it was to save the life …

Mental Health In Prison: The Unintended But Catastrophic Effects Of Deinstitutionalization, Felicia Mulholland

Touro Law Review

Prisons and jails are not adequately equipped to manage the ever-growing population of mentally ill inmates. Despite deinstitutionalization efforts, prisons have steadily become the new psychiatric hospitals and unfortunately, because of the lack of treatment and the ability to properly supervise this population of inmates, these individuals are dying by their own hands at an alarming rate. This Note argues that the lack of proper care for mentally ill inmates is a violation of their constitutional right, despite their incarcerated status. The Department of Corrections and Community Supervision (DOCCS) should incorporate more concrete and universal rules and regulations for the …

The Consumer’S Choice To Boycott, Agnes Bresee

Seattle University Law Review

In the wake of employees losing their jobs upon voicing their political opinions concerning Israel, Harvard and Columbia law students’ job offers being rescinded upon expressing support for Palestine, and the names and social media profiles of individuals who support Palestine being collected and listed on Canary Mission, such backlash may leave many Americans wondering what form of resistance to settler-colonialist apartheid is acceptable in the twenty-first century. Recently, the movement to collectively boycott brands like Starbucks, which sued its Worker’s Union for a tweet expressing support for Palestine; Disney, which donated money to Israel; and McDonald’s, where a location …

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney

Seattle University Law Review

Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.

A Hard Pill To Swallow: The Abysmal Mental Health Standards Of Detained Immigrant Children In The United States, Rama Bankesly

Seattle University Law Review

After setting foot into the U.S., unaccompanied children must learn to navigate academic and legal systems while receiving little support and carrying the heavy burden of effects of trauma on their mental health. They need access to mental health care from qualified professionals, but as this Comment will explain, they systematically fail to receive care, as can be seen in cases like Doe v. Shenandoah Valley Juv. Ctr. Comm’n. In Shenandoah, an unaccompanied child arrived in the U.S. and was placed in a facility that failed to provide remotely adequate mental health care and in fact was subjected …

Gender Regrets: Banning Abortion And Gender-Affirming Care, Noa Ben-Asher, Margot J. Pollans

Faculty Publications

(Excerpt)

In the spring of 2023, the New York Times published a piece entitled “How a Few Stories of Regret Fuel the Push to Restrict Gender Transition Care.” It features Chloe Cole, who lived as a transgender boy for several years but now identifies as a cisgender woman. Cole has become a poster child for the idea that gender-affirming care (“GAC”) for minors may lead to later regret and should therefore be restricted by the state. Cole, who has been travelling the country as part of a conservative lawmaking effort to ban GAC, received a standing ovation after Florida Governor …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

Religious Clause Challenges To Early Abortion Bans, Caroline Mala Corbin

Articles

The substantive due process right to abortion is gone. But other parts of the Constitution may also protect women’s right to control their bodies and live as equals in the United States. This Essay addresses what role the two religion clauses may play in advancing reproductive autonomy. Because religion and reproduction are intertwined, the religion clauses may provide some measure of constitutional protection.

The Establishment Clause bars the government from imposing religion onto those who do not share it. It also forbids the government from taking sides in theological disputes. Early abortion bans not only favor one religious belief on …

Mental Hygiene Law Article 81 Proceedings In New York State And The Associated Deprivation Of One’S Civil Rights And Autonomy: Are We Really Helping?, Giulia R. Marino

Touro Law Review

New York State Mental Hygiene Law Article 81 affords a population that is vulnerable to abuse and exploitation an opportunity to have their personal and/or property management needs met by the least restrictive means available, often entailing a severe deprivation of their rights.1 But what is meant by the term “least restrictive means available,” how is this determined, and how are these “means” implemented and monitored? Is this deprivation of an individual’s rights the only way they can be helped, or is this unnecessarily harmful? Are there other ways to protect the vulnerable in our society without taking away these …

Consumer Privacy And The Dobbs Disruption, Mason R. Clark

Faculty Articles

The right to reproductive privacy is under attack in the United States, and it is losing ground. Dobbs v. Jackson Women's Health Organization, the Supreme Court's 2022 decision that overruled Roe v. Wade's constitutional protection of abortion and jeopardized privacy rights by proxy, reflects this losing posture. Scholarship in reproductive privacy varyingly critiques federal privacy initiatives, evaluates regulatory interventions, and proposes civil rights frameworks in response to Dobbs. This Article, however, pinpoints how Dobbs created a gaping hole in state consumer privacy laws even as they propagated across the United States. Currently, there are no state consumer privacy laws that …

Dentistry And The Law: Requiring Proof Of Adoption/Retaining Orthodontic Models, Dan Schulte Jd

The Journal of the Michigan Dental Association

In this Dentistry and the Law column, a dentist seeks guidance on handling a situation where racial differences between a child and an accompanying adult raised concerns during an examination, leading the dentist to request proof of adoption. The response clarifies that asking for proof of adoption is not illegal, citing relevant Michigan adoption statutes. The column advises adopting an office policy, emphasizing human trafficking training. Additionally, a dentist inquires about retaining orthodontic models and X-ray films. The answer recommends assuming orthodontic models are part of dental records, subject to a 10-year retention period. Patients can be given their models, …

Black Liberty In Emergency, Norrinda Brown

Northwestern University Law Review

COVID-19 pandemic orders were weaponized by state and local governments in Black neighborhoods, often through violent acts of the police. This revealed an intersection of three centuries-old patterns— criminalizing Black movement, quarantining racial minorities in public health crises, and segregation. The geographic borders of the most restrictive pandemic order enforcement were nearly identical to the borders of highly segregated, historically Black neighborhoods.

The right to free movement is fundamental and, as a rule, cannot be impeded by the state. But the jurisprudence around state power in public health emergencies, deriving from the 1905 case Jacobson v. Massachusetts, has practically resulted …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Exploring The African Regional Human Rights Standards As The Basis For An Enabling Environment For Self-Managed Abortion, Lucia Berro Pizzarossa, Michelle Maziwisa, Ebenezer Durojaye

Washington and Lee Journal of Civil Rights and Social Justice

Self-managed abortion holds great promise to save lives and promote reproductive autonomy, particularly in Africa. Indeed, the African region records very high numbers of unsafe abortions, and the burden of abortion-related mortality is the highest globally. Abortion remains generally criminalized in violation of numerous internationally and regionally recognized human rights standards. The advent of abortion medicines and the increased grassroots energy geared towards curbing the harms of unsafe abortion evince medical abortion holds great promise for revolutionizing people’s access to high-quality reproductive care. This study discusses regional human rights frameworks, policy, case law, and a few representative domestic legislative frameworks …

The Low-Hanging Fruit: Health, Rights, And The Commission, Bright Nkrumah

Washington and Lee Journal of Civil Rights and Social Justice

The year 2022 marked the 35th anniversary of the African Commission on Human and Peoples’ Rights. As it is a custom in many communities, when one reaches this milestone, it is an opportune time to introspect and reflect on the successes and challenges encountered in one’s journey. It is this template that the paper adopts to measure the prospects and setbacks of the African Commission in the advancement of the right to health. The Article argues that while the body remains the poster child of the continent’s human rights architecture, its inability to clearly articulate how states ought to advance …

A Miscarriage Of Justice: How Femtech Apps And Fog Data Evade Fourth Amendment Privacy Protections, Rachel Silver

Washington and Lee Journal of Civil Rights and Social Justice

After the fall of Roe v. Wade, states across the country have enacted extreme abortion bans. Anti-abortion states, emboldened by their new, unrestricted power to regulate women’s bodies, are only broadening the scope of abortion prosecutions. And modern technology provides law enforcement with unprecedented access to women’s most intimate information, including, for example, their menstrual cycle, weight, body temperature, sexual activity, mood, medications, and pregnancy details. Fourth Amendment law fails to protect this sensitive information stored on femtech apps from government searches. In a largely unregulated private market, femtech apps sell health and location data to third parties like Fog …

The Impact Of Government Sponsored Segregation On Health Inequities: Addressing Death Gaps Through Reparations, Mariya Denisenko

Washington and Lee Law Review

Government sponsored segregation of urban neighborhoods has detrimentally impacted the health of Black Americans. Over the last century, federal, state, and local governments have promulgated racist laws and policies that shaped the racial divide of communities in major metropolitan cities. This divide has contributed to poor health outcomes and large discrepancies in life expectancy for Black Americans when compared to their White counterparts. While health is impacted by various factors, segregation has been shown to impose various challenges that make it difficult for Black Americans to attain good health.

Segregated Black communities struggle with economic inequality, environmental racism, and face …

Rights And Remedies: Rental Housing For Low-Income Households In The United States, David Ray Papke, Mary Elise Papke

Marquette Benefits and Social Welfare Law Review

The state of rental housing for low-income households in the United States is deplorable. Unaffordable, unsanitary, and insecure, this housing violates the internationally recognized right of housing. While the United States has never formally recognized that right, the right guarantees not only a roof overhead but also affordability, habitability, and security of tenure. Policies and programs seeking to remedy the problems in rental housing might consciously address these aspects of rental housing. Policies and programs of this sort will not be enough to eliminate all problems, but they would alleviate a matter of great embarrassment, namely, the most affluent country …

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 …

The Exacerbating Role Of Technological And Connectivity Challenges On Older Detroiters’ Health In A Pandemic, Nicholas Schroeck, Carrie Leach

Seattle Journal of Technology, Environmental, & Innovation Law

The COVID-19 pandemic hit communities of color hard. The City of Detroit was particularly vulnerable to COVID-19 due to racial, socioeconomic, and environmental health factors. To analyze the exacerbating role of technology and connectivity challenges on older Detroiters' health in a pandemic, we first examined Detroit’s demographics. This analysis involved looking at the continued evolution of the City's population toward older adults, as well as the impact of COVID-19 and the healthcare services on Detroit’s elder population. Next, we examined Detroit’s internet access challenges, including the presence of digital exclusion among older adults in Detroit, the impact of COVID-19 on …

Liberating Legal Aid: Reducing Covid-19'S Justice Gap And Promoting Health By Removing The Legal Services Corporation's Class Action And Advocacy Restrictions, Molly C. Schmidt

Cleveland State Law Review

The Legal Services Corporation (LSC) is the single-largest funder of civil legal services, or legal aid, in the United States. The COVID-19 pandemic underscored a longstanding and growing problem faced by ow-income Americans served by LSC-funded legal aid organizations: the growing "justice gap." The justice gap represents the unmet civil legal needs of low-income Americans. The justice gap perpetuates poverty, conceals health-harming legal problems, and furthers racial disparities. Despite the LSC’s essential role in reducing the justice gap and promoting “equal access to justice,” Congress consistently underfunded the LSC before and during COVID-19. Congress has also prohibited the LSC-funded legal …

Introduction: Access To Healthcare Symposium, Yvonne F. Lindgren

Faculty Works

The four Articles in this Access to Healthcare symposium edition address the different ways that the U.S. healthcare delivery system is failing marginalized communities, including individuals who are disabled, who are birthing, who are women of color or represent another marginalized group, or who live in poverty. The result is a rich conversation that uncovers the complex systems that contribute to unequal access to health care and unjust disparities in health outcomes in the United States.