Health Law and Policy Commons^™

The Asexual Assumption, Faith K. Whatley-Blaine, Michael S. Sinha

All Faculty Scholarship

Inclusion-focused dating shows such as ‘Love on the Spectrum’ feature individuals with developmental or neurological disabilities on a quest for love. Despite the focus on disability representation, these shows perpetuate stigma against the disabled community by fostering an infantilizing portrayal of individuals with disabilities. This portrayal undermines the premise of encouraging meaningful romantic relationships and reinforces the stigmatizing association of asexuality with disability. This framing aligns with the broader societal narrative that individuals with disabilities are incapable of or lack interest in participating in romantic relationships or physical intimacy.

The stigma that associates asexuality with disability extends beyond mere entertainment, …

The Weight Of Stigma, Rebekah A. King, Michael S. Sinha

All Faculty Scholarship

Many health care providers, both implicitly and explicitly, perpetuate stigma in their treatment of patients classified as obese. While medical professionals understand that a one-size-fits-all approach to treatment is ineffective, patients classified as obese are frequently offered limited treatment options that fail to account for their unique needs. Access to a range of effective treatment options has historically been limited, but new GLP-1 receptor agonist medicines like Wegovy (semaglutide) and Zepbound (tirzepatide), have shown incredible promise in addressing the obesity crisis. Unfortunately, these transformative drugs are costly, in high demand, and not widely covered by insurance, rendering them inaccessible for …

Reverberations Of Magna Carta: Work Injuries, Inkblots, And Restitution, Michael C. Duff

All Faculty Scholarship

This article argues that workers in the United States have been unconstitutionally undercompensated for their work injuries for at least a century. This provocative fact, coupled with statistics showing that over 120,000 people per year die from workplace injury and occupational disease, suggests a looming post-pandemic struggle for better injury remedies and safer workplaces. Workers’ compensation, the current state-based system by which American workers receive compensation for work-related injury and death, was obtained from legislatures as a “Grand Bargain,” the value of which has significantly deteriorated over time; and the constitutional coherence of which has been impacted by the obvious …

Meat, The Future: The Role Of Regulators In The Lab-Grown Revolution, Joseph B. Davault, Michael S. Sinha

All Faculty Scholarship

The United States is one of the largest consumers of meat globally. The production of meat contributes substantially to climate change due to the levels of greenhouse gasses emitted and the amount of land, water, feed, and other natural resources required to raise animals used for meat. Traditional meat production is another major source for the emergence of zoonotic diseases and antimicrobial-resistant pathogens. Nevertheless, Americans consume more meat now than at any time in the nation’s history.

Advocates for policy change aimed at addressing the risks associated with meat production have typically focused on reducing meat consumption, alternatives to meat, …

Table Of Contents

Saint Louis University Journal of Health Law & Policy

No abstract provided.

Masthead

Saint Louis University Journal of Health Law & Policy

No abstract provided.

Tackling The Next Public Health Crisis: Lessons Regarding Long-Term Care From The Covid Era, M. Sara Rosenthal, Keith R. Knapp, Laura Morton

Saint Louis University Journal of Health Law & Policy

This paper reviews multiple ethical and clinical issues during the COVID era affecting long-term care. The authors are members of one of many long-term care COVID task forces[1] that emerged in multiple jurisdictions to address a pandemic emergency. This paper applies the pandemic ethics literature that informed healthcare providers during COVID and recommends adjusting health messaging and communication that may shift responsiveness in the next public health crisis.

[1]. Kentucky Cabinet for Health and Family Services Long-Term Care Advisory Task Force (in alphabetical order): Muhammad Babar, MD, MBA, MSc, CMD, SNF medical director; Belinda Beard, BS, RN, Division Director, …

Between Private Equity And Housing Discrimination: The Long-Term Crisis In St. Louis And Beyond, Harold Braswell, Alexandra Mcnamee, Charitha Bodepudi

Saint Louis University Journal of Health Law & Policy

On December 15, 2023, Northview Village, the largest skilled nursing facility in the Saint Louis region, closed abruptly, leading to the nighttime discharge of 170 residents. This emergency, while unique to that facility, is indicative of a broader crisis in both local and, to a significant extent, national nursing homes. This crisis has partly been catalyzed by the COVID-19 pandemic, but it rests on underlying factors that are unfortunately integral to the financing and operation of long-term care. This article will argue that understanding it requires situating long-term care at the intersection of two broader historical processes: the rise of …

The Intersection Of Regulation, Quality Care Delivery, And Ethics And Compliance: Look Carefully Before Crossing!, David R. Hoffman, Ilene Warner-Maron

Saint Louis University Journal of Health Law & Policy

Quality and compliant care delivery in nursing homes remains elusive. Four main interests are currently misaligned, thereby putting nursing home residents at risk of harm. Without a clearly defined commitment to quality and compliant care and alignment of these interests, nursing home residents will remain vulnerable to severe harm.

The first key interest concerns nursing home ownership and management. Currently, over seventy percent of nursing homes are owned by for-profit entities. Previous ownership models, including non-profit, religious-based, and county-owned facilities, have largely closed or transitioned to for-profit entities. The shift in ownership significantly impacts quality and compliant care delivery. Unfortunately, …

§1983 And The Federal Nursing Home Reform Act: A Perfect Fit, Sandra H. Johnson

Saint Louis University Journal of Health Law & Policy

The Supreme Court rarely takes a case involving federal quality standards for nursing home care, and that alone would make Health and Hospital Corporation of Marion County v. Talevski (Talevski) a significant case for those interested in long-term care. The Court’s decision in Talevski, however, reaches far beyond long-term care with implications for every federally funded program that relies on the states for administration, delivery of benefits, or enforcement of standards.

Much about the Talevski case signaled that a significant change in law may be coming. The plaintiff’s cause of action relied on a statutory instrument (§1983) frequently used by …

What Went Wrong? Identifying The Historical Roots Of Racial Disparities Among Older Adults In Nursing Facilities, Gelila Selassie

Saint Louis University Journal of Health Law & Policy

In early 2020, as the nation was just becoming familiar with COVID-19, over a million nursing facility residents were already experiencing crisis-level disasters. Extreme lockdowns, increased hospitalizations, and high mortality rates plagued nursing facilities earlier and far worse than the rest of the population. Data gradually showed that facilities with higher numbers of residents of color were facing particularly dire outcomes.

Although the severity of COVID-19 was surprising, the pandemic highlighted existing and long-standing problems with the country’s long-term care facilities. Many of the problems that led to the horrible disparities during COVID-19 are rooted in a wholly insufficient long-term …

The Layered Harms Of Nursing Home Segregation, Mary Crossley

Saint Louis University Journal of Health Law & Policy

This Essay explores several dimensions of how segregation, separation, and shielding from view permit and contribute to the ethically problematic state of nursing home care in the United States. A quarter of a century ago, the Supreme Court recognized in the Olmstead decision that institutional care can function to segregate disabled people (whether young or old) from the richness of community life. Research over the past few decades confirms that racial segregation exists within the nursing home industry, and during the COVID-19 pandemic, the correlations between nursing homes’ racial makeup and their level of COVID fatalities were shocking. On another …

Whose “Best Interests”? Concerns About The Use Of Fiduciary Framing In Long-Term Care Decisions, Jennifer L. Herbst

Saint Louis University Journal of Health Law & Policy

As part of reimagining America’s long-term care system, this article will explain how today’s system is, in many ways, the logical extension of historical presumptions that are foundational to our understanding of family, medical, and organizational governance as “fiduciary” in nature. More specifically, much of our current language (operating in someone’s “best interests,” acting consistent with their “substituted judgment” if now incapacitated) and jurisprudence (parens patriae, trusts, guardianships, conservatorships, and corporate governance) descends from centuries of equity and law centered on the management of property, not people or health.

This legal framework is firmly rooted in English statutes, court opinions, …

The Value Of A Statistical Life: From Skin In The Game To Vision Zero, Michael C. Duff

All Faculty Scholarship

This essay discusses justice issues surrounding occupational safety and health and assesses the ethical legitimacy—the justice—of regulatory cost benefit analysis when the costs in question involve the risks and realization of workplace injury and fatalities. The current “value of a statistical life” for legal-regulatory purposes is 13.1 million dollars. While economists are careful to say that this figure does not “really” represent an attempt to value any particular life, the purpose of even calculating the number is to provide an “aggregated” statistical justification for saying “no” to rules requiring safer work. This seems acceptable until you, or someone you love, …

Pharmaceutical-Telehealth Confederacies, Michael S. Sinha

All Faculty Scholarship

Access to prescription pharmaceuticals has historically been controlled by a physician’s pen. As a result, pharmaceutical companies spend billions of dollars on advertising and promotion to mitigate this barrier: first and primarily, to physicians and other prescribers, and more recently, to the general public through direct-to-consumer advertising. The success of these promotional efforts can be seen in greater prescribing of costly brand-name medicines, even in settings where lower-priced generic alternatives exist. Brand-name prescriptions now make up only 10% of all prescriptions written yet account for 87% of drug spending. Despite these substantial returns on investment, companies continue to seek opportunities …

Dirty Water, Breanna Booker, Michael S. Sinha

All Faculty Scholarship

Plastics are taking over. Every day, humans are exposed to plastic pollutants in a variety of ways. From the water we use to water crops in the field, to the water in our taps, to the liquids we drink from plastic containers, it can be found virtually anywhere you look. Not only is it everywhere in the environment, but it is also within us. It builds up in our bodies. Plastics have become a major public health concern; researchers estimate that the total healthcare cost related to plastic chemicals may be as much as $250 billion.[1]

Water has always …

Labeling Energy Drinks: Tackling A Monster Of A Problem, Meredith P. Mulhern, Michael S. Sinha

All Faculty Scholarship

Energy drinks first rose to popularity in the 1980s. Red Bull energy drinks were the first of its kind, opening the door to a new consumer and regulatory landscape. Since Red Bull first launched, multiple companies have released countless new energy drink products. Some energy drinks, like Red Bull, contain less than 100 mg of caffeine per 8 oz can. However, other energy drinks contain much higher amounts of caffeine. A 12 oz can of Celsius contains 200 mg of caffeine, and up until recently, Celsius offered a product called Celsius Heat, a 12 oz can containing 300 mg of …

Table Of Contents

Saint Louis University Journal of Health Law & Policy

No abstract provided.

Masthead

Saint Louis University Journal of Health Law & Policy

No abstract provided.

From Deference To Indifference: Judicial Review Of The Scope Of Public Health Authority During The Covid-19 Pandemic, Wendy E. Parmet

Saint Louis University Journal of Health Law & Policy

For most of American history, courts have granted public health officials significant deference in construing the scope of their own authority. This changed during the COVID-19 pandemic, especially in the federal courts, where deference was replaced with skepticism as courts used the major questions doctrine to narrow the scope of public health powers. This Article examines this development and considers its implications for public health. Part II begins by recounting the long history of judicial deference to officials’ determination of the scope of their public health powers. Part III notes some of the problems with such deference and the pre-pandemic …

Authority To Improve Or Harm Health: The Public Health Front In A Decades-Long Battle Over Governmental Powers, Sabrina Adler, Sara Bartel, Heather Wong

Saint Louis University Journal of Health Law & Policy

Backlash to local, state, and federal responses to combat COVID-19 has resulted in a small but vocal cohort of legislatures and courts trying to change long-settled and foundational principles of public health decision-making. They have shifted authority away from experts and local decision-makers, limiting emergency response in ways that also impact day-to-day public health efforts. Considering some examples of other recent preemption efforts, it is clear that COVID-era backlash is part of a longer-term deregulatory agenda, often framed as an effort to keep “big government” out of people’s lives and to preserve individual freedoms. However, the impact of such deregulation …

The Model Public-Health Emergency Authority Act, Robert Gatter

Saint Louis University Journal of Health Law & Policy

The Uniform Law Commission recently approved the Model Public-Health Emergency Authority Act (MPHEAA or the Act or the Model Act). The MPHEAA grants governors specific and plenary powers to issue public health emergency orders while also ensuring executive branch transparency and accountability. The Act improves public health emergency preparedness by resecuring the legal foundation for states to respond effectively to future emergencies. However, more work is needed to enhance data collection and support vulnerable populations in emergencies.

This Article discusses the origins of the MPHEAA, key policy and drafting choices the Drafting Committee made in creating the MPHEAA, and the …

Doing More With Less: State Public Health Emergency Powers Post-Pandemic, Kelly J. Deere

Saint Louis University Journal of Health Law & Policy

Three years after COVID-19 arrived in the United States, many governors and public health officials are equipped with fewer—not more—public health emergency powers than at the start of the pandemic. This may seem counterintuitive, considering that this virus has killed more than 1.1 million Americans and counting. While public health emergency powers were stripped on the federal, state, and local level, this loss is most acutely felt at the state executive level. Some state legislatures passed laws banning state and local governments from implementing a mask or vaccine mandate, while others amended their state emergency disaster statutes to limit the …

What Is A Public Health Lawyer Today? Acting For, Against, And Beyond Public Health, Scott Burris

Saint Louis University Journal of Health Law & Policy

Health in America is not looking good. Unique among countries in the Organization for Economic Co-operation and Development, the basic measure of national health—life expectancy—was declining even before COVID-19. Public health, both as a system of institutions and as a profession working to promote longer and healthier lives, is also struggling. The normal insularity of the field’s professional culture—including a lack of legal competency—helped undermine the response to COVID-19, which was dismal by any measure. At this difficult time, this Article considers three different ways public health lawyers can make a contribution to public health as a goal and as …

The Supreme Court’S 2022-23 Access To Court Decisions, Sarah Somers, Abigail Coursolle, Sarah L. Grusin, Jane Perkins

Saint Louis University Journal of Health Law & Policy

The Supreme Court’s 2022–23 Term yielded significant decisions bringing about goals long-sought by conservatives. This debut Term for the first Black woman Justice also included some results welcomed by progressives, including decisions on voting rights, Native American sovereignty, and individual enforcement of Spending Clause enactments. In this Article, we discuss significant decisions that have implications for access to court for civil litigants, focusing on those affecting access for low-income and marginalized litigants. We also look ahead to what the 2023–24 Term may bring for those seeking access to the courts.

The Future Of Jacobson V. Massachusetts And Modern Substantive Due Process For Public Health Preparedness, Helen S. Webster

Saint Louis University Journal of Health Law & Policy

Both the threat of public exposure to Ebola in the United States in 2014 and the COVID-19 pandemic beginning in 2020 prompted states to impose quarantine and mask mandates, among other responses, to protect the public’s health. When these state actions were eventually challenged on substantive due process grounds in courts across the nation, judges struggled to determine which legal test applied when reviewing the constitutionality of the state actions. On one hand, courts considered the precedent set forth in Jacobson v. Massachusetts, a 1905 Supreme Court case that upheld a Massachusetts vaccine mandate as a valid exercise of …

“The People” Getting Sick Of Orders: Legislative Vetoes And Checks And Balances, José Manuel Sandoval Jr.

Saint Louis University Journal of Health Law & Policy

During the COVID-19 pandemic, state legislators rushed to amend their public health emergency statutes or state’s constitution to alter the balance of power between the executive and legislative branches during public health emergencies. The power to exercise an unconditional and unilateral legislative veto of a governor’s declaration of public health emergency is among one of the most forceful of these pandemic-era amendments. The Pennsylvania legislature attempted to exercise this kind of power in June 2020 to prematurely terminate the governor’s declaration of public health emergency, which was challenged in Wolf v. Scarnati. While the Supreme Court of Pennsylvania held that …

Table Of Contents

Saint Louis University Journal of Health Law & Policy

No abstract provided.

Masthead

Saint Louis University Journal of Health Law & Policy

No abstract provided.

Rethinking Foundations And Analyzing New Conflicts: Teaching Law After Dobbs, Nicole Huberfeld, Linda C. Mcclain, Aziza Ahmed

Saint Louis University Journal of Health Law & Policy

This Article draws on our diverse and complementary areas of scholarly expertise and teaching experiences across law school and public health curricula to offer a multidisciplinary model for teaching in a variety of courses after Dobbs. Teaching reproductive rights and justice poses extensive challenges in the wake of Dobbs’ overruling Roe v. Wade and Planned Parenthood v. Casey, upending a half century of precedents protecting a constitutional right to abortion, and returning the issue to “the people”—and the states. This Article offers theoretical and pedagogical perspectives on teaching courses in Reproductive Rights and Justice, as well as relevant …