Health Law and Policy Commons^™

Dignity For The Deceased: The Abolition Solution To The Laws Governing Unclaimed Body Donation, Lauren Bayerl

Cleveland State Law Review

This Note explores the dangers bubbling under the surface of body donation law across the United States. Specifically, this Note investigates the little-known contours of Ohio law that open the door for body donation practices that may bypass an individual’s consent. While data is slim on the real-world outcomes that such quirks in state law have produced, a recent news story out of Texas highlights the very real danger that the structure of these state body donation laws can produce. This Note first details the laws in place in Ohio that govern body donation, using one state’s laws as a …

The Retreat Of Federal Power And The Rise Of Post-Supremacy Federalism, Victoria Grace Litman

Cleveland State Law Review

This Article introduces the theory of post-supremacy federalism to describe a structural condition in which federal law remains formally binding, but enforcement has durably receded or collapsed. Unlike frameworks grounded in intergovernmental friction or negotiated cooperation, this account begins from federal retreat—the cumulative erosion of enforcement capacity across judicial, administrative, legislative, and executive institutions. Post-supremacy federalism arises when three conditions are met: (1) federal law remains intact; (2) enforcement retreats; and (3) no formal devolution occurs. In this vacuum, states are not merely filling gaps. They are governing by default—under laws that still bind but no longer structure governance in …

For The Greater Good: Civil Commitment For Addiction Amid The Overdose Epidemic, Steven P. Meerschaert

Cleveland State Law Review

America is facing a reckoning born of its own duality. Our society is gradually embracing an increasingly permissive stance on recreational drug use, while at the same time we lament the human costs of addiction. What the media has dubbed the “opioid epidemic” has seen increases in drug addiction diagnoses and opioid-involved overdose deaths nearly every year since 1999. In a rush to designate guilty parties and to crown a “gold standard” for treatment options, we have focused on theoretically flawed approaches that fail to follow the science precisely. At the same time, we dismiss validated treatment modalities in their …

Assisted Outpatient Treatment: A State-By-State Comparative Review, E. Lea Johnston, Autumn Klein

Cleveland State Law Review

Assisted outpatient treatment, otherwise known as preventive outpatient commitment, is rapidly expanding across the United States, aiming to address mental health needs and reduce homelessness, hospital costs, and community violence. Since 2019, fifteen preventive outpatient commitment statutes have been passed or expanded. These statutes, which authorize courts to mandate community treatment for nondangerous individuals with mental illnesses, have evaded close scrutiny, rest on misconceptions, and raise significant constitutional concerns. An analysis of legislative debates, court opinions, and scholarship reveals a fundamental misunderstanding about the prevalence of these laws, which contributes to their speedy passage. Additionally, no analysis exists of these …

Her Bun + My Oven = Our Child: Protecting The Legal Parentage Of Lgbtq+ Mothers And Their Children Conceived Via Reciprocal In Vitro Fertilization In Ohio, Courtney Hutchinson

Cleveland State Law Review

This Note discusses legal parentage in Ohio for two-women couples who expand their families via reciprocal in vitro fertilization or egg-sharing, where one woman is the genetic parent and the other is the gestational parent. Currently, the gestational mother is guaranteed legal parentage at the time of the child’s birth, while the genetic mother must petition the court for a formal adoption to protect her legal rights. A thorough review of court precedent regarding same-sex marriage makes clear that the public policy of Ohio permits two women to share in the legal rights of parentage. Furthermore, Ohio courts have regularly …

Diabetes Behind Bars: Dissecting Diabetic Deliberate Indifference And Delivering Inmates A More Workable Standard Under The Fourth Amendment, Maggie J. Malloy

Cleveland State Law Review

This Note examines the inadequacies of the current Eighth Amendment framework in safeguarding the constitutional rights of diabetic inmates. It contends that the subjective element of the two-pronged Eighth Amendment claim—often used to assess deliberate indifference—leads to unfair and inconsistent outcomes. To address these shortcomings, this Note draws inspiration from the objective analysis employed in Fourth Amendment excessive force claims, specifically referencing the Supreme Court’s decision in Graham v. Connor. This new framework eliminates the subjective element, and instead replaces it with three objective factors courts should consider when evaluating Eighth Amendment violations related to diabetic medical care. Through …

A Model For Understanding Cedaw’S Impact On Implementing Gender Equality Reforms: Lessons From Canada And India, Amanda L. Stephens

Cleveland State Law Review

This Article provides a model for examining the impact of the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) on implementing gender equality reforms using Canada and India, two CEDAW State Parties, as case studies. It also explores the influence of heteropatriarchy, deeply-rooted cultural norms perpetuating gender inequality, on hindering CEDAW’s ratification in the United States, as well as CEDAW’s effectiveness in implementing reforms in Canada and India. The analysis showcases how non-governmental organizations (“NGOs”) in these countries have nevertheless achieved limited successes through their mobilization of CEDAW to address specific gender injustices, such as gender …

High And Low: Abortion In The Press In The Late Nineteenth Century And Early Twentieth Century, Lawrence M. Friedman, Hutchinson Fann

Cleveland State Law Review

This Article analyzes the newspaper coverage of abortion in the late nineteenth century and early twentieth century. While coverage of abortion was spotty before the Civil War, we find that a great many articles on abortion appeared after 1850 and for the rest of the century. But by the early twentieth century, although abortion remained a common practice, newspaper coverage of the issue shrank almost to nothing. We examine why this rise and fall in abortion coverage occurred, and what these changes in press coverage tell us about the role of abortion in politics and culture.

Revisiting Compassionate Release: The Sentencing Commission’S Compassionate Changes To The 2023 Compassionate Release Policy Statement, Rachel Wilson

Cleveland State Law Review

Compassionate release is a well-established exception to the Sentencing Reform Act’s requirement that a defendant’s sentence not be reduced after its final imposition. The Act requires the Sentencing Commission, through policy statement, to describe “extraordinary and compelling reasons” warranting compassionate release. However, the Sentencing Commission’s failure to convene as a quorum for nearly four years precluded any policy statement updates. In that time, the COVID-19 pandemic and the Bureau of Prisons’ internal issues further complicated the compassionate release process. This Note analyzes the 2023 amendment to the compassionate release policy statement, its potential implications, and suggests additional steps to be …

Dobbs And The Future Of Liberty And Equality, Kim Forde-Mazrui

Cleveland State Law Review

This lecture critiques Dobbs v. Jackson Women’s Health Organization and assesses its implications for liberty and equality. Dobbs’ immediate effect was major disruption to abortion rights. In the longer term, by discarding fifty years of precedent and by basing constitutional rights exclusively on long-standing history and tradition, Dobbs jeopardizes liberty and equality rights that the Court has recognized in the late twentieth and early twenty-first centuries. Such modern liberty rights include contraception, interracial marriage, adult sexual intimacy and same-sex marriage. Modern equality rights include strong bars on discrimination based on race and sex, and moderate protections for LGBTQ+ status. …

The Anti-Constitutionality Of The Deeply Rooted Test In Dobbs V. Jackson, Reginald Oh

Cleveland State Law Review

The deeply rooted in history test used by Justice Alito in Dobbs v. Jackson to overturn Roe v. Wade is anti-constitutional. In Dobbs, Alito concluded that, because a majority of states in 1868 criminalized abortion, abortion is not deeply rooted in history, and is therefore not a fundamental liberty under the Fourteenth Amendment Due Process Clause. However, relying on state laws in 1868 to interpret constitutional text not only has no basis in the Constitution, it goes against the fundamental nature of the Constitution as an integrated whole. What I call the Integrated Constitution is based on Chief Justice John …

R.E.S.P.E.C.T.: The Court's Forgotten Virtue, Camille Pollutro

Cleveland State Law Review

This Article recommends a shift in constitutional interpretation that requires the existence of respect for the class at issue when a fundamental right is being considered under the narrow, historical deeply rooted test of the Fourteenth Amendment. By focusing on Dobbs v. Jackson Women’s Health Organization, this Article highlights that the class at issue—women—are having their fundamental rights decided for them by the legal sources of 1868. In applying this strict and narrow historical deeply rooted test, the Court fails to consider the lack of respect and autonomy that women had in 1868. To the Court, if twenty-eight out …

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 …

Overdose: The Public Health Policies That Caused The Opioid Crisis, Benjamin T. Suslavich

Cleveland State Law Review

Recently, local governments have successfully sued pharmaceutical manufacturers for damages related to the opioid crisis in the United States under the theory that these pharmaceuticals were responsible for causing addictions and deaths across the nation. However, the opioid crisis was, in fact, caused by the creation of national public health policies which compelled the prescription of opioid analgesics. The dogma of the "pain movement," which spearheaded public health policies, was adopted in some form by nearly every healthcare regulator in the country. With unchecked power and influence on the U.S. healthcare system, healthcare regulators mutated slightly misleading advertising by pharmaceutical …

Covid-19 Relief For Opportunity Zone Funds And Investors, Adam Wallwork, Gary Hecimovich

Cleveland State Law Review

This Article describes how temporary changes to the qualified opportunity zone (QOZ) tax incentive, combined with new reliance regulations that clarify the requirements for qualified opportunity zone businesses (QOZBs) to modify their written plans to expend working capital in response to the ongoing coronavirus emergency, will make more individuals and entities eligible for federal tax stimulus by increasing flexibility for the qualified opportunity funds (QOFs) and QOZBs in which they invest to redeploy their capital into qualifying business development projects in a QOZ.

Don't Tread On My Ip Rights: A Law And Economics Analysis Of "March-In Rights" Under The Bayh-Dole Act, Caitlin Grow

Cleveland State Law Review

The Bayh-Dole Act has been imperative to the development of the United States’ dynamic pharma-biotech sector. However, the use of march-in rights under the Bayh- Dole Act has remained controversial. On the one hand, there is the idea of market equilibrium with a need to secure health care for the public. Many believe march-in rights should be used to create this balance by regulating the pricing of drugs that were developed using federally funded research. On the other hand, some advocates recognize that the current relationship between public-sector institutions and business as the developers of basic research, and private-sector biotechnology …

Reclaiming The Right To Consent: Judicial Bypass Mechanism As A Way For Persons With Disabilities To Lawfully Consent To Sexual Activity In Ohio, Melissa S. Obodzinski

Cleveland State Law Review

In Ohio, it is a criminal offense to engage in sexual conduct with another when his or her ability to consent is “substantially impaired” because of a mental or physical condition. There is no mechanism for persons with intellectual and/or developmental disabilities to receive judicial notice of whether their ability to consent is “substantially impaired” prior to criminal adjudication, nor is there a way for them to affirmatively prove that they have the capacity to consent to sexual activity. Thus, under Ohio law, intellectually and/or developmentally disabled individuals may be functionally and irrevocably barred from engaging in sexual intimacy for …

Equal Access To Donate: Plasma Donation Centers And The Ada, Lucy Richman

Cleveland State Law Review

The Americans with Disabilities Act (ADA) prohibits discrimination against disabled persons in employment, public services, and private entities operating public accommodations. Despite clear moral and social incentives for becoming disability-friendly outside of the legal mandate, many private entities have asserted that the ADA does not apply to them. In multiple cases, plasma donation centers, one particular type of entity, have strongly disputed whether they are subject to the ADA as public accommodations. The crux of these cases has hinged on whether plasma donation centers are “service establishments” under Title III of the ADA, and three such cases have reached the …

The Future Of The Americans With Disabilities Act: Website Accessibility Litigation After Covid-19, Randy Pavlicko

Cleveland State Law Review

The Americans with Disabilities Act (ADA) was enacted in 1990 to eliminate discrimination against individuals with disabilities. Over time, as society has become more reliant on the internet, the issue of whether the ADA’s scope extends beyond physical places to online technology has emerged. A circuit split developed on this issue, and courts have discussed three interpretations of the ADA’s scope: (1) the ADA applies to physical places only; (2) the ADA applies to a website or mobile app that has a sufficient nexus to a physical place; or (3) the ADA broadly applies beyond physical places to online technology. …

Should A Physician Apologize For A Medical Mistake? – The Controversy Over The Effectiveness Of Apology Law Statutes, Samuel D. Hodge, Jr.

Cleveland State Law Review

There are two approaches that health care providers can pursue in handling a medical error. Is it better for a physician not to admit a mistake and aggressively defend the claim or apologize and try to amicably resolve the matter? There has been a growing movement for physicians to offer words of sympathy or to apologize for a medical mistake as a way of minimizing the impact of a medical error and reducing the chances of a malpractice claim. There are a number of benefits to this approach but critics maintain that an apology is a useless gesture with an …

Depression: The Often Overlooked Sequela Of Head Trauma, Samuel D. Hodge Jr., Jack E. Hubbard

Cleveland State Law Review

Depression is a common sequela of head trauma. Approximately half of all individuals with a cranial injury will experience depression within the first year, regardless of the severity of the injury. The ailment is characterized clinically as a mood disorder, often associated with intense feelings of sadness. However, depression is more complex than mood disorders, as many mental and bodily complaints—such as insomnia, fatigue, anxiety, appetite changes, aches and pains, and lack of interest in previously enjoyable activities—are associated with depression. These intense feelings, particularly when combined with despair and hopelessness, can lead to suicide, a dreaded potential complication of …

A Whole Lot Of Shakin' Going On: Movement Disorders Caused By Brain Trauma, Jack E. Hubbard, Samuel D. Hodge, Jr.

Cleveland State Law Review

There has been a lot of publicity directed to the consequence of brain trauma, such as headaches forgetfulness, irritability, and depression. That is only part of the sequelae. A little-known but challenging result of brain trauma is the development of or aggravation of a movement disorder such as a tremor, dystonia, a tic, or Parkinson’s Disease.

A movement disorder is an all-encompassing term that refers to a constellation of neurological issues that cause involuntary or voluntary movements or abnormal positioning of a body part. Various regions of the brain interact with each other to control movements of the body. If …

In The "Best Interests" Of The Disabled: Legislating Morality And The Power To Initiate Support Orders For Disabled Adults In Ohio, Kalynne Proctor

Cleveland State Law Review

Today’s reality is that many families have children who are faced with disabling conditions that prevent them from relinquishing their dependency on others. Often, the need for specialized treatment and care does not terminate once a severely disabled child reaches adulthood. While typically parents are relieved of their legal parental obligations to their adult-aged children, this is not the same case for parents with severely disabled children. In some respects, Ohio has recognized the financial difficulties divorced parents face when they are the sole caregivers of disabled adult children. Although Ohio law requires that the noncustodial parent in a divorce …

A Healthy Amount Of Privacy: Quantifying Privacy Concerns In Medicine, Ignacio N. Cofone

Cleveland State Law Review

With recent developments in e-health, concerns have been raised regarding the privacy of patients who are monitored with such treatments. I propose a simple method to incorporate these concerns into a standard health impact evaluation, based on quality-adjusted life years and the incremental cost-effectiveness ratio. This method provides a way to objectively value privacy concerns and balance them with health benefits. Hence, it can guide doctors and policymakers into incorporating privacy considerations and making better choices regarding e-health programs. This method can also be tested on existing economic evaluations to compare outcomes and gauge the extent to which privacy issues …

The Threat Lives On: How To Exclude Expectant Mothers From Prosecution For Mere Exposure Of Hiv To Their Fetuses And Infants, Shahabudeen K. Khan

Cleveland State Law Review

There is a renewed interest in HIV/AIDS issues given that better treatment is available. The Department of Justice (DOJ), Civil Rights Division, recently published best practice guidelines to reform HIV-specific criminal laws to conform to modern science. The DOJ’s latest guidelines urge states to “reform and modernize” the laws to reflect modern science. There is a lot of unfinished work regarding the ineffectiveness and stigma associated with HIV criminal transmission laws as a whole. These laws are “no good” and counterintuitive in the fight against this unfortunate disease. There have been calls to repeal these laws in their entirety. That …

Smoking Out A Compromise: Splitting The Difference Through A Public Policy Approach To Resolving The Graphic Cigarette Warning Label Circuit Split, Amelia B. Larsen

Cleveland State Law Review

The imposition of graphic warning labels is necessary; the tobacco market exploits the lower class by capitalizing on their under-education regarding the negative health consequences of smoking. This injustice can be corrected by providing the most direct and clear communication imaginable to consumers to ensure they are completely informed of the peril they are placing themselves in when they choose to smoke—the graphic warning labels provide this kind of communication. This Note discusses why the FDA’s warning labels meet First Amendment constitutional scrutiny and serve a substantial governmental interest regarding the country’s public health, socioeconomic equality, and economy. Part II …

It's A Mistake: Insurer Cost Cutting, Insurer Liability, And The Lack Of Erisa Preemption Within The Individual Exchanges, Christopher Smith

Cleveland State Law Review

In today’s society, most people receive their health insurance through their employers. If their employment-based insurer engages in cost cutting that leads to patient injury, Employee Retirement Income Security Act of 1974 (“ERISA”) preemption means that these people have no state tort-based recourse against their insurers. ERISA is a federal statute that regulates employee benefit plans, and the Supreme Court has interpreted the ERISA statute to preempt most beneficiary state tort claims against an employment-based insurer. In other words, even if the insurer, and not the doctor, caused the patient’s harm, the patient with employment-based insurance can only sue their …

The Consequences Of Repealing Health Care Reform In Early 2013 , J. Angelo Desantis, Gabriel Ravel

Cleveland State Law Review

This Article evaluates the consequences of an early 2013 repeal of the enacted Health Care Reform. We consider the Act's significant provisions that will have taken effect by 2013. For implemented provisions, we review their current effect on coverage, costs, and care. We then evaluate the practical consequence of the loss of those provisions. For provisions that have not yet taken effect, but will before 2013, we evaluate their projected effects in considering the consequences of repeal. Finally, for provisions that will not take effect before 2014, but where significant funds and effort will be expended prior to 2014, we …

Immunizing Against Addiction: The Argument For Incorporating Emerging Anti-Addiction Vaccines Into Existing Compulsory Immunization Statutes, Alexis Osburn

Cleveland State Law Review

This paper discusses the legal ramifications of incorporating anti-addiction vaccines into a state's existing compulsory immunization scheme. Part II explains the neurobiological and physiological factors that make addiction a medical disease and discusses the mental and physical damage caused by illicit drug use. It also introduces the reader to anti-addiction research and explains how anti-addiction vaccines work. Part III provides the reader with a brief history of state-mandated vaccination requirements, including a discussion of the leading cases that govern compulsory vaccination requirements. Part IV advocates for the amendment of state-mandated immunization statutes to include anti-addiction vaccines. It analyzes two tests …

Violence, Fear, And Jason's Law: The Needless Expansion Of Social Control Over The Non-Dangerous Mentally Ill In Ohio, Jessica L. Mackeigan

Cleveland State Law Review

Ohio House Bill 299, known as Jason's Law in memory of Officer Jason West, proposes involuntary outpatient care for treatment resistant mentally ill individuals. Jason's Law should not be enacted as written because it will compel respondents to adhere to outpatient treatment based upon predictions of future danger to self or others rather than findings of imminent danger or incompetence, it will remove treatment flexibility currently guaranteed by Ohio law by extending the duration of treatment and limiting a treatment provider's discretion, it will compel the use of unproven medication over the objections of a presumably competent individual without requiring …