Health Law and Policy Commons^™

Corporate Takeover: A New Clash In The Old Struggle Between Corporate Rights And Public Health, John J. Locurto, Rachel Radke, Xyruz Villariz, Jasmine Ann Castillejos

Faculty Articles

Corporations have used the federal courts to secure many of the same constitu­tional rights as individuals. As corporate rights proliferate so does corporate power to influence and resist laws that protect the public. One such law is the Patient Protection and Affordable Care Act—legislation that reformed health insurance coverage with important implications for public health.

The ACA has been a frequent target of litigation. Recent corporate lawsuits have invoked the Religious Freedom Restoration Act to challenge the ACA’s preventive care mandate, which requires health plans to cover preventive services without cost sharing. In Braidwood Management, Inc. v. Becerra, a …

Does Federal Preemption Inoculate Us Against The Alarming Prospect Of State Vaccine Bans?, Lars Noah

UF Law Faculty Publications

With growing resistance to vaccinations-premised, for instance, on misplaced fears of side effects or religious objections-it takes little effort to imagine that a state might act to prohibit some or all uses of a particular vaccine licensed by the federal government. Indeed, one year ago, legislators in a couple of states toyed with the idea of banning the primary vaccines against Covid-19, and, twenty years ago, half a dozen states effectively barred certain uses of one flu vaccine formulation. Although federal law should preempt at least some of these types of state restrictions, the Supremacy Clause of the U.S. Constitution …

Upstream Lawyering: A Framework For Poverty Law, Kate Mitchell

Faculty Publications & Other Works

This Article introduces an upstream lawyering framework within the context of the history of poverty law and impact lawyering. While there have been several theories promoting systems change work, the upstream framework, stemming from public health theories and championed by medical-legal partnerships, offers a model for promoting and informing systemic policy. Using the public health concept of upstreaming, this Article explores lawyering practices that can be utilized to address the root causes of social and legal drivers of health inequity, poverty, and oppression. Part I of this Article provides a refreshed overview of the history of poverty law and civil …

Employers And The Privatization Of Public Health, Sharona Hoffman

Faculty Publications

This Article focuses on the role of employers in public health and argues that they constitute increasingly important actors in the U.S. public health arena. In the aftermath of the COVID-19 pandemic, a series of judicial decisions and newly enacted statutes enfeebled the public health powers of the federal and state governments. In a 2023 statement, Supreme Court Justice Neil Gorsuch clearly articulated his antagonism towards government-initiated COVID-19 interventions, describing them as “the greatest intrusions on civil liberties in the peacetime history of this country.” All too many share his views.

Employers may be highly motivated to safeguard their workers’ …

A Bayesian Analysis Of E-Cigarette Risk Perceptions In The United Kingdom, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Public Health England has communicated that e-cigarettes provide at least a 95% risk reduction compared to conventional cigarettes. This article's survey evidence indicates that adults in the United Kingdom believe that e-cigarettes are only 30%–40% safer overall and that they reduce lung cancer risks and total mortality risks by a similar percentage. A Bayesian analysis of risk beliefs finds that e-cigarette risk perceptions are anchored on prior cigarette risk beliefs. The public, especially smokers, underestimates the magnitude of the risk reduction being communicated by public health officials. Those who are aware of e-cigarette messages from Public Health England assess lower …

How Does The Us Media Frame Personal Experiences Of Termination Of Pregnancy, Christina Relacion

Student Works

Limited studies have examined the lived experience of those facing termination of pregnancy due to fetal anomaly in the U.S., particularly after the 2022 ruling in Dobbs v. Jackson Women’s Health Organization. There exists a body of research elsewhere around the world studying how the media frames these experiences, but little is known about the role American media organizations play as health educators for critical reproductive healthcare topics, such as the termination of pregnancy. This critical analysis sought to understand how the U.S. media frames personal accounts of those who have experienced termination of pregnancy due to fetal anomaly, or …

(Re)Criminalizing Abortion: Returning To The Political With Stories, George J. Annas

Faculty Scholarship

Abortion stories have always played a powerful role in advancing women’s rights. In the abortion sphere particularly, the personal is political. Following the Court’s reversal of Roe v. Wade, abortion politics, and abortion storytelling, take on an even deeper political role in challenging the bloodless judicial language of Dobbs with the lived experience of women.

Dobbs V. Jackson Women’S Health: Undermining Public Health, Facilitating Reproductive Coercion, Aziza Ahmed, Dabney P. Evans, Jason Jackson, Benjamin Mason Meier, Cecília Tomori

Faculty Scholarship

Dobbs v. Jackson Women’s Health continues a trajectory of U.S. Supreme Court jurisprudence that undermines the normative foundation of public health — the idea that the state is obligated to provide a robust set of supports for healthcare services and the underlying social determinants of health. Dobbs furthers a longstanding ideology of individual responsibility in public health, neglecting collective responsibility for better health outcomes. Such an ideology on individual responsibility not only enables a shrinking of public health infrastructure for reproductive health, it facilitates the rise of reproductive coercion and a criminal legal response to pregnancy and abortion. This commentary …

The War On Drugs Or The War On Drug Users? Supervised Consumption Site In The United States As A Harm Reduction Strategy To Fight The Opioid Epidemic, Mary Crevello

Marquette Benefits and Social Welfare Law Review

Exploring the U.S. response to the opioid crisis, this study critically examines supervised consumption sites (SCSs) as a pragmatic approach. The historical framework of the "war on drugs" is scrutinized, highlighting its limitations and the necessity to shift from punitive measures towards more effective harm reduction strategies. Due to escalating opioid-related fatalities and inadequate harm reduction methods, the potential of SCSs is evaluated for short-term intervention. The Department of Justice's (DOJ) role in facilitating temporary measures to enable SCS operations is assessed, underscoring the urgency for a stable legislative framework to comprehensively address the crisis.

This research advocates for embracing …

Federalism, Leadership, And Covid-19: Evolving Lessons For The Public’S Health, Nicole Huberfeld

Faculty Scholarship

The COVID-19 pandemic has had an enduring effect across the entire spectrum of law and policy, in areas ranging from health equity and racial justice, to constitutional law, the law of prisons, federal benefit programs, election law and much more. This collection provides a critical reflection on what changes the pandemic has already introduced, and what its legacy may be. Chapters evaluate how healthcare and government institutions have succeeded and failed during this global 'stress test,' and explore how the US and the world will move forward to ensure we are better prepared for future pandemics. This timely volume identifies …

The Origins Of Covid-19 — Why It Matters (And Why It Doesn’T), Lawrence O. Gostin, Gigi K. Gronvall

Georgetown Law Faculty Publications and Other Works

When Health emergencies arise, scientists seek to discover the cause — such as how a pathogen emerged and spread — because this knowledge can enhance our understanding of risks and strategies for prevention, preparedness, and mitigation. Yet well into the fourth year of the Covid-19 pandemic, intense political and scientific debates about its origins continue. The two major hypotheses are a natural zoonotic spillover, most likely occurring at the Huanan Seafood Wholesale Market, and a laboratory leak from the Wuhan Institute of Virology (WIV). It is worth examining the efforts to discover the origins of SARS-CoV-2, the political obstacles, and …

Medical-Legal Partnership As A Model For Access To Justice, Yael Cannon

Georgetown Law Faculty Publications and Other Works

The United States is plagued with a “justice gap” that leaves many Americans with unmet civil legal needs. Americans with low income do not receive the legal help they require for as many as 92% of their substantive civil legal problems. The justice gap requires many legal aid agencies to triage, becoming “emergency rooms” for clients with unmet legal needs. This national crisis calls for new innovations so that access to justice (A2J) can function more like primary care, promoting better use of resources and preventing legal crises that can cause long-lasting harm.

Medical-Legal Partnerships (MLPs) embed lawyers in healthcare …

The Global Health Architecture: Governance And International Institutions To Advance Population Health Worldwide, Lawrence O. Gostin, Eric A. Friedman, Alexandra Finch

Georgetown Law Faculty Publications and Other Works

Policy Points Global health institutions and instruments should be reformed to fully incorporate the principles of good health governance: the right to health, equity, inclusive participation, transparency, accountability, and global solidarity. New legal instruments, like International Health Regulations amendments and the pandemic treaty, should be grounded in these principles of sound governance. Equity should be embedded into the prevention of, preparedness for, response to, and recovery from catastrophic health threats, within and across nations and sectors. This includes the extant model of charitable contributions for access to medical resources giving way to a new model that empowers low- and middle-income …

Fair Domestic Allocation Of Monkeypox Virus Countermeasures, Govind C. Persad, R. J. Leland, Trygve Ottersen, Henry S. Richardson, Carla Saenz, G. Owen Schaefer, Ezekiel J. Emanuel

Sturm College of Law: Faculty Scholarship

Countermeasures for mpox (formerly known as monkeypox), primarily vaccines, have been in limited supply in many countries during outbreaks. Equitable allocation of scarce resources during public health emergencies is a complex challenge. Identifying the objectives and core values for the allocation of mpox countermeasures, using those values to provide guidance for priority groups and prioritisation tiers, and optimising allocation implementation are important. The fundamental values for the allocation of mpox countermeasures are: preventing death and illness; reducing the association between death or illness and unjust disparities; prioritising those who prevent harm or mitigate disparities; recognising contributions to combating an outbreak; …

Public Health Law’S Digital Frontier: Addictive Design, Section 230, And The Freedom Of Speech, Matthew B. Lawrence

Faculty Articles

This Article argues that, even if courts are unpersuaded by the broadest arguments in favor of a public health approach to regulation of addictive design, they should nonetheless reject the platforms’ efforts to make addictive design a public-health-law-free zone. The public health and internet paradigms can be reconciled as a policy matter because addictive design threatens both public health and innovation online. The public health and internet paradigms can also be reconciled as a legal matter be-cause even strong theories of section 230 and the First Amendment, properly understood, leave states a safe harbor in which to regulate much addictive …

The Psychology Of Science Denialism And Lessons For Public Health Authorities, Brenna Moreno, Molly J. Walker Wilson

All Faculty Scholarship

As it wreaked tragedy on the world, the outbreak of COVID-19 helped expose a pandemic of a different kind, one steeped in distrust and contrarianism. This movement, termed science denialism, has been lurking and undermining public health efforts for decades. Specifically, it is “the employment of rhetorical arguments to give the appearance of legitimate debate where there is none, an approach that has the ultimate goal of rejecting a proposition on which a scientific consensus exists.” Unlike skepticism, which is “doubt as to the truth of something” and works to progress both science and society, denialism is characterized by individuals’ …

Reserve System Design For Allocation Of Scarce Medical Resources In A Pandemic: Some Perspectives From The Field, Parag A. Pathak, Govind C. Persad, Tayfun Sönmez, M. Utku Unver

Sturm College of Law: Faculty Scholarship

No abstract provided.

Worker Participation In A Time Of Covid: A Case Study Of Occupational Health And Safety Regulation In Ontario, Alan Hall, Eric Tucker

Articles & Book Chapters

This study examines worker voice in the development and implementation of safety plans or protocols for covid-19 prevention among hospital workers, long-term care workers, and education workers in the Canadian province of Ontario. Although Ontario occupational health and safety law and official public health policy appear to recognize the need for active consultation with workers and labour unions, there were limited – and in some cases no – efforts by employers to meaningfully involve workers, worker representatives (reps), or union officials in assessing covid-19 risks and planning protection and prevention measures. The political and legal efforts of workers and unions …

Newsletter, Fall 2022

Newsletter

No abstract provided.

A Multicenter Weighted Lottery To Equitably Allocate Scarce Covid-19 Therapeutics, Douglas B. White, Erin K. Mccreary, Chung-Chou H. Chang, Mark Schmidhoffer, J. Ryan Bariola, Naudia N. Jonassaint, Govind C. Persad, Robert D. Truog, Parag A. Pathak, Tayfun Sönmez, M. Utku Unver

Sturm College of Law: Faculty Scholarship

Shortages of new therapeutics to treat coronavirus disease (COVID-19) have forced clinicians, public health officials, and health systems to grapple with difficult questions about how to fairly allocate potentially life-saving treatments when there are not enough for all patients in need. Shortages have occurred with remdesivir, tocilizumab, monoclonal antibodies, and the oralantiviral Paxlovid.

Ensuring equitable allocation is especially important in light of the disproportionate burden experienced during the COVID-19 pandemic by disadvantaged groups, including Black, Hispanic/Latino and Indigenous communities, individuals with certain disabilities, and low-income persons. However, many health systems have resorted to first-come, first-served approaches to allocation, which tend …

Data Privacy In The Time Of Plague, Cason Schmit, Brian N. Larson, Hye-Chung Kum

Faculty Scholarship

Data privacy is a life-or-death matter for public health. Beginning in late fall 2019, two series of events unfolded, one everyone talked about and one hardly anyone noticed: The greatest world-health crisis in at least 100 years, the COVID-19 pandemic; and the development of the Personal Data Protection Act Committee by the Uniform Law Commissioners (ULC) in the United States. By July 2021, each of these stories had reached a turning point. In the developed, Western world, most people who wanted to receive the vaccine against COVID- 19 could do so. Meanwhile, the ULC adopted the Uniform Personal Data Protection …

Inherent Powers And The Limits Of Public Health Fake News, Michael P. Goodyear

St. John's Law Review

(Excerpt)

In a Vero Beach, Florida, supermarket, Susan Wiles rode her motorized cart through the produce aisle. In any year other than 2020 or 2021, this would have been a routine trip to the grocery store. But in 2020, Mrs. Wiles was missing an accessory that had become ubiquitous in society during that year: a face mask. Despite causing a commotion, Mrs. Wiles stood by her decision, claiming that the concerns about COVID-19 were overblown: “I don’t fall for this. It’s not what they say it is.” Mrs. Wiles’ statement is emblematic of the year 2020. This is not the …

Advocacy Spotlight: Are You An Advocate?, Vincent Benivegna Dds

The Journal of the Michigan Dental Association

Advocacy is crucial for dentists in Michigan, as they face a unique opportunity to impact Medicaid dental benefits positively. Governor Gretchen Whitmer's budget proposal for 2023 includes a substantial $240 million investment to revamp dental Medicaid benefits, a historic move for the state. The Michigan Dental Association (MDA) has actively engaged with government offices and legislators to ensure this opportunity is not missed. However, despite the MDA's efforts to mobilize members through action alerts, response rates have disappointed. The article emphasizes the importance of consistent advocacy, as it has the power to influence dental practices and the well-being of patients …

Comparative Laws In Public Health Unmasked, Christine Chasse

University of Miami International and Comparative Law Review

The COVID-19 pandemic lay bare the vulnerabilities of some countries’ public health responses and praise for others. Comparative law review in public health responses may glean lessons for the United States. For example, the United States had not had a pandemic of this magnitude in over a century and was reluctant to institute early masking policies. Meanwhile, the world raced for a COVID-19 vaccine. This begs the question of who will take the vaccine. Will—or can—governments force their citizens to be inoculated? Global comparisons in personal liberty, freedom, bodily autonomy, and how to parent intersect at the right to (or …

The Public/Private Distinction In Public Health: The Case Of Covid-19, Jason Jackson, Aziza Ahmed

Faculty Scholarship

In this Essay, we argue that the paradigm of the public/private distinction is implicitly operating as a primary frame in the public health response to the pandemic. The public/private distinction is particularly evident in the guidance around masking and other risk-mitigation policies and advice issued by public health agencies. This public health approach reifies the notion of the home as an exceptional private space that exists outside of the possibility of COVID-19 transmission, obscuring the reality of the high risk of transmission in some households. 8 We argue that the manifestation of the public/private distinction in the COVID-19 response is …

Religious Freedom Vs. Compelled Vaccination: A Case-Study Of The 2018-2019 Measles Pandemic Or The Law As A Public Health Response, Barbara Pfeffer Billauer Esq.

Catholic University Law Review

Following the recent decision in Roman Catholic Diocese v. Cuomo,^[1] clear guidance regarding the state’s powers to act during a pandemic is wanting. I look here to the 2018–2019 global measles epidemic, with a focus on the New York and Israeli experiences, for that guidance. Measles rates increased dramatically during the 2018–2019 season, both in the United States and globally. This phenomenon reflects a general decline in worldwide vaccination and an increase in vaccine resistance stoked by anti-vax groups. In the United States, the epidemic targeted ultra-Orthodox Jewish communities, as it did in Israel. This Article evaluates the …

Insuring Contraceptive Equity, Jennifer Hickey

Northwestern Journal of Law & Social Policy

The United States is in the midst of a family planning crisis. Approximately half of all pregnancies nationwide are unintended. In recognition of the social importance of family planning, the Affordable Care Act (ACA) includes a “contraceptive mandate” that requires insurers to cover contraception at no cost. Yet, a decade after its enactment, the ACA’s promise of universal contraceptive access for insured women remains unfulfilled, with as many as one-third of U.S. women unable to access their preferred contraceptive without cost.

While much attention has been focused on religious exemptions granted to employers, the primary barrier to no-cost contraception is …

Click It Or Ticket, But Don’T Admit It? How Unrestrained Drivers And Passengers Take Us For A Ride, E.R. Wright

Mercer Law Review

While the COVID-19 crisis has forced societies and governments to confront new challenges and answer new questions, it has also renewed and reignited longstanding debates about the extent of individuals’ obligations to each other. In particular, the American body politic is once again embroiled in conflict over the reach of an individual’s personal choices and the extent to which consideration of the potentially harmful effects of our choices on others should shape individual behaviors. Today, this fight centers on public health measures intended to reduce the spread and severity of COVID-19, such as masking, distancing, and vaccination. Debates rage over …

Where Is The “Public” In American Public Health? Moving From Individual Responsibility To Collective Action, Cecília Tomori, Dabney P. Evans, Aziza Ahmed, Aparna Nair, Benjamin Mason Meier

Faculty Scholarship

American individualism continues to prove incommensurate to the public health challenge of COVID-19. Where the previous US Administration silenced public health science, neglected rising inequalities, and undermined global solidarity in the early pandemic response, the Biden Administration has sought to take action to respond to the ongoing pandemic. However, the Administration's overwhelming focus on individual responsibility over population-level policy stands in sharp contrast to fundamental tenets of public health that emphasize “what we, as a society, do collectively to assure the conditions for people to be healthy”. When this misalignment of individual responsibility and public health initially became clear with …

Securing A Permanent Homeland: The Federal Government’S Responsibility To Provide Clean Water Access To Tribal Communities, Heather Tanana

Utah Law Faculty Scholarship

Water is life—critical to the health, socioeconomic, and cultural needs of any community. Every household in the United States needs and deserves access to clean, reliable, and a ordable drinking water. Yet, tribal communities face high rates of water insecurity. More than a half million people—nearly 48 percent of tribal homes in Native communities across the United States—do not have access to reliable water sources, clean drinking water, or basic sanitation. In comparison, as a whole, less than 1 percent of households in the United States lack these facilities. This persistent problem became a matter of life or death during …