Health Law and Policy Commons^™

“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 …

Teaching Dobbs As A Contemporary Case Study Of Federalism In Action And An Introduction To The Cross-Disciplinary Nature Of The Law, Antonia A.B. Miceli

Saint Louis University Journal of Health Law & Policy

With its decision in Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court ended the constitutional right to an abortion, overturning Roe v. Wade and Planned Parenthood v. Casey, and returned the issue of legal access to an abortion to the states. Prior to Dobbs, reproductive rights and the right to an abortion were firmly situated within the substantive due process and fundamental rights coverage of law school constitutional law courses. But this coverage often falls late in, or completely outside the scope of, the required constitutional law curriculum at U.S. law schools. This Article offers the …

The Shifting Landscape Of Substantive Due Process: Could Dobbs Pose A Threat To Contraceptive Rights?, Madeline C. Tatro

Saint Louis University Journal of Health Law & Policy

Nearly two years ago, the Supreme Court issued its infamous decision in Dobbs v. Jackson Women’s Health Organization, a challenge to one of the then-most restrictive abortion bans in the country. In a stunning—yet not entirely surprising—6-3 decision, the Court held that the Fourteenth Amendment’s Due Process Clause does not protect abortion as a fundamental right and returned the power to regulate abortion to the states. Of course, legal questions abound as to the future of reproductive care in the United States following this infamous decision, and Justice Thomas’ concurring opinion raises one of the largest-looming concerns. In that …

Emtala Preemption Of State Laws Restricting Emergency Abortions, Rachel N. Reeder

Saint Louis University Journal of Health Law & Policy

The Emergency Medical Treatment and Labor Act (EMTALA) was established to restrict hospitals from refusing to treat or transferring patients with an unstable emergency medical condition. While intended to protect vulnerable groups from discrimination, the duty EMTALA imposes on hospitals also applies when a pregnant patient presents to a participating emergency room experiencing an emergency medical condition where the standard of care is pregnancy termination. Since Dobbs v. Jackson Women’s Health Organization, states have enacted laws prohibiting abortions, many with no exception or exceptions too narrow for stabilizing a pregnant patient’s emergency medical condition as required by EMTALA. This …

Divine Law Or Constitutional Flaw: The Clash Of Religious Belief And Legal Neutrality In Missouri’S Abortion Ban, Caela M. Camazine

Saint Louis University Journal of Health Law & Policy

This Note explores the constitutional implications of Missouri’s recent abortion ban enacted in the wake of the Dobbs v. Jackson Women’s Health Organization decision, which overturned Roe v. Wade and Planned Parenthood v. Casey. This Note examines the clash of religious beliefs and the law by dissecting the legislative history and intent behind Missouri’s abortion ban. The ban, known as House Bill 126 or the “Missouri Stands for the Unborn Act,” took effect immediately upon certification by State Attorney General Eric Schmitt and prohibits nearly all abortions, except in cases of a narrowly defined “medical emergency.” Notably, the law invokes …

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.

Regulating The Pains Of Racial Discrimination, Alice Abrokwa

Saint Louis University Journal of Health Law & Policy

This essay examines the relationship between experiences of racial discrimination and pain, assessing how social, legal, and regulatory responses to racial pain in the United States can enable further discrimination and compound the underlying pain. The essay articulates a conceptual framework for understanding this relationship, contending that: racial discrimination can contribute to pain severity and sensitivity; patients of color seeking pain relief are subject to heavy social scrutiny, including from their medical providers; social scrutiny and regulatory restriction together limit patients’ lawful avenues for pain relief, including their access to controlled substances that are used to manage pain; patients who …

Desegregating Behavioral Health Care For Medicaid Youth, Caroline M. Marsh, Valarie K. Blake

Saint Louis University Journal of Health Law & Policy

The Supreme Court held in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 581 (1999) that it is a violation of the Americans with Disabilities Act (ADA) for states to rely on institutionalized care when home and community-based care is more appropriate. Yet, over a quarter of a century later, states persist in institutionalizing youth experiencing behavioral health disabilities. This article explores Olmstead’s impact thus far on deinstitutionalization of youth behavioral health care, and the limits of Olmstead as a vehicle for lasting change. We argue that, although recent enforcement actions reflect critical change, Olmstead enforcements alone cannot succeed …

The Supreme Court’S Access To Court Decisions In 2023-2024, Jane Perkins, Amanda Avery, Arielle Linsey, Sarah Somers

Saint Louis University Journal of Health Law & Policy

The Supreme Court’s 2023–24 Term produced a number of controversial decisions, affecting everything from where unhoused people can sleep to the president’s absolute immunity. In this Article, we discuss significant decisions that have implications for access to court for civil litigants, focusing on a trio of decisions that curtail the power of administrative agencies. Also highlighted are decisions that address jurisdiction, standing and mootness, sovereign immunity, statutory construction, due process, and equal protection. We close with a brief preview of cases before the Court during the 2024–2025 Term.

Health Care Transactions And The 2023 Merger Guidelines: Shift To Substantial Lessening Principle, Nadia C. Hundley

Saint Louis University Journal of Health Law & Policy

In response to growing concerns regarding consolidation in the healthcare industry and the limitations of the consumer welfare standard focus, the Biden Administration’s repeal of healthcare-specific guidance and the introduction of the 2023 Merger Guidelines mark an important shift in antitrust enforcement. Departing from the 2010 Horizontal Merger Guidelines, the new framework centers on the “substantial lessening” principle grounded in the text of Section 7 of the Clayton Act. The goal––to empower regulators to scrutinize mergers that may harm the competitive process beyond cases that clearly raise prices for consumers. This Note discusses the legal implications of this shift, particularly …

From Crisis To Controversy: Examining The Legality Of Overdose Prevention Centers In New York And Beyond, Hallie R. Schechter

Saint Louis University Journal of Health Law & Policy

The opioid overdose epidemic in the United States has prompted the implementation of Overdose Prevention Centers [OPCs] as a harm reduction strategy, despite uncertain legality under federal law and conflicting statutory interpretations. These OPCs face imminent legal challenges, primarily due to the application of the federal “Crack House Statute,” which criminalizes maintaining a drug-involved premises. If unresolved, these legal uncertainties could lead to the prosecution and closure of OPCs, exacerbating the epidemic. To secure the future of OPCs, independent judicial interpretation of the Crack House Statue by certain circuits or legislative action amending the Crack House Statute to authorize OPCs …

Walking A Tightrope: The Future Of Controlled Substance Prescriptions Via Telehealth, Michaela K. Ellison

Saint Louis University Journal of Health Law & Policy

The COVID-19 Public Health Emergency (COVID-19 PHE) spurred changes in healthcare delivery, greatly increasing telemedicine utilization and resulting in temporary exceptions to the Ryan Haight Act (RHA). These exceptions allowed limited prescriptions of controlled substances through telemedicine without a prior in-person patient evaluation. Research indicates that these relaxed prescribing standards did not lead to an increase in overdose related deaths, specifically with respect to drugs like buprenorphine administered in opioid use disorder (OUD) treatment, instead improving access and retention outcomes. However, in anticipation of the COVID-19 PHE’s end, in 2023 the Drug Enforcement Administration (DEA) released notices of proposed rulemakings …

Structural Sex Discrimination: Why Gynecology Patients Suffer Avoidable Injuries And What The Law Can Do About It, Christopher Robertson, Annabel Kupke, Louise P. King

Faculty Scholarship

The nearly four million Americans who undergo gynecological surgeries each year suffer avoidable lifelong, painful, and disabling injuries. This Article diagnoses the root cause in our legal framework for healthcare finance and identifies legal solutions.

America’s public-private system for reimbursing healthcare pays for procedures rather than outcomes, and it pays substantially more for work on male rather than female anatomies. This disparity is due to the federal government’s reliance on a secretive industry committee to set those rates, and the committee’s reliance on junk science surveys, allowing self-interested and gender-biased responses, contrary to objective measures.

As payors disvalue the bodies …

Covid-19 And Access To Healthcare At The Crossing Of Race, Poverty, And Rurality, Shavonnie R. Carthens

Law Faculty Scholarly Articles

Black Americans make up 7.7 percent of the rural population in the United States. During the COVID-19 pandemic many in this population found themselves at a unique intersection of inequity - being Black, poor, and residing in a rural area. Poverty is a known contributor to negative health outcomes and is a risk factor for death from coronavirus infection. The association between race and poverty, when examining infectivity and mortality rates of COVID-19, have disproportionately devastated Black Americans and other minorities. Further, research indicates the presence of a general “rural mortality penalty” wherein rural Black communities have higher death rates …

Managing Hazardous Waste Pharmaceuticals In Healthcare: A Perplexing Prescription, Garrison Rosser

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Covid-19 Pediatric Vaccine Authorization, Fda Authority, And Individual Misperception Of Risk, Joanna K. Sax, Neal Doran

Faculty Scholarship

Vaccines are one component to the public health strategies to alleviate the COVID-19 pandemic. Hesitancy regarding COVID-19 vaccines in the United States has been problematic, which is not surprising given increasing overall vaccine hesitancy in recent decades. Most vaccines are administered during childhood years. Consequently, understanding hesitancy toward administration of vaccines in this age group may provide insight into possible interventions to reduce vaccine hesitancy. The present study analyzed a subset of over 130,000 public comments posted in response to a notice of meeting of the vaccine advisory group to the Food and Drug Administration. The meeting addressed whether to …

The Need For Corporate Guardrails In U.S. Industrial Policy, Lenore Palladino

Seattle University Law Review

U.S. politicians are actively “marketcrafting”: the passage of the Bipartisan Infrastructure Law, the CHIPS and Science Act, and the Inflation Reduction Act collectively mark a new moment of robust industrial policy. However, these policies are necessarily layered on top of decades of shareholder primacy in corporate governance, in which corporate and financial leaders have prioritized using corporate profits to increase the wealth of shareholders. The Administration and Congress have an opportunity to use industrial policy to encourage a broader reorientation of U.S. businesses away from extractive shareholder primacy and toward innovation and productivity. This Article examines discrete opportunities within the …

Securities Regulation And Administrative Deference In The Roberts Court, Eric C. Chaffee

Seattle University Law Review

In A History of Securities Law in the Supreme Court, A.C. Pritchard and Robert B. Thompson write, “Securities law offers an illuminating window into the Supreme Court’s administrative law jurisprudence over the last century. The securities cases provide one of the most accessible illustrations of key transitions of American law.” A main reason for this is that the U.S. Securities and Exchange Commission (SEC) is a bellwether among administrative agencies, and as a result, A History of Securities Law in the Supreme Court is a history of administrative law in the Supreme Court of the United States as well.

Delegated Corporate Voting And The Deliberative Franchise, Sarah C. Haan

Seattle University Law Review

Starting in the 1930s with the earliest version of the proxy rules, the Securities and Exchange Commission (SEC) has gradually increased the proportion of “instructed” votes on the shareholder’s proxy card until, for the first time in 2022, it required a fully instructed proxy card. This evolution effectively shifted the exercise of the shareholder’s vote from the shareholders’ meeting to the vote delegation that occurs when the share-holder fills out the proxy card. The point in the electoral process when the binding voting choice is communicated is now the execution of the proxy card (assuming the shareholder completes the card …

Capitalism Stakeholderism, Christina Parajon Skinner

Seattle University Law Review

Today’s corporate governance debates are replete with discussion of how best to operationalize so-called stakeholder capitalism—that is, a version of capitalism that considers the interests of employees, communities, suppliers, and the environment alongside (if not before) a company’s shareholders. So much focus has been dedicated to the question of capitalism’s reform that few have questioned a key underlying premise of stakeholder capitalism: that is, that competitive capitalism does not serve these various constituencies and groups. This Essay presents a different view and argues that capitalism is, in fact, the ultimate form of stakeholderism. As such, the Essay urges that the …

The Esg Information System, Stavros Gadinis, Amelia Miazad

Seattle University Law Review

The mounting focus on ESG has forced internal corporate decision-making into the spotlight. Investors are eager to support companies in innovative “green” technologies and scrutinize companies’ transition plans. Activists are targeting boards whose decisions appear too timid or insufficiently explained. Consumers and employees are incorporating companies sustainability credentials in their purchasing and employment decisions. These actors are asking companies for better information, higher quality reports, and granular data. In response, companies are producing lengthy sustainability reports, adopting ambitious purpose statements, and touting their sustainability credentials. Understandably, concerns about greenwashing and accountability abound, and policymakers are preparing for action.

In this …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The Marijuana Insurgency: Federalism And Social Reframing In Policy Reform, Matthew P. Cavedon

Seattle University Law Review

After fifty years of federal prohibition, marijuana reform efforts have won political and legal success. These victories hold lessons for anyone seeking to resist federal law without being able to directly affect it.

Victory can come from reframing an issue. For marijuana reform, social reframing—not formal legal analysis or material factors—provides the best explanation for how advocates achieved change. Their unconventional political tactics, akin to those used by insurgents in wartime, undercut federal prohibition by winning hearts and minds.

This is an analysis of the sociology of legal change. It is also the story of how ordinary Americans retook personal …

What Is In Your Tampon? Increasing Transparency In Menstrual Products, Elianna Spitzer

Seattle University Law Review

The average person who menstruates will bleed for an average of five days, every twenty-four to thirty-eight days, over several decades and could use thousands of disposable menstrual products in their lifetime. Menstrual products line retail shelves. They can be found in homes, bags, and bodies—but until 2021, manufacturers were not required to disclose the ingredients used to make these products to consumers at all. In fact, they still are not federally required to disclose menstrual product ingredients on product packaging. Instead, in recent years, changes to menstrual product labels have largely been the result of state legislation. In 2019, …

“Down Where The Grass Grows”: Municipal Abortion Policies After Dobbs, Martha F. Davis

University of Colorado Law Review

When the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization referred future decisions about abortion policies to “elected representatives and the people,” there is no doubt that local governments were included in the designation. In fact, since the 1970s, local governments have been active in pursuing a range of abortion policies in their jurisdictions—both for and against abortion access—that may be in tension with their state governments. Because the ideological orientations of state and local governments often conflict, state preemption is a frequent threat hanging over these local initiatives. There are examples from both sides of the political …

Effective Public Health Communication In A Post-Covid-19 America: Lessons From Behavioral Science, Molly J. Walker Wilson

Lewis & Clark Law Review

As we emerge from the worst of the COVID-19 pandemic, Americans are still reeling from the loss of life, the financial fallout, and the deep divide that continues to characterize our social and political institutions. Public health experts who were tasked with communicating facts and advice to the American public faced a daunting challenge, particularly because three distinct groups of Americans received messages differently. One group of Americans was receptive to scientific findings and amenable to taking recommended precautions. A second group was skeptical about the safety and efficacy of available vaccines, and genuinely confused or suspicious about the source …