Health Law and Policy Commons^™

Table Of Contents, Annals Of Health Law And Life Sciences

Annals of Health Law and Life Sciences

No abstract provided.

Foreword, Micaela Enger

Annals of Health Law and Life Sciences

No abstract provided.

Limiting Overall Hospital Costs By Capping Out-Of-Network Rates, David Orentlicher, Kyra Morgan, Barak Richman

Annals of Health Law and Life Sciences

No abstract provided.

Religious Nondelegation, B. Jessie Hill

Loyola University Chicago Law Journal

The problem of religious exemptions has given rise to a rich body of scholarly literature, as well as a flood of litigation. One recent set of cases involved challenges to the Affordable Care Act’s (ACA) health care mandates—Section 1557 and the contraceptive mandate—and their religious exemptions. Some scholars have argued that religious exemptions violate the Establishment Clause when they confer a benefit on religious individuals, the costs of which are largely borne by those who do not share the religious individuals’ beliefs—a notion that is sometimes expressed in terms of “third-party harms.” The third-party harms approach to Establishment Clause violations …

Disregarding Uncertainty, Marginalizing Patients, Elissa Philip Gentry

Scholarly Publications

No abstract provided.

An Overlooked Argument For A Single-Payer Healthcare System: Eliminating Misalignment Among Payment Models, Jessica Mantel

Annals of Health Law and Life Sciences

No abstract provided.

Masking Vulnerability: Including Ppe As A Covered Service In Health Insurance, Mary Leto Pareja

Faculty Scholarship

The COVID-19 pandemic laid bare the shared vulnerability inherent in the human condition, prompting a collective recognition of our physical susceptibility to infectious diseases. While great strides have been made in combating COVID-19 through vaccinations and treatments, a portion of the population remains profoundly vulnerable due to health conditions that make the disease more dangerous, that limit vaccine efficacy, or that prevent vaccination altogether. This article explores a path forward by proposing a solution within health benefit plans—encompassing both private health insurance and public health benefits. Specifically, the article advocates for a coverage mandate for over-the-counter personal protective equipment (PPE) …

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; …

Considering Vaccination Status, Govind C. Persad

Sturm College of Law: Faculty Scholarship

"This Article examines whether policies—sometimes termed “vaccine mandates” or “vaccine requirements”— that consider vaccination status as a condition of employment, receipt of goods and services, or educational or other activity for participation are legally permitted, and whether such policies may even sometimes be legally required. It does so with particular reference to COVID-19 vaccines.

Part I explains the legality of private actors, such as employers or private universities, considering vaccination status, and concludes that such consideration is almost always legally permissible unless foreclosed by specific state legislation. Part II examines the consideration of vaccination status by state or federal policy. …

Dobbs, Right-Wing Revisionism, And Public Outrage: Rodrigo's Late-Night Chronicle, Richard Delgado, Jean Stefancic

American University Law Review

When we next see Rodrigo, he has been brought into town by Giannina’s women’s rights group. The Supreme Court had just decided Dobbs and revoked a constitutional right that had existed for fifty years prior. Giannina’s organization is meeting to discuss possible responses to the Dobbs decision. While he is in town, Rodrigo decides to seek out the professor, hoping to reconnect and pick his brain on this seismic shift in the legal landscape.

Disability Misappropriation, Ruth Colker

American University Law Review

This Article argues that disability misappropriation is a systemic problem that undermines movement toward disability justice. By disability misappropriation, this Article refers to the tendency of the political right to assert a false concern for disability issues in service of a political agenda that actually harms the disability community. This tactic has influenced the adverse treatment of disabled people in the educational, institutional, and reproductive arenas. From birth to death, it has often had an adverse influence on the lives of disabled people as they receive inadequate and coercive health care, poor education, and limited housing options. While federal law …

Alito Versus Roe V. Wade: Dobbs As A Means Of Circumvention, Avoidance, Attenuation And Betrayal Of The Constitution, Antony Hilton

American University Journal of Gender, Social Policy & the Law

There can be no argument that Justice Alito is a learned justice of great knowledge and reason, and has a superb grasp of the law. As such, despite any opposition to or disagreement with his legal opinions, he is deserving of respect for his intellectual prowess, in general and as it relates to the Constitution. Notwithstanding all the aforementioned, wrong is wrong.

In Defense Of The Juggernaut: The Ethical And Constitutional Argument For Prosecutorial Discretion, David A. Lord

American University Journal of Gender, Social Policy & the Law

Within days of the Supreme Court’s decision overturning Roe v. Wade, progressive prosecutors throughout the country announced that if their jurisdictions enacted restrictions on abortion, they would not prosecute the individuals who had these procedures or the doctors who performed them. This is the latest example of situations, like drug crimes, illegal gun possession, and other offenses, where prosecutors have declined to enforce a state law as a matter of public policy. Critics of this broad use of prosecutorial discretion have argued that it violates the constitutional separation of powers.

This Article argues that prosecutorial discretion is well-founded in American …

Deeply Rooted Or Deeply Flawed? A Constitutional Criticism Of Dobbs And Roe's Potential Resurrection, Julian Whitley

American University Journal of Gender, Social Policy & the Law

Abortion has been a divisive issue in this country for decades. Some believe that abortion should be illegal under any circumstance, others believe that abortion under certain circumstances should be legal, and still others believe that abortion should be legal in all circumstances. The issue of abortion was initially decided by the Court in 1973 under Roe v. Wade, where the Court devised a trimester approach.

Pro-Choice (Of Law): Extraterritorial Application Of State Law Using Abortion As A Case Study, Marnie Leonard

American University Journal of Gender, Social Policy & the Law

Madison Underwood was scheduled to receive a life-saving abortion at a clinic in Tennessee when her doctor told her the procedure had been canceled. The Supreme Court had overturned the constitutional right to abortion a few days prior. Although Underwood’s abortion was still legal in Tennessee, her doctor felt performing the procedure was too risky with the law changing so quickly.

Exposing Sedated Legal Responses To Non-Consensual Pelvic Exams Under Anesthesia, Ashleigh Austel

American University Journal of Gender, Social Policy & the Law

When Ashley Weitz, a woman from Utah, underwent sedation for treatment of vomiting, the last thing she expected was to wake up in the middle of an invasive pelvic exam that she did not consent to. The doctor informed her he was collecting a sample to test for sexually transmitted diseases, but the doctor had previously determined a pelvic exam was unnecessary. Reflecting on the experience, Ashley said, “in any other setting, someone putting their fingers into my vagina without my consent is assault. I did not consent to this exam, and he did it anyway.”

Woke Capital Revisited, Jennifer S. Fan

Seattle University Law Review

Inclusive corporate leadership is now at the forefront of discussions related to corporate governance. Two corporate theories help to explain the rise in prominence of diversity, equity, and inclusion (“DEI”) efforts in corporate leadership. First, an expanded definition of corporate purpose which elevated the idea of the importance of stakeholders, contributed to the momentum from business and legal quarters for broader corporate inclusion. Second, the increasing publicness of corporations—the social expectation of how large, typically public corporations should act given their position of power—also led to corporations becoming more active in the DEI space. It is against this backdrop that …

When Congress Passes The Buck: How Russia’S Invasion Of Ukraine Exposed Flaws In Granting The President Sanctioning Powers, Artem M. Joukov, Samantha M. Caspar

Seattle University Law Review

The United States (U.S.) Constitution provides few limitations on endowing the Executive Branch with powers to govern foreign trade, which was initially granted to the Legislature. In a world where global trade dominates, the power over foreign trade can be more important than the power over domestic matters. Leaving unrestrained trade authority to the Executive Branch may cause hazards for Americans and foreigners alike. Russia’s war in Ukraine demonstrates the flaws in permitting the Executive Branch to unilaterally sanction foreign states. This Article demonstrates how reactive Executive Branch policies infringed on the welfare and safety of American citizens and foreigners …

Pedaling Backwards: Examining The King County Board Of Health’S Choice To Repeal Its Bicycle Helmet Law, Schuyler M. Peters

Seattle University Law Review

In Part I, this Comment will explain the Helmet Law itself and the timeline that ultimately led to its repeal. Part II will focus on the positive impact of the Helmet Law, the dangers associated with the repeal, why the repeal should not have occurred in the manner it did, and what societal costs stem from the BOH’s decision. Part III will address the actions that must be taken to revoke this repeal and the reasons behind these alternative pathways, including an Equity Impact Review study specifically on the consequences of repeal, a collaborative outreach program to bring helmets to …

J Mich Dent Assoc January 2023

The Journal of the Michigan Dental Association

Every month, The Journal of the Michigan Dental Association brings news, information, and features about Michigan dentistry to our state's oral health community and the MDA’s 6,200+ members across the state. No publication reaches more Michigan dentists!

This is our annual pediatric dentistry issue, with articles covering value and price in pediatric dentistry, a clinical guideline on traumatic dental injuries in the developing dentition, and space maintenance in the primary and mixed dentitions.

The Patient's Voice: Legal Implications Of Patient-Reported Outcome Measures, Sharona Hoffman, Andy Podgurski

Faculty Publications

In recent years, the medical community has paid increasing attention to patients' own assessments of their health status. Even regulatory agencies, such as the Food and Drug Administration and the Centers for Medicare and Medicaid Services, are now interested in patient self-reports. The legal implications of this shift, however, have received little attention. This Article begins to fill that gap. It introduces to the legal literature a discussion that has been ongoing in the health care field.

Patient-reported outcome measures (PROMs) are reports of patients’ symptoms, treatment outcomes, and health status that are documented directly by patients, typically through electronic …

How Ai Can Learn From The Law: Putting Humans In The Loop Only On Appeal, I. Glenn Cohen, Boris Babic, Sara Gerke, Qiong Xia,, Theodoros Evgeniou, Klaus Wertenbroch

Faculty Scholarly Works

While the literature on putting a “human in the loop” in artificial intelligence (AI) and machine learning (ML) has grown significantly, limited attention has been paid to how human expertise ought to be combined with AI/ML judgments. This design question arises because of the ubiquity and quantity of algorithmic decisions being made today in the face of widespread public reluctance to forgo human expert judgment. To resolve this conflict, we propose that human expert judges be included via appeals processes for review of algorithmic decisions. Thus, the human intervenes only in a limited number of cases and only after an …

The Fall Of Fda Review, Daniel G. Aaron

Utah Law Faculty Scholarship

The U.S. Food and Drug Administration (FDA) is in crisis. FDA can hardly go a single day without an investigation, negative news story, or scholarly critique of the agency’s work. We have increasingly entrusted FDA—today, to the tune of 25% of the U.S. economy—with vetting the products we put in and on our bodies. But the array of problems facing the agency raises questions about whether it is equipped to succeed in the 21st century.

FDA’s core function is to oversee a special legal regime called “premarket review.” Congress has prohibited all marketing of certain types of products (like drugs) …

A Call For Better Abortion Data: Common Ground Amid Dobbs And The Abortion Debate, J. Jackson Hill

Loyola University Chicago Law Journal

There is room for compromise in the U.S. abortion debate. Specifically, improving abortion data is an untapped issue with significant bipartisan appeal. Better data will lead to more-informed abortion policy and promote shared public health priorities, like the reduction of unintended pregnancies. Unfortunately, the current abortion reporting system falls short of providing these benefits. There is no national law governing the collection and reporting of abortion data. Americans must therefore rely on information voluntarily provided to the Centers for Disease Control and Prevention and the Guttmacher Institute. The result is data that is inaccurate, non-uniform, and untimely. To remedy the …

From Conciliation To Conflict: How Dobbs V. Jackson Women's Health Organization Reshapes The Supreme Court's Role In American Polarized Society, Shai Stern

Loyola University Chicago Law Journal

Professor Shai Stern of Bar Ilan University in Israel analyzes the Court’s decision and argues that its approach not only denies a previously recognized constitutional right, but also opens the door for the challenge to other recognized rights. In addition, Professor Stern highlights the Court’s own delegitimization and contribution to rising political polarization.

Research Use Of Electronic Health Records: Patients' Views On Alternative Approaches To Permission, Catherine Hammack-Aviran, Kathleen Brelsford, Kevin Mckenna, Ross Graham, Zachary Lampron, Galen Perdikis

Law Faculty Scholarship

This study examines patients’ perspectives on alternative approaches to notifying individuals and obtaining permission for the research use of electronic health record (EHR) data. As EHR systems increasingly support large-scale health research, questions arise regarding how best to balance scientific progress with patient autonomy, privacy, and trust. Using qualitative interviews with 120 patients across four socioeconomically diverse counties in the southeastern United States, the researchers explored attitudes toward three primary models of permission: General Notification, Broad Permission, and Categorical Permission. Participants evaluated the advantages and disadvantages of each approach from multiple perspectives, including those of patients, researchers, and healthcare organizations. …

Overlapping Surgeries From The Patient's Perspective, Yangzi Liu, Shirley Chen, Catherine Hammack-Aviran, Brian C. Drolet, Galen Perdikis

Law Faculty Scholarship

This study examines patients’ perspectives on alternative approaches to notifying individuals and obtaining permission for the research use of electronic health record (EHR) data. As EHR systems increasingly support large-scale health research, questions arise regarding how best to balance scientific progress with patient autonomy, privacy, and trust. Using qualitative interviews with 120 patients across four socioeconomically diverse counties in the southeastern United States, the researchers explored attitudes toward three primary models of permission: General Notification, Broad Permission, and Categorical Permission. Participants evaluated the advantages and disadvantages of each approach from multiple perspectives, including those of patients, researchers, and healthcare organizations. …

Federalism And The Right To Travel: Medical Aid In Dying And Abortion, Leslie P. Francis, John Francis

Utah Law Faculty Scholarship

This article explores how rights to movement may limit state efforts to restrict abortions, either directly or indirectly. We use the language of “movement” to encompass short-term visits, longer-term residency changes, and the movement of goods or services across state lines. We prefer “movement” to “travel” or “tourism,” as this language risks trivializing the seriousness of what might be at stake. However, since “travel” is the term used in many U.S. court decisions and other discussions concerning the right,7 we use that term as relevant to these. The centerpiece of our defense is the relationship between freedom of movement and …

The Impact Covid-19 On The Healthcare Industry’S Systems And Policies: A Case Study, Jameyshia Franklin

West Chester University Doctoral Projects

People worldwide experienced some impacts from the 2019 Coronavirus at various degree. The healthcare industry worldwide was significantly affected by the high volume of patients being infected with the Coronavirus. The COVID-19 virus brought on several challenges for the healthcare industry and the federal government in the United States. Hospitals operated under severe circumstances to treat sick COVID-19 patients and keep their employees safe from contracting the disease. Government mandated social distancing, mask wearing, and cancelation and closing of services to assist with stopping the spread of the virus. This study aimed to identify how the pandemic affected the healthcare …

Microdosing Psychedelics Under Local, State, And Federal Law, Mason Marks, I Glenn Cohen, Jonathan Perez-Reyzin, David Angelatos

Scholarly Publications

Microdosing psychedelic substances ("microdosing') is a growing trend that has gained significant media and scientific attention. The practice typically involves consuming low doses of psychedelics, such as psilocybin or lysergic acid diethylamide ("LSD'), two or three times per week, over the course of weeks or months. Many claim that microdosing improves attention, creativity, or mood. Some say it reduces pain as well as symptoms of anxiety, depression, and migraine or cluster headaches. Others fear it has not been proven safe or effective by randomized controlled trials. Nevertheless, the microdosing trend is growing against the backdrop of a broader psychedelic renaissance …