Health Law and Policy Commons^™

Who Decides: The Role Of Parental Rights In Abortion And Gender-Affirming-Care Decisions For Minors, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

The American legal system presumes that children’s interests are best protected by their parents and, secondarily, by the state’s parens patriae authority. Yet this structure falters when parental authority and state power are infused with political and ideological agendas. This Essay examines how these dynamics have distorted decision-making authority in two contexts—minors’ access to abortion and gender-affirming medical care—and allowed children’s welfare and autonomy to be sacrificed to partisan aims. The law is inconsistent on the role of parental rights—typically empowering parents to grant or withhold consent to a minor’s abortion but categorically stripping them of the power to consent …

Abundance And Other Food Fixations, Margot J. Pollans

Elisabeth Haub School of Law Faculty Publications

Although most people in the United States no longer devote the majority of their time to food production, processing, and distribution, food remains a daily fixation. This Article explores three driving food fixations--abundance, thinness, and health--and situates each against an inverse fear--scarcity, fatness, and illness, respectively. Mapping these threats onto U.S. food policy, this Article examines, among other policy arenas, food waste policy, nutrition and health claim labeling law, and food additive regulations. Across food policy, these fixations feed what this Article calls the “politics of abundance.” This politics helps to insulate the food industry from deeper systemic reform aimed …

Cronyism In Creating Chronic Disease—A Path To Food Justice, Martha Leonard

St. Thomas Law Review

Central to this discussion is a quote often attributed to the ancient Greek physician Hippocrates: “Let food be thy medicine, and medicine be thy food.” Today, physicians recognize the crucial role of diet in maintaining good health and preventing chronic disease, but U.S. laws fail to reflect this understanding. The health field has seen significant progress in scientific research on pathology; however, nutritional research presents a challenging and contradictory landscape. Corporate influence in scientific research leads to a lack of consensus on the most optimal diet for promoting general health, presenting a challenge for policymaking. The dark reality is that …

Reformed But Not Repaired, Nia Johnson

Michigan Journal of Race and Law

Traditionally, scholars and policymakers concerned with making improvements to health care systems and structures have focused on insurance reform. The ACA— the United States’ most recent and substantial healthcare reform—was hoped to be an intervention that would help provide equity to all Americans. Indeed, scholars and policymakers viewed increasing access to health care through insurance coverage as a victory. And yet, despite these interventions, the COVID-19 pandemic revealed a number of policy gaps that disproportionately impacted racial minorities. Specifically, racially marginalized Americans still experienced the starkest disparities in COVID-19 complications and mortality. This has left scholars and policymakers to answer …

Don’T Trust The Process: The Viability Of Eighth Amendment Claims For Ultra-Processed Food Overconsumption In Prisons, Markus C. Johnson, Rita L. Rahoi-Gilchrest

Marquette Law Review

With the largest prison population worldwide, American prisons serve more food than anywhere else. To cut costs, American prisons overwhelmingly (or even entirely) serve prisoners ultra-processed foods, which, if overconsumed, have detrimental and long-lasting health effects. Prisoners taking issue with the food being served to them rely on the courts to counteract any inappropriate prison dietary practices, wielding the Eighth Amendment as a constitutional guarantee to be free from cruel and unusual punishment. But courts are failing to protect this constitutional guarantee by relying on precedent that is at odds with modern Eighth Amendment principles. Indeed, when it comes to …

Protecting Older Adults Who Are Incarcerated: Does The 8th Amendment Work?, Jalayne J. Arias

Health Matrix: The Journal of Law-Medicine

Older adults in prison and within other carceral systems (i.e. jails, parole) are uniquely at risk for elder mistreatment. Emerging research has begun to consider the experiences of older adults within carceral settings, including aging in prison, chronic conditions and medical care, compassionate release, and end-of-life care. This research exposes evidence that prisons and other carceral settings lack resources and services for older adults. Given increased vulnerability and a lack of protective resources, older adults experiencing incarceration may experience disproportional rates and consequences of elder mistreatment. A public health approach to develop tools and resources that would prevent, detect, and …

Decision-Making Supports And Cognitive Decline, Rebekah Diller

Health Matrix: The Journal of Law-Medicine

For persons with a range of cognitive disabilities, supported decision-making, rooted in a human rights approach to disability, has emerged as a tool that permits them to make legally binding decisions and avoid guardianship. As supported decision-making policy has evolved in the United States, state statutes have primarily focused on formal agreements through which individuals can designate trusted supporters to assist in obtaining information, processing that information, and communicating a decision. This Article argues that supported decision-making has promise for preserving the autonomy of persons living with dementia, but that the model of a supported decisionmaking agreement embodied in the …

Planning For Cognitive Decline: Combining Formal Supported Decision-Making Agreements And Healthcare Power Of Attorney, Megan S. Wright

Health Matrix: The Journal of Law-Medicine

Patients who have impaired decision-making abilities may not be permitted to make contemporaneous medical decisions. Instead, a substitute decision maker, including a healthcare agent, may be asked to decide on the patient’s behalf even if the patient wants to participate in the medical decision making. Being marginalized in decisions made about their medical care may lead to a decline in wellbeing for these patients. But supported decision making, wherein a person with cognitive impairments receives decision-making assistance, may facilitate such patients making contemporaneous medical decisions. As supported decision-making legislation spreads throughout the United States, there are questions about how this …

The Right To 'Trip:' Navigating Psilocybin-Assisted Psychotherapy Under The Right To Try Pathway, Caitlyn S. Greenspun

Loyola University Chicago Law Journal

This Comment explores the legal, ethical, and regulatory challenges surrounding the use of psilocybin-assisted psychotherapy for terminally ill patients under the federal Right to Try (RTT) Act. While psychedelics like psilocybin are demonstrating extraordinary therapeutic potential, particularly in easing end-of-life psychological distress, patients remain barred from access due to the Controlled Substances Act (CSA) and the Drug Enforcement Administration's (DEA) narrow interpretation of its authority. Through a comprehensive analysis of legislative history, regulatory frameworks, and administrative law principles, this Comment argues that the DEA's position not only misinterprets the statutory relationship between the RTT Act and the CSA, but also …

Medicare Mandates For Shared Decision Making With Patient Decision Aids: Linking Payment To Preference, Thaddeus Pope

Faculty Scholarship

Since 2015, the Centers for Medicare and Medicaid Services (CMS) has increasingly required shared decision making with evidence-based patient decision aids as an essential Medicare condition for payment. CMS is doing this because it recognizes that most healthcare is preference sensitive and value laden. So, whether treatment is “right” or “beneficial” for a patient is not only a matter of clinical expertise. It equally depends on the patient’s values, preferences, and goals. So, CMS wants to ensure that patients understand the risks, benefits, and alternatives to the healthcare that they receive and for which CMS pays. In short, under its …

The Supreme Court’S 2024–2025 Term: Eroding Public Health, Health Equity, And Access To Justice, Daniel G. Aaron, Wendy E. Parmet

Utah Law Faculty Scholarship

In this moment, the public health community can no longer afford the luxury of staying outside the arenas of politics and law. They must research empirically the impact of judicial decisions on health, treating the court’s decrees as a social determinant of health. They must also educate lawmakers on the impact of court decisions on people and patients, partner with policy and legal experts to inform the public about the important role that courts play in determining the health of individuals and communities, and attempt to combat the misinformation that muddles popular understandings of public health. Should we remain silent, …

Countering Workplace Wellness Bias Through Wellness-Legal Partnerships, Barbara Zabawa

Faculty Works

In the current United States economy, wellness is predominantly marketed to society’s privileged individuals, catering to a mostly white and high-income clientele. When marginalized communities encounter wellness services, such as in the workplace, they are faced with an Implicitly biased industry. These biases include an emphasis on individual behavior change without considering social determinants of health (SDOH), cultural appropriation of wellness activities for capitalistic gain, use of biased health measures like Body-Mass Index (BMI) and constant images of and expectations of achieving a stereotypical healthy body. The legal community must wake up to these biases and advocate for more equitable …

Health Care Corporatization As A Catalyst For Wellness Legal Partnerships, Barbara Zabawa

Faculty Works

The increasing presence of private equity investment in physician practices reveals that current health law practice sites such as in-house, corporate law firms, and Medical Legal Partnerships (MLPs) are ill equipped to address patient harm from health care corporatization. A new type of health law practice is needed to address the adverse impact health care corporatization is having on health care purchasers (primarily employers and patients) and physicians. I label this new health law practice the Wellness Legal Partnership (WLP), modeled after the Medical Legal Partnership (MLP). WLP lawyers can look to systems leadership theory, lawyer fiduciary duties, and health …

No More Wild West: The Need For Wellness Professional Standards, Barbara Zabawa

Faculty Works

The burgeoning wellness industry attracts a lot of practitioners who are largely unregulated. This “wild west” of wellness creates uncertainty for insurers, employers, consumers and practitioners as to what services and items wellness practitioners can offer, whether those practitioners are qualified and whether they behave in an ethical manner. Some guideposts for these wellness stakeholders would be welcome and may reduce consumer harm. Guideposts for wellness is especially crucial in a time when the Braidwood v. Becerra case threatens the delivery of preventive care services by the health care sector. As we have learned from the health care sector, the …

Psychedelic Medicine Exceptionalism, Mason Marks, I. Glenn Cohen

Scholarly Publications

Research on psychedelic medicines is experiencing a revival. Some clinicians, scientists, and ethicists believe that psychedelics are so different from other treatments that they warrant special consideration in how they are researched, regulated, commercialized, and administered. Others argue that psychedelic medicines show clinical potential, but they should be treated like other medical interventions. In other words, identical standards should apply. This article analyzes whether psychedelic medicines warrant special consideration from a regulatory and ethical perspective.

Artificial Intelligence And The Hipaa Privacy Rule: A Primer, Stacey A. Tovino

Faculty Articles

No abstract provided.

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, …

Birthdate Phaseout, Katharine B. Silbaugh

Faculty Scholarship

This article explores the Nicotine Free Generation (NFG) policy, an emerging endgame strategy for tobacco products that employs a completely novel legal design. Tobacco remains the leading cause of preventable death, killing almost half of its users and imposing $600 billion in social costs each year. We see two basic choices for regulating sales: Prohibition, or a legal age-gate, such as 21 for retail sales. NFG charts a third way. Recognizing the dire harm of tobacco, and the serious consequences of abrupt prohibition, NFG lays the groundwork for a gradual transition to a sales sunset. In place of the 21 …

High Hopes, Clouded Realities: Minnesota's Cannabis Legalization And The Hidden Health Risks, Allison Crescimanno

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead