Health Law and Policy Commons^™

The Right To Seek Joy, Tyler Rose Clemons

Faculty Publications

Within the past three years, roughly half of American states have restricted access to gender-affirming medical treatment for children. In this article, I argue that these bans violate transgender children’s right to liberty guaranteed by the Fourteenth Amendment’s Due Process Clause. I do so by excavating the Framers’ understanding of liberty as the right to seek joy. Rooted in the philosophies of John Locke and Epicurus, the Framers understood liberty as the right to make important life decisions according to one’s subjective preferences without undue interference from the government. Based on this understanding, I develop a new framework for substantive …

Treatment Sentences, Evelyn Malavé

Faculty Publications

One of the most common mandates of a non-incarceratory sentence is to submit to treatment. Across the criminal legal system, from problem-solving courts to probation, millions of defendants sentenced to non-incarceratory sentences—including people not diagnosed with a substance abuse disorder—are required to attend drug treatment programs. After decades of policies that criminalized drug use, non-incarceratory sentences that match people with treatment may appear to be a step forward—or at least not the most pressing problem.

But criminal law scholarship has not fully reckoned with the harms of treatment sentences, including the harms of mandated treatment itself. Analysis of treatment sentences …

Health Care Governance And Structural Exclusion In Florida: A Human Rights Analysis Of Access For Latinx Communities, Natalie Medrano

Honors Undergraduate Theses

Access to health care in the United States is a complex system shaped by statutory programs and the discretionary powers of state governance. This thesis examines how Florida’s healthcare system structures access through administrative design, with particular attention to its impact on Latinx communities. Although formally race-neutral, Florida’s reliance on Medicaid non-expansion, managed care delivery, and complex eligibility processes produces systemic barriers that limit access for low-income populations. Drawing on the international right-to-health framework articulated in General Comment No. 14 of the International Covenant on Economic, Social and Cultural Rights, alongside Latinx Critical Race Theory (LatCrit), this study analyzes how …

Law’S Limits: Abortion And The Social Determinants Of Health, Maya Manian

Scholarly Articles in Law Reviews & Journals

After Dobbs: How the Supreme Court Ended Roe but Not Abortion (“After Dobbs”) is a prescient and timely response to the U.S. Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and upended nearly five decades of constitutional protection for abortion. In this meticulously structured oral history, law professor David S. Cohen and sociologist Carole Joffe center the voices of abortion providers, clinic administrators, funders, and advocates from across the country. After Dobbs, not only documents the extraordinary persistence of abortion supporters in the face of legal devastation but also bears witness to …

Monitoring, Oversight, And Learning In Medical Ai, W. Nicholson Price Ii

Articles

When medical AI errs, it often goes unnoticed. If there’s a specific patient injury, and the link to AI is obvious, that problem might be reported to the Food and Drug Administration (FDA), but not always. And many other types of problems, like worse performance on specific groups or ineffective integration into health system workflows, simply don’t fall within the contours of regularized reporting. Even if they are noticed by the health system—far from a given—there’s no obvious way to share that information more broadly. Against this backdrop, there are justified calls for better oversight and reporting. But there’s the …

The Asexual Assumption, Faith K. Whatley-Blaine, Michael S. Sinha

All Faculty Scholarship

Inclusion-focused dating shows such as ‘Love on the Spectrum’ feature individuals with developmental or neurological disabilities on a quest for love. Despite the focus on disability representation, these shows perpetuate stigma against the disabled community by fostering an infantilizing portrayal of individuals with disabilities. This portrayal undermines the premise of encouraging meaningful romantic relationships and reinforces the stigmatizing association of asexuality with disability. This framing aligns with the broader societal narrative that individuals with disabilities are incapable of or lack interest in participating in romantic relationships or physical intimacy.

The stigma that associates asexuality with disability extends beyond mere entertainment, …

The Impact Of Substance Abuse Problems And Serious Mental Illness/Serious Emotional Distress On Post-Discharge Residential Status Among Clients With Behavioral And Cognitive Disorders: Evidence From Samhsa Mh-Cld Data, Eden Moges, Norma Rochez, William Peycha, Aditya Chakraborty

Epidemiology, Biostatistics, & Environmental Health Faculty Publications

BACKGROUND: Behavioral and cognitive disorders can undermine housing stability, a key determinant of mental health recovery, with persistent disparities across demographic and socioeconomic groups. This study examined the associations of substance abuse problems (SAP) and serious mental illness/serious emotional distress (SMISED) with residential status at discharge from mental health facilities.

METHODS: This cross-sectional study used the utilized data from the Substance Abuse and Mental Health Services Administration (SAMHSA). Descriptive statistics were used to summarize demographic characteristics, whereas univariate and multivariable logistic regression models were employed to assess associations between the covariates and the residential outcome, adjusting for a variety of …

The Weight Of Stigma, Rebekah A. King, Michael S. Sinha

All Faculty Scholarship

Many health care providers, both implicitly and explicitly, perpetuate stigma in their treatment of patients classified as obese. While medical professionals understand that a one-size-fits-all approach to treatment is ineffective, patients classified as obese are frequently offered limited treatment options that fail to account for their unique needs. Access to a range of effective treatment options has historically been limited, but new GLP-1 receptor agonist medicines like Wegovy (semaglutide) and Zepbound (tirzepatide), have shown incredible promise in addressing the obesity crisis. Unfortunately, these transformative drugs are costly, in high demand, and not widely covered by insurance, rendering them inaccessible for …

Excluded At The Root: Health Insurance Discrimination Against Hair Loss Conditions, Stacey A. Tovino, Tracy Hresko Pearl

Faculty Articles

No abstract provided.

The Fiduciary Game, Lauren R. Roth

Elisabeth Haub School of Law Faculty Publications

Fiduciary duties are supposed to bridge the gap between public and private law. Private actors who engage in “public or quasi-public” functions (e.g., corporate directors and pension administrators) are often subject to fiduciary constraints to protect vulnerable parties who lack power in relationships with these actors. Recently, scholars have argued that both courts and legislatures have inappropriately expanded the use of fiduciary duties to purely private relationships. But what if the problem is not the expansion of fiduciary duties to private relationships, but the increasing delegation of public powers to private actors whose behavior cannot be adequately constrained by fiduciary …

Health Truth To Power: Professional Collaboration To Bolster Trust Against Misinformation, William M. Sage, Keegan D. Warren

Faculty Scholarship

This Article is about health, leaving aside more general challenges to shared civic information today. The Article begins by surveying the principal challenges for health information in post-pandemic, arguably post-truth America, and then describes briefly the sources and limits of medical professional authority. Noting the double-edged sword of free speech guarantees under the U.S. Constitution, the Article continues by commenting on speaking truth to government, to industry, and to the crowd. Next, the Article considers the physicians’ role in speaking truth to power from the perspective of standard medical professional ethics and identity, comparing it to that of lawyers. Finally, …

Dampak Peraturan Daerah Terkait Kesehatan Terhadap Prevalensi Stunting Tingkat Kabupaten/Kota Di Indonesia, Cakra Yudi Putra, Teguh Dartanto

Jurnal Ekonomi dan Pembangunan Indonesia

Stunting remains a major public health challenge in Indonesia with long-term impacts on health, cognition, and productivity. This study examines whether health-related regional regulations (Peraturan Daerah or Perda) reduce stunting prevalence across 338 districts/municipalities in 2007 and 2013. Using Difference-in-Differences (DiD) and DiD with Propensity Score Matching (DiD-PSM) on secondary data from Riskesdas, Statistics Indonesia (BPS), and the Legal Documentation and Information Network (JDIH), we find no statistically significant causal effect of cumulative health Perda on stunting reduction, although OLS shows a negative association. Sanitation significantly reduces stunting in eastern Indonesia. Findings highlight the need for evidence-based, multisectoral, measurable, implementable, …

Against A Medical Exception To Equal Protection, Govind Persad

Publications

Government regulations of medicine sometimes treat patients differently based on their race or sex. Does heightened scrutiny apply to such regulations—as is usual when law treats someone differently based on a protected characteristic? Or is there a medical exception to equal protection?

Recently, in United States v. Skrmetti, the Supreme Court upheld a law that restricted access to medical treatments for transgender minors. Though its holding did not rely on medical exceptionalism, its discussion reinvigorated interest in a "medical exception" to equal protection: that medical decisions are exempt from the searching review applied when governmental decisions consider protected characteristics.

For …

Religious Riders And The Sherman Act, Bailey Sanders

Faculty Scholarship

Can corporations engage in anticompetitive behavior on the basis of religious belief? While the answer may seem like an obvious no, in fact this question has largely been overlooked. It has hovered at the margins of the debate over religious exemptions: Proponents of religious exemptions have essentially argued that there is no harm in providing such exemptions to businesses because a competitive market will ensure consumers who might be denied services or goods by a religious firm can still obtain those goods and services elsewhere. But what if religiously minded businesses act in ways that are specifically designed to limit …

The Effect Of Provider Diversity On Racial Health Disparities: Evidence From The Military, Michael Frakes, Jonathan Gruber

Faculty Scholarship

We assess the relationship between the racial diversity of medical providers and racial health disparities in the use of preventive care and in patient outcomes. We use unique data from the Military Health System, where we observe providers as patients so that we can identify their race, and where moves across bases change exposure to provider race in a plausibly exogenous fashion. We consider patients with four chronic, deadly, but manageable illnesses, where the relationship with the provider may have the most direct impact on health. We find striking evidence that provider racial diversity leads to reduced disparities in maintenance …

Cybersecurity Risk Shifting, Deborah R. Farringer

Law Faculty Scholarship

This article analyzes the growing problem of ransomware attacks in the healthcare sector and evaluates the evolving legal frameworks used to address cybersecurity risks affecting patient data. The authors trace the rapid increase in ransomware incidents, driven in part by the rise of digital health records and cryptocurrency-enabled extortion, and highlight the significant operational and privacy harms resulting from such attacks. The article critically examines existing federal and state legal mechanisms—including statutes such as HIPAA, criminal fraud provisions, and emerging state-level immunity laws—and argues that current approaches are insufficient due to jurisdictional challenges, particularly the transnational nature of cybercrime and …

Algorithmic Medicine And The Duty To Disclose: Informed Consent Through The Lens Of Radiology, Lee Rodriguez

Michigan Law Review

Informed consent is the law’s mechanism for protecting patient autonomy by requiring disclosure of facts that bear on the decision to accept or refuse care. Artificial intelligence now helps decide what is medically true for patients, yet informed consent law still assumes that diagnostic judgment is rendered by a human mind whose reasoning is at least in principle communicable. Radiology has become the leading setting for this tension. AI systems triage worklists, flag suspected abnormalities, and anchor first-pass impressions in ways that guide radiologists’ attention and, in practice, can coauthor diagnostic conclusions while remaining invisible to patients. When patients are …

The Power And Peril Of The Aca's Universality At Fifteen, Nicole Huberfeld

Faculty Scholarship

As part of the symposium "15th Anniversary of the ACA: A Health Equity Review," this essay explores the ACA's mix of private law and public law provisions that rendered measurable improvements in health equity and health outcomes, especially for populations that experienced longstanding health disparities before its enactment.  Congress’s central objective was near-universal health insurance coverage, and the ACA employed a variety of mechanisms to reach that goal. The law’s health equity successes grew from establishing a principle of inclusion across federal statutes. This principle, which I have called “universality,” centered a human right to health approach: No longer would …

Social Science Contributions To The Global Action Plan On Antimicrobial Resistance Management, Mathieu Poirier, Jaskeerat Singh, Isaac Weldon, Clare I. R. Chandler, Daniela Corno, Laura Valtere, Pedro Henrique D Batista, Daniel Carelli, Geneviève Boily-Larouche, Sonia Lewycka, Fiona Emdin, Kathleen Liddell, Timo Minssen, Ilaria Natali, Susan Nayiga, Iruka N. Okeke, Emmanuel Olamijuwon, Kevin Outterson, Julianne Piper, Kayla Strong, Jarnail Singh Thakur, Kednapa Thavorn, Maarten Van Der Heijden, A. M. Viens, Mary Wiktorowicz, Steven J. Hoffman

Faculty Scholarship

Social science research on antimicrobial resistance has gained traction in the last decade, employing a diverse set of theoretical perspectives to better understand topics ranging from antimicrobial stewardship to political coordination.4 As the action plan commitments will be updated in 2026, an opportunity exists to employ a broader social science scope to accelerate national antimicrobial resistance interventions.

In January 2025, the Global strategy lab convened leading antimicrobial resistance social scientists from a variety of disciplines to determine which new ways of understanding antimicrobial resistance could catalyse and incentivize action. Three conceptions stood out as important to revisions of the action …

From Classroom To Courtroom: Vicarious Liability In Clinical Education, Grace M. Owens

Mercer Law Review

Vicarious liability has progressively extended its reach into the healthcare field. The advancement of clinical education and increased presence of medical students in the healthcare setting raises the question of who bears the legal responsibility for a student’s wrongful acts or omissions during the provision of medical care. In an attempt to conform to traditional tort ideals, should a medical student be solely responsible for their own actions? Conversely, should the medical institution or supervising physician pay the price of a student’s mistakes? Statham v. Quang demonstrates this tension and represents the Supreme Court of Georgia’s attempt to strike a …