Health Law and Policy Commons^™

Forensic Genetics In The Shadows, Teneille R. Brown, Sarah Duensing, Bob Wong

Utah Law Faculty Scholarship

This article examines the controversial and growing practice of law enforcement agencies searching clinical and public health genetic databases—without a warrant or consent. While police have previously used online public genealogy databases for this purpose, our article describes how they are secretly accessing private genetic information from newborn screening programs and medical tests. We argue this raises serious ethical and legal concerns, blurring the line between healthcare and law enforcement and infecting clinical encounters with the goals of prosecution. This in turn may discourage people from seeking important medical care due to distrust and privacy concerns.

To explore public attitudes …

Abortion And The Extremism Of Bright Line Rules, Teneille R. Brown

Utah Law Faculty Scholarship

Rather than eliding the workability or necessity of bright-line rules in certain domains, this Essay is a rallying cry for epistemic humility regarding what biological criteria can and cannot say. Policymakers sometimes lean on the biosciences to offer “objective” solutions to thorny
moral and legal issues. But descriptive biological data cannot answer normative questions on their own. Cloaking the theoretical, normative scaffolding in biological criteria is a disingenuous but common phenomenon I refer to as the “bio-legal mismatch.”

In this Essay, I discuss various abortion-restrictive statutes and cases to elucidate the problems with the bio-legal mismatch. Specifically, I explore the …

Health Law And Bigotry Distractions, Daniel G. Aaron, Leslie Francis

Utah Law Faculty Scholarship

Bigotry distractions are strategic invocations of racism, transphobia, or negative stigma toward other marginalized groups to shape political discourse. Although the vast majority of Americans agree on large policy issues ranging from reducing air pollution to prosecuting corporate crime, bigotry distractions divert attention from areas of agreement toward divisive identity issues. This article explores how the nefarious targeting of identity groups through bigotry distractions may be the tallest barrier to health reform, and social change more broadly. The discussion extends the literature on dog whistles, strategic racism, and scapegoating.

Comment On Chapters 1 And 4: Health Ai, System Performance, And Physicians In The Loop, W. Nicholson Price Ii

Book Chapters

Accounts of artificial intelligence (AI) in medicine must grapple, in one way or another, with the interaction between AI systems and the humans involved in delivering healthcare. Humans are, of course, involved throughout the process of developing , deploying, and evaluating AI systems, but a particular role stands out: the human in the loop of an algorithmic decision. In medicine, when an algorithm is involved in a decision , a typical view of the system envisions a human healthcare professional mediating that algorithm - deciding whether and how to implement or react to any recommendation, prediction, or other algorithmic output. …

Drug Dealing And The Internal Morality Of Medicine, Matt Lamkin

Articles, Chapters in Books and Other Contributions to Scholarly Works

Which practices qualify as “medical” in nature? This question has important legal implications. Every state has laws prohibiting the “unauthorized practice of medicine.” Health insurance policies generally limit coverage to procedures that are “medically necessary.” And physicians can be prosecuted as drug traffickers if they prescribe controlled substances without a “legitimate medical purpose.” Each of these questions—and many others—hinge on how medicine is defined.

As with many common terms, we all have a general understanding of what medicine is and this heuristic suffices to carry us through our daily lives without complication. Yet when called on to produce a precise …

Market Versus Policy Responses To Novel Occupational Risks, Robert J. Kramer, Elissa Philip Gentry, W Kip Viscusi

Scholarly Publications

The unprecedented occupational risks posed by the COVID-19 pandemic prompted employers to boost wages and federal authorities to propose hazard pay policies. This article estimates a market-based compensating differential for workers facing elevated risks through contact with the public using CPS employment data for 2019–2020 and occupational characteristic data from the US Department of Labor’s Occupational Information Network. The estimated premium for exposure was roughly $820 overall and $1000 for essential workers. These premiums fall short of those proposed—but not enacted—by the federal government and are more commensurate with estimates of the value of a statistical life than were the …

Cognitive Content Moderation: Freedom Of Thought And The First Amendment Right To Receive Subconscious Information, Mason Marks

Scholarly Publications

In the television series Severance, employees of Lumon Industries receive brain implants that divide their memories of work and home life. When employees arrive at work, implants block access to memories of the outside world and unlock memories formed on the job. By manipulating the flow of information in employees' brains, Lumon engages in what this Article calls cognitive content moderation. Though Severance is science fiction, emerging technologies, including drugs and electronic devices, promote cognitive content moderation by influencing thought, memory, and perception. Constitutional law is unprepared. To clarify freedom of thought and make it more useful, this Article presents …

On The Constitutional Requirement For Adequate Prenatal Care Post-Dobbs, Ainslee Johnson-Brown

Akron Law Student Publications

This Essay argues that state abortion statutes codifying government interests in the health and welfare of the unborn trigger a constitutional right to prenatal care where adequate medical care is constitutionally required in the penal system. It explores the healthcare mandates required by the U.S. Constitution in the era before the passage of the Supreme Court’s decision in Dobbs, specifically looking at abortion access and prenatal provisions in the penological system. It then dissects abortion-related legislation passed by various states in the wake of Dobbs—emphasizing language within the legislative findings that could trigger a constitutional obligation for prenatal health in …

The Mature Minor Doctrine And Covid Vaccination In Connecticut, Brianna Cyr

Connecticut Law Review

The mature minor doctrine is an exception to the common law rule of parental informed consent for a child’s medical decisions. The mature minor doctrine is applicable as either doctrine or statute in some states, but not all. Connecticut currently upholds the common law view for a minor child’s medical decision-making authority. Consequently, one prominent topic of discussion in recent years deals with the Covid-19 pandemic and the public policy discussions over nation-wide vaccination efforts. Many minors, children legally under the age of eighteen, are looking to make their own medical decisions when dealing with vaccination for the Coronavirus. By …

Naloxone And Methadone Access In Tribal Communities, Philomena Kebec

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Identifying Youth Appeals In Alcohol Alternative Social Media Content Through Framing, Melina Oneal

West Chester University Master’s Theses

Proposed regulations for alcohol advertising prevent beverage companies from targeting people under the legal drinking age. However, similar regulations for alcohol alternative beverages are less explored, which could allow alcohol alternative products to create awareness for alcoholic beverages among youth. Alcohol alternatives beverages, including no-alcohol and low-alcohol products, are increasing in popularity and can function as compliments to alcoholic products to decrease the total alcohol volume consumed or as substitutes for alcoholic products. Framing theory can be operationalized through the Content Appealing to Youth Index, an index of content elements found in research literature to be appealing to youth, to …

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.

From Deference To Indifference: Judicial Review Of The Scope Of Public Health Authority During The Covid-19 Pandemic, Wendy E. Parmet

Saint Louis University Journal of Health Law & Policy

For most of American history, courts have granted public health officials significant deference in construing the scope of their own authority. This changed during the COVID-19 pandemic, especially in the federal courts, where deference was replaced with skepticism as courts used the major questions doctrine to narrow the scope of public health powers. This Article examines this development and considers its implications for public health. Part II begins by recounting the long history of judicial deference to officials’ determination of the scope of their public health powers. Part III notes some of the problems with such deference and the pre-pandemic …

Authority To Improve Or Harm Health: The Public Health Front In A Decades-Long Battle Over Governmental Powers, Sabrina Adler, Sara Bartel, Heather Wong

Saint Louis University Journal of Health Law & Policy

Backlash to local, state, and federal responses to combat COVID-19 has resulted in a small but vocal cohort of legislatures and courts trying to change long-settled and foundational principles of public health decision-making. They have shifted authority away from experts and local decision-makers, limiting emergency response in ways that also impact day-to-day public health efforts. Considering some examples of other recent preemption efforts, it is clear that COVID-era backlash is part of a longer-term deregulatory agenda, often framed as an effort to keep “big government” out of people’s lives and to preserve individual freedoms. However, the impact of such deregulation …

The Model Public-Health Emergency Authority Act, Robert Gatter

Saint Louis University Journal of Health Law & Policy

The Uniform Law Commission recently approved the Model Public-Health Emergency Authority Act (MPHEAA or the Act or the Model Act). The MPHEAA grants governors specific and plenary powers to issue public health emergency orders while also ensuring executive branch transparency and accountability. The Act improves public health emergency preparedness by resecuring the legal foundation for states to respond effectively to future emergencies. However, more work is needed to enhance data collection and support vulnerable populations in emergencies.

This Article discusses the origins of the MPHEAA, key policy and drafting choices the Drafting Committee made in creating the MPHEAA, and the …

Doing More With Less: State Public Health Emergency Powers Post-Pandemic, Kelly J. Deere

Saint Louis University Journal of Health Law & Policy

Three years after COVID-19 arrived in the United States, many governors and public health officials are equipped with fewer—not more—public health emergency powers than at the start of the pandemic. This may seem counterintuitive, considering that this virus has killed more than 1.1 million Americans and counting. While public health emergency powers were stripped on the federal, state, and local level, this loss is most acutely felt at the state executive level. Some state legislatures passed laws banning state and local governments from implementing a mask or vaccine mandate, while others amended their state emergency disaster statutes to limit the …

What Is A Public Health Lawyer Today? Acting For, Against, And Beyond Public Health, Scott Burris

Saint Louis University Journal of Health Law & Policy

Health in America is not looking good. Unique among countries in the Organization for Economic Co-operation and Development, the basic measure of national health—life expectancy—was declining even before COVID-19. Public health, both as a system of institutions and as a profession working to promote longer and healthier lives, is also struggling. The normal insularity of the field’s professional culture—including a lack of legal competency—helped undermine the response to COVID-19, which was dismal by any measure. At this difficult time, this Article considers three different ways public health lawyers can make a contribution to public health as a goal and as …

The Supreme Court’S 2022-23 Access To Court Decisions, Sarah Somers, Abigail Coursolle, Sarah L. Grusin, Jane Perkins

Saint Louis University Journal of Health Law & Policy

The Supreme Court’s 2022–23 Term yielded significant decisions bringing about goals long-sought by conservatives. This debut Term for the first Black woman Justice also included some results welcomed by progressives, including decisions on voting rights, Native American sovereignty, and individual enforcement of Spending Clause enactments. In this Article, we discuss significant decisions that have implications for access to court for civil litigants, focusing on those affecting access for low-income and marginalized litigants. We also look ahead to what the 2023–24 Term may bring for those seeking access to the courts.

The Future Of Jacobson V. Massachusetts And Modern Substantive Due Process For Public Health Preparedness, Helen S. Webster

Saint Louis University Journal of Health Law & Policy

Both the threat of public exposure to Ebola in the United States in 2014 and the COVID-19 pandemic beginning in 2020 prompted states to impose quarantine and mask mandates, among other responses, to protect the public’s health. When these state actions were eventually challenged on substantive due process grounds in courts across the nation, judges struggled to determine which legal test applied when reviewing the constitutionality of the state actions. On one hand, courts considered the precedent set forth in Jacobson v. Massachusetts, a 1905 Supreme Court case that upheld a Massachusetts vaccine mandate as a valid exercise of …