Journal of law and health最新文献

{"title":"Nonfinancial Conflict of Interest in Medical Research: Is Regulation the Right Answer.","authors":"Nehad Mikhael","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Medical research plays a vital role in advancing human knowledge, developing new therapies and procedures, and reducing human suffering. Following the atrocities committed in the name of medical research by German physicians during the Nazi era, the Nuremberg trials were held, and an ethical code was created to establish the limits within which medical research can operate. Consequently, legal regimes built upon this ethical foundation to develop laws that ensure the integrity of medical research and the safety of human subjects. These laws sought to protect human subjects by minimizing conflicts of interest that may arise during the process. Furthermore, conflicts of interest may be financial such as monetary gain, or nonfinancial such as promotion and career advancement. However, with a $1.1 billion median cost of developing a new drug, the focus of these laws was directed towards financial conflicts of interest. But should we expand these laws to include nonfinancial conflicts of interest? This Article highlights prominent arguments in favor of and against the regulation of nonfinancial conflicts of interest in medical research. It further concludes that adequate institutional policies--not additional regulations--strike the right balance between the need to safeguard against the harmful effects of nonfinancial conflicts of interest on the one hand and avoiding the drawbacks of overregulation on the other.</p>","PeriodicalId":73804,"journal":{"name":"Journal of law and health","volume":"37 3","pages":"225-248"},"PeriodicalIF":0.0,"publicationDate":"2024-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141249126","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Without Due Process of Law: The Dobbs Decision and Its Cataclysmic Impact on the Substantive Due Process and Privacy Rights of Ohio Women.","authors":"Jacob Wenner","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Since the overturning of prior abortion precedents in Dobbs v. Jackson Women's Health Organization, there has been a question on the minds of many women in this country: how will this decision affect me and my rights? As we have seen in the aftermath of Dobbs, many states have pushed for stringent anti-abortion measures seeking to undermine the foundation on which women's reproductive freedom had been grounded on for decades. This includes right here in Ohio, where Republican lawmakers have advocated on numerous occasions for implementing laws seeking to limit abortion rights, including a 6-week abortion ban advocated for and passed by the Ohio Republican legislature and signed into law by Ohio Governor Mike DeWine. Despite this particular ban being successfully challenged and stayed, significant problems persist regarding due process rights for women in Ohio, particularly in the aftermath of Justice Thomas's concurrence in Dobbs advising the Court to revisit prior precedents, such as Griswold v. Connecticut providing for the right to contraception. If the Court were to revisit and strike down Griswold, it would further undermine privacy and due process rights that have been granted to women across this country, including here in Ohio, for decades. Justice Thomas's concurrence, while merely dicta, encapsulates a Court that has become increasingly hostile to treasured fundamental rights for women, a hostility mirrored in numerous Republican legislatures, including right here in Ohio.</p>","PeriodicalId":73804,"journal":{"name":"Journal of law and health","volume":"37 2","pages":"187-213"},"PeriodicalIF":0.0,"publicationDate":"2024-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141249119","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"When Governors Prioritize Individual Freedom over Public Health: Tort Liability for Government Failures.","authors":"Barbara Pfeffer Billauer","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Over half the states have enacted laws diminishing or curtailing the rights of the executive branch (legislatures or governors) to enact laws to preserve, protect, or safeguard public health in the wake of the COVID-19 emergency. Governor DeSantis, of Florida, for example, effectively banned mask mandates in schools during the high point of the epidemic--based on flawed science and erroneous data--and now wants to make that response permanent. The rules effectuating this Executive Order were enacted under an emergency order finding a threat to public health. Nevertheless, the response promulgated by the Florida Department of Health was to prevent public health measures, favoring individual liberties, parental rights (which have previously been held not to apply in the context of the spread of contagious disease epidemics) at the expense of public health and safety. This article explores alternative means to compel state governments, heretofore vested with the police power to protect public health, to comply with this obligation, using the Florida situation as a case study.</p>","PeriodicalId":73804,"journal":{"name":"Journal of law and health","volume":"37 2","pages":"52-104"},"PeriodicalIF":0.0,"publicationDate":"2024-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141249117","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"California v. Texas: Avoiding an Antidemocratic Outcome.","authors":"Jon Lucas","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>The Affordable Care Act (\"ACA\") contains a section titled \"Requirement to Maintain Essential Minimum Coverage.\" Colloquially known as the Individual Mandate, this section of the Act initially established a monetary penalty for anyone who did not maintain health insurance in a given tax year. But with the passage of the Tax Cuts and Jobs Act, the monetary penalty was reset to zero, inducing opponents of the ACA to mount a legal challenge over the Individual Mandate's constitutionality. As the third major legal challenge to the ACA, California v. Texas saw the Supreme Court punt on the merits and instead decide the case on grounds of Article III standing. But how would the ACA have fared if the Court had in fact reached the merits? Did resetting the Individual Mandate penalty to zero uncloak the provision from the saving construction of Nat'l Fed'n of Indep. Bus. v. Sebelius? This Note posits that, had the Court reached the merits, it would have found the Individual Mandate no longer met the requirements for classification as a tax under the rule relied on in NFIB. Moreover, it argues that the Court would have found the unconstitutional provision to be inseverable from the ACA insofar as it was integral to funding both the novel structure of the reformed healthcare system and the prohibition against insurance carriers denying coverage due to a pre-existing condition. This examination ultimately reveals that an outright repeal of the ACA would have been antidemocratic in the face of current consensus opinion that favors the reform and highlights the impact its abrogation would have had.</p>","PeriodicalId":73804,"journal":{"name":"Journal of law and health","volume":"37 3","pages":"387-410"},"PeriodicalIF":0.0,"publicationDate":"2024-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141249123","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Privileges, Immunities, and Affirmative Action in Medical Education.","authors":"Gregory Curfman","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>In Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina, the Supreme Court ruled that affirmative action in university admissions, in which an applicant of a particular race or ethnicity receives a plus factor, is unconstitutional. This ruling was based on both the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. This article argues that a more natural fit as the basis for constitutional analysis would be a different clause in the Fourteenth Amendment, the Privileges or Immunities Clause. In the article, a legal analysis based on the clause is applied to medical school admissions. Depending on whether a fundamental rights reading or an antidiscrimination (equality) reading of the clause is applied, opposite conclusions are reached on the constitutionality of affirmative action in medical school admissions. This analysis demonstrates why affirmative action in admissions--in this case medical school admissions, which directly affect the composition of the Nation's physician workforce--is a complex and difficult constitutional question.</p>","PeriodicalId":73804,"journal":{"name":"Journal of law and health","volume":"37 3","pages":"214-224"},"PeriodicalIF":0.0,"publicationDate":"2024-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141249129","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"COVID-19 and Access to Healthcare at the Crossing of Race, Poverty, and Rurality.","authors":"Shavonnie R Carthens","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>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 than similar communities in urban areas. How does someone at the crossroads of these statuses fare when struggling with health care accessibility? The pandemic underscored a need for health equity discourse to continue exploring nuances within marginalized communities. This article argues that the COVID-19 public health crisis highlighted important omissions in public health discussions of healthcare access and health equity, notably that traditional ways of defining healthcare access falls short of capturing the lived experiences of Black, impoverished people living in rural communities. Instead law and policy responses, targeting healthcare access, must expand the definition of \"access\" to include \"Healthcare Access+\" factors that acknowledge the history, culture, and unique circumstances of rural Black communities.</p>","PeriodicalId":73804,"journal":{"name":"Journal of law and health","volume":"38 1","pages":"145-173"},"PeriodicalIF":0.0,"publicationDate":"2024-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142677973","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Medical Consensus on Gender Affirming Care's Critical Impact on Incarcerated Black Transgender Women.","authors":"John Parsi","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>In <i>Kosilek v. Spencer</i> the U.S. Court of Appeals for the First Circuit adopted The World Professional Association of Transgender Health Standards of Care (WPATH SOC) as medical consensus on gender affirming care and held that Michelle Kosilek could access gender affirming care but that she did not meet the criteria for gender affirming surgery. In <i>Gibson v. Collier</i> the U.S. Court of Appeals for the Fifth Circuit with a sparse record and no expert testimony denied Vanessa Lynn Gibson access to gender affirming surgery and incorrectly claimed that Kosilek did not support the WPATH SOC as representing the medical consensus on gender affirming care. Finally, the U.S. Court of Appeals for the Ninth Circuit held in <i>Edmo v. Corizon</i> that denying access to gender affirming surgery to an incarcerated transgender person suffering from severe gender dysphoria resulting in two attempts at self-castration, cutting to reduce genital distress, and suicidal ideation violated the Eighth Amendment. In doing so, the Ninth Circuit joined medical and scientific organizations who widely adopt The World Professional Association of Transgender Health Standards of Care (WPATH SOC) as medical consensus on gender affirming care. Nonetheless, 10 Ninth Circuit Judges dissented to the denial of rehearing <i>en banc in Edmo</i>. Although the Supreme Court denied certiorari (with Justice Thomas and Alito dissenting), the Supreme Court also denied certiorari in the Fifth Circuit case <i>Gibson v. Collier</i> which denied access to gender affirming surgery and rejected the WPATH SOC without offering any alternatives. Transgender women are disproportionately incarcerated in the United States. Black transgender women are disproportionately represented even among incarcerated transgender women. The combination of transphobia and racism result in worse medical outcomes following a failure to provide adequate medical care. This article argues that rejecting the WPATH SOC disproportionately impacts Black transgender women. Failure to recognize the WPATH SOC as medical consensus will perpetuate medical and carceral racism and transphobia.</p>","PeriodicalId":73804,"journal":{"name":"Journal of law and health","volume":"38 1","pages":"66-101"},"PeriodicalIF":0.0,"publicationDate":"2024-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142677975","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Countering Workplace Wellness Bias Through Wellness-Legal Partnerships.","authors":"Barbara J Zabawa","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>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 wellness services. Wellness-Legal Partnerships (WLPs) are one type of tool that lawyers can use to address inequities baked into current workplace wellness programming. Specifically, lawyers can create WLPs through existing Employee Assistance Programs (EAPs) at Certified B Corporations to address SDOH. Part I of this paper explores the current state of the wellness industry and how the biases of emphasizing individual behavior, cultural appropriation of wellness activities, use of BMI and broadcasting the stereotypical healthy body image adversely impact historically marginalized people. Part II examines workplace wellness programs and how those programs not only incorporate the biases prevalent in the wider wellness industry, but how workplace wellness laws under the Affordable Care Act (ACA) and the Americans with Disabilities Act (ADA) arguably encourage them to do so. Part III explores the history and legal framework of EAPs and their current use by employers and employees. Part III introduces the concept of WLPs by describing the WLP role model, Medical-Legal Partnerships (MLPs) and how WLPs can adopt many of the same MLP concepts and apply them to workplace wellness programs. Then, this Part offers a roadmap on how to start implementing WLPs in workplace wellness programs to demonstrate how these partnerships can not only address SDOH faced by employees, but also offer broader advocacy services by lawyers dedicated to addressing the multiple biases that currently exist in wellness services.</p>","PeriodicalId":73804,"journal":{"name":"Journal of law and health","volume":"38 1","pages":"33-65"},"PeriodicalIF":0.0,"publicationDate":"2024-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142677972","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Unshackled: Why Eliminating Health Disparities Requires that Our Criminal Justice System Set Incarcerated Mothers and Their Developing Children Free.","authors":"Angela Dixon","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Incarceration of pregnant nonviolent offenders takes not only the pregnant mother captive but also her unborn child. Kept in unnecessary captivity, these innocent children may experience adverse childhood experiences (\"ACES\") or lifelong damage to their physical and mental health. The experiences may be the same for children born already to the mother, as they endure the suffering of parental separation during the mother's absence. In terms of racial health disparities, such captivity presents at least a triple threat--harm to the health of the mother, harm to the health of the unborn fetus, and harm to the health of children born already to the mother. Using the story of Brittany Martin, a pregnant, nonviolent social justice protestor sentenced to four years in prison, this Article makes the case that ending racial health disparities requires offering alternatives other than imprisonment for nonviolent offenders who are pregnant. By offering alternatives that support and keep the parent-child relationship intact, and that avoid what may be lifelong negative consequences of imprisonment, these alternatives help break the cycle of poorer health that unfairly plagues marginalized populations.</p>","PeriodicalId":73804,"journal":{"name":"Journal of law and health","volume":"38 1","pages":"102-144"},"PeriodicalIF":0.0,"publicationDate":"2024-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142677976","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Emotional Distress Claims, Dignitary Torts, and the Medical-Legal Fiction of Reasonable Sensitivity.","authors":"Alessandra Suuberg","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Can individuals with a highly sensitive temperament recover in tort for intentional infliction of emotional distress (IIED)? In 2019, an article in the University of Memphis Law Review raised this question, referring to the \"Highly Sensitive Person\" (HSP) construct in psychology and asking whether the IIED tort's 'reasonable person' standard discriminates against highly sensitive plaintiffs. Following up on that discussion, the present article considers how the law of IIED has historically treated plaintiffs with diagnosed psychiatric vulnerabilities that are either known or unknown to the defendant. The article also extends this discussion to the law's treatment of temperaments, such as high sensitivity, which are distinct from diagnosed psychiatric disorders; presents hypothetical scenarios with respect to undiagnosed but inferred or predicted vulnerabilities; and explores the history of the dignitary IIED tort and the origins of its reasonableness requirement. This discussion acknowledges that scientific advances can allow uniquely vulnerable plaintiffs to assert harm in new ways--while also (1) pointing out that scientific uncertainties regarding the mind and temperamental sensitivity persist today and (2) touching on clinical and criminal law approaches to intentionally inflicted harms, which can emphasize the defendant's conduct as opposed to the plaintiff's subjective traits or experience for victim-protecting reasons. The purpose of raising these considerations is not to suggest particular reforms or strategies but, rather, to encourage readers to consider the potential impact of focusing on the plaintiff's biology on the one hand, or the defendant's conduct on the other, when deciding how to remedy intentionally inflicted mental harms.</p>","PeriodicalId":73804,"journal":{"name":"Journal of law and health","volume":"36 2","pages":"113-138"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"10019098","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}