Journal of law and health最新文献

Humans have been a communal species since inception and continue to be so to this day. Because of this, if even a small scale of a measured population becomes severely ill, the entire remaining population and surrounding area is thrown into absolute chaos. In fact, we have seen these circumstances throughout history and in the recent COVID-19 pandemic yet, some of us have forgotten that the only way this chaos can be curbed, is by enacting a mandatory vaccination policy. Since COVID-19 however, vaccination mandates have become an uneasy topic of conversation in the United States for essentially one main reason, some U.S citizens do not like to be told what to do with their body and what to place inside it, further believing their bodily autonomy to be absolute. Data shows that this ideology recently became more widespread from an increase of mistrust of government and pharmaceutical companies, and from political beliefs and affiliations. Nevertheless, what the data also shows is that these same individuals were asserting their right to bodily autonomy against a vaccination mandate in an unduly aggressive manner, and on a very erroneous understanding of the governing jurisprudence, policies and modern scientific data surrounding said vaccination mandates and large scale disease outbreaks. This article therefore aims to provide a clear and extensive understanding of the proposition that, while bodily autonomy is favored in other aspects of life, this right can fail with respect to deadly disease outbreaks and mandatory vaccinations as there is presently no other practical or feasible alternative. Specifically, this article introduces and/or reminds the U.S. public of well-established governing case law, relevant historical and scientific information and the pertinent legislative authority surrounding vaccines, bodily autonomy, and vaccination mandates.

Eczema is a common yet serious inflammatory skin condition affecting millions of children in the United States. Dark skin and/or African-American ethnicity are risk factors for increased eczema severity, most likely due to systemic racism expressed as lower socioeconomic status, increased environmental toxin exposure, decreased access to adequate medical care, and infrequent implementation of early intervention practices. Skin-directed management of eczema for caregivers is critically important for improving clinical outcomes of children with eczema. Skin-directed management of eczema includes avoidance of allergens and appropriate moisturization of skin, which warrants evaluation of cosmetic products like lotions, creams and oils essential for effective home management of the condition. The Federal Drug Administration (FDA) oversees the regulation of cosmetic products under the Food, Drug, and Cosmetic Act (FDCA). Some over-the-counter (OTC) cosmetic products labeled as eczema treatments may be considered a nonprescribed drug and/or a cosmetic product by the FDA, and allergens generally considered harmful to eczematous skin may be found in both categories of skincare products. OTC products labeled as treating eczema make a concrete medical claim and should be further scrutinized to assess their credibility. The negative ramifications of inadequate skincare for dark-skinned and Black children with eczema can result in significant medical consequences, increased negative clinical and social outcomes and literally thickened skin.

This Note explores the intricate relationship between emerging adulthood, defined as the transitional phase between youth and adulthood (ages 18-25), and the legal implications of capital punishment. Contrary to a fixed age determining adulthood, research highlights the prolonged nature of the maturation process, especially for individuals impacted by Adverse Childhood Experiences (ACEs). The Note challenges the current legal framework that deems individuals aged 18 to 25 who experienced ACEs as eligible for capital punishment, highlighting the cognitive impact of ACEs on developmental trajectories. Examining cases like Dzhokhar Tsarnaev and Billy Joe Wardlow, this Note argues that courts often bypass mitigating evidence related to ACEs, thereby perpetuating judicial errors. The mismatched burdens of proof for aggravating and mitigating factors further compound the problem, contributing to a flawed system that disproportionately affects emerging adults. In response to these issues, some states are reevaluating their approach to emerging adult justice, considering initiatives such as "raise the age" campaigns and specialized courts. The Note promotes an approach that aligns with cognitive age appropriateness, tailoring interventions to encompass restorative justice, rehabilitative measures, and a comprehensive legal framework to address the distinct needs of the emerging adult population. Recognizing the potential for cognitive development and rehabilitation during this transitional phase, this Note contends that alternative methods can provide opportunities for ACE-impacted individuals to age out of criminal behaviors, potentially altering life trajectories and mitigating the imposition of capital punishment.

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.

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.

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.

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.

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.

In Kosilek v. Spencer 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 Gibson v. Collier 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 Edmo v. Corizon 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 en banc in Edmo. Although the Supreme Court denied certiorari (with Justice Thomas and Alito dissenting), the Supreme Court also denied certiorari in the Fifth Circuit case Gibson v. Collier 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.

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.