Journal of law and health最新文献

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.

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 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.

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.

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.

In Catalyst Pharms., Inc. v. Becerra, the court held that the scope of orphan drug exclusivity applies to the disease or conditions for which the drug is designated because the plain language of the 21 U.S.C. § 360cc(a) is clear. The decision is in contrast to the practice of the FDA to narrowly construe the exclusivity to apply only to the uses or indications for which the drug is approved. The court correctly reached its holding using a plain language approach and rejected the FDA's argument based on legislative history and purpose. The FDA has repeatedly ignored courts interpretations of the orphan drug exclusivity provision, persisting on an interpretation that is an overreach of its statutory authority. The FDA does not have the institutional competence to address complex issues such as orphan drug pricing and affordability. The FDA should not depend on a fractured Congress to codify its overreaching interpretations. Instead, the FDA should implement regulations within its statutory authority and limit the scope of the orphan drug designation based on preliminary evidence.

The Founders included the privilege against self-incrimination in the Constitution to protect individual privacy and ensure a fair judicial process. Courts have failed U.S. citizens by neglecting to protect them from compelled unlocking of biometrically encrypted devices. This inaction has created a loophole that contradicts the framework of the privilege against self-incrimination. To correct this mistake courts should reconsider the trend they have set for the Constitution and the Fifth Amendment and consider adopting a forward-thinking cybersecurity lens to conclude that biometric authentication is testimonial. Courts should consider that biometric encryption is akin to a compelled password entry for the purposes of the foregone conclusion doctrine. The foregone conclusion doctrine should be applied in limited circumstances with a specific and high burden of proof so that the "jealous protection of the privilege against self-incriminating testimony" can be preserved. Allowing law enforcement such easy access to smart devices narrows Fifth Amendment protections and the expansive foregone conclusion exception is contrary to both principles of cybersecurity and the spirit of the Fifth Amendment. Courts should move to remediate this at once. These liberties and values can only be guaranteed by courts that are willing to take on cases with issues revolving around biometric encryption, the Fifth Amendment, and the foregone conclusion doctrine.

Suffering through substance withdrawal is a major problem for the majority of individuals in custody, yet there are no guidelines or standards to ensure their safety. Instead, individuals in custody are having their Constitutional rights violated and many die at the hands of the justice system. When their families seek accountability for the lack of adequate care provided by correctional facilities and employees, families are faced with a lack of consistency from one circuit to the next for knowing as to the correct standard to have a successful claim. Strain v. Regalado was a chance for the Supreme Court to address this issue, but by denying cert in that case, the Court has signed off on the injustice these individuals face. This note proposed having the subjective prong for the deliberate indifference claim for inadequate medical care for withdrawal for individuals in custody presumed. Allowing the subjective prong to be presumed better aligns with the reality of this issue because correctional officers see many inmates suffering withdrawal and the symptoms which indicate the need for medical intervention are similar to those that would indicate a medical need in any other situation. Additionally, correctional officers are purportedly held to a higher standard. This note then proposed a federal standard for claims and medical care. These are both basic rights in the United States, unless and until a person is in custody.