Category: History

cell with pipette and needle.

The Impact of Dobbs on Assisted Reproductive Technologies: Does It Matter Where Life Begins?

The Petrie-Flom Center Staff Leave a comment

By Judith Daar

In February 2023, a Louisville lawmaker introduced a bill that would prosecute women for criminal homicide for having an abortion. The Kentucky Prenatal Equal Protection Act, introduced by Republican Representative Emily Callaway, extends the state’s criminal abortion law to pregnant women for any termination not linked to a life-threatening condition or spontaneous miscarriage. Declaring, “innocent human life, created in the image of God, should be equally protected under the laws from fertilization to natural death,” the bill elevates the rights of the unborn over any rights held by the pregnant woman to control her reproductive future. Now sanctioned in a post-Dobbs rational basis world, this bill and others like it pose potential roadblocks to other medical interactions with unborn persons, notably in vitro fertilization (IVF) and related assisted reproductive technologies.

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Washington, DC, USA - December 1, 2021: Abortion rights rally at the Supreme Court, Jackson Women's Health v. Dobbs.

Assisted Reproduction in a Post-Dobbs US

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By Chloe Reichel and Seema Mohapatra

Assisted reproductive technologies (ART) such as in-vitro fertilization (IVF) face an uncertain future as anti-abortion policymakers and advocates work to restrict access to reproductive care post-Dobbs.

Until last summer, modern ART had been performed in the United States with the Constitutional protection for abortion care in the background. After Dobbs, fertility doctors and patients have begun to realize that strict abortion laws and policies affect not only those who do not wish to continue a pregnancy, but also people who very much desire to have a child.

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Passengers on a plane wearing masks.

The Future of Public Health Law Lies in the Past — And Lawyers Need to Learn It

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By Barbara Pfeffer Billauer

Currently on appeal before the 11th Circuit is the question of whether a federal Administrative Agency (here, the U.S. Centers for Disease Control and Prevention) has the power to mandate masking on public transportation.

The case stems from the decision of a Florida judge, Kathryn Mizelle, in Health Freedom Def. Fund v. Biden, who ruled the agency overstepped its powers as enumerated under the Administrative Procedure Act (APA).

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Anonymous crowd of people walking on a busy New York City street.

‘We Want Them Infected’: An Excerpt from Jonathan Howard’s New Book on the COVID-19 Pandemic

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This excerpt from the new book titled “We Want Them Infected” is printed with permission from Jonathan Howard, MD and Redhawk Publications.  

By Jonathan Howard

On June 29, 2021, Dr. Harriet Hall penned an essay on the website Science Based Medicine titled “A New COVID-19 Myth?” in which she wrote:

A correspondent suggested I should have known that the pandemic was over months ago. That’s obviously a myth. But where did that idea come from?1

I knew the answer. Even before the first wave peaked, doctors suggested the worst was over and that measures to control the virus were more dangerous than the virus itself. This message was repeated regularly throughout the pandemic.

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Gavel lying in a courtroom.

Improving the Future of Public Health by Applauding Appropriate Judicial Oversight

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By Marshall B. Kapp

During the COVID-19 pandemic, the Public Health Establishment (PHE)/legal enterprise collaborative fell short of constitutional standards in a number of situations, resulting in adverse judicial rulings of which the PHE and its like-minded academic advocates now complain.

This unhappiness with judicial oversight is an opportunity for introspection. Rather than blaming nefarious or deplorable other forces, a better approach to rehabilitating and enhancing public health law in the future lies instead in the PHE taking stock of itself and committing to a more open-minded, humility infused, and objective approach to the definition of science, the role of expertise, and the better targeted and clearly justified employment of legal force in the next major public health emergency context.

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President Joe Biden at desk in Oval Office.

Federalizing Public Health

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By Elizabeth Weeks

The most promising path forward in public health is to continue recognizing federal authority and responsibility in this space. I carefully choose “recognizing,” rather than “expanding” or “moving” because it is critical to the argument that federal authority for public health already exists within the federalist structure and that employing federal authority to address public health problems does not represent a dimunition of state authority. Rather than a pie, of which pieces consumed at the federal level necessarily reduce pieces consumable at the state level, we should envision the relationship as a Venn diagram, where increasing overlap strengthens authority for promoting and protecting public health broadly.

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The United States Capitol building at sunset at night in Washington DC, USA

The End of Public Health? It’s Not Dead Yet

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By Nicole Huberfeld

Once again, health law has become a vehicle for constitutional change, with courts hollowing federal and state public health authority while also generating new challenges. In part, this pattern is occurring because the New Roberts Court — the post-Ruth Bader Ginsburg composition of U.S. Supreme Court justices — is led by jurists who rely on “clear statement rules.” This statutory interpretation canon demands Congress draft textually unambiguous laws and contains a presumption against broadly-worded statutes that are meant to be adaptable over time. In effect, Congress should leave nothing to the imagination of those responsible for implementing federal laws, i.e., executive agencies and state officials, so everything a statute covers must be specified, with no room for legislative history or other non-textual sources.

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New York NY USA-August 17, 2021 Businesses in Chelsea in New York display signs requiring proof of vaccination prior to entering.

Employers and the Future of Public Health

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By Sharona Hoffman

As state and federal public health authority erodes, employers may increasingly find themselves playing a central role in promoting public health. For example, during the COVID-19 pandemic, many employers either incentivized or required employees and customers to be vaccinated and/or masked even in the absence of federal and state mandates. In the future, they may frequently take the lead in implementing public health measures.

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