The COVID-19 pandemic has underscored the importance of the biosciences in our world, as well as the legal, ethical, and regulatory choices that shape the development and implementation of innovations from the biosciences.
The Journal of Law and the Biosciences (JLB) offers high-quality, open-access scholarship at the intersection of the biosciences and law as the first fully open-access, peer-reviewed, legal journal to focus on these issues.
Recently, the Journal of Law and the Biosciences received an updated impact factor of 2.275, highlighting its relevance and influence in law, medicine, and ethics. JLB ranks 25th out of 154 law journals, second of sixteen legal medicine journals, and third out of sixteen medical ethics journals.
Spotlight on the scholarship
In response to the COVID-19 pandemic, on March 24, 2020 the JLB put out a call for essays and articles on governance in a time of pandemic. Beginning on April 22 the Journal began publishing these articles, and to date, has published over 40 articles, all of which are available at the Journal’s website free of charge. The following excerpts offer a look into the cutting-edge scholarship published by JLB that unpack the impact of the COVID-19 pandemic in this area.
Law, Structural Racism, and the COVID-19 Pandemic
Ruqaiijah Yearby, Seema Mohapatra
Abstract
Racial and ethnic minorities have always been the most impacted by pandemics because of: disparities in exposure to the virus; disparities in susceptibility to contracting the virus; and disparities in treatment. This article explains how structural racism, the ways in which laws are used to advantage the majority and disadvantage racial and ethnic minorities, has caused these disparities. Specifically, this article focuses on how employment, housing, health care, and COVID-19 relief laws have been manipulated to disadvantage racial and ethnic minorities, making minorities more susceptible to COVID-19 infection and death. This article uses Blumenshine’s 2008 framework to outline how structural racism causes racial and ethnic minorities’ disparities in exposure to viruses, in susceptibility to contracting viruses, in treatment of viruses, and in infection and death rates. This article discusses how historical and current practices of structural racism in existing employment, housing, and health care laws and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) cause disparities in COVID-19 infections and deaths. This article suggests legal solutions to address structural racism as well as public health solutions to help mitigate the racialized effects of the disease.
How the COVID-19 Response is Altering the Legal and Regulatory Landscape on Abortion
Aziza Ahmed
Abstract
The response to COVID-19 has been mired in political debates. In a moment of scarcity, especially with regard to medical equipment and capacity, the question of who deserves the few available resources becomes front and center. It is in this context that abortion access has been injected into the political and medical response to COVID-19. There are three main sites of the ongoing abortion debate in the COVID-19 context. First, in the application of the Hyde Amendment to the CARES Act, second, in the attempt by state legislators to classify abortion as an elective procedure that cannot be performed during a time of PPE and personnel shortages, and, finally, a move by state attorney generals (AGs) to seek greater access abortion via telehealth through changing the FDA rules on a necessary abortifacient. This essay describes the current status of the terrain and the potential long-term implications on abortion access and care.
Considerations in Mandating a New Covid-19 Vaccine in the USA for Children and Adults
Dorit R. Reiss, Arthur Caplan
Abstract
As cases of COVID-19 spread globally and across the United States, reaching over 140,000 United States cases by March 30, 2020 (a number that is almost certainly an under-estimate, given the lack of testing across states), scientists and companies throughout the world are searching for a response, a treatment or vaccine. Multiple companies are currently working on developing vaccines for the disease. A vaccine will, by the most optimistic estimates, not be available for at least 12-18 months; but while there is no certainty, there are good chances one or more of variable efficacy will, eventually, be available. When it is, one potential question states will have to address is whether the vaccine should be mandated for school children and anyone else. This article examines this question; the answer, naturally, is “it depends,” but this article offers guidance about the ethical and legal considerations for making the decision. The article will address this in three parts: the ethical considerations that affect whether a COVID-19 vaccine mandate is appropriate; potential legal constraints; and practical and political considerations.
Public Health Law and Science in the Community Mitigation Strategy for Covid-19
Lindsay F. Wiley
Abstract
In a crisis like the Covid-19 pandemic, the role of judges is first and foremost to adjudicate urgent requests for temporary restraining orders and preliminary injunctions. This means that judges hearing challenges to bans on gatherings, orders to close gun shops, orders to halt abortion care, and detention of civil immigration detainees in crowded and unsanitary conditions are issuing orders based on the parties’ pleadings alone. There is no time—yet—for the discovery, expert testimony, or amicus briefs from professional groups that typically inform assessments of science by judges. This essay examines the role public health science is likely to play in the coming months as judges field challenges to mandatory orders adopted as part of the community mitigation the Covid-19 pandemic. It identifies voluntary guidelines from international and federal health agencies as a resource judges rely on heavily in reviewing emergency communicable disease control orders and argues that transparency of and accountability for guidelines should therefore be held to a higher bar than their voluntary status might otherwise suggest.
Innovation Policy and the Market for Vaccines
Q. Claire Xue, Lisa Larrimore Ouellette
Abstract
Vaccines play a crucial role in improving global public health, with the ability to stem the spread of infectious diseases and the potential to eradicate them completely. Compared with pharmaceuticals that treat disease, however, preventative vaccines for infectious diseases have received far less attention from both biomedical researchers and innovation scholars. This neglect has substantial human and financial costs, as vividly illustrated by the COVID-19 pandemic.
In this article, we argue that the large number of “missing” vaccines is likely due to more than lack of scientific opportunities. Two key aspects of vaccines help account for their anemic development pipeline: (1) they are preventatives rather than treatments; and (2) they are generally durable goods with long-term effects rather than products purchased repeatedly. Both aspects make vaccines less profitable than repeat-purchase treatments, even given comparable IP protection. One set of problems arises from irrational preferences by purchasers, including both patients and healthcare payers. For example, patients generally underestimate their likelihood of getting sick, and they underestimate costs that are in the future or divided into separate purchases, causing them to pay more overall for repeat-purchase drugs than for vaccines. But even for rational, risk-neutral purchasers, we explain how—counterintuitively—both key aspects of vaccines still prevent monopolists from extracting the same profits as they can for repeat-purchase therapeutics.
The preventative and durable aspects of vaccines generate substantial social benefits, but policymakers should recognize that these features also reduce incentives to develop vaccines in the first place—particularly when these benefits lead to political pressure for low vaccine prices. We conclude by arguing that innovation policy should address these market distortions by experimenting with larger government-set rewards for vaccine production and use. Most modestly, policymakers should increase direct funding—including on grants and public–private partnerships—and insurance-based market subsidies for vaccine development. We also make the case for a large cash prize for any new vaccine made available at low or zero cost.
Submit your work to JLB
JLB is co-edited by Professors I. Glenn Cohen (Harvard Law School), Nita Farahany (Duke University School of Law), and Hank Greely (Stanford Law School). JLB contains original and response articles, essays, and commentaries on a wide range of topics, including bioethics, neuroethics, genetics, reproductive technologies, stem cells, enhancement, patent law, and food and drug regulation.
The Journal of Law and the Biosciences is always looking to publish new, exciting work. JLB encourages the submission of original manuscripts, responses, and essays devoted to the examination of issues related to the intersection of law and biosciences. JLB welcomes submission of varying length, with a theoretical, empirical, practical, or policy-oriented focus.
Learn more about the kind of work JLB publishes and how to submit.
