By Mariah A. Lindsay*
The COVID-19 pandemic has disproportionately affected communities already facing multiple oppressions, including women, people of color, people living with low incomes, and immigrants.
This post focuses on the impacts of the pandemic on a group that encompasses many of these identities: domestic workers, such as home health care workers, house cleaners, and child care workers.
By Ifeoma Ajunwa
As scientists develop increasingly accurate tests for COVID-19 immunity, we must be on guard as to potential inequities arising from their use, particularly with respect to their potential application as a prerequisite for returning to the workplace.
A focus on immunity as a yardstick for return to work will only serve to widen the gulf of economic inequality, especially in countries like the U.S., which has severe racial health care disparities and uneven access to effective healthcare. This focus could also serve to diminish societal support for further understanding and curtailing the disease.
By Ana Santos Rutschman
As several pharmaceutical companies approach the U.S. Food and Drug Administration (FDA) seeking authorization to bring COVID-19 vaccines to market, concerns about vaccine mistrust cloud the prospects of imminent vaccination efforts across the globe. These concerns have prompted some commentators to suggest that governments may nudge vaccine uptake by paying people to get vaccinated against COVID-19.
This post argues that, even if potentially viable, this idea is undesirable against the backdrop of a pandemic marked by the intertwined phenomena of health misinformation and mistrust in public health authorities. Even beyond the context of COVID-19, paying for vaccination is dubious public health policy likely to backfire in terms of (re)building public trust in vaccines.
By Mary Ziegler
Once again, we’re talking about whether abortion counts as health care. The COVID-19 pandemic has sparked new efforts to limit access, from the government’s unwillingness to lift in-person requirements for medication abortion to the introduction of stay-at-home orders blocking access altogether. The campaign to frame abortion as a moral, not medical, issue began decades ago. The pandemic has revealed the broader stakes of this campaign — and what it might mean for access to care well after the worst of the pandemic is behind us.
For antiabortion leaders, there are obvious strategic reasons to insist that abortion is not health care. The stigma surrounding abortion is real and durable. Notwithstanding recent increases, many obstetric programs do not provide comprehensive abortion training (if they provide any training at all). A 2020 study in Plos One found that a majority of patients believed that they would be looked down upon “at least a little” for having had an abortion. This perceived stigma affects those refused abortions — and causes longer-term adverse mental health outcomes. Stigma has long been an effective tool for the antiabortion movement. The pandemic has done nothing to change that.
But, put in historical context, today’s effort to treat reproductive services as unessential means much more. That campaign is part of a broader agenda to undermine the idea of an autonomy-rooted abortion rights — and lay the groundwork for overturning Roe v. Wade.
The Health Law Policy, Bioethics, and Biotechnology Workshop provides a forum for discussion of new scholarship in these fields from the world’s leading experts.
The workshop is led by Professor I. Glenn Cohen, and presenters come from a wide range of disciplines and departments.
In this video, Gabriel Scheffler gives a preview of his paper, “Health Care Reform and Two Conceptions of the Right to Health Care,” which he will present at the Health Law Policy workshop on November 30, 2020. Watch the full video below:
By Allison M. Whelan*
The COVID-19 pandemic has given renewed importance and urgency to the need for racial and gender diversity in clinical trials.
The underrepresentation of women in clinical research throughout history is a well-recognized problem, particularly for pregnant women. This stems, in part, from paternalism, a lack of respect for women’s autonomy, and concerns about women’s “vulnerability.” It harms women’s health as well as their dignity.
Over the years, FDA rules and guidance have helped narrow these gaps, and recent data suggest that women’s enrollment in clinical trials that were used to support new drug approvals was equal to or greater than men’s enrollment. Nevertheless, there is still progress to be made, especially for pregnant women. In the context of COVID-19 research, one review of 371 interventional trials found that 75.8% of drug trials declared pregnancy as an exclusion criteria, a concerning statistic given that recent data suggest that contracting COVID-19 during pregnancy may increase the risk of preterm birth.
By Seth Rubinstein, J.D.
At the start of the coronavirus pandemic, many hoped and expected that the pandemic would serve as a natural catalyst for decarceration. After all, overcrowded prisons and jails pose serious danger for the rapid spread of COVID-19. Since then, most jurisdictions have taken some steps to decarcerate, but such steps have only put a tiny dent in mass incarceration in the US, and have themselves faced an uphill battle. These efforts hold valuable lessons for the challenges and opportunities for decarceration even after the pandemic ends. As institutional inertia, lack of accountability, and lack of political willpower have posed challenges for serious decarceration in response to the coronavirus, future efforts will need to address these issues to achieve more dramatic change.
The Health Law Policy, Bioethics, and Biotechnology Workshop provides a forum for discussion of new scholarship in these fields from the world’s leading experts.
The workshop is led by Professor I. Glenn Cohen, and presenters come from a wide range of disciplines and departments.
In this video, Valerie Gutmann Koch gives a preview of her paper, “Previvorship and the Legal Doctrine of Informed Consent,” which she will present at the Health Law Policy workshop on November 23, 2020. Watch the full video below:
By Jacob Madden
California v. Texas, a pending Supreme Court case that concerns the constitutionality of the Affordable Care Act (ACA)’s individual mandate, could have profound implications for the standards to which nonprofit hospitals are held.
The ACA’s individual mandate requires people to have health insurance or otherwise pay a penalty. While the Court previously upheld the individual mandate as being constitutional under Congress’ taxation power in the 2012 case National Federation of Independent Business v. Sebelius, it may not do so again. For one, the 2017 Trump tax cuts effectively eliminated the individual mandate’s penalty, raising the question of whether the individual mandate is still a valid exercise of Congress’ taxation power. And conservative Judge Amy Coney Barrett’s confirmation, filling the late Justice Ruth Bader Ginsburg’s seat, has significantly changed the composition of the court.
If the Court strikes down the individual mandate, the rest of the ACA could be in jeopardy, depending on the specifics of the ruling. The Court has several options: sever the individual mandate from the ACA and keep the ACA alive, strike down the ACA in part, or strike down the ACA entirely.
The immediate concern, should the Court strike down the ACA entirely, is that tens of millions of Americans likely would lose their health insurance and other protections afforded by the law. Another, albeit lesser known concern, is that we would lose § 501(r).
By Chris Zheng, J.D.
As businesses continue to confront the harsh economic realities of the ongoing coronavirus pandemic, many are looking for legal solutions to cut costs and stay afloat. Even as consumer spending has increased over the past few months, evidence of recovery is mixed at best. As such, many businesses and consumers have been revisiting contracts to look for ways to free themselves from costly obligations. One major avenue of litigation is the invocation of Force Majeure clauses, which are provisions that excuse or delay contractual obligations due to the occurrence of an interrupting event. This post will provide an overview of how Force Majeure works and then examine COVID-19 as a triggering event as applied in recent cases. Finally, it will explore suggestions for how such clauses should be drafted in light of the ongoing pandemic.