Category: COVID and the Law

In response to the COVID-19 pandemic, Harvard Law School Professors Martha Minow and Emily Broad Leib convened a COVID and the Law colloquium series for the 2020-2021 academic year. The series brought members of the Harvard Law School community together to explore and assess, through discussions with various faculty experts each week, the legal responses to COVID-19. Topics ranged from laws governing health and health care, including drug development, public health, contact tracing and privacy; regulation of labor, safety, finance and debt, immigration; protection of basic human needs such as housing and food; and the scope and limitations of governmental powers operating in a pandemic.

In conjunction with the colloquium series, Harvard Law School students offered written reflections on the topics discussed for the COVID and the Law blog. The blog has now migrated to Bill of Health. Harvard Law students and faculty alike are welcome to continue writing posts in response to the topics discussed in the series. If you are interested in contributing, please contact Chloe Reichel.

Close-up Of Stethoscope On Us Currency And American Flag.

America’s Underinsurance Crisis in the Age of COVID-19

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By Dessie Otachliska

The COVID-19 pandemic has shone a light on the underinsurance crisis that has long kept millions of Americans on the precipice of financial disaster — just one unexpected illness or injury away from bankruptcy.

A 2019 Gallup poll showed that 25% of Americans reported delaying treatment for serious medical conditions due to cost concerns — the highest proportion since Gallup first began asking the question in 1991. Even during the pandemic, when medical treatment could mean the difference between life and death, studies show that nearly 1 in 7 Americans would avoid seeking medical care if they experienced key COVID-19 symptoms because of fears associated with the cost of treatment.

These statistics are unsurprising, and the concerns they underscore well-founded: the average treatment costs for COVID patients with symptoms serious enough to require inpatient hospital stays range from $42,486 for relatively mild cases to $74,310 for patients with major complications or comorbidities.

In the pandemic context, hesitance to seek medical treatment due to fear of the associated cost has proved tragically fatal. Darius Settles died after being dissuaded from seeking further COVID-19 treatment due to his uninsured status. The Nashville, TN hospital where Settles originally received care had failed to disclose the possibility that his medical costs would be covered by the federal government. And, despite the availability of reimbursement funds, the hospital nonetheless sent his widow a bill for a portion of his treatment costs.

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New Market, Esplanade, Kolkata, 05-23-2021: Due to lockdown, closed market and roadside hawker stalls at S. S. Hogg Market, which usually is heavily crowded as a popular shopping arena.

A Critical Analysis of the Eurocentric Response to COVID-19: Global Classism

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By Hayley Evans

The international response to COVID-19 has paid insufficient attention to the realities in the Global South, making the response Eurocentric in several ways.

The first post in this series scrutinized the technification of the international response to COVID-19. The second post looked at how the international pandemic response reflects primarily Western ideas of health, which in turn exacerbates negative health outcomes in the Global South.

This third and final installment analyzes the classist approach to the pandemic response. The international response has paid insufficient attention to the existence of the informal economy and of the needs of those who must work to eat — both of which are found more commonly in the Global South.

This series draws on primary research conducted remotely with diverse actors on the ground in Colombia, Nigeria, and the United Kingdom, as well as secondary research gathered through periodicals, webinars, an online course in contact tracing, and membership in the Ecological Rights Working Group of the Global Pandemic Network. I have written about previous findings from this work here.

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Emergency department entrance.

“Stick to the Science”? FDA, Ethics, and Pandemics

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Cross-posted from COVID-19 and The Law, where it originally appeared on February 8, 2021. 

By Jonathan Iwry

Throughout the current pandemic, Dr. Anthony Fauci and other public health experts have called on the government to “stick to the science.” This was at the same time that former President Donald Trump repeatedly undermined scientific expertise and prioritized political interests over responsible public health practices. Yet the particular ways in which the Trump administration mishandled the pandemic can divert attention from more fundamental challenges confronting government actors in any emergency — challenges that respect for science alone is insufficient to address. These challenges concern the norms guiding regulators’ exercise of their power under the law, as well as the proper role of values in public health and public policy more broadly.

FDA has struggled throughout COVID-19 to maintain high standards of integrity, including independence from undue political influence. We see this most clearly in the decisions FDA has faced in applying its power to issue emergency use authorizations (EUAs) for medical countermeasures against COVID-19. FDA’s experience using its emergency powers during COVID-19 speaks to the complex relationship between science and ethics in health policy — between empirical fact finding and normative questions involving ethics and public values.

This post reflects on the ethical implications of FDA’s use of its emergency powers, and suggests opportunities for greater accountability and more systematic decision-making by health regulators moving forward.

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globe.

A Critical Analysis of the Eurocentric Response to COVID-19: Western Ideas of Health

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By Hayley Evans

The international response to COVID-19 has paid insufficient attention to the realities in the Global South, making the response Eurocentric in several ways.

This series of blog posts looks at three aspects of the COVID-19 response that underscore this Eurocentrism. The first post in this series scrutinized the technification of the international response to COVID-19. This second post looks at how the international pandemic response reflects primarily Western ideas of health, which in turn exacerbates negative health outcomes in the Global South.

This series draws on primary research conducted remotely with diverse actors on the ground in Colombia, Nigeria, and the United Kingdom, as well as secondary research gathered through periodicals, webinars, an online course in contact tracing, and membership in the Ecological Rights Working Group of the Global Pandemic Network. I have written about previous findings from this work here.

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Cartoon of contact tracing for COVID-19.

A Critical Analysis of the Eurocentric Response to COVID-19: Data Colonialism

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By Hayley Evans

The international response to COVID-19 has paid insufficient attention to realities in the Global South, making the response Eurocentric in several ways.

This series of blog posts looks at three aspects of the COVID-19 response that underscore this Eurocentrism. The first post in this series will scrutinize the digital aspect of the international response to COVID-19. In creating and promoting technological solutions that are impractical and ineffective in the Global South, this digital focus has afforded asymmetric protection to those located in the Global North.

This series draws on primary research conducted remotely with diverse actors on the ground in Colombia, Nigeria, and the United Kingdom, as well as secondary research gathered through periodicals, webinars, an online course in contact tracing, and membership in the Ecological Rights Working Group of the Global Pandemic Network. I have written about previous findings from this work here.

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border patrol truck

COVID-19 Containment or Callous Political Ploy? Reflections on Trump’s Pandemic-Era Restrictions on Immigration, Green Cards, and Asylum Claims

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By Dessie Otachliska, J.D.

The COVID-19 pandemic has upended nearly every aspect of American life, but one facet of federal policy that may appear largely unchanged is the imposition of restrictions on immigration and international travel. Although many of the policies ostensibly adopted to mitigate the threat caused by the novel coronavirus seem to parallel the discriminatory anti-immigrant initiatives and rhetoric espoused by the Trump administration, many of them have arguably been undertaken with the intent to protect American public health and economic recovery.

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Beverly Hills, CA: April 7, 2021: Anti-mask protesters holding signs related to COVID-19. Beverly Hills and the state of California have a mask mandate requirement.

Mask Madness: When Freedom of Speech and Opinion Becomes Assaultive

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By Dessie Otachliska, J.D.

On January 20 — the day he was sworn in to office — President Biden signed an executive order mandating masks for federal employees, in federal buildings, and on federal land. But even as the Biden administration signals its support for more expansive mask guidelines, debate over the necessity of mask ordinances rages on — as of April 28, 2021, only 25 states, the District of Columbia, and Puerto Rico mandate any form of face coverings in public. Even more surprisingly, some states that previously had mask mandates in place—such as North Dakota, Mississippi, and Texas for example — have recently either relaxed or lifted these directives altogether.

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Bill of Health - gavel resting next to Apple keyboard and iPhad, online courts during pandemic, online justice

Criminal Jury Trials by Zoom: An Uneasy Bargain with the Constitution

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By Dessie Otachliska, J.D.

On August 11, 2020, Travis County, Texas made history by holding the nation’s first virtual criminal jury trial. While the case itself — a misdemeanor charge for speeding in a construction zone — was largely unremarkable, the way it was conducted was anything but. At 8:30 a.m. local time that Tuesday, Justice of the Peace Nicholas Chu convened the virtual courtroom using the Zoom videoconferencing platform, while simultaneously broadcasting the trial live to the public via YouTube. Judge Chu asked jurors to give their full attention to the trial at all times and to avoid succumbing to distractions such as email, TV, or social media. In a regular trial, this would have been a given—with all jurors seated together in the courtroom and required to surrender their cell phones, it would have been easy to notice whether a jury member had gotten distracted or was looking at outside materials related to the case. But in the era of teleconferencing, ensuring compliance is not so simple.

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A billboard that reads "Welcome to Illinois, where you can get a safe, legal abortion."

Access to Abortion in the Era of COVID-19

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By Dessie Otachliska, J.D.

Limited Access to Elective Medical Procedures During the COVID-19 Pandemic

As the coronavirus ravaged the United States, governors nationwide sprang into action, issuing executive orders mandating masks, social distancing, and the closure of businesses and non-essential services. On March 22, 2020, ten days after the COVID-19 pandemic was declared a national emergency and numerous state and local governments across the country implemented lockdowns and stay-at-home orders, Texas Governor Greg Abbott directed healthcare facilities and providers across the state to postpone all procedures not deemed medically necessary. States across the nation issued similar directives, following guidance issued by the Centers for Medicare & Medicaid Services (CMS) to limit elective surgeries as a means of containing the virus’ spread. However, the day after Governor Abbott’s announcement, Texas Attorney General Ken Paxton clarified that the governor’s order also applied to abortion clinics, which were prohibited from performing abortions unless the mother’s life was in danger. The impact of limiting abortion access in a state as large as Texas was dramatic: the average distance to the next closest out-of-state clinic for the 23 abortion clinics in Texas is 260 miles, with many would-be Texas abortion patients facing significantly longer journeys to obtain the medical care they sought.

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Sisaket,Thailand,09 April 2019;Medical staff wearing face shield and medical mask for protect coronavirus covid-19 virus in CT scan room,Sisaket province,Thailand,ASIA.

Coronavirus surcharges: A lifeboat for small businesses or an underhanded form of price gouging?

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By Bailey Kennedy, J.D.

The American economy has suffered trillions of dollars in damages since the coronavirus landed on our shores over a year ago. As we round the corner on our second coronavirus spring, some businesses that have managed to stay afloat are taking creative measures to try to stay open. One particularly common practice is that of adding a “Covid-19 surcharge” to a tab. These surcharges, which are intended to cover the added costs of running a business during the pandemic, are as controversial as they are common. Customers are dismayed to find their bills are higher than expected, and some say the surcharges are illegal.

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