Los Angeles, California / USA - May 1, 2020: People in front of Los Angeles’ City Hall protest the state’s COVID-19 stay at home orders in a “Fully Open California” protest.

The Supreme Court Threatens to Undermine Vaccination Decisions Entrusted to the States

By Donna Gitter

In 2021, the Supreme Court articulated in Tandon v. Newsom a legal principle that threatens to upend over a century of legal precedent recognizing the authority of state governments to ensure public health by mandating vaccines.

The ruling lays the groundwork for courts to force states to include religious exemptions to mandatory vaccines whenever they include secular exemptions, such as medical ones.

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LISBON, PORTUGAL - 7 NOVEMBER 2017: Dr. Oz, heart surgeon & television personality speaks at the Web Summit, Lisbon.

The Dr. Oz Paradox

By Claudia E. Haupt

Why does the law sanction giving bad advice to one patient, while it permits giving bad advice to millions of YouTube or television viewers, which may result in significant physical harm?

We might call this the “Dr. Oz paradox.” Dr. Mehmet Oz, the Republican candidate in Pennsylvania’s U.S. Senate race, is a famous television personality as well as a licensed physician. But, according to one study, half of his publicly disseminated medical advice is wrong. Yet, his sizable audience may very well follow it anyway, and perhaps suffer harm as a result. Such bad advice, which could get any doctor in legal trouble if disseminated to their patients, may be given to the public at large without fear of sanction. The consequences of this sharp doctrinal distinction can be quite jarring.

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American Soldiers Salute. US Army.

Vaccine Mandates in the Military: Litigation Over Religious Exemptions

By Kaitlynn Milvert

In August 2021, the U.S. Department of Defense (DoD) put in place requirements for service members to receive the COVID-19 vaccine. Litigation has since ensued over the military branches’ restrictive approach to religious exemptions to vaccination.

On March 25, the U.S. Supreme Court weighed into one such case: the Court granted the government’s request for a partial stay to allow the Navy to continue to use vaccination status in making deployment and assignment decisions while the litigation proceeds.

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Phone with social media icons - instagram, facebook, and twitter.

Regulating Out of the Social Media Health Crisis

By Bailey Kennedy

If something changes the pathways in our brains and damages our health — and if it does so to Americans on a vast scale — it should be regulated as a threat to public health.

It’s time for our regulators to acknowledge that social media fits this description.

Social media poses an active health threat to many of its users, in a way that is akin to other regulated substances: it has been tied to a variety of harmful health outcomes, including depression. It has also become increasingly clear that social media can be addictive.

Even if it is a behavioral rather than a substantive addiction, with only indirect links to physical health, the high number of Americans who exhibit some degree of social media addiction is concerning.

Inasmuch as social media presents us with a public health crisis, the American government should consider potential regulatory steps to address it.

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Los Angeles, California / USA - May 1, 2020: People in front of Los Angeles’ City Hall protest the state’s COVID-19 stay at home orders in a “Fully Open California” protest.

Social Distancing, Social Protest, and the Social Constitution of a New Body of Law

By Lindsay F. Wiley

COVID-19 mitigation orders, court decisions adjudicating challenges to them, and legislation adopted to constrain similar orders in the future are constituting a new body of law governing social distancing.

The emerging law of social distancing is vital to the future of public health. It also offers more general lessons about how law interacts with individual behavior, social norms, and social contestation of what we owe each other as members of a community.

Social protests — including massive protests for racial justice and against police violence as well as much smaller anti-lockdown protests — are playing an important role in these developments.

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Los Angeles, California / USA - May 1, 2020: People in front of Los Angeles’ City Hall protest the state’s COVID-19 stay at home orders in a “Fully Open California” protest.

5 Questions About COVID-19 and Religious Exemptions

By Chloe Reichel

On February 26th, the Supreme Court of the United States issued a shadow docket decision that could foretell sweeping limitations for public health measures, both within and outside the COVID-19 pandemic context.

The Court’s ruling in the case, Gateway City Church v. Newsom, blocked a county-level ban on church services, despite the fact that the ban applied across the board to all indoor gatherings. This religious exceptionalism is emerging as a key trend in recent Supreme Court decisions, particularly those related to COVID-19 restrictions.

To better understand what these rulings might mean for public health, free exercise of religion, the future of the COVID-19 pandemic, and potential vaccine mandates, I spoke with Professor Elizabeth Sepper, an expert in religious liberty, health law, and equality at the University of Texas at Austin School of Law.

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Person smoking cigarette.

Graphic Warnings on Cigarettes: Public Health vs. Corporate Speech

By Laura Karas

The latest attempt of the U.S. Food and Drug Administration (FDA) to make a dent in the country’s intractable tobacco problem is a set of color graphic warnings that will appear on cigarette packages and advertisements beginning in June of 2021.

The legal battle surrounding the graphic warnings and other attempts to regulate commercial speech in the food and drug context illustrate the courts’ enduring failure to appreciate the full extent and substantiality of the government’s interest in promoting public health.

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U.S. Supreme Court building

The Artifices of Corporate Speech: Video Preview with Nathan Cortez

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, Nathan Cortez gives a preview of his paper, “The Artifices of Corporate Speech,” which he will present at the Health Law Policy workshop on October 26, 2020. Watch the full video below:

lady justice.

When Health Advice Is Hard to Come by, BIPOC Suffer the Consequences

By Claudia E. Haupt

The COVID-19 pandemic has highlighted the tradeoffs at stake for Black, Indigenous, and people of color (BIPOC) seeking reliable health advice.

While there are legal safeguards to ensure reliable health advice within the confines of the doctor-patient relationship, outside of that relationship, the First Amendment protects bad advice just as much as good advice.

Courts continue to interpret the First Amendment in an expanding, deregulatory manner and the health context is no exception. For example, one novel judicial interpretation challenges previously accepted applications of the police power in furthering public health. In a forthcoming article, “Public Health Originalism and the First Amendment,” my colleague Wendy Parmet and I explore some of the dangers associated with this deregulatory approach.

Overall, the beneficiaries of these recent developments tend to be powerful speakers. The costs have largely fallen on women, as seen for example in NIFLA v. Becerra, and those who lack access to reliable medical advice, who are disproportionately BIPOC. Current First Amendment doctrine thus has the dangerous potential to further exacerbate existing racial disparities in health.

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