Activists and concerned residents of New York City gathered at Union Square to demand Free, Safe and Legal Abortion on Sept 12, 2021.

Health Justice Meets Reproductive Justice

By Rachel Rebouché

Over the past few weeks, the headlines have been dominated by the implementation of a Texas “heartbeat” law. The law, which prohibits abortions after detection of fetal cardiac activity, “shall be enforced exclusively through . . . private civil actions” and “no enforcement may be undertaken by an officer of the state or local government.” For that reason, the Fifth Circuit, and then the Supreme Court, declined to enjoin the law’s application because, in part, no one had yet to enforce it. The Court did not opine on the law’s constitutionality, even though the statute directly contradicts precedent protecting abortion rights before viability. Indeed, as the DOJ argued in its recent lawsuit against Texas, the state designed the law specifically to circumvent judicial review.

What does Texas’s abortion ban have to do with health justice? The answer may not seem obvious because of how the debate over Texas’s law has been framed. Commentary has focused on whether or not litigants have standing to challenge the law or whether the federal government could successfully intervene to stop enforcement of the law. And these are important questions, especially for the providers and those “aiding and abetting” them, who are subject to the lawsuits of private citizens suing for $10,000 per procedure in violation of the law.

The costs of this law, however, could far exceed these potential damages. A health justice perspective highlights those costs and how lack of access to abortion entrenches economic and racial inequality.

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Abortion rights protest following the Supreme Court decision for Whole Women's Health in 2016

Beyond Abortion: The Far-Reaching Implications of SB 8’s Enforcement Mechanism

By Cathy Zhang

The United States Supreme Court’s refusal to block Texas’s SB 8 abortion restriction earlier this month foreshadowed an uncertain future for abortion jurisprudence and put reproductive rights at the center of national discourse.

But abortion is not the only right at stake: the novel enforcement mechanism behind SB 8 may soon appear in a wide range of legislation, making it more difficult to challenge unconstitutional laws.

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U.S. Supreme Court

There’s No Justice Without Health Justice

By Yolonda Wilson

Last month the U.S. Supreme Court struck down the eviction moratorium issued by the Centers for Disease Control (CDC). The Court reasoned that, among other things, the eviction moratorium was an overreach by the CDC. That is, even in light of a global pandemic where being unhoused increases one’s risk of acute COVID-19 infection and subsequent serious illness, the Court rejected the CDC’s argument for the connection between housing justice and health justice. The Court raised several telling rhetorical questions in their decision that were intended to show the potentially troubling slippery slope that would commence if the moratorium were allowed to stand:

Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable? Require manufacturers to provide free computers to enable people to work from home? Order telecommunications companies to provide free high-speed Internet service to facilitate remote work?

Whereas the Court viewed the eviction moratorium as an overreach that would lead to unthinkably absurd consequences for other sectors of social and economic life, a Black feminist conception of justice, as expressed, for example, in the historic statement of the Combahee River Collective, is necessarily grounded in a sense of the importance of community, rather than as a mere collection of individuals who may have little to no connection with or obligations to one another. Though the Court prioritized the interests of landlords and real estate agents, a Black feminist conception of justice foregrounds the needs of the overall community, such that if the well-being of the community depended on free grocery delivery to the sick and vulnerable, then so be it. The community rises and falls together, and so justice must account for the whole, not merely the well-heeled. Implicit in this conception of justice is an understanding that the community can only thrive, can only aspire to a Black feminist conception of justice, to the degree that the community is well or ill.

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yellow capsules on a blue background.

Fatty Acids, Skinny Labels: Fish Oil Patent Battle Back in Court

By Gregory Curfman

An ongoing patent battle over omega-3 fatty acids, colloquially known as as fish oils, may have broad implications for the marketing of generic drugs.

Icosapent ethyl (Vascepa®) is an omega-3 fatty acid preparation used to treat high triglycerides.  It was explicitly designed to be different from most other omega-3 fatty acid preparations — instead of containing a mixture two fatty acids (docosahexaenoic acid and eicosapentaenoic acid), it is a purified preparation of just the latter, and it is a much higher dose than what is typically used.

On the basis of the ANCHOR and MARINE clinical trials, in 2012 the Food and Drug Administration (FDA) approved Vascepa for the treatment of persons with severe hypertriglyceridemia.

In 2015, Hikma Pharmaceuticals, a generic drug company, filed an abbreviated new drug application (ANDA) for its generic formulation of icosapent ethyl.

The manufacturer of branded Vascepa, Amarin Corporation, promptly filed a patent infringement lawsuit citing six method of use patents (the ‘728, ‘715, ‘677, ‘652, ‘560, ‘929 patents) on Vascepa that the company believed were infringed by Hikma’s ANDA.

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Picture of Ivermectin tablets.

Legal and Ethical Analysis of Court-Ordered Ivermectin Treatment for COVID-19

By Jennifer S. Bard

A judge in Ohio ruled on Monday that a hospital in the region must administer ivermectin to a patient very sick with COVID-19 in their ICU, despite the decision by the medical staff, in agreement with recent statements by the U.S. Food and Drug Administration (FDA) and Centers for Disease Control and Prevention (CDC), that ivermectin is not an appropriate treatment, as it has been shown not to work against COVID.

The patient’s prescription came from a doctor who has no authority to treat patients at this particular hospital, although he is licensed to prescribe medicine in Ohio.

This case tracks a swelling interest, which some ascribe to the efforts of a group called America’s Front Line Doctors, among people for the anti-parasitic medication as both a treatment and prophylactic for COVID-19 — despite warnings from the medical establishment that it doesn’t work, and, if taken in the form normally given to farm animals or at the dosages being suggested, can be harmful.

The Ohio ruling is just the latest of several successful law suits (see similar cases in New York and Illinois) to order hospitals to administer ivermectin to hospitalized COVID-19 patients, despite the objections of the treating physicians.

There is also evidence of a global trend, as evidenced by the order of a court in South Africa to allow the prescription of ivermectin for COVID-19, something that was previously not permitted by the country’s drug regulatory agency.

This trend of courts ordering that treatments requested by hospitalized patients be made available by that hospital — so long as they are prescribed by a physician — opens the door to substantial administrative, legal, and ethical chaos. This post analyzes some of the most pressing legal, regulatory, and ethical concerns.

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Abortion rights protest following the Supreme Court decision for Whole Women's Health in 2016

How Social Movements Have Facilitated Access to Abortion During the Pandemic

By Rachel Rebouché

Before the end of 2021, the U.S. Food and Drug Administration (FDA) will reconsider its restrictions on medication abortion. The FDA’s decision could make a critical difference to the availability of medication abortion, especially if the Supreme Court abandons or continues to erode constitutional abortion rights.

Under that scenario of hostile judicial precedents, a broad movement for abortion access — including providers, researchers, advocates, and lawyers — will be immensely important to securing the availability of remote, early abortion care.

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Cannabis in clear glass jars.

The Biden Administration Should Resolve Cannabis Regulation Chaos

By Troy Sims

The Biden Administration has the opportunity to be the first administration to rid our legal system of cannabis regulation chaos.

State laws governing medical or recreational cannabis conflict with federal regulations, leaving cannabis consumers, businesses, and the lawyers representing them caught in the middle.

Guidance documents from the Department of Justice (DOJ) are an often-overlooked source of complexity and confusion in the cannabis industry. The Biden administration should seek to reconcile state and federal cannabis law.

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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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Gavel and a house on a white background. Concept art for eviction.

Eviction Moratorium Cases Reveal Courts’ Misunderstanding of Public Health

By Mahathi Vemireddy and Faith Khalik

Amid the COVID-19 Delta variant surge, the federal eviction moratorium — a key public health protection — will soon expire, and faces tough prospects for extension due to a series of legal battles.

These legal challenges highlight a narrow — and dangerous — conception of public health held by some courts, one which fails to recognize how social conditions such as housing can compound the impact of a virus. To protect our nation’s health, this misunderstanding of public health must be remedied.

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Person typing on computer.

COVID-19 and the New Reproductive Justice Movement

By Mary Ziegler

The COVID-19 pandemic has transformed advocacy for reproductive rights and reproductive justice in what previously had been called an endless, unchanging, and intractable abortion conflict.

The pandemic — and the stay-at-home orders it required — finally shifted the movement’s focus to abortion access, rather than abortion rights, as exemplified by its emphasis on medication and telehealth abortion.

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