Student fellows 2022-2023 cohort.

Petrie-Flom Welcomes 2022-2023 Student Fellows

(Clockwise from top left: Matt Chun, Sarah Gabriele, Katie Gu, Sanjay Reddy, Aparajita Lath)

We are excited to welcome a new group of Student Fellows to the Petrie-Flom Center family. These five students are a fantastic cohort of health law policy, biotechnology, and bioethics scholars who join us from across Harvard.

They each will undertake a year-long research project with mentorship from Center faculty and affiliates, and also will blog here at Bill of Health regularly. Keep an eye out for their bylines!

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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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Gavel and stethoscope.

The Journal of Law and the Biosciences’ Growing Impact

The Journal of Law and Biosciences, a co-venture between Duke University, Harvard Law School, and Stanford University, offers high-quality, open-access scholarship at the intersection of the biosciences and law. The Journal, which is published by Oxford University Press, is the first fully open-access, peer-reviewed legal journal to focus on these issues.

Recently, the Journal of Law and the Biosciences received exciting news in the form of an updated impact factor score. The journal now has an impact factor of 6.066, a substantial increase from the year prior. It ranks third out of 56 ethics journals, second out of sixteen journals in the medical ethics category, second out of 154 law journals, and first out of seventeen journals in the legal medicine category.

The following excerpts highlight the cutting-edge scholarship published in the Journal‘s most recent issue, which closed in June 2022.

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GHRP affiliated researchers.

Introducing the Global Health and Rights Project’s New Affiliated Researchers

(Clockwise from top left: Alma Beltrán y Puga, Luciano Bottini Filho, Ana Lorena Ruano, María Natalia Echegoyemberry)

By Alicia Ely Yamin and Chloe Reichel

Leer en español.

In the years before the pandemic, and especially since the pandemic began, there have been increasing calls to decolonize global health. Setting aside what Ṣẹ̀yẹ Abímbọ́lá rightly characterizes as the slipperiness of both the terms “decolonizing” and “global health,” these calls speak to the need to reimagine governance structures, knowledge discourses, and legal frameworks — from intellectual property to international financial regulation.

Global health law itself, anchored in the International Health Regulations (2005), purports to present a universal perspective, but arguably rigidifies colonialist assumptions about the sources of disease, national security imperatives, priorities in monitoring “emergencies,” and governance at a distance. The diverse tapestry of international human rights scholarship related to health is often not reflected in analyses of the field from the economic North. In turn, that narrow vision of human rights has also increasingly faced critiques from TWAIL, Law & Political Economy, and other scholars, for blinkered analyses that fail to challenge the structural violence in our global institutional order — which the pandemic both laid bare and exacerbated.

In an attempt to enlarge discussion of these important topics and amplify diverse voices, the Petrie-Flom Center is welcoming four new affiliated researchers to the Global Health and Rights Project (GHRP).

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POPLAR affiliated reseachers

Introducing Affiliated Researchers for the Project on Psychedelics Law and Regulation

(Clockwise from top left: Kwasi Adusei, Ismail Lourido Ali, Jonathan Perez-Reyzin, Dustin Marlan.)

We are excited to welcome our inaugural group of affiliated researchers for the Project on Psychedelics Law and Regulation (POPLAR). Through regular contributions to Bill of Health, as well as workshops and other projects, POPLAR affiliated researchers will share their expertise and perspectives on developments in psychedelics law and policy. We look forward to learning from and sharing their insights with our audiences. Keep an eye out for their bylines!

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Black and white photograph of the front of the Supreme Court. Pro-abortion protestors stand holding signs, one of which reads "I stand with Whole Woman's Health"

Call for Submissions: Journal of Law and the Biosciences Special Issue on Abortion Law

American law on reproduction seems likely to change, perhaps radically, in 2022, as the U.S. Supreme Court considers challenges to state laws limiting abortion. In Dobbs v. Jackson Women’s Health Organization, the Court is considering a substantive Mississippi ban on almost all abortions after 15 weeks; in Whole Woman’s Health v. Jackson and United States v. Texas, the Court is considering the more procedural Texas “bounty hunter” statute for enforcing a ban on abortions after about five weeks.

In anticipation of the Court rulings on these cases, the Journal of Law and the Biosciences will publish a limited number of submissions as a two-part special issue on this general topic. The issue will focus on abortion law, but also include near-future issues for other human reproductive practices and technologies.

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David Tolley headshot

Meet David Tolley, Petrie-Flom Center Advisory Board Member

The Petrie-Flom Center is excited to welcome David Tolley to our Advisory Board!

Tolley is a Partner at Latham & Watkins LLP and is the chair of the Litigation & Trial Department for the firm’s Boston office. He represents health care organizations in high stakes matters, including government investigations and litigation. Tolley has also worked on pro bono litigation with the Center for Health Law Policy Innovation at Harvard Law School to help secure access to life-saving therapies for people with hepatitis C.

To learn more about the depth of experience that Tolley will bring to the Advisory Board, we asked him a few questions about his background and current areas of practice. The interview, which has been edited and condensed, follows.

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Vaccines.

Promote Trust, Avoid Fraud: Lessons in Public Health Messaging from the Booster Roll Out

By Carmel Shachar

Even in September 2021, it was fairly clear that boosters for all adults, regardless of risk factors or which vaccines they initially received, would be coming soon.

Indeed, within two months, the U.S. Centers for Disease Control and Prevention (CDC) revised its recommendations to say that all vaccinated adults should receive a COVID-19 booster.

Unfortunately, the discrepancy between past messaging, which restricted access to boosters to select groups, and the current, broad recommendation has spawned two, related public health communications problems.

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Concept: An ounce of prevention is worth a pound of cure.

The Paradoxical Legal Treatment of Preventive Medicine

By Doron Dorfman

Preventive medicine is a tool used by individual patients, primary care physicians, and governmental agencies to preempt illnesses rather than to treat them after they have arisen. Despite this salubrious aim, stigma, shame, and fear often are attached to the use of preventative care.

The stigma around preventive medicine can arise from the tendency to view such measures as a proxy for risky or otherwise socially marginalized behavior or lifestyle. Why would someone use a preventative measure if they are not at high risk as a consequence of their own choices?

Consider, for example, what I call “sexually charged” preventative health measures like the human papillomavirus vaccine or Pre-Exposure Prophylaxis (PrEP). PrEP is a highly effective daily drug regimen that prevents HIV infection, which has become specifically popular with gay and bisexual men.

As I discuss in a forthcoming paper, PrEP has been viewed by policymakers and health care professionals as a “license for promiscuity” due to the fear of risk compensation, meaning the adjustment of risky behavior by those who take PrEP to potentially have sex with more partners and with no condoms. Such views are reflected in Kelley v. Becerra, a case pending before the U.S. District Court of the Northern District of Texas, where plaintiffs wish to purchase insurance that excludes coverage for PrEP and contraception, to which they object to on religious and moral grounds.

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Concept illustration of DNA and genes.

The Civil Rights Challenge to Gene Patenting

By Jorge L. Contreras

In 2009, the American Civil Liberties Union (ACLU) launched a unique lawsuit against Myriad Genetics, challenging fifteen claims of seven patents covering various aspects of the BRCA1/2 genes and their use in diagnosing risk for breast and ovarian cancer. In mounting this case, the ACLU assembled a coalition of lawyers, scientists, counselors, patients and advocates in an unprecedented challenge not only to one company’s patents, but the entire practice of gene patenting in America. And, against the odds, they won. In 2013, the U.S. Supreme Court ruled in Association for Molecular Pathology v. Myriad Genetics that naturally occurring DNA sequences are not patentable, a ruling that has had repercussions throughout the scientific community and the biotechnology industry.

In The Genome Defense: Inside the Epic Legal Battle to Determine Who Owns Your DNA (New York: Hachette/Algonquin, 2021), I describe the long road that led to this unlikely Supreme Court victory. It began in 2003 when the ACLU hired its first science advisor, a Berkeley-based cellist and non-profit organizer named Tania Simoncelli. At the ACLU, Simoncelli’s job was to identify science-related issues that the ACLU could do something about, from DNA fingerprinting to functional MRI brain imaging. A couple of years into the role, Simoncelli mentioned gene patenting to Chris Hansen, a veteran ACLU litigator who had been involved in cases covering mental health to school desegregation to online porn. At first, Hansen didn’t believe her. How could a company patent something inside the human body? But Simoncelli persisted, showing him articles and statistics demonstrating that, by 2005, more than 20% of the human genome was covered by patents. The realization led to Hansen’s oft-quoted exclamation, “Who can we sue?”

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