South Carolina State House.

South Carolina’s Abortion Debates: A Game of Ping Pong

By Katie Gu

On January 5, the South Carolina Supreme Court permanently struck down Senate Bill 1 (S.B. 1), also known as the Fetal Heartbeat and Protection from Abortion Act, which banned most abortions after the sixth week of pregnancy. The decision was issued just five days before the state’s General Assembly returned for 2023, setting into motion a game of ping pong between the state branches of government in South Carolina’s abortion debates. 

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File folders containing medical records.

How Dobbs Threatens Health Privacy

By Wendy A. Bach and Nicolas Terry

Post-Dobbs, the fear is visceral. What was once personal, private, and one hoped, protected within the presumptively confidential space of the doctor-patient relationship, feels exposed. In response to all this fear, the Internet exploded – delete your period tracker; use encrypted apps; don’t take a pregnancy test. The Biden administration too, chimed in, just days after the Supreme Court’s decision, issuing guidance seeking to reassure both doctors and patients that the federal Health Privacy Rule (HIPAA) was robust and that reproductive health information would remain private. Given the history of women being prosecuted for their reproductive choices and the enormous holes in HIPAA that have long allowed prosecutors to rely on healthcare information as the basis for criminal charges, these assurances rang hollow (as detailed at length in our forthcoming article, HIPAA v. Dobbs). From a health care policy perspective, what is different now is not what might happen. All of this has been happening for decades. The only difference today is the sheer number of people affected and paying attention.

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privacy curtain around hospital bed.

Lessons in Health Data Privacy from the Partial-Birth Abortion Ban Act

By Katie Gu

The past may hold important lessons for our uncertain future of health privacy for patients, physicians, and hospitals in the face of abortion subpoenas post-Dobbs

In returning the legality of abortion back to states, the Supreme Court’s decision has paved the path towards greater surveillance of sensitive health data contained in patient medical records. This stark increase in privacy risks for individuals seeking reproductive care resembles the shifts in patient privacy protections nearly twenty years ago following the Partial-Birth Abortion Ban Act (PBAB). 

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Boston, MA, US-June 25, 2022: Protests holding pro-abortion signs at demonstration in response to the Supreme Court ruling overturning Roe v. Wade.

Physician-Led Advocacy for the Future of Reproductive Health Care

By Katie Gu

The American Medical Association (AMA) recently adopted new policies aimed at protecting access to reproductive health care and reducing government interference in medical practice. As the nation’s most prominent professional medical association, the AMA’s unified stance brings a stronger physician-led voice in reproductive health care advocacy in the aftermath of Dobbs v. Jackson Women’s Health Care Organization.   

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Genetic engineering and digital technology concept.

The ‘Res Nullius’ Construction of Human Genomic Data

By Donrich Thaldar

No one domain of the law holds exclusive sway over human genomic data. Instead, genomic data have a multidimensional legal nature, meaning that multiple legal domains — including property law, privacy law, contract law, and intellectual property law — are all applicable. This opens the door for different persons to have rights originating in different legal domains with respect to the same genomic data.

To determine who has rights with respect to a particular person’s genomic data, the rules of each relevant legal domain must be applied. The application of these rules to genomic data may be relatively straightforward in some domains, but in property law — which is relevant in determining ownership of genomic data — it is often more complicated. Only a handful of jurisdictions have specifically legislated on the ownership of genomic data. In the absence of such specific legislation that provides who owns genomic data, general property law rules must be applied. (In common law legal systems, and some mixed legal systems where legislation is absent, this would entail resorting to the jurisdiction’s common law.) However, given the novelty of applying property law rules to genomic data, it is not always obvious which of the general rules would apply. In this post, I will share some of my research group’s thinking in this regard. Although our thinking is based in South African law, many of the principles are shared with other legal systems.

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Medicine doctor and stethoscope in hand touching icon medical network connection with modern virtual screen interface, medical technology network concept

AI in Digital Health: Autonomy, Governance, and Privacy

The following post is adapted from the edited volume AI in eHealth: Human Autonomy, Data Governance and Privacy in Healthcare.

By Marcelo Corrales Compagnucci and Mark Fenwick

The emergence of digital platforms and related technologies are transforming healthcare and creating new opportunities and challenges for all stakeholders in the medical space. Many of these developments are predicated on data and AI algorithms to prevent, diagnose, treat, and monitor sources of epidemic diseases, such as the ongoing pandemic and other pathogenic outbreaks. However, these opportunities and challenges often have a complex character involving multiple dimensions, and any mapping of this emerging ecosystem requires a greater degree of inter-disciplinary dialogue and more nuanced appreciation of the normative and cognitive complexity of these issues.

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Lima, Peru - March 8 2019: Group of Peruvian woman supporting the movement girls not mothers (niñas, no madres). A social campaign for abortion rights for underaged raped girls.

Grassroots Mobilization Needed to Defend Abortion Access

By Camila Gianella

On August 3, Kansas voters spurned the recent decision in Dobbs v. Jackson Women’s Health Organization by rejecting a proposed constitutional amendment that, in line with the ruling, aimed to ban abortion in the state.

What happened in Kansas shows the central role of social and political mobilization in securing abortion rights. In Kansas, Dobbs caused an unprecedented mobilization of women voters.

On the other hand, without such mobilization, access to abortion can suffer – even if the law protects sexual and reproductive health and rights (SRHR). In the case of Peru, my country, which is often cited as an example of the internationalization of SRHR norms through supranational litigation, internationally recognized legal victories have often fallen short of the high expectations they created. Despite the success of international bodies, abortion rights in Peru have not been expanded. Further, there are attempts at the legislative level to advance a total ban on abortion.

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Vintage history book and magnifying glass on wooden background.

The New Search for Reproductive Justice in Old Laws

By Katie Gu

In the post-Dobbs fight to safeguard reproductive healthcare, a new spotlight has been placed on two existing federal laws: the Health Insurance Portability and Accountability Act (HIPAA) and the Emergency Medical Treatment and Active Labor Act (EMTALA). 

Guidance documents issued over the summer by federal agencies emphasize how these laws can be used to protect reproductive health privacy and access.

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Blue biohazard sign in front of columns of binary code.

The International Weaponization of Health Data

By Matthew Chun

International collaboration through the sharing of health data is crucial for advancing human health. But it also comes with risks — risks that countries around the world seem increasingly unwilling to take.

On the one hand, the international sharing of health-related data sets has paved the way for important advances such as mapping the human genome, tracking global health outcomes, and fighting the rise of multidrug-resistant superbugs. On the other hand, it can pose serious risks for a nation’s citizens, including re-identification, exploitation of genetic vulnerabilities by foreign parties, and unauthorized data usage. As countries aim to strike a difficult balance between furthering research and protecting national interests, recent trends indicate a shift toward tighter controls that could chill international collaborations.

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Empty classroom.

Tort Liability for Faculty Who Fail to Tell the Class About COVID Cases in Their Midst

By Heidi Li Feldman

The more individuals must rely on their own judgment and effort to protect themselves from disease, the more they need information regarding the possibility of exposure to the cause of the disease.

This simple proposition, combined with changes in how governments and institutions are approaching COVID, means that university faculty should rethink their role in keeping their students informed about COVID cases among class members. To satisfy their legal obligations to protect students from harm, faculty must consider whether safeguarding their students from incurring COVID in their classrooms necessitates sharing such information. Fulfilling their legal duties to students may even require faculty to disregard administrative prohibitions against disseminating news of COVID cases in the class.

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