Hand holding smartphone with colorful app icons concept.

The Fourth Amendment and the Post-Roe Future of Privacy

By Katie Gu

An April 2021 data privacy bill sponsored by Senator Ron Wyden (D-OR) has taken on new urgency in the post-Roe Digital Age.

The bipartisan bill, The Fourth Amendment Is Not For Sale Act, would close the current legal loophole through which the FBI, Department of Homeland Security, Department of Defense, Customs and Border Protection, Immigration and Customs Enforcement, and the Internal Revenue Service, have repeatedly purchased Americans’ personal and consumer information from data brokers.

In the wake of the recent Dobbs v. Jackson Women’s Health Organization decision, this bill may play an important role in protecting reproductive health data against government overreach and new forms of surveillance technologies.

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Protesters holding signs that read My Body My Choice, Human right, Bans Off Our Bodies, Abortion Is Healthcare.

Dobbs v. Jackson Women’s Health and Its Devastating Implications for Immigrants’ Rights

By Asees Bhasin

While reproductive injustice against immigrants is not new, they are now even more vulnerable to reproductive oppression in light of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturning the constitutional right to abortion.

Immigrant reproduction has long been vilified and opposed, with immigrant parents facing accusations of being hyper-fertile and giving birth to “anchor babies.” Additionally, pregnant immigrants have faced additional structural barriers to accessing necessary abortion care. This article explains how these injustices are likely to be exacerbated by the Dobbs ruling.

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WASHINGTON MAY 21: Pro-choice activists rally to stop states’ abortion bans in front of the Supreme Court in Washington, DC on May 21, 2019.

Restricting Reproductive Rights During the War on Drugs: Intersectional Regimes of Surveillance and Criminalization That Harm Us All

By Taleed El-Sabawi, Jennifer J. Carroll, and Bayla Ostrach

Health law and policy in the United States are, in many senses, driven by a desire to control. When that control is enacted to impose anti-scientific but deeply moralized social norms, suffering always follows. Consider, for example, the decision in Dobbs v. Jackson Women’s Health Organization, which ended a constitutionally recognized right to abortion. This decision allows states to exert near-total control over pregnant people and their bodies — and many are already experiencing physical and emotional harm as a result.

This suffering at the hands of the state is compounded by existing drug law and policies, which also prioritize control over bodies above personal wellbeing and autonomy. Pregnant people who use drugs (including alcohol) are often subject to both of these coercive regimes, facing head-on the harmful synergism between drug criminalization and the criminalization of abortion.

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microscope for in vitro fertilization process close up. . Equipment on laboratory of Fertilization, IVF.

Building a Progressive Assisted Reproductive Technology Law in South Africa

By Donrich Thaldar

In July 2022, a legal earthquake hit the South African fertility healthcare sector: The Pretoria High Court struck out the statutory ban on non-medical preimplantation sex selection.

Preimplantation sex selection for non-medical reasons is controversial around the globe, and explicitly banned in several prominent countries, such as Canada and the United Kingdom. However, in most countries, such as the United States, it is not regulated through statute. How did South African law arrive at this dramatic juncture?

In South Africa, over the course of the past decade, a steady stream of judicial decisions on assisted reproductive technology (ART) built a progressive body of case law (notwithstanding one noteworthy exception).

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Abstract glitch with word SCAM on 100 Dollar bill. Concept art for Online scam.

Rethinking Senior Scams?

By James Toomey

Many people, including, it seems, most advocates for law reform, assume that older adults are uniquely vulnerable to scams, and indeed that senior scams are a unique social problem demanding a unique legal solution. But in “The Age of Fraud” (forthcoming in the Harvard Journal on Legislation, winter 2023), about which I’ve blogged here before, I reported the results of an empirical study suggesting that, in fact, younger adults were as much as three times more likely to engage with scammers during the first year of the COVID pandemic than older adults.

One possible implication of this finding — if indeed it is generalizable — which I discuss but don’t commit to in the paper, is that more people are more vulnerable to scams — and the polished tactics of psychological manipulation used by scammers — than has been generally appreciated. But if scams are not a bounded problem of those who are in some sense more psychologically vulnerable (as older adults are thought of in, at least, the popular imagination), we might want to rethink scams — what they are, how we fight them, and how we treat and think about their victims.

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Cell culture.

A New Theory for Gene Ownership

By James Toomey

The story of Henrietta Lacks is surely among the most famous in the history of bioethics, and its facts are well-known. Ms. Lacks sought treatment for cervical cancer. After conducting a biopsy on her tumor, her doctors learned that her cancer cells reproduced uniquely effectively. Without her knowledge or consent, her doctors derived from the cells the HeLa cell line — the world’s first immortal human cell line, worth billions and a driver of the biotechnology revolution. Lacks died in poverty.

No doubt her doctors’ behavior was not consistent with today’s standards of informed consent. But another question has remained more persistently challenging — did the doctors steal something from Lacks? Did she own the cells of her tumor? Or, perhaps more precisely, because few argue that HeLa is really the same thing as Lacks’s tumor cells, did she own the genetic information contained in her tumor?

In a new paper, Property’s Boundaries (forthcoming in the Virginia Law Review, March 2023), I develop a theory of what can and cannot be owned to answer these kinds of questions — pervasive in bioethics, from debates about ownership of organs to embryos. My conclusion, in short, is that because the essence of the idea of ownership is a relationship of absolute control, anything that can be the subject of human control can, in principle, be owned. But that which we cannot control we cannot own. From this perspective, Henrietta Lacks owned the cells of her tumor, and the tumor itself. But the genetic information within them — facts about the universe subject to no human control — simply cannot be owned, by her or anyone else.

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Nov 22, 2019 Palo Alto / CA / USA - Close up of Amazon logo and Smile symbol at one of their corporate offices located in Silicon Valley, San Francisco bay area.

One Medical Acquisition: The Path Forward

This piece has been adapted slightly from its original form, which was published at On the Flying Bridge on July 24, 2022.

By Michael Greeley

Last week’s $3.9 billion acquisition of One Medical (NASDAQ: ONEM) by Amazon triggered significant hyperventilating about the transformative and immediate impact of this transaction on the health care industry. Interestingly, Amazon’s market capitalization increased 1.4% or $18.3 billion on the day of the announcement, paying for the purchase a few times over. Undoubtedly there could be exciting near-term benefits for the 750,000 ONEM members as their Amazon Prime accounts are linked to their ONEM memberships, facilitating targeted Whole Food and Amazon Pharmacy coupons. But what we might expect to see over time is a provocative debate with powerful implications for how each of us manage the arc of our health care journeys.
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Washington, DC, USA, May 5, 2022: people protest the leaked draft Supreme Court opinion overturning Roe v. Wade and the right to abortion

Stemming Supreme Court Rights Reversals

By James G. Hodge, Jr.

Based on the May 2022 leak of an initial draft, most believe the Supreme Court will carry through some rescission of abortion rights later this month through its final opinion in Dobbs v. Jackson Women’s Health Organization.

Already, concerns have arisen over other freedoms the Court may seriously reconsider down the road, including rights to gay marriage, intimacy, contraception, and informational privacy.

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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"

A Brief History of Abortion Jurisprudence in the United States

By James R. Jolin

POLITICO’s leak of Supreme Court Justice Samuel Alito’s draft majority opinion in Dobbs v. Jackson Women’s Health Organization suggests that U.S. abortion rights are on the verge of a fundamental shift.

If the official decision, expected this month, hews closely to the draft, the constitutional right to abortion affirmed in Roe v. Wade (1973), Planned Parenthood v. Casey (1992), and other seminal Supreme Court rulings will disappear.

This brief history of abortion rights and jurisprudence in the United States aims to clarify just what is at stake in this case.

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Washington, DC, USA, May 5, 2022: people protest the leaked draft Supreme Court opinion overturning Roe v. Wade and the right to abortion

The Leaked Dobbs Opinion, Explained

By Chloe Reichel

On May 2, 2022, Politico published a leaked draft of the majority opinion in Dobbs v. Jackson Women’s Health Organization, which showed the Supreme Court’s intent to overturn the right to abortion as decided in Roe v. Wade.

In response to the leak, the Petrie-Flom Center hosted a discussion with legal historian and Daniel P.S. Paul Visiting Professor of Constitutional Law Mary Ziegler and Petrie-Flom Center Faculty Director, James A. Attwood and Leslie Williams Professor of Law, and Deputy Dean I. Glenn Cohen.

Together, Cohen and Ziegler explained the background of the case, the contents of the draft opinion, and its potential implications not just for abortion access, but also for other constitutionally-protected rights, and for access to reproductive technologies, such as in-vitro fertilization.

The highlights of the conversation have been edited and condensed below.

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