Empty classroom.

Can Schools Require the COVID-19 Vaccine? Education, Equity, and the Courts

By Emily Caputo and Blake N. Shultz

As school systems consider policy options for the spring semester, both vaccination requirements and proposals to address inequities in access to education may be top of mind. However, policymakers should be aware of the possible legal challenges they may face.

The COVID-19 pandemic has created an educational crisis in the United States by disrupting the learning of millions of students across the country. School closures, remote learning, and generalized societal stress have all raised serious concerns about persistent harm to adolescent learning and development — particularly among low-income and minority students.

While the pandemic has exposed widespread inequities in educational opportunity, it has also revealed the relative inability of the courts to promote access to education. A recent California lawsuit illustrates the manner in which students must rely on state-level, rather than federal, protections to ensure equal access to education. And COVID-19 vaccination requirements, which could facilitate a return to in-person education, are likely to result in lawsuits, and may be struck down by a skeptical and conservative Supreme Court.

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Police car.

Police Should Not Be Enforcing Emergency Public Health Orders

Cross-posted from COVID-19 and The Law, where it originally appeared on November 9, 2020. 

By Daniel Polonsky

On a weekend when police officers were handing masks to white residents in parks around New York City, NYPD Officer Francisco Garcia forced Donni Wright, a 33-year-old Black man, to the ground and knelt on his neck. Officer Garcia was one of 1,000 NYPD officers dispatched to enforce social distancing and mask-wearing. He had been investigating a report of individuals not wearing masks, although he himself was not wearing one. Police Chief Terence Monahan had previously assured reporters that the police would be educating the public and only breaking up large gatherings, not bothering individuals merely walking outside—“They don’t have a mask, we’ll give them a mask.” But Officer Garcia, who has settled six lawsuits for police misconduct for a combined $182,500, did more than educate that day. Multiple officers were in the middle of arresting two individuals after allegedly spotting a bag of marijuana when Mr. Wright spoke up in their defense. In response, Officer Garcia called him a racial epithet and accosted him, causing severe injuries to Mr. Wright’s back, ribs, and chest. What started as social distancing enforcement ended in racist, excessive use of force.

This incident highlights the overlap between the twin crises state and local governments face: halting the spread of COVID-19 and grappling with the systemic racism that characterizes the American system of policing.

Click here to read the full post on COVID-19 and The Law.

White jigsaw puzzle as a human brain on blue. Concept for Alzheimer's disease.

Detecting Dementia

Cross-posted, with slight modification, from Harvard Law Today, where it originally appeared on November 21, 2020. 

By Chloe Reichel

Experts gathered last month to discuss the ethical, social, and legal implications of technological advancements that facilitate the early detection of dementia.

“Detecting Dementia: Technology, Access, and the Law,” was hosted on Nov. 16 as part of the Project on Law and Applied Neuroscience, a collaboration between the Center for Law, Brain and Behavior at Massachusetts General Hospital and the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.

The event, organized by Francis X. Shen ’06 Ph.D. ’08, the Petrie-Flom Center’s senior fellow in Law and Applied Neuroscience and executive director of the Center for Law, Brain and Behavior at Massachusetts General Hospital, was one of a series hosted by the Project on Law and Applied Neuroscience on aging brains.

Early detection of dementia is a hopeful prospect for the treatment of patients, both because it may facilitate early medical intervention, as well as more robust advance care planning.

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Sign that reads "Racism is a pandemic too."

Editor’s Choice: Important Reads on Race and Health

By Chloe Reichel

Racism was embedded in the founding of the United States and has persisted in virtually all aspects of our society through the present day.

In 2020, structural racism was made especially apparent in the disproportionate toll the COVID-19 pandemic has taken on communities of color, which can be traced back to the social determinants of health, and in grotesque displays of police violence, such as the killings of Breonna Taylor, George Floyd, Ahmaud Arbery, and Elijah McClain.

Racism is the public health issue of our time, after having been woefully un- or under-addressed for centuries. The following posts, which were published on Bill of Health this year, highlight some of the most pressing issues to confront, as well as potential ways forward.

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This 2006 image depicted a nurse, who was administering an intramuscular vaccination into a middle-aged man’s left shoulder muscle. The nurse was using her left hand to stabilize the injection site.

An Equity-Based Strategy for COVID-19 Vaccine Distribution

By Megan J. Shen

How COVID-19 vaccines roll out in the U.S. will highlight the nation’s priorities, and potentially also its persistent disparities.

Top of the list to receive the vaccine are frontline healthcare workers, who were the first to receive Pfizer’s new vaccine this week.

Next will come long-term care facility residents and workers. This is critical, as long-term care residents have suffered perhaps the most devastating death toll, killing over 100,000 residents.

But there is still a long winter ahead where many will not yet have access to the vaccine. And it remains unclear how the next round of vaccine recipients will be allocated to serve the most vulnerable populations.

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Field with sky and clouds.

COVID-19 in Rural America and the Indian Nations

Cross-posted from COVID-19 and The Law, where it originally appeared on October 22, 2020. 

By Chris Zheng

For many, the COVID-19 pandemic is likely to conjure scenes of once-bustling urban centers grinding to a halt. However, for the one in five Americans that live in rural communities, the reality of the pandemic has been markedly different from that of its metropolitan neighbors. The combination of insufficient resources and a particularly vulnerable population has resulted in disproportionate and devastating effects on remote communities.

COVID-19 has also exacerbated gaps in access to care for the 54% of American Indian and Alaska Native people who live in rural towns or reservations. As such, there have been many questions as to what legal measures native groups can take to protect their communities. This piece will first address the unique public health challenges facing rural and native communities during the COVID-19 pandemic. Then, it will conclude by proposing group-specific solutions towards mitigating further harm.

Click here to read the full post on COVID-19 and The Law.

gavel.

How to Reduce Racial Disparities in the Criminal Justice System

By Caroline Hinnenkamp

Racial disparities in the U.S. criminal justice system are well documented –– people of color are disproportionately arrested, convicted, and incarcerated.

Diversion efforts –– so named for their approach, which is to divert individuals away from the court process and instead offer opportunities for rehabilitation –– risk perpetuating these same racially disparate trends. Particularly if diversion programs have eligibility constraints based on prior records, people of color are more likely to be denied entry, because they are arrested and convicted at a higher rate than their white counterparts.

Historically, prosecutors tended to justify these constraints as mechanisms used to gauge an applicant’s capacity for rehabilitation, with recidivism (the tendency of a convicted criminal to reoffend) reduction as the central goal of diversion. Diversion was an alternative offered to the lucky few deemed “eligible” or “deserving,” with the implication being that reoffenders have a criminal disposition that is not amenable to rehabilitation.

But programs that use these screening methods tend to overlook the underlying facts and circumstances that might have brought about the applicant’s priors, such as implicit bias in law enforcement or the over-policing of specific communities. Without additional safeguards, the seemingly neutral constraint of “priors” fails to account for relevant pre-existing conditions, and risks barring entry to applicants who might otherwise benefit from diversion.

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people waiting in a line.

Advance Health Equity by Getting Vaccine Distribution Right

By Sarah de Guia and Nicolas Terry

The U.S. Food and Drug Administration (FDA) is poised to decide soon whether to authorize the emergency use of COVID-19 vaccines. While this is positive news, critical decisions remain about the equitable allocation of the vaccine.

On December 10, 2020, the FDA will hold a meeting of its vaccine advisory committee to consider an emergency use authorization (EUA) sought by Pfizer/BioNTech for its COVID-19 vaccine candidate. A week later, the committee likely will consider a similar request from Moderna for its candidate. The UK is moving on an even more aggressive timeline and has already approved the Pfizer/BioNTech candidate.

In 2020, it is expected that doses will be ready for only 20 million Americans; there will not be general availability until the second quarter of 2021.

So, who will get the vaccine soonest, and will those decisions be based on equitable criteria?

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Centers for Disease Control and Prevention. Georgia, Atlanta USA March 6, 2020.

The Politics of CDC Public Health Guidance During COVID-19

A version of this post first ran in Ms. Magazine on October 28, 2020. It has been adapted slightly for Bill of Health. 

By Aziza Ahmed

In recent months, public health guidance from the U.S. Centers for Disease Control and Prevention (CDC) has become a site of political reckoning.

The agency has taken an enormous amount of heat from a range of institutions, including the executive and the public, during the COVID-19 pandemic. The former has sought to intervene in public health guidance to ensure that the CDC presents the President and administration’s response to COVID-19 in a positive light. The latter consists of opposed factions that demand more rigorous guidance, or, its opposite, less stringent advice.

Importantly, these tensions have revealed how communities experience the pandemic differently. CDC guidance has produced divergent consequences, largely depending on demographics. These differences have been particularly pronounced along racial lines.

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Grocery store.

COVID-19 Highlights the Vital Connection Between Food and Health

By Browne C. Lewis

Together, food insecurity and COVID-19 have proven to be a deadly combination for Black and Brown people.

Data published by the Centers for Disease Control and Prevention indicates that COVID-19 hospitalization rates among Black and Latino populations have been approximately 4.7 times the rate of their white peers. The CDC suggests that a key driver of these disparities are inequities in the social determinants of health.

Healthy People 2020 defines social determinants of health as “conditions in the environments in which people are born, live, learn, work, play, worship, and age that affect a wide range of health, functioning, and quality-of-life outcomes and risks.” The lack of access to good quality food is one of the main social determinants of health. People who eat unhealthy food are more likely to have diet-related medical conditions, like hypertension and diabetes, that make them more susceptible to developing severe or fatal COVID-19.

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