Doctor wearing glasses listening to female patient.

Physician Free Speech and the Doctor-Patient Relationship Post-Dobbs

By Lynette Martins and Scott Schweikart

Laws regulating physicians’ professional speech – i.e., what they can and cannot discuss in the exam room with patients — have made a resurgence in the post-Dobbs era. These so-called “gag laws” have primarily targeted physicians’ speech around firearms, reproductive rights (predominantly abortion), and, less frequently, conversion therapy.

In the abortion context, these restrictive laws impact not only patient access to critical medical services, but also the fundamental underpinnings of the physician-patient relationship.

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Supreme Court of the United States.

What the Supreme Court’s Expected Ruling on Affirmative Action Might Mean for US Health Care

By Gregory Curfman

Affirmative action in higher education may soon be abolished by the Supreme Court, resulting from its review of Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina.

The consequences for the physician workforce may be dire. Diversity among physicians is a compelling interest in our increasingly diverse society. Without affirmative action in higher education, our physician workforce may become less diverse, and the quality of health care may suffer.

This article explains the history of affirmative action in the U.S., past Supreme Court decisions, and the key arguments being considered in the two cases currently under review.

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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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Phone with social media icons - instagram, facebook, and twitter.

Regulating Out of the Social Media Health Crisis

By Bailey Kennedy

If something changes the pathways in our brains and damages our health — and if it does so to Americans on a vast scale — it should be regulated as a threat to public health.

It’s time for our regulators to acknowledge that social media fits this description.

Social media poses an active health threat to many of its users, in a way that is akin to other regulated substances: it has been tied to a variety of harmful health outcomes, including depression. It has also become increasingly clear that social media can be addictive.

Even if it is a behavioral rather than a substantive addiction, with only indirect links to physical health, the high number of Americans who exhibit some degree of social media addiction is concerning.

Inasmuch as social media presents us with a public health crisis, the American government should consider potential regulatory steps to address it.

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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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Bill of Health -vial of COVID-19 vaccine overlaid on leaves of the Old Testament, vaccines and religion, vaccine mandated and relgion

Vaccine hopes collide with vaccine denial

By Bailey Kennedy, J.D.

Americans have been able to feel a little more hopeful recently as vaccines begin to roll out across the country. But in some jurisdictions, officials have been surprised by how many people have refused to be vaccinated. As of the beginning of February 2021, about 24% of adults indicated that they would probably or definitely not allow themselves to be vaccinated. While we might hope that these numbers will go down as public health officials and others conduct outreach efforts in communities where vaccine refusal is particularly high, there will probably always be some percentage of people who will refuse to be vaccinated.

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Person smoking cigarette.

Graphic Warnings on Cigarettes: Public Health vs. Corporate Speech

By Laura Karas

The latest attempt of the U.S. Food and Drug Administration (FDA) to make a dent in the country’s intractable tobacco problem is a set of color graphic warnings that will appear on cigarette packages and advertisements beginning in June of 2021.

The legal battle surrounding the graphic warnings and other attempts to regulate commercial speech in the food and drug context illustrate the courts’ enduring failure to appreciate the full extent and substantiality of the government’s interest in promoting public health.

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U.S. Supreme Court building

The Artifices of Corporate Speech: Video Preview with Nathan Cortez

The Health Law Policy, Bioethics, and Biotechnology Workshop provides a forum for discussion of new scholarship in these fields from the world’s leading experts.

The workshop is led by Professor I. Glenn Cohen, and presenters come from a wide range of disciplines and departments.

In this video, Nathan Cortez gives a preview of his paper, “The Artifices of Corporate Speech,” which he will present at the Health Law Policy workshop on October 26, 2020. Watch the full video below:

lady justice.

When Health Advice Is Hard to Come by, BIPOC Suffer the Consequences

By Claudia E. Haupt

The COVID-19 pandemic has highlighted the tradeoffs at stake for Black, Indigenous, and people of color (BIPOC) seeking reliable health advice.

While there are legal safeguards to ensure reliable health advice within the confines of the doctor-patient relationship, outside of that relationship, the First Amendment protects bad advice just as much as good advice.

Courts continue to interpret the First Amendment in an expanding, deregulatory manner and the health context is no exception. For example, one novel judicial interpretation challenges previously accepted applications of the police power in furthering public health. In a forthcoming article, “Public Health Originalism and the First Amendment,” my colleague Wendy Parmet and I explore some of the dangers associated with this deregulatory approach.

Overall, the beneficiaries of these recent developments tend to be powerful speakers. The costs have largely fallen on women, as seen for example in NIFLA v. Becerra, and those who lack access to reliable medical advice, who are disproportionately BIPOC. Current First Amendment doctrine thus has the dangerous potential to further exacerbate existing racial disparities in health.

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