hand opening white plastic pvc window at home.

It’s Time for the Federal Government to Get Back to Protecting the Nation Against COVID-19

By Jennifer S. Bard

Over the past two years, the Supreme Court has shown unprecedented hostility to efforts by both state and federal government to stop the spread of what every day turns out to be an even more deadly pandemic.

These decisions are devastating, and likely signal a continued attack on government authority, but they are not a reason to give up.

The federal government can still use its vast resources to slow the spread and continued mutation of the virus, by telling people what it knows of the danger, and what it knows about how to mitigate it.

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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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