By Sterling Johnson
Not since the 1960s have we seen the terms of Black history been this contested among legislators and school districts. Three years after the George Floyd riots and our own national reckoning, we continue to watch explicit attacks on the teaching of critical race theory, but also more integration of Black history into the national story — with Florida’s legislative history serving as a primary landscape for this cultural battle.
By Adam Herpolsheimer
By no means the first foray into gender identity-based discrimination, the legacy of North Carolina’s HB2 (2016) — known colloquially as the bathroom bill — is one we cannot shake. The law has since been repealed but was ultimately a turning point for what was possible in terms of legal action against the trans community. HB2 was particularly bothersome and ill-advised because of the legal mechanism it used to achieve its goals: preemption.
By Temple University Center for Public Health Law Research
COVID-19 called for quick, decisive action by public health authorities to support communities and prevent infections. Since the pandemic began, legislators around the country have been acting to change the way authorities may respond to future public health emergencies — expanding or limiting officials’ authority to act in an emergency, changing who has authority to act, and the actions they may have the authority to take.
New research by the Center for Public Health Law Research at Temple University’s Beasley School of Law, in collaboration with the Association for State and Territorial Health Officials and the Network for Public Health Law, capture details of legislation that addresses emergency health authority introduced between January 1, 2021, and May 20, 2022, in all 50 states and the District of Columbia.
This post is an adaptation of an article published in the Harvard Social Impact Review.
By Allison M. Whelan
On June 24, 2022, the U.S. Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, overruling almost fifty years of precedent established by Roe v. Wade and reaffirmed by Planned Parenthood v. Casey. The tragic consequences of Dobbs are many, and all require urgent attention.
Post-Dobbs, states have complete control over the regulation of abortion, including medication abortion. Now more than ever, a person’s access to abortion and other essential reproductive health care services depends on their state of residence and whether they have the means to travel to a state that protects access to abortion care. As a result, the question of whether states can restrict or ban pharmaceuticals approved by the U.S. Food and Drug Administration (FDA) is now top of mind for lawyers, scholars, policymakers, and the public
The consequences that result from state bans and restrictions on medication abortion reverberate across the U.S. healthcare system, representing just one example of “healthcare federalism” — the division of power between the federal and state governments in the regulation of health care.
By Alina Schnake-Mahl, Rebecca Finkel, and Jennifer Kolker
Policies like paid sick leave are key tools to prevent another “winter of death” and disruption, finds our recent study of U.S. cities’ sick leave and vaccination data. Further, universal paid sick leave policies are particularly effective at protecting the most vulnerable communities.
By Kaitlynn Milvert
As nursing homes face wrongful death claims amid the COVID-19 pandemic, they increasingly have pursued a common litigation strategy: attempting to reroute state tort lawsuits to federal court.
A recent ruling in the Third Circuit Court of Appeals rejected this tactic. As the first court of appeals ruling on this issue, the decision avoids extending a federal statute limiting pandemic liability into unprecedented areas and defines at least some limits on the statute’s effect on state tort suits. Read More
By Jessica Amoroso and Sarah Winston
States across the U.S. are using preemption to stifle local authority aimed at mitigating the spread of COVID-19, resulting in confusion and a fragmented response.
Historically, local governments have played an important role in providing direct and indirect services to their communities, as they have a heightened awareness of their needs compared to state governments. This has proven especially true during the COVID-19 pandemic, as city and municipal initiatives often have been the initial access point for virus-related services.
But state preemption is increasingly being used as a legal tool to prevent cities and municipalities from legislating on issues of importance to public health.
By Barbara J. Evans and Ellen Wright Clayton
The federal government recently used preemption unlawfully to prevent state public health efforts to protect vulnerable people from COVID-19.
As 1,000 current and former CDC epidemiologists noted in an open letter, the federal government has failed to use legal powers it does have to manage the crisis, leaving states to “invent their own differing systems” to manage COVID-19. We add that the federal government is now asserting emergency powers it does not have to disable state public health responses.
Early this month, Nevada officials halted the use of two rapid coronavirus tests that produced high false-positive rates when used for screening vulnerable people in Nevada’s nursing homes, assisted-living, long-term care, and other congregate facilities. More than half the positive test results were false.
On October 8, the U.S. Department of Health and Human Services (HHS) sent a letter threatening that the Nevada officials’ action was “inconsistent with and preempted by federal law and, as such, must cease immediately or appropriate action will be taken against those involved.” Nevada yielded to this threat and, on October 9, removed its directive to stop using the tests.
As the United States continues its response to a seemingly inevitable coronavirus epidemic, experts in law and public health are stressing the importance of supportive social safety nets to ensure an equitable and fair response to the virus’s spread.
If you are one of the nearly two million Americans who works for minimum wage, for much of the service industry, or in the contingent labor force, a situation that forces you to stay home from work – because of illness, or government- or self-imposed quarantine or social distancing measures – could create dire financial circumstances and inhibit measures to mitigate the impact of an infectious disease like COVID-19.
By Kate Greenwood
Cross-Posted at Health Reform Watch
On April 21st, the Supreme Court will hear oral argument in Pom Wonderful v. The Coca-Cola Company, a case in which Pom sued Coke under Section 43(a) of the Lanham Act arguing that Coke’s product “Pomegranate Blueberry Flavored Blend of 5 Juices” was misleadingly named. Coke countered that the suit should be dismissed because the name was specifically authorized by the Food and Drug Administration’s regulations governing flavored juice blends, and both the District Court and the Ninth Circuit Court of Appeals agreed.
In its opening brief filed last week, Pom argues that neither the provisions of the Food, Drug and Cosmetic Act governing food and beverage labeling generally, nor the regulations that specifically address juice blends, precludes the application of the Lanham Act to Coke’s misleading juice label. This conclusion, per Pom,
“follows inexorably from this Court’s holding in Wyeth v. Levine … that FDA’s approval of a drug label does not displace state failure-to-warn suits challenging the adequacy of the warning. … Following Wyeth, there can be no serious argument that the provisions of the FDCA are in ‘irreconcilable conflict’ with the Lanham Act. FDA does not even generally review—much less approve—particular food labels; nothing even arguably prevented Coca-Cola from designing its label to avoid misleading consumers; and FDA has given no indication that its juice-naming rules set the outer bounds of labeling regulation.”
In its brief opposing Pom’s petition for certiorari, Coke distinguished Wyeth, noting that the provisions of the FDCA governing drug labeling do not expressly preempt state regulation. The provisions of the FDCA governing food and beverage labels, by contrast, “expressly supplant State laws—including those that imposed more ‘stringent’ requirements[.]” This, Coke argued, shows that the food and beverage statutory provisions and their implementing regulations “were not intended as a ‘floor’ but rather as the exclusive body of regulation to which food and beverage labels would be subject.”
In her latest article, The Magical Thinking of Food Labeling: The NLEA as a Failed Statute, Diana Winters decries the time and money courts deciding food and beverage labeling cases must spend “negotiating the interaction between federal and state law, with inconsistent outcomes”. Read More