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The Supreme Court and lower courts have not articulated a clear or consistent framework for First Amendment analysis of speech restrictions in health care and with respect to abortion. After offering a coherent doctrine for analysis of speech restrictions in the doctor-patient relationship, this piece demonstrates how potential legislation restricting patient access to information from reproductive testing intended to limit “undesirable” reproductive choices would violate the First Amendment.
Access to reliable health advice can make the difference between life and death. But good advice is hard to come by. Within the confines of the professional-client or doctor-patient relationship, the First Amendment operates in a way that protects good and sanctions bad advice. Outside of this relationship, however, the traditional protections of the First Amendment prohibit content- and viewpoint discrimination. Good and bad advice are treated as equal. A core assumption of First Amendment theory is the autonomy of speakers and listeners. Another assumption, as this Article demonstrates in the health context, is the availability of access to professional advice. This assumption, however, is erroneous because access to health advice in fact is unevenly distributed.
This Article argues that assuming access to professional advice creates indefensible inequality. Lack of access to expert advice puts some listeners at much higher risk than others. Current First Amendment doctrine is largely unproblematic for those who can afford expert advice, and makes expert advice much costlier where health provider access is needed to obtain good advice. Those who lack access must place a higher degree of trust in widely-available information because they have no more reliable alternative. In other words, First Amendment doctrine places a higher burden on those who can least afford expert advice and who are most dependent on experts in public discourse.
We argue that concentration of power in religious hospitals threatens disestablishment values. When hospitals deny care for religious reasons, they dominate patients’ bodies and convictions. Health law should — and to some extent already does — constrain such religious domination.
This article argues that the Supreme Court should not require a religious exemption from vaccine mandates. For children, who cannot yet make autonomous religious decision, religious exemptions would allow parents to make a choice that puts the child at risk and makes the shared environment of the school unsafe — risking other people’s children. For adults, there are still good reasons not to require a religious exemption, since vaccines mandates are adopted for public health reasons, not to target religion, are an area where free riding is a real risk, no religion actually prohibits vaccinating under a mandate, and policing religious exemptions is very difficult.
This article analyzes the Supreme Court’s “shadow docket” Free Exercise cases relating to COVID-19. The paper highlights the decline of deference, the impact of exemptions, and the implications of the new doctrine for vaccine and other public health laws.
The rise in vaccine hesitancy in high-income countries has led some to recommend that certain vaccinations be made compulsory in states where they are currently voluntary. In contrast, I contend that legal coercion is generally inappropriate to address the complex social and psychological phenomenon of vaccine anxieties.
Parental confidence in vaccines is waning. To sustain and improve childhood vaccine coverage rates, insights from multiple disciplines are needed to understand and address the socio-cultural factors contributing to decreased vaccine confidence and uptake.
In most U.S. jurisdictions, clinicians providing informal “curbside” consults are protected from medical malpractice liability due to the absence of a doctor-patient relationship. A recent Minnesota Supreme Court case, Warren v. Dinter, offers the opportunity to reassess whether the majority rule is truly serving the best interests of patients.
In the face of limited resources during the COVID-19 pandemic response, public health experts and ethicists have sought to apply guiding principles in determining how those resources, including vaccines, should be allocated.
Shared decision-making has become a new focus of health policy. Though its core elements are largely agreed upon, there is little consensus regarding which outcomes to prioritize for policy-mandated shared decision-making.
This paper examines several decision-making models that have been proposed to limit the use of CPR for COVID-19 patients. My main concern will be to assess proposals for the implementation of unilateral DNRs — i.e., orders to withhold CPR without the agreement of patients or their surrogates.
In this article, we comment on Ciaffa’s article ‘The Ethics of Unilateral Do-Not-Resuscitate Orders for COVID-19 Patients.’ We summarize his argument criticizing futility and utilitarianism as the key ethical justifications for unilateral do-not-resuscitate orders for patients with COVID-19.
As medical professionals, we outline the science underlying disorders or differences of sexual development (DSD), discuss the nuances of sex and gender and how terminology can differ based on medical vs. non-medical context, briefly review the evidence of the ergogenic effects of hyperandrogenism, and discuss the medical complications with the hormonal contraceptive use currently dictated by World Athletics to allow DSD athletes to compete in the female category.
Surveillance capitalism companies, such as Google and Facebook, have substantially increased the amount of information collected, analyzed, and monetized, including health information increasingly used in precision medicine research, thereby presenting great challenges for health privacy.
Brand-name prescription drug manufacturers use various strategies to extend their market exclusivity periods by delaying generic or biosimilar competition. Recent Congressional legislation has targeted four such tactics. We analyze these proposals and assess their likely effect on competition in the U.S. drug market.
Antimicrobial resistance (AMR) is one of the defining global health threats of our time, but no international legal instrument currently offers the framework and mechanisms needed to address it. Fortunately, the actions needed to address AMR have considerable overlap with the actions needed to confront other pandemic threats.