Health Law
Intersex, Trans, and the Irrationality of Gender-Affirming-Care Bans
This Article provides a comprehensive legal analysis of gender-affirming-care bans, concluding that their internally inconsistent treatment of trans-affirming care and coercive intersex-normalizing interventions renders them irrational and thus unconstitutional under even rational-basis review. We further provide a normative vision for bodily self-determination to support both trans and intersex interests.
The Politics and Perverse Effects of the Fight Against Online Medical Misinformation
Platforms’ content moderation of medical misinformation has become one of this era’s biggest political controversies. This Essay traces how platforms’ choices during the COVID-19 pandemic became so politicized, and how the category “medical misinformation” cannot be used to skirt important questions about the legitimacy of platform power over public discourse.
Bind Us Together: Coalitional Public Policy Advocacy in Medical-Legal Partnerships
The Medical-Legal Partnership (MLP) model promotes direct services and public policy advocacy by lawyers incorporated into medical teams. Drawing on personal experiences, this Essay proposes that to accomplish policy change, MLP practitioners organize and be organized into community coalitions built and maintained around a robust vision of health justice.
Vaccination Equity by Design
This Essay examines how states’ initial COVID-19 vaccine-distribution strategies tended to disadvantage populations of color, including Black, Latinx, and Native American communities. These dynamics resonate with “inverse equity” effects of other public-health innovations. We argue for a federal regulatory framework to reduce inequity-forcing effects during initial vaccine rollout.
Divide and Conquer? Lessons on Cooperative Federalism from a Decade of Mental Health Parity Enforcement
This ten-year retrospective on the Mental Health Parity and Addiction Equity Act (MHPAEA) traces the law’s ambivalent track record to its merely partial adoption of a cooperative-federalist framework. Drawing from enforcement data, state settlement documents, and other cooperative-federalist statutes, this Note suggests policy interventions tailored to improve enforcement.
Unsafe and Unsound: HIV Policy in the U.S. Military
The military’s approach to HIV was developed in the 1980s, at the height of the epidemic. Today, however, medical advances have transformed HIV from a deadly disease into a manageable chronic illness—but the military’s policies remain stuck in the past. This Comment makes the case for reform.
Deadly Delay: The FDA’s Role in America’s COVID-Testing Debacle
Recently, the FDA asserted authority to regulate a type of COVID-19 diagnostics known as laboratory-developed tests, which long have been a front line of response to emerging disease. FDA did not, and should not, have authority to regulate these tests. Its intervention added minimal value while contributing to deadly delays.
Disability Law and the Case for Evidence-Based Triage in a Pandemic
When lifesaving medical treatments are scarce, disability law permits triage policies to consider patients’ probability of survival and post-treatment life expectancy. Evidence-based triage that considers these factors, rather than inaccurate stereotypes, can be not only legal and ethical, but consonant with the goals of disability law and advocacy.
Who Gets the Ventilator? Disability Discrimination in COVID-19 Medical-Rationing Protocols
The coronavirus pandemic has forced us to take the threat of rationing life-saving treatments seriously. Many health systems employ protocols that explicitly deprioritize people for these treatments based on pre-existing disabilities. This argues that such protocols violate the Americans with Disabilities Act, the Rehabilitation Act, and the Affordable Care Act.
Miss-Conceptions: Abortifacients, Regulatory Failure, and Political Opportunity
Scientific evidence overwhelmingly shows that the categorization of Plan B and other emergency contraceptives as “abortifacient,” or abortion-inducing, is incorrect. This Note argues that policy-makers and judges entrench this misunderstanding, incorrectly and unnecessarily blurring the lines between contraception and abortion, and fact and belief.
Good and Bad Patient Involvement: Implementing the Patient-Involvement Provisions of the 21st Century Cures Act at the FDA
This Essay examines the FDA’s implementation of new statutory patient-involvement requirements in light of past problems with simlar initiatives atthe FDA. Despite the risks of repeating these mistakes, the Essay concludes that the Agency’s early implementation efforts are encouraging.
Pregnancy and Living Wills: A Behavioral Economic Analysis
In most states, women are not permitted to have binding living wills during parts of their pregnancies. This Essay argues that the laws imposing these restrictions are ill-conceived and likely unconstitutional and, using behavioral economics, suggests a better alternative that respects women’s preferences and autonomy.
The Past, Present, and Future of Section 1115: Learning from History to Improve the Medicaid-Waiver Regime Today
This Essay argues that section 1115 waivers in the Medicaid program have increasingly bee misused, opening the door to ideologically motivated cuts or preconditions on coverage, and suggests a response.
GINA, Big Data, and the Future of Employee Privacy
Threats to privacy abound in modern society, but individuals currently enjoy little meaningful legal protection for their privacy interests. This Feature examines the Genetic Information Nondiscrimination Act (GINA) and argues that it offers a blueprint for preventing employers from breaching employee privacy.
Innovation Policy Pluralism
Intellectual property is not a monolith. It rewards innovators with temporary exclusive rights to their creations, and it conditions consumers’ access to such goods through proprietary pricing. Using this insight, this Article develops a more accurate framework for analyzing the innovation policy landscape than any in the existing literature.
When Patents are Sovereigns: The Competitive Harms of Leasing Tribal Immunity
The Hatch-Waxman Act and the AIA balance exclusive rights of pharmaceutical patent holders with entry of generic competitors. Allergan’s recent patent transfer to the Saint Regis Mohawk Tribe threatens this balance. This Essay proposes antitrust suits to sidestep sovereign immunity and prevent companies from unduly increasing their patents’ probabilistic value.
Vaccine Licensure in the Public Interest: Lessons from the Development of the U.S. Army Zika Vaccine
This Essay analyzes the recent attempted exclusive licensing deal for a Zika vaccine, which would have hampered the drug’s affordability and availability. Revising the Patent Act to increase transparency and accountability in the licensing process would ultimately result in more affordable vaccines for outbreak diseases like Zika.
Private Enforcement of the Affordable Care Act: Toward an "Implied Warranty of Legality" in Health Insurance
The “M” in MLP: A Proposal for Expanding the Roles of Clinicians in Medical-Legal Partnerships
Pre-Exposure Prophylaxis (PrEP) and Criminal Liability Under State HIV Laws
Nick Rhoades was diagnosed with HIV at the age of 23. In 2005, he began anti-retroviral therapy (ART), an increasingly effective form of treatment that can reduce the amount of HIV in blood to undetectable levels. Three years later, the treatment had done just that. Rhoades’s risk of transmitting the virus to a sexual partner had been reduced by 93%, nearly the same reduction of risk associated with condom usage. Shortly thereafter, Rhoades engaged in consensual sexual activity with a man he met on a social networking site. The two men used additional protection. But Rhoades did not disclose his HIV-positive status until several days after their encounter. Rhoades’s sexual partner did not contract the virus. He pressed charges anyway under Iowa’s HIV criminal statute, which makes it a felony to expose another person to HIV. A jury convicted Rhoades in 2008. He was sentenced to twenty-five years in prison.