By Jennifer Bard [Cross-post (with some updates) from Prawfsblawg.]
Law students have lots of things competing for their attention, but one topic I’ve found of general interest this fall is Ebola. Although the topic is obvious low-hanging fruit for those of us in the health law crowd, I’d suggest there’s plenty to keep Constitutional Law, Torts (information is coming out that the patient was sent home from the emergency room, even though he said he had been to Liberia and that his contacts are being monitored including five school children), Commercial Law, International Law, immigration, etc. going as well. An infectious disease like Ebola triggers concerns about shipping, air travel, and, of course, quarantine, search, and seizure.
Today’s news that a Texas hospital has diagnosed a patient already in the United States was inevitable-and provides an opportunity to throw a legal spotlight on the laws of quarantine and isolation. As a matter of Constitutional Law, the President of the United States can take any measure necessary to protect the nation’s security, remember President Bush’s plan to use the military to control pandemic flu (see an overview from the CRS or the plan itself), or interstate commerce, but only individual states have the power to take action addressing health issues that do not threaten the safety of the country as a whole. That’s because individual states, but not the federal government, retain “police power” to promote the health of their citizens even in the absence of a threat to others. Here’s a helpful article. This overview of emergency legal powers, specific to Ebola, comes from the Robert Wood Johnson foundation supported Network for Public Health. Here is some more general information comparing state and federal authority from the CDC and a great overview from the Congressional Research Service. While Ebola itself is low on the list of the scariest diseases we in the U.S. risk catching (here’s a list from for those who don’t have enough to worry about), it is interesting to see how quickly it happened given that estimates of only a few weeks ago were that the probability was no more than 25%. Here’s how Vox explained it using visuals. This is an on-going story-and should test the resources and skills of the Dallas County Health Department–and provide a live public health lesson to the country.
Since the likelihood is that many readers of this blog will be asked to comment when the Supreme Court, some time this week, announces its decision in Hobby Lobby and Conestoga Wood Specialty cases here’s a brief refresher and some links. The cases are challenges to the Affordable Care Act’s requirement that employers who choose to offer health insurance to their employees must provide policies that include ten essential benefits-including contraception. The U.S. Supreme Court has heard oral arguments and read the briefs—it’s likely that whatever opinion is issued will reflect at least some of the arguments presented to the Court.
This case is about the Affordable Care Act’s requirement that employers who offer their employees health insurance must include ten essential benefits, including contraception. Hobby Lobby and Conestoga Wood are privately held, for-profit companies whose owners have sincerely held religious objections to providing four specific kinds of contraception. They believe these contraceptives terminate rather than prevent pregnancy. Many religious organizations and companies have gotten exemptions to these requirements, but this case considers whether private, for-profit companies should qualify as well.
The cases raise three major issues:
Does the Religious Freedom Restoration Act apply to corporations even though it uses the word “person?” (Can companies have religious beliefs?)
Is providing insurance that covers birth control a “substantial burden?” on these two company’s’ religious beliefs?
Does the government have a compelling reason for requiring companies that provide insurance to have it cover birth control?
The news about the return of dangerous “childhood” illnesses gets worse and worse. Columbus, Ohio reports an outbreak of 225 cases—with over 50% students at Ohio State University. It is probably no coincidence that Ohio State recommends but does not require students(outside of those in healthcare settings) be vaccinated in order to attend class. It’s not just Mumps. We are seeing cases of preventable diseases like measlesand mumps and whooping coughbecause of parental decisions not to immunize their children but there is increasing evidence that the immunizations most adults received as infants or young children wear off—leaving the population at large vulnerable to infection once an outbreak occurs. Science Daily just reported a confirmed case of a fully vaccinated young woman contracting measles. The CDC has not yet recommended that adults get booster shots for Mumps and Measles—although they have in some circumstances for Whooping Cough and Polio. But the more likely it is for a person to be exposed to these diseases, the more important it is to be fully vaccinated.
Jennifer is the Alvin R. Allison Professor of Law and Director, Health Law Program, 2003 and an Associate Professor (adjunct), Department of Psychiatry, TTU School of Medicine. She was formerly Associate Dean for Faculty Research and Development. She is the Director, Health Law Program and JD/MD Program at the law school. In 2009 Professor Bard was elected as a member of the American Law Institute and was also awarded the Texas Tech University President’s Excellence in Teaching Award. In 2008 she received the award for the Best First Year Teacher from the Phi Alpha Delta Law School Honors Fraternity. She is the chair-elect of the American Association of Law School’s section on Law, Medicine, and Health Care. She is also the Book Review editor of the Journal Of Legal Medicine.