Professor Natalia Pires de Vasconcelos to speak Tuesday on inequality and health litigation amid pandemic in Brazil

Professor Natalia Pires de Vasconcelos, who was a Visiting Scholar here at the University of Georgia School of Law Dean Rusk International Law Center earlier this year, will discuss legal challenges to inequities in health care in Brazil in an online presentation that our Center will host from 12 noon to 1 p.m. next Tuesday, November 9.

Pires is Assistant Professor of Law at Insper São Paulo, Brazil, and a Senior Research Fellow at the Solomon Center for Health Law and Policy, Yale Law School. She is a founding member of the Center for the Analysis of Liberty and Authoritarianism, a Brazilian thinkthank known by its acronym, LAUT. She holds a Ph.D. in Public Law from the University of São Paulo, Brazil, and an LL.M. from Yale Law School. Her scholarship concerns social and economic rights in Latin America, with a focus on the right to health and health litigation.

In her presentation Tuesday, Pires will discuss “Business as Usual: Inequality and Health Litigation during the COVID-19 Pandemic in Brazil.” Here’s her précis:

Brazil’s active judicial system has the power to define the constitutional content of the country’s healthcare policy by forcing the government to embrace equal protection of the right to health. In this talk, I present the results of an upcoming chapter in which I compare the pandemic’s effect on the judicial protection of the right to health for those incarcerated and those who are free. In both cases, courts had serious incentives to take the pandemic seriously and consider its disproportionate impact on marginalized communities. The judicial system, however, has approached the COVID-19 pandemic as mostly ‘business as usual.’ For those who are free, courts endorsed a ‘right to everything,’ granting patients’ requests regardless of the potentially disruptive effects on public policy, unequal access to judicial services, and pressing priorities related to the pandemic. For those incarcerated, judges upheld a long-lasting ‘right to nothing,’ remaining indifferent to the public-health risks presented by overcrowded and unsanitary conditions of Brazilian prisons and denying thousands of early-release and house-arrest requests by people in prisons.

Register here to attend Pires’ online presentation.

“Future of Global Health Governance” topic of Monday’s Georgia Law international journal conference

Global Healthcare Governance Conference Header

“The Future of Global Healthcare Governance” is the topic of the annual Georgia Journal of International & Comparative Law daylong symposium, to be held this Monday, January 25.

We at the Dean Rusk International Law Center of the University of Georgia School of Law are cosponsoring this online conference along with GJICL and the law school’s Health Law Society and International Law Society, as well as the university’s College of Veterinary Medicine, School of Public & International Affairs, and School of Social Work.

Taking into account the effects of globalization and climate change on the spread of historically localized pathogens — among them, H1N1, Zika, Ebola, and COVID-19 — the conference will re-examine legal and other frameworks designed to respond to global pandemics. The roles to be played by stated and by international entities like the World Health Organization will be explored. To quote the concept note:

“This conference will address three crucial questions of global health governance. It will consider, first, whether and how the ailing global public health infrastructure might be reinvigorated; second, how the pandemic has threatened and exposed limitations of the social safety net in the United States and other economies around the world; and, finally, the phenomenon of vaccine refusal and what national and international legal institutions might do to curb it.”

Delivering opening remarks will be Georgia Law Dean Peter B. “Bo” Rutledge and Elizabeth Weeks, the University of Georgia Associate Provost for Faculty Affairs and Charles H. Kirbo Chair in Law. A keynote address, panel presentations, and breakout sessions will follow. These include (all times Eastern):

10:30-11:30 a.m. The Role of International Organizations in Global Health Governance, moderated by Georgia Law Professor Fazal Khan. Speakers: Thomas J. Bollyky, Council on Foreign Relations; Benjamin Mason Meier, University of North Carolina-Chapel Hill; Alexandra Phelan, Georgetown University Center for Global Health Science & Security; Pedro Villarreal, Max Planck Institute for Comparative Public Law & International Law; and Alicia Yamin, Harvard Law.

12:45-1:45 p.m. The Role of Federal Governments in Pandemics, moderated by Elizabeth Weeks, the University of Georgia Associate Provost for Faculty Affairs and Charles H. Kirbo Chair in Law. Speakers: Christina S. Ho, Rutgers Law; Renée M. Landers, Suffolk Law; Gwendolyn Roberts Majette, Cleveland-Marshall Law; and Wendy Parmet, Northeastern Law.

2-3 p.m. The Global Campaign for the Collective Good, moderated by Hillel Y. Levin, Alex W. Smith Professor of Law at Georgia Law and Director of UGA Law in Atlanta. Speakers: Shawn Harmon, Dalhousie University; Glen Nowak, University of Georgia; Saad Omer, Yale School of Medicine; and Dorit Reiss, California-Hastings Law.

3:30-4 p.m. Keynote Address by Marice Ashe, ChangeLab Solutions, and Elsie E. Hayford, Lamèsè.

Papers will be published in a forthcoming GJICL issue. The full program, with registration information, is available here.

Georgia Law Professor Jason A. Cade secures grant to address needs of immigrants, other vulnerable communities during COVID-19 crisis

Jason A. Cade, J. Alton Hosch Associate Professor of Law and Director of the Community Health Law  Partnership Clinic here at the University of Georgia School of Law, has secured a $10,000 Flom Incubator Grant from the Skadden Foundation to address the impact of the COVID-19 pandemic on immigrant families and other vulnerable communities in Athens, Georgia, and surrounding rural areas.

The grant will enable Cade and a coalition of partners to develop and launch a model for remote screening, advice, and advocacy, aimed at addressing these communities’ most pressing needs for civil legal assistance. If successful, the model could be expanded to other communities, in Georgia and elsewhere, both during and beyond the current pandemic.

Named after a late partner of the Skadden law firm, Flom Incubator Grants support novel legal projects undertaken in the public interest by former Skadden Fellows – like Professor Cade, who, before joining the Georgia Law faculty, was a Skadden Public Interest Fellow at The Door, a New York-based nonprofit dedicated to the development of young people.

Georgia Law’s Elizabeth Weeks on “Healthism,” her new co-authored book about health-status discrimination

Pleased today to welcome a contribution from Elizabeth Weeks, Associate Dean for Faculty Development and J. Alton Hosch Professor of Law here at the University of Georgia School of Law. Weeks concentrates her teaching and scholarship in fields of law related to health care. In the post below, she introduces her new co-authored book, which will be of great interest to all concerned about the human right to health. It will be the subject on Wednesday, February 27, of a Georgia Law book panel featuring Law Professors Jennifer Bennett Shinall of Vanderbilt, Stacey Tovino of Nevada-Las Vegas, Ani Satz of Emory, and Nicolas P. Terry of Indiana-Indianapolis.

I am delighted to announce the recent publication by Cambridge University Press of my book, Healthism: Health Status Discrimination & the Law, co-authored with Jessica L. Roberts, Alumnae College Professor in Law  and Director of the Health Law & Policy Institute at the University of Houston Law Center.

Healthism proposes a new protected category – the unhealthy – and examines instances of discrimination against the unhealthy in multiple contexts:

Our book considers these and a host of other examples. It concludes that some operate as normatively wrong – or “healthist” – laws, policies, or practices. Others, however, are not only permissible, but also may be desirable, inasmuch as they encourage or support healthier lifestyles.

This book’s most important contributions are:

  • To introduce the concept of healthism into the lexicon; and
  • To invite ongoing dialogue about the merits and demerits of treating individuals differently based on their health status.

The genesis of our healthism project was the Patient Protection and Affordable Care Act of 2010, or ACA, which largely prohibits health status discrimination in health insurance in the United States.  Specifically, the ACA prohibits insurers from denying coverage based on preexisting conditions or charging higher premiums based on individual risk factors.

In 2010, single-payer health system, or a national health system, or even “Medicare for All,” were (and likely remain) political nonstarters in the United States. President Barack Obama’s signature law, the ACA, instead effected a sort of mandatory mutual aid society, a compelled communitarian approach, to health care.  In order to ensure that coverage for the unhealthy remained affordable, the law required most Americans to obtain health insurance – whether through eligibility for a government program or employer-sponsored plan, or by purchasing on the individual and small-group market – with government subsidies for some.

As of January 1, 2019, however, a critical pillar of that legislative design has been removed:

According to the Tax Cuts and Jobs Act, or TCJA, a law enacted in November 2017 under President Donald J.  Trump, the tax penalty associated with the so-called individual mandate no longer applies.  Americans now again are free to “go bare,” without any health insurance, or to purchase short-term, catastrophic-only, or other high-deductible/low-premium, limited coverage.  Many plans on the market still operate with the antidiscrimination provisions and other protections required by the ACA; however, no one any longer is compelled to purchase them.

The effect may well be to make those plans less affordable for the unhealthy – those who most need comprehensive coverage.  TCJA is just one of several U.S. reforms that threaten to erode legal protections for the unhealthy and so to reintroduce legal and social acceptance of healthism.

Our book stops short of proposing a model law or draft constitutional provision to comprehensively address this problem. Instead, it offers readers a workable rubric to navigating the shifting landscape of permissible and impermissible health-status discrimination.

Critique of ICRC’s 2016 Commentary to Geneva Convention I: Arming medical personnel, loss of protected status

mullIt’s our pleasure to publish this post as part of our series inspired by “Humanity’s Common Heritage,” our recent conference on the 2016 ICRC Commentary on the First Geneva Convention. The author is Nicholas W. Mull, a Columbia Law LL.M. candidate who served till mid-2016 at the Pentagon, as an International & Operational Law Attorney, Head Operational Law Department, U.S. Marine Corps, Office of the Judge Advocate General of the Navy. Mull, a conference participant, writes:

The protected status of medical personnel and their units, transports, and establishments, when addressed by commentators, is typically focused on affirmative duties of combatants not to target medically protected persons and objects. However, equally important is the affirmative duty of medically protected persons to refrain gjicl_confposterfrom “acts harmful to the enemy” and the extent of the right of self-defense. These are the concerns of medical providers in the field at the tactical level that are typically ignored.

These concerns are directly addressed in the ICRC’s recent updated commentary for the first Geneva Convention (GC I). While there are several opinions in the commentary that are, arguably, in error, for brevity, this post will only touch on one tactical concern. The commentary asserts that medical personnel may only carry “light individual weapons” without losing protected status, which is in error for several reasons:

  1. It purports a limit on the type of weapons to be used in self-defense; and
  2. It opines that protected status can be lost by virtue of an act that only presents a remote hypothetical harm to the enemy that can only come to fruition if the medical personnel purposefully engage in offensive hostilities.

As a preliminary issue, it is vital to interpret Article 21 of GC I, which provides for the sole reason by which protected medical personnel and establishments may lose protected status: commission, “outside their humanitarian duties, [of] acts harmful to the enemy.” The operative condition of “harmful to the enemy” requires a purposeful act that in of itself has caused harm to the enemy’s ability to conduct legitimate military operations. This is not to say that it is a high threshold to meet, but merely that it must actually cause a real definable present harm to the enemy and that it is intended to cause such harm, e.g. utilizing a field hospital to shelter “able-bodied combatants.” This standard should also be understood as more expansive than the direct participation in hostilities (DPH) standard used for determining the loss of protected status of civilians, specifically as it includes both direct and indirect actions. The generally expansive nature of this standard necessitated Article 22 of GC I, which covers actions that may not be considered as “acts harmful to the enemy” such as, inter alia, arming medical personnel.

Turning to the issue of arming medical personnel, the updated commentary concludes that medical personnel are only authorized to carry “light individual weapons” and that to possess crew-served weapons (CSW) results in the “loss of specific protection of the military medical unit.” The qualification of “light” and “individual” is a noticeable addition in the 2016 commentary that is absent from the 1952 Pictet Commentary. This addition presents unnecessary danger to medical personnel in contemporary conflicts of which reciprocity can no longer be presumed.

From a textual analysis, Article 22 makes no condition regarding the quality or quantity of the arms that medical personnel may posses; it only presents a limitation on the employment of the weapons for self-defense. Looking to the 1952 Pictet Commentary, it focuses exclusively on the purpose and permissible use of the arms.

Despite the clear meaning of the text of Article 22, which is free from ambiguity, the 2016 commentary draws an inappropriate analogy to Article 13 of Additional Protocol I (AP I), which states that the equipping of civilian medical personnel with “light individual weapons” would not be considered an act harmful to the enemy. Article 13 of AP I was not an attempt to clarify any ambiguity of Article 22, but was instead pertaining to a completely different class of personnel. Further, it is a highly illogical inferential leap to assume that States would want civilians being armed to the same degree as military medical personnel that are subject to the high standards of discipline of a uniformed service.

States must be able to arm their medical personnel to the degree as they see fit to counter the likely threats to medical personnel in a theatre of operations. Certainly, such arms may only be used in self-defense, but to limit medical personnel to side arms and small assault rifles while the enemy or “marauders” attack them with CSW and other anti-material weapons is unjust. commentary-e1458062747572To paraphrase Pictet in his Commentary, it is not proper to require medical personnel to be the sacrificial lamb to unlawful actions of the enemy or criminals.

It is not hard for a combat experienced individual to envision situations in which medical personnel may have a need to defend themselves with CSW and anti-material weapons. For example, field hospitals may be present in a combat zone in which enemy tactics could include suicide vehicle borne improvised explosive devices (SVBIEDs). To personally defend themselves as well as their patients this scenario may require the use of a .50 caliber machine gun—a weapon primarily designed for anti-material purposes—to subdue the imminent threat to life.

Lastly, as previously noted, to lose the protected status medical personnel must purposefully commit an act that in of itself creates a present harm to the enemy. Arming medical personnel with CSW or other heavier weapons as necessary to counter likely threats to save their lives and the lives of their patients does not result in a present harm to the enemy. In fact, the only way it could be a present harm to the enemy is to presume that the medical personnel intend to violate the law by engaging in offensive hostilities. In reality, this only presents a remote hypothetical harm that does not meet the standard of being harmful to the enemy.

armletIt may not be the best policy choice to heavily arm medical personnel for the risk of confusion that can be created as to their protected status, especially if the situation is one in which medical personnel are not displaying Red Cross armlets, as is often the case with U.S. military medical personnel. But, this is ultimately a policy choice that should not be confused with status of law.

Georgia Law Professor Milot calls on global drugs regulators to focus on athlete health, not punishment

Milot profileSports doping is much in the news with the start of the Olympics and Paralympics at Rio de Janeiro, Brazil. Numerous commentators call for stricter regulations; staking out a different position is Georgia Law Professor Lisa Milot, formerly a high-level junior cyclist and now a scholar on law and performance-enhancing drugs. In a Vice Sports article by Patrick Hruby entitled “The Drugs Won: The Case for Ending the Sports War on Doping,” Milot says:

“Athletes are risk-takers. There’s no way to get to the international level of sports without being willing to put your body on the line on a regular basis.”

The article discusses Milot’s position, advanced in her 2014 article “Ignorance, Harm, and the Regulation of Performance-Enhancing Substances,” published in the Harvard Journal of Sports & Entertainment Law. She argues that regulators should concentrate on reducing the harm from substances, rather than banning them altogether. She tells Hruby:

“What we should be doing now is gathering information in order to understand how these substances work on healthy bodies. Focusing on that, rather than punishment.”

On punishment, current news indicates that even international organizations charged with regulating global sports appear to disagree:

► The Montreal-based World Anti-Doping Agency, “established in 1999 as an international independent agency composed and funded equally by the sport movement and governments of the world,” issued a report calling for a blanket ban on Russian athletes at the Olympic Games, which opened Friday and go through August 21.

► The International Olympics Committee, the 122-year-old organization headquartered in Lausanne, Switzerland, has taken a much more measured approach, banning some but by no means all such athletes.

► The International Paralympic Committee, based in Bonn, Germany, banned Russia’s team en masse from its event, set to begin on September 7, no long after the Olympic Games wrap up.

► Meanwhile, athletes from a host of countries have been cited for positive drug tests, or tarred with suspicion that their achievements have been chemically enhanced.

This tangle makes both Hruby’s article and Milot’s scholarship must-reads.