When is it appropriate for a court to intervene if parents of a cancer-stricken child refuse chemotherapy? Is there any constitutional protection afforded to an inmate against violence from other inmates when prison management fails to guarantee their safety? Should we trust that the face cream or hair dye we put on our body on a regular basis is safe because the cosmetic industry's self-regulation is an effective mechanism to protect public health?
Published last month, Volume 20, Issue 2 of the Houston Journal of Health Law & Policy touches on these timely issues. It features an article from Katherine Drabiak, legal scholar and Associate Professor at the University of South Florida, and two Comments by Rachel Arco and Maryse Rodriguez. Check out the abstracts and links to the articles below.
Katherine Drabiak, Resolving Physician-Parent Disputes Involving Pediatric Patients, 20(2) HOUS. J. HEALTH L. & POL'Y 353 (2021).
In 2019, three-year-old Noah McAdams in Hillsborough County, Florida captured headlines when his parents stopped providing him chemotherapy for leukemia. His parents asserted they wanted alternative treatments, citing concerns about the side effects of chemotherapy. The state quickly intervened, removed Noah from his parents’ custody, and ordered Noah to complete recommended treatment. Stakeholders often portray such cases in binary terms, characterizing parents as irrational for denying their child a life-saving medical treatment. Multiple articles in the literature describe similar cases: courts can intervene when (1) a child has a life-threatening medical condition, (2) there is an effective treatment, and (3) the benefits of treatment outweigh the risks.
Deeper examination of these cases, however, reveals complex considerations: uncertainty of the child’s diagnosis or prognosis, how to balance potentially significant treatment benefits with very serious risks, and varied success of treatment. Agreeing to a specific treatment may mean a potential chance at saving the child’s life and the certainty of exhausting available medical interventions. But treatment interventions may also subject the child to unnecessary pain, serious risks, or suffering, without sufficient assurance the child will survive. Intervening in children’s medical decision-making implicates a constellation of interests, including: familial privacy, the state’s duty of parens patriae to protect children, and courts’ determination of what constitutes the child’s best interest. This article advocates for a model of resolution in pediatric decision-making cases that balances competing legal interests, provides de-escalation strategies, and establishes a procedural framework to improve clinical communication.
Rachel Leah Arco, When Conditions of Confinement Lead to Violence: Eighth Amendment Implications of Inter-Prisoner Violence, 20(2) HOUS. J. HEALTH L. & POL'Y 411 (2021).
Courts have developed a considerable body of case law over the centuries addressing the protections the Constitution provides against punishments administered by the state or federal government. But in today’s prisons, the most severe punishments—beatings or psychological abuse—often come at the hands of other inmates, sometimes fomented by conditions of imprisonment, or more frequently, because of systemic management failures. Courts have yet to develop this area of the law, relying instead on vague assertions that prison management must be reasonable. This paper examines the constitutional protections afforded to an inmate against violence from other inmates when the State has maintained prison conditions that fail to reasonably guarantee inmate safety.
This paper will explore the history of Eighth Amendment precedent and the tests utilized therein. It concludes that the appropriate test to apply under the Eighth Amendment in failure to protect claims is an objective analysis of prison conditions with no mental element requirement for state actors. With this history and proposed standard in mind, it is appropriate to examine the research conducted on prison conditions of crowding and its connection to inter-prisoner violence. Determining the frequency and cause of inter-prisoner violence is vital for the future of Eighth Amendment violation challenges. While states may not leave inmates to the Hobbesian state of nature, their obligation extends only so far as reasonably protecting inmates. If inter-prisoner violence is not the result of the conditions but is rather a consequence of the fact that the most violent in our society are disproportionately represented in prisons, then both the remedies and responsibility on the state shrink. However, if the data indicate that the inter-prisoner violence is the result of state determined conditions, inaction, or systemic management failure, then the court can more readily step in to force the states to remedy the violations. The paper concedes that the Constitution gives States latitude in how to reduce inter-prisoner violence but does not permit a total disregard of this growing problem.
Maryse Rodriguez, Dying to Be Beautiful: An Assessment of How a Self-Regulating Cosmetic Industry and Biotechnology Are Impacting Public Health, 20(2) HOUS. J. HEALTH L. & POL'Y 457 (2021).
Currently in the United States, the law does not require products that fall under the definition of “cosmetic” as defined by the FDCA, to obtain pre-market approval. It also does not require any specific testing to ensure safety of cosmetic ingredients or final products. With such minimal federal oversight, the industry has fundamentally become self-regulating. Consumers use numerous products on a daily basis, often assuming that ingredients have been tested for safety before being placed on the market, but that is not always the case. Further, the cosmetic industry is rapidly being pulled towards the use of advanced scientific research and innovative biotechnology in the development of cosmetic products. What is the public health effect of the current laws? Have there been any recent updates to the laws? And how does biotechnology fit into all this? These are all questions that this comment will analyze and address.
The Journal's publications are essentially a collection of articles that not only articulate injustices in our society, but they also suggest ways to correct those injustices. These articles can be used as tools by activists and attorneys to advocate for change. Being a part of HJHLP is being a part of a group that provides one of the tools that is necessary to strive towards an equitable and healthy society.
As a member of HJHLP's Board 22, I am Chief Articles Editor. The Chief Articles Editor oversees the below-the-line editing of articles that have been selected for publication. This means that I make sure that each assertion in the articles is supported by a source that is cited in the proper Bluebook format. I conduct trainings on Bluebook citation and the assignments the journal uses for substantiation and correcting citations and delegate these assignments to journal members. I also help the Editor-in-Chief to conduct the final read of all articles before they are published.
My goal as Chief Articles Editor is to ensure that HJHLP publishes the highest quality of legal scholarship that is possible, and I want to see a diverse range of high-quality articles that tackle issues at the intersection of health law and social justice from a unique perspective.
For authors interested in getting articles published in the HJHLP, my advice would be to find something that you are truly passionate about to write an article on. When I say that, I don't mean that you should write about something that you are merely interested in, it should be something that is deeply meaningful to you. For students interested in joining HJHLP, you should be prepared for a heavy workload and to expect to get out of the journal what you put into it. While being a part of HJHLP has been difficult work, it's been a very rewarding experience, and it likely will be for anyone who is willing to put the work in.
Sara Kilmer is a 3L at the University of Houston Law Center currently serving on the Houston Journal of Health Law & Policy's Board 22 as Chief Articles Editor. Sara received her undergraduate degree from UT Austin where she double-majored in psychology and government. Following graduation, Sara joined Teach for America and worked in a digital security company in their in-house legal department before coming to law school. Since joining law school, Sara has been an advocate working for the Texas Innocence Network's Capital Division for two summers.
I suspect that soon we will be talking with a new frame: pre-Covid and post-Covid. More than a year of lockdown, social distancing and virtual education has made once familiar tasks and events unfamiliar. Many of us are beginning to tell stories about the strange experience of driving during Houston rush hours, meeting up with classmates we haven’t “seen” for a year, or taking a vacation for the “first time.”
Here at the Houston Journal of Health Law & Policy, it cannot be a more exciting time for us to head into the summer: while we are not in the post-Covid mode yet, it is starting to feel a little more like pre-Covid times. Members already begin to brainstorm ways to safely hold in-person team building events, bring back open office hours and engage more meaningfully with our community through in-person service projects. As many fall classes will offer more opportunities for us to meet in person, I expect our team to remain creative and agile in our programming to meet the needs of all members, current and new.
As our Board 22 look forward to a post-Covid world in the next academic year, we will continue to build upon the extraordinary accomplishments of Board 21, as they navigated through the disruptions and opportunities posed by a global pandemic last year. To name a few:
Watch out for more updates to come throughout the summer. I cannot wait to meet everyone (virtually and in person)!
To Nhu Huynh
Editor in Chief
To Nhu Huynh
A current 3L, To Nhu had worked in health education and outreach at a large cancer center for five years in Houston, Texas. She graduated with high honors from the University of Pennsylvania with a major in Health & Societies in 2012 and holds a Master of Public Health degree from the University of Texas School of Public Health. She is passionate about combining her public health and education experiences with her love for the law to advocate for patients' rights and reproductive justice issues.