Patient-Provider Communication in the Era of Texting, Email, and The Health Insurance Portability and Accountability Act (HIPAA) by Maya Ressler

Jim Sheldon-Dean has worked in HIPAA, health information privacy, and security regulatory compliance for 23 years. He speaks about HIPAA at conferences, conventions, and private educational sessions. I attended his webinar which discussed HIPAA, texting, and email.

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a federal statute that prohibits the disclosure of patient health information (PHI) without the patient’s consent or knowledge. HIPAA seeks to prevent healthcare fraud by securing PHI and restricting access to health data. It mandates that all HIPAA-covered entities implement safeguards to secure sensitive personal and health information. (Why is HIPPA Important, The HIPAA Journal). HIPAA contains three rules: the privacy rule, the security rule, and the breach notification rule. The privacy rule governs uses and disclosures. The security rule applies to electronic PHI and employs a risk analysis to identify and plan the mitigation of security risks. The breach notification rule mandates that violations of PHI be reported to Health and Human Services (HHS) and the affected individuals.

The HIPAA Breach Notification Rule defines a breach as “an impermissible use or disclosure . . . that compromises the security or privacy of the protected health information.” In the event of a breach, entities must notify the affected individuals and HHS. Privacy breaches have detrimental effects on individuals and organizations. Noncompliant organizations incur penalties and fees, suffer reputational harm, and be subject to potential lawsuits. The exposure of the affected individuals name, address, credit card information, social security number, and medical conditions results in a loss of privacy and the potential for identity theft.

Patients and providers in healthcare are increasingly communicating through email and text messaging. Many patients prefer email or text messaging because it is a quick and convenient way for managing appointments, receiving test results, and asking healthcare related questions. Providers also prefer email and text messaging to access patient information, communicate with hospital staff, and maintain an appointment calendar.

While texting may be convenient in healthcare, it also has many shortcomings. Most importantly, there is an increased risk of violating HIPAA. Email and text messaging are insecure forms of communication that may be accessed or exposed by unknown third parties. Furthermore, there is no straightforward method for physicians to document the email or texting encounter. Finally, the inability to prioritize incoming text messages, may result in a crucial test result sitting in the patient’s inbox for more than 24 hours.

To reduce the risk of breach, organizations and providers must remain flexible. Organizations should provide and promote the use of secure communication solutions. Hospitals should educate staff on the dangers associated with plain email and explain what should not be sent through email or text message. There are also secure private emails and secure text messaging applications that can be used to safeguard communications of PHI. Cortext by Imprivata, TigerText, DocHalo are some secure text messaging and email options physicians can use. Lastly, it is essential for organizations to implement policies and procedures governing the use of email and text messaging. These policies should include a risk analysis, a process for approving and monitoring uses, guidelines for acceptable email and text messaging interactions, and the identification of secure services.

Overall, organizations should facilitate and try to comply with patient requests as much as possible. Patients have the right to choose their preferred mode of communication, even if it is an insecure method. However, providers should explain the risks associated with insecure communication methods, obtain the patient’s consent, and notify those with whom the patient communicates of their preference. Having policies in place will enable physicians to document and manage these requests appropriately.

In conclusion, email and text messaging are inherently insecure forms of communication. Even if individuals have a right to use insecure means of communication, they must be informed of the potential for security breaches. Recognizing the inevitability of these communications, healthcare organizations should implement policies addressing email and texting, and ensure these modes of communication are HIPAA compliant.

Giving Pharmacists Prescribing Power – A Solution to Increased Contraceptive Access by Maura McGinnity

In the months since Dobbs v. Jackson Women’s Health, access to birth control has become a contentious topic. Whether individuals have access to hormonal birth control is becoming a fear for people who rely on it for health reasons including regulating hormones and improving acne. Allowing pharmacists to prescribe and dispense hormonal birth control would help mitigate barriers and expand access to contraception.

Since 2020, more than ten states have expanded or strengthened pharmacists’ prescriptive power to include contraceptives. That means there are now twenty-four states and Washington DC that permit pharmacists to prescribe this important medication. There are many benefits to allowing pharmacists to prescribe and dispense hormonal birth control. Pharmacies are more accessible than a clinic or hospitals in many communities, they generally have more accessible hours, and do not always require appointments. These benefits allow more people to have convenient access to hormonal birth control.

Additionally, research has demonstrated that patients are in favor of increasing prescription power because of convenience and accessibility. A study in California found that seventy-four percent of survey respondents chose to visit a pharmacist for contraception because it would be quicker than getting a doctor’s appointment. Real-world applications of this have already taken place in states like Oregon. Two years after Oregon implemented its pharmacist-prescribed contraception protocol, it prevented an estimated 51 unintended pregnancies and saved the state $1.6 million.

Even with all the benefits, expanding pharmacists’ roles creates some challenges. To begin these programs, states must implement sufficient billing infrastructure, find ways to pay pharmacists for their extra services, comply with privacy and confidentiality standards, and make sure pharmacists are adequately trained in prescribing hormonal birth control to ensure patient safety.

There are multiple legal and regulatory processes that must be put into place to allow pharmacists to expand prescribing power. One potential process is giving pharmacists outright prescriptive authority, which allows pharmacists independent power to prescribe hormonal birth control. This framework specifies certain conditions where pharmacists are authorized to prescribe certain medications. Pharmacists are given specific procedures from a state board of pharmacy, and they are required to follow the instructions given when prescribing birth control to patients. Another option is implementing a collaborative practice agreement. In this framework, pharmacists and pharmacies are in partnership with other healthcare providers, and the pharmacists are authorized by physicians to select, initiate, monitor, continue, and adjust medication regimens for patients.

By implementing these programs, individuals will be able to get birth control in a more convenient way. This is especially important for women and individuals needing birth control in a post-Dobbs world where access to contraceptives is being challenged throughout the courts.

The Limits of Irreparable Harm in Emergency Healthcare Petitions by Leonard Brahin

The scope of stays and injunctions have consumed the news in the last month. First, Judge Kacsmaryk from the Northern District of Texas stayed the Food and Drug Administration’s 2000 approval of the medication abortion drug, mifepristone, as well as subsequent approvals in 2016, 2019, and 2021 nationwide. The same day, Judge Rice from the Eastern District of Washington enjoined the FDA from changing its approvals in seventeen states. Then (only five days later), a Fifth Circuit panel issued a partial stay of the district court ruling (staying the stay on the FDA’s 2000 approval, but allowed the stay on the 2016, 2019, and 2021 to remain in place), meaning the FDA’s mifepristone rules reverted back to its 2000 status. The stays didn’t stop there. Nine days after the Fifth Circuit’s partial stay, the Supreme Court stayed the 2016, 2019, and 2021 stay, returning FDA enforcement to the status quo.

All this seems very complicated. However, federal courts are empowered to craft appropriate remedies to prevent irreparable harm. These equitable remedies, or injunctions, prevent a party from acting or require that party to act in in a certain way. Injunctions are frequent when a state or federal government acts unlawfully and a litigant seeks to limit those “bad” acts. When requesting an injunction, the moving party must show that the prospective injury to its interests would be so severe that monetary compensation would be inadequate to remedy the  harm. For example, injunctions may be issued to prevent the deprivation of constitutional rights, environmental harms, or to block anti-competitive corporate mergers.

Injunctions in the healthcare sector are uniquely disruptive because treatments, therapies, or surgeries may be delayed or prohibited. Recognizing the disruptive effect of an injunction generally, a reviewing court may institute a stay after a trial court issues an injunction. Nken v. Holder compared the way “[a] stay ‘simply suspend[s] judicial alteration of the status quo,’” while an injunction “grants judicial intervention that has been withheld.” Nken also outlines the traditional “stay factors” that describe when a reviewing court may exercise its equitable powers: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interests; and (4) where the public interest lies.” While stays are issued for all types of matters, the analytical factors remain the same.

Stays of a lower court decision are not unusual. However, when the Supreme Court issues a stay, the orders are usually unsigned and provide minimal or no reasoning. Consider some of the situations where the Court did issue a stay: blocking a district judge’s invalidation of an executive order that would impose significant environmental harm (Louisiana v. American Rivers), vacating two stays by a district judge and three appellate judges that had found lethal injection violated federal disability laws (Hamm v. Reeves), and staying a district judge’s decision setting aside immigration rules illegally advanced under Title 42 (Arizona v. Mayorkas).

In contrast, compare similarly unsigned and unreasoned orders where the Court denied a stay request: allowing an execution to go forward after the Missouri Supreme Court failed to follow proper state procedure when a prosecutor pleaded there was insufficient evidence to justify the conviction (Johnson v. Missouri) and permitting a deportation while a disabled and undocumented individual was in the midst of briefing an appeal to remain a resident (Francois v. Wilkinson).

However, the Supreme Court’s emergency docket jurisprudence becomes the most confounding with regards to health and healthcare.

Of the Nken stay factors, the two most important are the likelihood of success on the merits and whether the applicant will be irreparably harmed. However, in every emergency decision concerning health – and especially abortion – the Supreme Court has never discussed the “human” cost of its decisions. (Even when the Court denied emergency relief to individuals seeking vaccine exemptions in Does v. Mills, it was silent on the public health justification.)

In Valentine v. Collier, the Court was asked to vacate a stay of an injunction requiring prison officials to implement basic safety procedures for elderly and disabled inmates in the height of the pandemic. The Court refused, despite an 18-day-trial that produced detailed findings about woefully inadequate procedures regarding access to soap, personal protective equipment, and regular COVID testing and preventative measures. Twenty prisoners died by the time the matter reached the justices, but the Supreme Court declined to preliminarily reinstate the district court’s injunction.

Or consider Whole Woman’s Health v. Jackson, where the Court refused to stay the enforcement of SB8, the Texas “Heartbeat” Bill. This bill functionally banned abortion after six weeks by permitting citizen-suits against individuals who perform or facilitate an illegal abortion. The Court issued a one paragraph justification, asserting “complex and novel antecedent procedural questions” left the record too underdeveloped to warrant a stay. Since those seeking an abortion were not “targeted,” any intrusion on the constitutional right to an abortion not “certainly impending” enough to warrant a stay.

About two months later, the Supreme Court denied a stay request which would have vindicated a Government challenge to SB8 in United States v. Texas. Unlike Whole Woman’s Health (a pre-enforcement challenge), this case focused on the law’s tangible impacts. While the Government raised serious questions about the nullification of constitutional rights, Justice Sotomayor’s dissent from the stay denial explicitly highlighted how SB8 provided no exception for pregnant minors, permitted punishment for out of state travel (assuming vulnerable individuals even had the financial ability), and the substantial burden on out-of-state abortion clinics that were now treating exponentially more patients.

For women’s health the Court is indifferent at best, and willfully blind at worst. It is common and generally accepted that pregnancy causes anemia, anxiety, depression, diabetes, heart conditions, hypertension, severe nausea, and infections. Many of these issues become permanent, precipitating a lifetime of unnecessary suffering. Neither Judge Kacsmaryk nor the Fifth Circuit even paid lip service to this possibility. For his part, Judge Kacsmaryk relied on an analysis of 54 anonymous blog posts that concluded ‘Abortion Changes You’ (coincidentally sharing a name with the anti-abortion website that funded the study) while the Fifth Circuit asserted that no party argued that limiting, rather than banning, mifepristone would irreparably harm anyone.

This logic is untenable. If irreparable harm is to have any meaning, an irreversible and preventable medical condition should explicitly qualify. In dissenting from the mifepristone stay, Justice Alito contended that “with oral argument scheduled to take place in 26 days, there is reason to believe that they would get the relief they now seek.”

But mifepristone is only effective in the first 59 days of a pregnancy, and most pregnancies go undetected for about 5.5 weeks, or ~37 days, after conception. That leaves twenty days (not counting the days from oral argument to a written decision) to secure a medication abortion. And under the Fifth Circuit’s stay, mifepristone could still only be prescribed for “(1) pregnancies under 50 days gestation; (2) [after] three in-person office visits; (3) [with] supervision of a qualified physician and (4) reporting of all adverse events.” Thus, even if there is some access, it is “sharply limit[ed].” The result is as simple as it is cruel: impregnated minors, survivors of sexual violence, and the prospect of immediate and fatal ectopic ruptures are not enough of an irreparable harm to warrant suspending judicial alterations of the status quo (at least for the Fifth Circuit and Justice Alito).

Like most decisions on the shadow docket, the Supreme Court’s unsigned emergency order is silent as to why it granted the stay. Whether it be the overwhelming likelihood of success on the merits or irreparable harm to the pharmaceutical company behind mifepristone, the Court’s silence speaks volumes on the continued belief that irreparable harm to health – and specifically women’s health – is no harm at all.

Norfolk Southern Derailment Finds Citizens, Workers Getting Sick by Max Borushek

Norfolk Southern, the American railway giant, has found itself in the midst of a train derailment crisis. With two noteworthy derailments in the past two months, Norfolk Southern has vehemently denied that its derailment in East Palestine, Ohio will cause lingering health problems to the citizens of the town.

President Biden said Norfolk will be responsible for air testing and clean up after almost 120,000 gallons of vinyl chloride spilled during the 38-car derailment on February 3rd, 2023. The company has deployed air quality test squads in conjunction with the Environmental Protection Agency to assure residents of the town that they are safe to return to their homes. While there is obvious distrust between Norfolk Southern and the residents of East Palestine, an unexpected group has found themselves in the midst of this controversy: the workers themselves.

In an open letter to U.S. Department of Transportation Secretary Pete Buttigieg sent on March 1st, 2023, an American Rail System Federation official detailed how workers sent to help clean-up the contamination in East Palestine were becoming ill. Workers “inquired about the appropriateness of their personal protective equipment and the safety of their working conditions” and were met with little to no response from Norfolk Southern. J.B. Long, the General Chairman of the ARSF and author of the letter, alerts Secretary Buttigieg that Norfolk Southern is “Dangerous to America.”

Remediation workers and East Palestine residents have a right to be concerned. According to the Center for Disease Control, vinyl chloride is a toxic chemical readily absorbed into the lungs and can cause health issues, including damage to the central nervous system and death. Residents have expressed to multiple news outlets, that they have experienced nausea, headaches, and skin rashes due to chemical exposure.

Although air-quality testers and politicians have vocally reassured residents their homes are safe to enter, the optics hardly fit the narrative. “Right now they’re saying, ‘Oh, our team said they didn’t test anything in the air.’ Well, let’s talk about the soil, let’s talk about the residue, why are people getting sick if it’s… safe,” East Palestine resident Zsuzsa Gyenes told Vice News.

Now, almost three months after the devastating spill, independent testing conducted by a team from Purdue University has found carcinogenic chemicals in the air and water surrounding East Palestine. Andrew Whelton, an engineering professor at Purdue and a member of the testing team, told FOX Business, “Many statements by government agencies were being made about safety. ‘The air is safe, the water safe, your homes are safe.’ But they weren’t actually sharing a lot of the data. And that raised a red flag for us.” Whelton recently wrote a letter to the EPA asking for additional oversight on water testing in East Palestine.

The train derailment in East Palestine, while devastating, is just one of thousands of chemical spills that happen in the U.S. annually. Analysis of EPA data regarding chemical spills conducted by The Guardian found that the U.S. averages two chemical spills a day, causing environmental, health, and economic problems across the country. Even though Norfolk Southern is being held accountable, only time will tell how and when the site is fully cleaned up, and the long-term health implications of the spill. “I definitely don’t trust Norfolk or the team that they hired. I don’t think they should have been given the ability to hold the reins on the narrative,” said Gyenes.

The Return of the Medical Question Doctrine by Leonard Brahin

Last summer, I wrote about the Medical Question Doctrine, the theory that federal courts should defer to physicians on medical-legal questions. The relevance of my piece has resurfaced, now that Texas district court Judge Matthew Kacsmaryk issued a nationwide injunction prohibiting the FDA’s mifepristone approval.

Mifepristone is a one of two medications used for medical abortions. Mifepristone “blocks a hormone called progesterone that is needed for a pregnancy to continue.” The drug itself was first approved in 2000, and its approval was audited and validated in 2008. Mifepristone is effective and safe: the drug is 80% successful and sends fewer people to the ER than Tylenol and Viagra. In fact, only 24 out of nearly 3.7 million individuals who took mifepristone experienced a fatal side effect – and 6 of those cases coincided with alcohol and drug use. This puts the fatality rate of mifepristone at .00065%. Even compared to surgical abortion, medical abortion is indistinguishable with regards to safety and effectiveness.

On a tenuous legal theory and even more strained medical analysis, Judge Kacsmaryk stayed the initial and subsequent mifepristone approvals by the FDA. In essence, Judge Kacsmaryk paused legal distribution and prescription of mifepristone (with a seven-day grace period). Judge Kacsmaryk’s decision rested on the administrative complaint that the FDA had improperly approved the drug and that patients and doctors may experience injuries from using mifepristone.

In response to this decision, legal scholars, newspapers, and the United States President have criticized the decision for adopting radical, conspiracy-like reasoning that badly misconstrues reproductive medicine (and administrative law). In making his decision, Judge Kacsmaryk relies on a new theory of standing, a dormant 1873 statute, and an unprecedented remedy.

Last year, I suggested that the Medical Question Doctrine ought to consider “[1] the breadth of science on the policy, [2] the good faith justification by the physician, [3] the interest convergence of industry in pushing the treatment, [4] the effectiveness of the treatment in past experimentation, and [5] the interests of the state in regulating the treatment.” While none of these factors are dispositive, the Medical Question Doctrine prioritizes dereference to the individual physician rather than substitute the physician’s expertise for the Court’s.

In contrast to these careful considerations, Judge Kacsmaryk’s nationwide remedy contravenes the particularized, case-specific reasoning that physicians use when prescribing treatment. Of course, subsequent FDA regulations had gone further, permitting a prescription without a doctor’s visit. However, Judge Kacsmaryk’s remedy prevented a prescription, even with informed consent (as the initial approval permitted). More than just a contempt for abortion, this decision joins a series of nationwide remedies that demonstrate serious misgivings about expertise and agency judgement. Broadly, this means that a court without medical training can override the best medical judgement of physicians, even when that physician believes that such a treatment may be the most effective medication.

This is especially troubling when the American Medicine Association Code of Medical Ethics requires that physicians “[k]eep[] current with best care practices.” What happens when Federal Judges prohibit the use of best medical treatments? How can doctors conform with their ethical duties when judges intervene into the medical practice? Even for a Court skeptical of the administrative state, the local and particular nature of medical practice should warrant greater deference to physicians who have the most amount of information and knowledge on a particular topic. As I’ve noted before, the US Congress has only had 27 physicians elected to office since 2005, so it is difficult to understand why politicians or judges without medical training should be left to unquestionably dictate best care practices.

While this article does not advocate “Chevron for Doctors,” it does require that a court consider its own expertise on the difficult decisions doctors are forced to make and defer to their on-the-ground training (much in the same way courts will defer to police officers when evaluating qualified immunity claims). Once again, the Supreme Court will be presented with an opportunity to recognize its limits. Rather than succumb to conspiracies about the “Clinton Administration,” the Supreme Court should commit to local decision making; not by politicians and judges who do not understand complex medical procedures, but by doctors who are on the ground making these decisions.

The Medicalization of Homelessness by Breeha Shah

“Medicalization” generally refers to a process in which previously nonmedical conditions come to be understood under the notions of disease and illness. Homelessness is not researched as a disease itself, yet situations for homelessness can be defined as a medical problem. Although medicalization has assisted the healthcare community in gaining awareness of the matter in question, the medicalization of homelessness focuses on cultural and circumstantial understandings rather than professional domain. The medical community reactively spends excessive amounts of money, services and resources on addressing the healthcare needs brought on by homelessness, rather than proactively providing for the tangible needs of the poverty-stricken areas before homelessness occurs. Although access to treatment and medication services is a step in the right direction, it reveals a problem with the medical model: it places homelessness as a potential consequence to disease, addiction or mental illness instead of understanding its contributing nature in creating disease, addition or mental illness.

Politicians and the press tend to link homelessness to mental illness, thus medicalizing a socioeconomic problem. While mental illness can contribute to homelessness, it is not the sole cause. Persisting from the beginning, poverty-stricken communities lacked supportive housing services for individuals experiencing homelessness with acute needs to physical or mental health issues. There was, and currently is, a desperate need for more than just housing. These individuals require additional help to become housed and stay securely housed, in order to maintain mitigate conditions such as a physical ailment or mental ailment exacerbated by homelessness.

Currently, the political and medical sectors focus on prevention and control for disease as well as substance abuse and mental health, which all thrive in poorly maintained areas where more than half the population is prone to experience a form of homelessness. Even with such data and research confirmation, policies continue to stray away from the problem: homelessness itself. The medicalized framework in the US is designed to treat symptoms rather than root causes of homelessness. As a result, legal and policy solutions focus on critiquing this medical framework from an outcome perspective, rather than implementing policies aimed at addressing those root causes. It is important to take a more holistic and systemic approach to address homelessness, one that recognizes the multiple factors that may be contributing to the cause of such debilitating conditions. Shifting the perspective to view homelessness as one of the factors that can create disease, addiction or mental illness may help policymakers create better homeless prevention laws at a federal level, rather than adequately address the notion that treating physical and mental conditions will decrease homelessness.

Mark Your Paper Calendars, Ladies! Navigating Digital Fertility And Cycle Tracking In A Post-Dobbs Era by Hailey Limbrick

In the last decade, the internet has quickly become a staple in American society. For Americans today, the internet is not a luxury, but rather, a necessity in many respects.  With the development of modern technology and the invention of smart phones and apps, Americans have become reliant on their devices to track the most private areas of their lives: their personal health. Let’s face it, we have grown so accustomed to technology that we rely on our smart phones to wake us up every morning, send us reminders to take medication, establish our baseline heart rate, and even warn us when that rate becomes abnormal.

With this, it comes as little surprise that millions of women utilize “femtech,” or female technology, to track patterns in their reproductive health such as menstruation and fertility. Among the most frequently downloaded apps within the industry are Flo, ringing in at 43 million active users, and Clue with 12 million monthly active users. While these apps are extremely popular amongst users, U.S. privacy laws do little to regulate the deeply intimate data shared on these apps. Not only is this data incredibly personal, it is extremely revealing. Cycle and fertility tracking apps are so in touch with their users, that they can predict when a user’s cycle begins and ends down to the very day, and when a user may be pregnant. Moreover, these apps can accurately predict when a user has the best chance of conceiving a child.

Accordingly, the Supreme Court’s holding in Dobbs v. Jackson Women’s Health Organization, 142 S.Ct. 2228 (2022) allowed several states to ban abortion and enforce criminal penalties against any individual who aids in or receives an abortion by removing federal protections for the procedure. The implications sparked a wave of concern amongst femtech users and privacy experts. Particularly, users questioned whether this data could be subpoenaed or sold to third parties. More concerningly was if the information could be used against femtech users who have received, or are even considering, an abortion. Once shared on a digital platform, users exercise little control over their own data. Moreover, most health apps retain no accountability over this intimate information because they are exempt from the same standard as medical providers who are legally bound by the Health Insurance Portability and Accountability Act (HIPAA). Thus, the apps are free to use health data as they please.

This concern is heightened by the fact that apps commonly supply data to law enforcement during criminal prosecutions. Although an app’s cooperation with law enforcement typically arises in child exploitative imagery cases, the recent criminalization of abortion has changed the trajectory of investigations. In fact, a Nebraska case revealed that authorities obtained Facebook chat messages between a mother and her 17-year-old daughter to charge the two with carrying out a criminal abortion.

Thus, this wide-spread fear among users and experts is justified. In 2021, the Federal Trade Commission reached a settlement with Flo after it misled users about the security of their personal data. The suit arose after an investigation revealed that the app sold users’ health data to Facebook. Thus, experts urge women who reside in states where abortion is criminalized to delete their apps immediately and revert to using a paper calendar to track their cycles.

Moving forward, it will become increasingly important that users become more cognizant of the data they voluntarily share with cycle and fertility tracking apps. Moreover, there are several safeguards that should be implemented to provide stronger protections for users. Most simply, users can store their data locally. If data remains on a local device—such as a tablet, cell phone, or computer—the data cannot easily be sold to a third-party. In a similar realm, increasing the use of pseudonymous accounts is advantageous in the event of a security breach. This would eliminate a user’s legal name, email address, and phone number from their account; thus, making it far more difficult for a third-party to tie the information back to the user.

At a macro level, eliminating an app’s ability to track a user’s location could provide additional safeguards. Right now, if a user were to undergo an abortion at a clinic, technological tools such as geofence would allow law enforcement to obtain a search warrant to access records on a user’s geographic location. Law enforcement utilize these warrants by specifying a location and time period in which a particular crime occurred. Companies are legally compelled to turn over the information stored in their databases, indicating where users were located within a specified time period. As a practical matter, there is no reason for a cycle tracking app to have a user’s location; eradicating this function could give users a stronger sense of security without impacting the functionality of the app.

Until the U.S. government strengthens its data privacy laws with respect to third-party tracking, users retain no control over the saleability of their personal data. Consequently, women who reside in abortion-banned states should be careful to entrust such sensitive information in the hands of femtech. When in doubt, women should delete their femtech apps and resort to cycle tracking with a paper calendar. Women have been menstruating for as long as humans have existed, and they did so without the help of Flo and Clue—and so can you.

Reliance Interests and Roe by Leonard Brahin

In its June 2022 decision, Dobbs v. Jackson Women’s Health Organization, the Supreme Court overturned Roe v. Wade, finding Roe “egregiously wrong from the start.” In making this decision, the Court looked to whether the stare decisis factors would allow for the continuation of judicially-created abortion rights in the United States. Those factors are “the nature of their error, the quality of their reasoning, the ‘workability’ of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.”

Although the Court goes through all the factors, it spills remarkably little ink on the last one: concrete reliance. Traditionally, reliance generally has been understood as “dependence by one person on another person’s or entity’s statements or actions, particularly where the person acts upon such dependence.” While the stare decisis reliance considerations have been inconsistent, the Court’s decision in Planned Parenthood v. Casey, expressly acknowledged that one’s ability to “participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” But in just over two pages, the Dobbs Court repudiated this theory, and instead held that (1) the unpredictable nature of pregnancy, (2) the generalized social decision making about when and how an individual has a child, and (3) substantive due process interests were not concrete enough to justify the continuation of the precedent.

While no one stare decisis factor is dispositive, the Court’s cursory reading of reliance interests warrants a second look. In an increasingly data-driven society, quantifiable determinations for reliance interests offers the only objective metric to determine how individuals or groups will be impacted by the Court’s decision. In her forthcoming article, “Precedent, Reliance, and Dobbs,” Nina Varsava addresses this very issue. Varsava distinguishes the Supreme Court from Congress or a state legislature because of the promissory nature of precedent. Our elected representatives have no obligation to follow through on their campaign promises or keep the current law static. As such, elections provide a remedy to suture those concerns: voting those politicians out of office. In contrast, when the Supreme Court makes a statement about what the law is, individuals must solely rely on the good word of the Court to stand by what it said.

That said, the Court viewed the reliance-based consequences of breaking its promise in Dobbs very narrowly. For the Dobbs Court, the only people whose reliance interests have been violated are those that (1) are currently pregnant, (2) would have gotten an abortion, and (3) can no longer get an abortion. Of course, the Court may argue that even their reliance interests may not be violated because state bans would not be immediately enacted, thus giving interested parties time to make appropriate changes. With that in mind, post-Dobbs data reveals the substantial changes in abortion access.

For starters, a Texas abortion clinic was one of many that stopped procedures within minutes of Dobbs being released. And within the six months post-Dobbs, twelve states had fully or almost entirely banned abortion, four states had severely limited access to abortion, and six states had made substantial efforts to ban or restrict abortion, which undercuts the Court’s attempt to buttress the impact of its ruling.

Even more substantial is travel time to secure an abortion. Since Dobbs, travel times to obtain access an abortion increased from as low as fifteen minutes to four to eight hours. This affected minority communities the hardest, with 40% of black women facing drives longer than one hour to access an abortion clinic, up from 15%. Another datapoint is information from the remaining abortion providers themselves. The number of abortions in banned states fell, but states like Florida, New York, North Carolina, and Illinois saw increases in the 1000’s. Taken together, increased abortions in “legal” states and heightened travel time demonstrate that those seeking abortions relied on local access.

Although difficult to quantify at this early stage, there are substantial economic costs to states and individuals when rearing children. For parents, the cost of raising a child is $17,000 a year. For states, the cost of public education per year is an average of $15,000 per year. With somewhere between 600,000-900,000 abortions a year, birthing unwanted pregnancies could cost nearly $30 billion a year.

Finally, obtaining an abortion is far from uncommon. Nearly 25% of people that can get an abortion will by the time they are 45 years old. Although this could be attributable to a variety of factors (poverty, access to childcare, or the scope of health insurance coverage), the commonality of abortion services creates an assurance that the demand for abortions is inevitable, regardless of the constitutional backing.

While data can illustrate the tangible impacts of the Court’s decisions, adopting these “concrete” considerations almost always pose policy questions, rather than questions of law. How and whether the Court should make these determinations is indisputably difficult. What is an acceptable travel time to secure an abortion? How does one weigh questions of accessibility against an intangible interest in “life” generally? When do the costs to unborn life outweigh the economic considerations? To some extent, the Dobbs Court may have a point: states may know better than the federal courts regarding the needs of their own citizens – whether its parents or education system can handle more children – and the voters can decide if their legislatures made the right choice.

That said, once the Court has recognized a right, it should give due consideration to impacts that come with limiting or rolling it back entirely. For instance, when presented with the opportunity to end Miranda Rights in Dickerson v. United States, the Court observed that “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” Although the Dickerson Court did not quantify the number of times the warnings have been read or the defendants whose rights were vindicated after a custodial interrogation, the Court considered what sort of expectations people had as a participant in American society.

Americans rely on the Court’s decisions to navigate their behaviors and manage expectations. Without any ability to supersede constitutional rulings, the Court should expand the reliance interest factors to include quantitative determinations. When the Court chooses to alter constitutional rights, data and statistics ought to shape its conclusion.

California Lawmakers: Social Media Corporations On The Hook for Children’s Mental Health by Sophia Archos

A recent bill passed in California could hold social media corporations—namely, Tiktok, Instagram, Facebook, Snapchat, YouTube, and the like—accountable for the mental and physical health of the children who are active on their platforms. The bill—The California Age-Appropriate Design Code Act (“Act”) —requires that apps should be child friendly by default. Instead, social media users currently have to manually opt-out of potentially harmful settings—such as precise geolocation tracking, collecting personal information that can be sold to third parties, and allowing unfriended adults to privately message adolescents via their accounts. This means social media platforms must now consider the mental health and physical health of adolescent users when designing their apps—young females being the target audience. Under the Act, app designers must consider:

  • Configuring all default privacy settings on the app to the highest level or privacy;
  • Disclosing privacy policies, terms of service, and community standards in simple terms that adolescent-users can comprehend;
  • Completing assessments—Data Protection Impact Assessment—for products or features likely to be used by adolescent-users;
  • Submitting assessments for approval before the products or features are launched on the app; and
  • Abstaining from using personal information of children for purposes other than those expressly permitted by the user.


The costs of non-compliance are severe. Violators of the Act could:

  • Face injunctions on their products;
  • Be fined up to $2,500 per affected child for each violation; and/or
  • Be fined up to $7,500 per child if the violation was intentional.


If signed into law by Governor Newsom of California, the bill would go into effect in July 2024. Although it is unclear whether the Governor will sign or veto the bill, it is clear that California legislators are taking the health and safety risks of social media on children seriously. On one hand, eight of the ten most frequented social media sites in the world are headquartered in the state, which suggests that California not only has the opportunity, but the obligation, to regulate corporations that have a profound global impact. On the other hand, social media connectivity is inevitable in the digital age, where iPads are integrated into elementary school curriculums and educational apps are used to practice math, reading, foreign language, and the like. Therefore, it is time that California set the standard for other states to pass regulations that protect social media users, especially children who cannot be expected to understand the risks or repercussions that come with giving away private information by “accepting the terms and conditions.”


So far, California is doing just that. For instance, earlier this year, the California State Assembly proposed The Social Media Platform Duty to Children Act, which would hold social media companies responsible for harming children that become addicted to their apps. In effect, it would allow parents to sue for up to $25,000 per violation. While the bill did not pass in the Senate, the speed at which these measures were proposed is undoubtedly encouraged by the increasing number of scientific studies and academic publications discussing the damaging effects of social media on the developing minds of adolescents. Most of these studies focus on Gen Z, and the prevalence of mood disorders such as anxiety, depression, and self-harm among that demographic. For example, one study found that from 2010 to 2014, the rates of hospital admission for self-harm doubled for girls ages 10 to 14. However, the same study showed that such rates did not increase for boys or young men as well as women in their early 20s. Other studies have demonstrated that this is not an isolated or “American” issue, despite what some critics say. For instance, in 2017 British researchers asked 1,500 young people (aged 14-24) to rate social media platforms according to how they affect their anxiety, loneliness, body image, FOMO, bullying, and sleep—overall, 14 categories collectively referred to as “well-being measures.” The results placed Instagram as the most harmful, followed by Snapchat, Facebook, then Twitter. YouTube was viewed as the most positive. A separate experience confirmed these results when researchers instructed young women to use Instagram, Facebook, or play a matching game for several minutes. The experiment concluded that those who used Instagram, more so than Facebook, showed decreased body satisfaction.


Ultimately, the prevailing evidence that social media has a negative impact on mental health, which often extends to physical health, supports that legislation like the Act is just as much healthcare legislation as it is consumer protection. Moreover, such legislation extends at the state level what the Children’s Online Privacy Protection Rule (“COPPA”) has done at the federal level—that is, protect the privacy and personal information of children under the age of 13 on online platforms. There is also increasing intersectionality between social media data collection and Health Insurance Portability and Accountability Act (“HIPPA”) violations. Recently, Meta (Facebook’s parent company) violated HIPAA by enabling a tracking tool that sent sensitive health information, including patient health conditions, doctor appointments, and medication allergies, from US hospitals to Facebook. As a result, two class action lawsuits were filed in California earlier this year.


Based on this information, California is on the frontlines of a data privacy war against major social media corporations. Many such corporations that oppose the bill argue that differing state laws regulating their apps would make compliance difficult. However, instead of social media corporations maintaining the status quo, which has wreaked havoc on the well-being of the global youth, I propose other solutions:

  • Each State could pass individual legislation regarding adolescent social media usage, for which nationwide social media corporations would have to comply with the laws of the strictest state, functioning as a statutory floor;
  • Plaintiffs could bring claims under The California Age-Appropriate Design Code Act, or other similar acts, and litigate up to the Supreme Court, which could potentially establish a nationwide precedent on the issue; and/or
  • More intensive acts than the Children’s Online Privacy Protection Rule (“COPPA”) could be proposed in Congress that regulate the standards of, g., condensed and simplified terms of service, geolocation tracking of children, and the remedies made available to adolescent users and their parents, such as invalidating adhesion consumer contracts with binding arbitration clauses.

What is clear is that the health needs of children utilizing social media are not currently being met, and it’s time for our legislative representatives to take action.

The Medical Question Doctrine by Leonard Brahin

While notably and most commonly hailed for its expansion of abortion rights, Roe v. Wade was noteworthy in its deference to a doctor’s professional decision making. In contrast, the Dobbs leak reveals the current Court’s empowerment of states to develop abortion laws that comport to a state’s respective interests in fetal life. This decentralization is justified through the notion that the medical needs of Californians may be different from Minnesotans or Texans. However, the extent to which local governments adapt their healthcare priorities to the needs of their citizens is unclear. Since 2005, the US Congress has only had 27 physicians elected to office while data on local physician representation in local government is relatively difficult to ascertain. Without local, state, and federal representatives who understand the complexities of medical decision-making first-hand, the interests of patients may be undermined. Alternatively, having medical professionals participate in specific reforms may offer insight and perspective in an area that requires an advanced degree to practice.

Most recently, some state governments have aggressively moved to restrict and criminalize access to abortion while simultaneously banning gender-affirming care. These health policies may be in line with cultural and political prerogatives, but their draconian limitations fly in the face of a broad consensus of medical research. Left to evaluate these policies, the Court may need to rethink its approach to medical decision-making when state governments override scientifically supported treatment for short-term political gains.

While the Court deliberated over the landmark Roe v. Wade decision, Justice White dubbed the initial drafts as creating a “‘medical question doctrine’ … [holding]…doctors, rather than the Court had the final authority on certain medical-legal questions.” While mocked at the time, the encroachment of government into the doctor’s office may require looking to the guidance of Justice Blackmun in determining how much discretion physicians should have in dispensing treatment for their own patients.

In a brief review of literature, the term “medical question doctrine” has only appeared four times, and only in the decade following the Roe decision. However, the Court’s skepticism regarding the competency of physicians at interpreting the law should be juxtaposed with broad physician concern about the Court and other political branches making medical decisions. Even as Justice Blackmun sought to “vindicate[] the right of the physician to administer medical treatment according to his professional judgment,” the collision of state interests have threatened his goal.

The Court is right in some respect: the needs of patients in individual states differ across the country. But so do the needs of patients in individual counties, cities, and even wards. In seeking decentralization, the Court does not go far enough in deferring to local interests. Given the complexity of the human body, and the broad diversity of needs, treatments, and experimentation that comes with health policy, the Court should be cautious in allowing states to overregulate the medical industry.

This is not to say that state legislatures do not have a place in deciding the permissibility of experimental treatments, setting licensing standards, or any other sort of regulations. A concerning history of underregulated medical experimentation demonstrates the need to be prudent in developing a new theory of medical deference. The examples that demonstrate the dangers of a lack of oversight in the medical community color the United States’ history: the Tuskegee Experiments where black men became an unwilling control group in testing the effects of untreated syphilis; the Opioid Epidemic where millions across America were overprescribed painkillers leading to addiction and death; and the [systematic undertreatment] for pain amongst Black Americans.

However, when these policies are challenged, the Court should keep a watchful eye for state policies whose purported interest lacks the backing of the scientific community. In developing a medical question doctrine, the Court should look to the breadth of science on the policy, the good faith justification by the physician, the interest convergence of industry in pushing the treatment, the effectiveness of the treatment in past experimentation, and the interests of the state in regulating the treatment. While this list is incomplete, it offers a means for doctors to justify and defend themselves against overbroad policies that constrain good faith efforts to improve the health outcomes of patients.