Harvard and Yale health law centers partner for COVID-19 seminar series

In a Q&A preview, experts share lessons learned from the pandemic and ideas to prepare for the future

The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School is joining forces with its counterpart at Yale Law School, the Solomon Center for Health Law and Policy, to host a seminar series reflecting on ethical and legal issues raised in the past year by the COVID-19 pandemic.

The seminar series, titled “COVID-19 and the Law: Disruption, Impact, and Legacy,” kicks off on Tuesday, Feb. 2 with COVID-19’s Legacy & Evolving Legal Doctrines.

Each year, the Petrie-Flom Center hosts an annual conference, which brings together scholars to work on a particular health policy or bioethics topic with the goal of publishing a book with a major academic press. This year, COVID-19 forced a pivot both in format and in subject matter, explained Carmel Shachar J.D./M.P.H. ’10, executive director of the Petrie-Flom Center.

“For this year, no other topic besides COVID-19 made sense — it has been the 800-lb. gorilla of public health and health care over the past year. We wanted to pull together an interdisciplinary group of scholars to take one of the first really thorough looks at how COVID-19 has changed our world. What lessons can we learn from the first year of the pandemic? How can we be better prepared in the future?” Shachar said.

Katherine L. Kraschel ’12, executive director of the Solomon Center for Health Law and Policy, described the partnership between the two institutions as a natural fit.

“A seminar series and book project in partnership with the Petrie-Flom Center was a very organic way to leverage our respective centers’ expertise and generate scholarship about the global health crisis of our time,” she said. “And it’s a real personal pleasure for me to partner with my alma mater center where I was a student fellow.”

Shachar, Kraschel, and I. Glenn Cohen ’03, faculty director of the Petrie-Flom Center and deputy dean and James A. Attwood and Leslie Williams Professor of Law, offered a preview of the seminar series by email.


Harvard Law Today: Can you describe the impetus behind this seminar series? Why have the Solomon Center and Petrie-Flom Center joined forces to present this series?

I. Glenn Cohen: I have taught health law and bioethics for almost 15 years now, and never before have I seen so much interest, from students, from the press, from policymakers, even from my colleagues in fields as diverse as bankruptcy and labor law, in learning more about the law of my field in order to understand how COVID-19 is reshaping everything. We are also living in a world of information overload where it is really important to be able to cut through the noise and get clear-eyed but digestible views on the subject. These twin aims motivated us to work with the Solomon Center to curate a series that will provide the needed expertise to shape policy in the short, medium, and long-term.

HLT: The first seminar in this series focuses on evolving legal doctrines. Looking back on the past 10 months, what do you think are some of the most important legal impacts of the COVID-19 pandemic? Do you think these changes will last beyond the duration of the pandemic? Which legal impacts do you think are important, but overlooked?

Carmel Shachar: I think for years public health law has been considering a bit of a backwater in the same way that our policymakers have focused more on health care than public health. The professor I took public health law with used to joke that it was really “Constitutional Law Light.” The pandemic has brought new attention to this area of the law. Jacobson v. MA is one of the foundational cases when it comes to public health and it is from 1905! One of the presenters on this panel is going to talk about whether Jacobson is still good law, if it needs to be updated, and what we can expect to see in litigation over mask mandates, quarantines, and vaccine requirements.

Katherine Kraschel: In some ways COVID response feels like the next chapter of health care federalism. Particularly with a more proactive Biden administration taking control, questions of federal versus state oversight of things like vaccine administration will only come more into focus and, I imagine, inform health policy moving forward.

HLT: The second talk in the series focuses on issues of health justice. Has the law made progress in advancing health justice over the course of the pandemic? If yes, in which areas? If not, what are some key priorities and how might lawyers advance them?

Kraschel: There has been some outstanding health justice lawyering during the pandemic. One example that immediately comes to mind is the American College of Obstetricians and Gynecologists challenge to FDA restrictions that require in-person provision of medication abortion. Their briefs did an outstanding job centering the lived experience of people of color accessing health care during the pandemic. While ultimately the conservative Supreme Court sided with the Trump administration in their January opinion and upheld the FDA’s enforcement of restrictions, Justice Sotomayor’s dissent reflects the reproductive justice focus of the ACOG’s case.

Two of the panelists for this talk will focus on reproductive health care and reproductive justice, and another on changes that, unlike medication abortion, were implemented by the FDA to ease restrictions for provision of methadone for patients with opioid use disorder. I’m interested to hear what they think will “stick” in the wake of the pandemic.

Cohen: I often think of the title of Martha Nussbaum’s great book “Frontiers of Justice,” and, for me, one of the most disappointing aspects of most of the health justice discourse thus far is how stubbornly it treats the borders of the territorial state as the proper end of the “frontier.”

For a problem that does not respect borders, we have sadly been pretending it does in the policies we are adopting. This is most acute with what has been termed “vaccine nationalism” — while the Biden administration has recently signaled an intent to join the COVAX program, a necessary first step, it is just a first step. There will be thousands of preventable deaths and billions upon billions of economic damage that could be avoided if we thought about vaccine production and allocation with a more global justice lens.

HLT: Next, the seminar series will focus on the use of biotech in the pandemic. This is arguably one of the few promising areas of pandemic response – but should we be worried about certain precedents being set here (e.g., use of EUAs)? If yes, what are your recommendations for future actions? If no, why?

Kraschel: As someone who worked as a scientist at a major pharmaceutical company, it has been stunning to see how quickly a novel type of vaccine — using mRNA — was developed and approved. I’m looking forward to hearing what this panel thinks about the incentives that drove the rapid development and industry investment and what the process we are seeing play out means for the future of biotech innovation, access, and the government’s role in creating incentives. While some panels of the series specifically focus on issues of institutionalized racism and health care disparities, it’s part of every panel’s discussion, and I’m looking forward to also considering the issues raised in the context of vaccine distribution and rationing that this group will touch on.

Cohen: I am hoping we can also discuss the way in which the public has perceived seeing the scientific method “up close and personal” and in real time during COVID-19. I think the amount of medical misinformation of the last year has been staggering. There are also interesting questions about “science by press release,” pre-print services, and the successes and failures of peer review that have accompanied much of these developments that I hope we can discuss.

HLT: The fourth seminar will focus on disparate burdens. In addition to socioeconomic and racial health disparities exacerbated by the pandemic in the U.S., what are some of the other disparate burdens brought on or worsened by COVID-19?

Shachar: I think the pandemic has pulled the curtain back on a lot of disparities. For example, women have been disproportionately impacted by the economic ramifications of COVID-19. We know that more women are losing their jobs and that is brutal in families that rely on those incomes to make ends meet. We’re also going to see the disparate impact play out for years with the way that the disruption has unevenly changed the lives of children. Kids who are in families with enough resources to mitigate the effects of quarantine might recover faster compared to those from lower income families — will those differences still be felt in five or ten years? Throughout their lives? This panel is interesting to me because it is going to take a really thoughtful, broad look at the disparities that are being made worse by the pandemic.

HLT: The fifth installment will address the health care system. If you had to triage the U.S. health care system based on the issues highlighted by the COVID-19 pandemic, what would your top health policy priority be?

Shachar: Right now, figuring out how to get vaccines in arms is the most pressing issue — we want to achieve herd immunity as fast as possible and protect our vulnerable! But I think there needs to be a real reckoning regarding how we’ve under-funded and under-supported our public health infrastructure. That has left us really vulnerable to this pandemic, which likely won’t be the last global pandemic. How can we rectify that and build pandemic resilience?

HLT: What do you hope will be the impact of this series? How do you plan to build on the knowledge that comes out of these seminars?

Kraschel:  As mentioned earlier, this seminar series will turn into an edited volume with a major academic press. We hope the book coming out of this series will generate outstanding scholarship that will not only capture and critically analyze what’s happened but also provide thoughtful and provocative visions for the future coming out of the pandemic. I hope our book will provide a model of scholarship that centers the most marginalized and often voiceless in the discussion of a health crisis. I am humbled to be able to do this work with such an outstanding editorial team and exceptional group of contributors to the book.