Lee E. Teitelbaum Utah Law Review Symposium
The Criminalization of Care: Health and the Home

$30 CLE fee. Registration is free for non-CLE attendees.

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TALK DESCRIPTION:

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This symposium will bring together scholars in health care law and policy, medical ethics, trans rights, and feminist legal theory, to discuss the legal issues that arise when doctors and other institutional actors are asked to serve the interests of law enforcement.

 

AGENDA

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8:30 a.m. – Check-in

9:00 a.m. – Welcoming Remarks

9:15 a.m. – Health Privacy and Criminalization of Health Care

• • • • Maya A. Bernstein, JD, Senior Advisor, Privacy Policy, U.S. Department of Health and Human Services
      • Ellen Wright Clayton, MD, JD, Craig-Weaver Professor of Pediatrics, Professor of Health Policy, Center for Bioethics and Society Vanderbilt University Medical Center; Professor of Law, Vanderbilt University School of Law
      • Sarah Duensing, Executive Symposium Editor, Utah Law Review; Utah Center of Excellence in ELSI Research (UCEER) Graduate Research Fellow
      • Moderator: Leslie Francis, PhD, JD Alfred C. Emery Endowed Professor of Law, University of Utah S.J. Quinney College of Law

10:30 a.m. – Break

10:45 a.m. – Carceral Logics in Civil Institutions and Legal Systems

• • • • Wendy Bach, JD, Professor of Law, University of Tennessee College of Law
      • Geniece Mondé, PhD, Associate Professor of Sociology, Furman University
      • Priscilla Ocen, JD, Professor of Law, Loyola Law School Los Angeles
      • Moderator: Laura Kessler, SJD, LLM, JD S.J. Quinney Endowed Professor of Law, University of Utah S.J. Quinney College of Law

12:00 p.m. – Lunch

1:00 p.m. – Mental Health and Ethics of Policing

• • • • Semir Bulle, MD, Psychiatry Resident, University of Toronto School of Medicine; Co-Founder of Doctors for Defunding Police
      • Eric Reinhardt, MD, Psychiatry Resident, Northwestern University School of Medicine
      • Taleed el-Sabawi, PhD, JD, Assistant Professor of Law, Florida International University College of Law
      • Moderator: Teneille Brown, JD, James I. Farr Endowed Professor of Law, University of Utah S.J. Quinney College of Law

2:15 p.m. – Break

2:30 p.m. – The Criminalization of Trans Lives and Health Care

• • • • Dana N. Johns, MD, Assistant Professor, University of Utah School of Medicine, Division of Plastic Surgery
      • John Mejia, JD, Legal Director, American Civil Liberties Union of Utah
      • Noa Ben-Asher, JSD, LLM, LLB, Professor of Law, St. John’s University School of Law
      • Moderator: Daniel Aaron, MD, JD, Associate Professor of Law, S.J. Quinney College of Law

3:45 p.m. – Closing Remarks

 

PANEL DESCRIPTIONS

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Health Privacy and Criminalization of Health Care
Protection of the confidentiality of individual health records is essential to patient trust in their health care providers. The federal HIPAA privacy rule has been foundational to ensuring this trust, but was drafted and implemented before the decisions to retract constitutional protection for reproductive liberty. Dobbs and other court decisions have reawakened concerns about HIPAA exceptions for law enforcement, public health, child abuse reporting, and other related purposes. This panel brings together experts on health privacy, the federal privacy rule, and the use of genetic information by law enforcement to explore contemporary challenges to health privacy.

Mental Health and Ethics of Policing
When people are experiencing mental health crises, it is often the police who show up. Because law enforcement officers are not trained in evidence-based mental health treatment, this can lead to dangerous escalations, where individuals are diagnosed with the controversial “excited delirium” and administered lethal doses of ketamine. It can also lead people to not call 911 when their friends overdose, because they worry the emergency responders might focus disproportionately on prosecuting underlying crimes. While states are experimenting with therapeutic courts to treat people who are unhoused to divert them from prosecution, these programs reveal how we have given up on providing actual, evidence-based mental health treatments outside of the criminal justice system. The vast majority of unhoused people with addiction or other mental illnesses receive no treatment. And when this is the reality—where we have given up on providing universal mental health treatment, the illnesses do not simply disappear. They are funneled by default through law enforcement and the criminal justice system. In this panel, we will discuss how the provision of “treatment” through criminal courts confuses the roles of law enforcement and clinical care. It aligns the medical establishment too closely with the police state. If you are used to your treatment provider talking about your mental health struggles with your parole officer, counselor, or judge, you might come to think this is normal outside of this context. You might also not tell your court-appointed provider everything that they need to know to adequately treat you. Most importantly, however, the blurring of mental health treatment with the criminal justice system is that the “treatment” that is provided on the streets or in diversion courts is not held to the medical standard of care. People are receiving sub-standard treatments because they are funneled through a system that prioritizes prosecution over patient care. This panel will discuss the many ways that the intrusion of law enforcement into mental health spaces is bad for individuals, bad for public health and bad for medicine.

Carceral Logics in Civil Institutions and Legal Systems
Despite the robust discourse in the United States identifying racism within our country’s criminal legal system, less has been said about the carceral logics embedded within civil institutions and legal systems, including the child welfare, health care, and education systems. Yet, the lives of marginalized families and communities are thoroughly impacted by it—they are surveilled, marked, and punished by state and private actors as they navigate family courts, benefits offices, medical facilities, and schools. These different institutions and systems interact and support one another in ways that enlarge their impacts on the most marginalized families and communities. This session will explore how the carceral logic of the criminal legal system also has increasingly come to underlie our country’s civil institutions and legal systems. Professor Wendy Bach analyzes a policy in Tennessee that resulted in the prosecution of substance-addicted pregnant women for a newly created crime of fetal assault, entangling women in the carceral state with drastic consequences. Professor Geniece Mondé examines how formerly incarcerated mothers navigate the complex journey of rebuilding their lives while experiencing surveillance and mistreatment by social workers, the health care system, and schools. Her presentation, which draws upon interviews with formerly incarcerated mothers, invites us to think more critically about how institutions, even those tasked with helping marginalized groups, may diminish their life chances. Professor Priscilla Ocen examines the ways that, post-Dobbs, law enforcement is employing its vast network of surveillance and punishment developed as part of the “war on crime” to surveil, detect, arrest, and punish people who seek or provide abortions. She urges advocates and scholars to challenge the role of policing in care settings and to adopt an abolitionist lens to question the fundamental role of imprisonment and punishment in our society.

The Criminalization of Trans Lives and Health Care
In the last few years, states have advanced a record number of bills and laws that attack LGBTQ rights, especially those of transgender people. Laws that ban gender-affirming care make it a crime to provide gender-affirming health care to transgender youth. “Identification” laws limit the ability of transgender people to update gender information on IDs and records, such as birth certificates and driver’s licenses, which puts transgender people at risk of losing jobs, facing harassment, and other harms. “Reverse civil rights” laws undermine and weaken nondiscrimination laws by allowing employers, businesses, and even hospitals to turn away LGBTQ people or refuse them equal treatment. Speech laws restrict how and when LGBTQ people can be themselves, limiting access to books about them and banning or censoring performances like drag shows. Public accommodations laws prohibit transgender people from using facilities like public bathrooms and locker rooms, limiting their ability to participate in work, school, and public life. Education laws prevent trans students from participating in school activities like sports, force teachers to out students, and censor in-school discussions of LGBTQ people and issues. This panel will examine the tsunami of bills recently introduced in states across the U.S. attacking LGBTQ—especially trans—rights, including Utah’s S.B.16, a bill signed into law in January 2023 criminalizing gender-confirming surgical procedures and placing a moratorium on hormonal treatment for minors. Speakers will include Dr. Dana Johns, a Board-certified Plastic Surgeon and Professor at the University of Utah. Dr. Johns will discuss the impact of S.B. 16 on patients and caregivers in Utah. John Mejia, Legal Director of the ACLU of Utah, will discuss the civil rights implications of S.B. 16 and other anti-trans laws. Law Professor Noa Ben Asher, an expert on gender, sexuality, and law, will discuss how the legal definitions of sex in the United States have shifted from biological conceptions of sex to gender identity, highlighting what is at stake in how the law defines sex and urging advocates to move beyond equality and health care concerns to embrace the intrinsic value of queer, transgender, and non-binary people.

SPEAKER BIOS:

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Maya Bernstein has been the Privacy Advocate of HHS for nine years.  She is the senior advisor on privacy policy in the Office of the Secretary.  Her portfolio includes a wide variety of policy matters including health IT, genetic discrimination, family and child welfare, drug abuse and mental health records, prescription drug surveillance, research on human subjects, statistical confidentiality, controlled unclassified information, cybersecurity, emergency preparedness and personnel security.  She represents HHS on the government-wide Privacy Committee, chairs HHS’ Privacy Committee, and serves on its Privacy Incident Response Team.  She also represented HHS on the White House task force that produced President Obama’s Consumer Privacy Bill of Rights. After earning her law degree, Maya clerked for the Honorable Vanessa Ruiz at the D.C. Court of Appeals, and was briefly engaged in the private practice of law until returning to federal service in 2003 as the Privacy Advocate of the Internal Revenue Service. Ms. Bernstein earned a Bachelor of Arts at the University of Michigan, Ann Arbor, dropped out of the graduate program in Science, Technology, and Society at MIT to pursue the life of a policy wonk in DC, and earned her J.D. at American University.

Dr. Semir Bulle is currently a Psychiatry resident at the University of Toronto and is the former Co-President of the Black Medical Students’ Association. Born and raised in the Toronto area, he has spent the majority of his professional career working towards the improvement of the material conditions of others through research & advocacy. He is the official liaison for the Canadian Doctors for Protection against Guns, and he has strong ties to the zero-gun violence movement. Additionally, he is the co-founder of Doctors for Defunding Police and Doctors for Long-term Care (LTC) Justice and has been featured in the Toronto Star, CBC and other news organizations in the city of Toronto and throughout Canada.

 

DIRECTIONS & PARKING

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• TRAX – Take TRAX Red University Line to the Rice Eccles Stadium Stop.
• Parking – Please park at an available A or U permit parking space in the Rice Eccles Stadium parking lot. A moratorium has been placed on the parking lot, so parking is free and no parking permits are necessary.

 

For questions about this event email events@law.utah.edu.

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