By Jennifer D. Oliva & Valena E. Beety.
The widespread global transmission of SARS-CoV-2, the novel coronavirus that causes the disease COVID-19, has altered, injured, and ended the lives of numerous individuals across various communities and nations. It has been well-documented that certain long-neglected populations are particularly susceptible to severe illness and death from COVID-19 and, as a result, have been disparately victimized by the pandemic. The Association of American Law Schools (AALS) Sections on Law and Mental Disability, Indian Nations and Indigenous Peoples, Disability Law, and Poverty Law; the Academy for Justice, a criminal justice policy center at the Sandra Day O’Connor College of Law; and the Arizona State Law Journal recognize that now it is more important than ever to raise awareness about the legal and policy challenges facing our most vulnerable communities. Together, these organizations compiled a unique array of scholarly voices to bring these issues to light, to propose reforms and remedies, and to instill hope for a better future.
This Arizona State Law Journal Online Symposium, Vulnerable Populations in the Context of COVID-19, features global contributors in various professional roles. The essays in the symposium explore the mental health of vulnerable populations and examine how COVID-19 has exacerbated pre-existing legal and policy obstacles. The authors focus on the following particularly vulnerable populations: people who are institutionalized or otherwise incarcerated, people with health conditions and disabilities, Tribal communities, and individuals with substance use disorder. Within these populations, people of color are also suffering disproportionately from COVID-19. This blog provides a preview of the essays that will be published in the Arizona State Law Journal Online through December, leading up to a virtual symposium on December 14, 2020.
Individuals Who Are Institutionalized:
In their essay, Professors Nicole Godfrey and Laura Rovner discuss how prisons and jails have relied on solitary confinement to mitigate the spread of COVID-19, despite the well-documented harmful impacts of solitary confinement on mental health. Prisons and jails are home to some of the worst clusters of COVID-19 outbreaks and have caused prisoners’ rights advocates to file lawsuits across the country in order to request the release of immunocompromised and elderly incarcerated people. Professors Godfrey and Rovner question not only why prisons have chosen solitary confinement over the healthier alternative of release, but also why the judiciary has approved solitary confinement as a preferred solution.
Prisons and jails are not alone. This essay collection includes several calls to release vulnerable individuals from various institutions, as an alternative to COVID-19 solitary confinement. Professor Susan McMahon’s essay explains that, before the pandemic, defendants found incompetent by the court remained in jail for weeks or months waiting for a spot in a psychiatric facility. This delay often resulted in the further deterioration of defendants’ mental states, sometimes leading to suicide, self-abuse, or sexual and physical abuse by guards. Now, this delay has only lengthened during the pandemic because many psychiatric facilities have stopped accepting new patients. The situation is so dire that some defendants have been placed indefinitely in jail-psychiatric-lockdown units comparable to solitary confinement.
Professor Madalyn Wasilczuk’s essay summarizes the despair of the approximately 48,000 detained children and teenagers amidst the pandemic. These children may be in custody for simple status offenses such as truancy or technical violations of probation. Approximately 20% of these children are incarcerated while they wait for their case to move through the courts.
Professor Wasilczuk points out that the purpose of state juvenile legal systems is rehabilitation not punishment, yet these “rehabilitative” facilities have suspended visitation, eliminated communal meals, and placed some children in solitary confinement quarters for “medical isolation.” The poor health outcomes caused by incarceration weigh more heavily on Black and minority communities, and the rate of release for white and Black children has widened during the pandemic. Furthermore, children and institutionalized juveniles are projected to experience a variety of mental health symptoms from the pandemic. Professor Wasilczuk presses courts to reconsider whether the confinement of children during the pandemic is reasonably related to the rehabilitative purposes of juvenile facilities.
Professor Adrián Alvarez discusses the impact of COVID-19 on juveniles detained in the immigration system, particularly those with mental health conditions. Although the United States applies the “the best interests of the child” standard to immigrant children, this standard impacts children differently depending on their disability status. Under current U.S. policy, mental health counselors serving these traumatized minors must provide their confidential therapy notes to the Department of Homeland Security, which may use the therapy notes against migrant children in deportation proceedings. Professor Alvarez argues that this policy harms migrant children with disabilities by discouraging them from participating in therapy and trusting available counselors. Despite their need for mental health care, juveniles may also worry that receiving care could prevent them from being released from custody.
Individuals with Health Conditions and Disabilities:
Co-authors Professor A. Cano Linares and Doctor R. Paricio del Castillo bring an international perspective to their essay focused on pregnant women and newborns, who are particularly vulnerable to contracting COVID-19. The right to health is an international human right, and the core characteristics of adequate reproductive healthcare are availability, accessibility, acceptability, and quality. The authors explain that the root of hospital-adopted restrictions to slow the spread of COVID-19 are not actually evidence-based. Rather, they are aimed at curtailing women’s rights. These troubling and traumatic practices during the pandemic include upticks in caesarean delivery, induced labor without medical indication, separations of mothers and children, stillbirths, and the discouragement of breastfeeding. As the authors conclude, many countries have now adopted inappropriate protocols that violate the human rights of women and their babies.
Next, in his essay, Professor Samuel J. Levine argues that the current public health crisis has exposed society’s failure to provide appropriate services and support these individuals. He shines a light on three specific areas. First, he explains those with developmental disabilities have been deprived of or subject to inconsistent special education services during the pandemic in an online learning environment. Second, these online tools and services can be substandard and disruptive to a population that often requires routine. Third, people with development disabilities are more likely to have preexisting health conditions and live in a group home setting, resulting in a higher rate than others to contract and even die from COVID-19. Professor Levine ends his essay on an optimistic note – hoping that exposing these failures will cause those people who do not have developmental disabilities to be empathetic toward those who do.
Another population that is often overlooked is the elderly. Doctor Barbara Pfeffer Billauer tells that nearly half of long-term care residents in the United States live with dementia or Alzheimer’s. COVID-19 social isolation has increased death rates and disparately impacted the mental and physical health of these disproportionately vulnerable people. Unethical practices such as strict lockdowns for those above a certain age, denying the elderly ventilators, and “active euthanasia” of those with serious illnesses exposed a culture of “disposable elder-care.” Moreover, these practices, like those that targeted pregnant women, had no basis in evidence. Doctor Billauer calls for a therapeutic justice approach to evaluating governmental interventions in public health emergencies going forward to avoid these health-harming consequences suffered by older individuals.
Tribal Communities in the Pandemic:
The essays on Tribal communities detail federal Indian law’s long perpetuation of structural violence and trauma in Indian country, explain how the federal government’s failure to abide by its treaty obligations has exacerbated adverse mental health outcomes for Native Americans in the context of the pandemic, and propose solutions to mitigate COVID-19-related mental health harms.
Professor Aila Hoss’s essay calls for the federal government to comply with its fiduciary duties to Tribal communities to protect their health. Professor Hoss sets the scene by describing the history of federal Indian law and how it has undermined Tribal political and cultural sovereignty. The law has perpetuated adverse health outcomes. For example, the federal government has long underfunded the Indian Health Service (IHS), which provides health care to more than half of Indian country, leading to a lack of test kits, ventilators, and other critical equipment throughout the pandemic. Additionally, the federal government deprived Tribal communities of their fair share of COVID-19 relief funding due to census under-reporting and a lack of public health surveillance. Finally, Hoss points out that the federal government has not only ignored its legal obligation to share COVID-related epidemiological data with Tribes, but it has long-diverted Tribal waters to other communities. All of these practices are harmful during non-pandemic times, but doubly so when facing a disease that is mitigated with routine handwashing and healthcare.
Professor Heather Tanana’s essay echoes several of the themes raised by Professor Hoss. Professor Tanana frames up her piece by providing an overview of the historic federal Indian law policies that have perpetuated trauma on Indian communities for centuries. This has only heightened during the pandemic, as Native Americans are almost four times as likely to contract COVID-19 and develop severe illness compared to their white counterparts. Professor Tanana argues that health and socioeconomic factors including overcrowded households and the prevalence of preexisting conditions in Tribal communities may contribute to these increased COVID-19-related rates. Furthermore, social isolation and cultural norms have caused Native Americans to disproportionately suffer mental health harm. Professor Tanana proposes that the federal government make its public health emergency telehealth reforms permanent beyond the pandemic, fully fund the IHS, and provide Tribes with adequate resources to build necessary telehealth infrastructure.
Telehealth and Individuals with Substance Use Disorder:
In the final essay in our series, Professor Stacey Tovino describes the United States’ deregulation of telehealth and telemedicine during the COVID-19 pandemic, including equal rates for in-person and telehealth services, expanded reimbursement for telehealth services and providers, and waived in-state licensure requirements. Regulators have also eliminated technical obstacles and requirements that limited access to telehealth treatment. Medicare, for example, has waived a reimbursement standard that previously required that beneficiaries receive telehealth services at “originating sites.” With this waiver, providers may now deliver telehealth services to the homes of beneficiaries knowing that Medicare will cover the service. Although deregulation efforts should improve access to treatment for individuals with substance abuse disorders, one cannot confidently state such a claim due to the lack of data. Thus, Professor Tovino advocates for further research on how deregulation impacts patients with substance abuse disorders to further debates on making these deregulation reforms permanent.
The essays in this collection identify COVID-19’s disparate impact on vulnerable populations, propose solutions, and offer hope for reform. Like the formal introduction, these essays will be published in the Arizona State Law Journal Online, which can be found here. We thank each of the authors for their meaningful contributions to this project and look forward to further discussions to help those who are most in need.
By Jennifer D. Oliva.
Associate Professor of Law at Seton Hall University School of Law
Jennifer D. Oliva is an Associate Professor of Law at Seton Hall University School of Law and Chairs the AALS Section on Law and Mental Disability. Professor Oliva’s research and teaching interests include health law, food and drug law, evidence, and veterans & military law. Her recent scholarship addresses the COVID-19 pandemic, opioid and other prescription drug, evidentiary, and veteran issues.
By Valena E. Beety.
Professor of Law at Arizona State University, Sandra Day O’Connor College of Law, and Deputy Director of the Academy for Justice
Valena E. Beety is a Professor of Law at Arizona State University, Sandra Day O’Connor College of Law, and Deputy Director of the Academy for Justice. Professor Beety’s research and teaching interests include prisons and civil rights, criminal law and procedure, post-conviction litigation, evidence, and wrongful convictions. Her recent scholarship addresses opioid prosecution, forensic evidence, the death penalty, and wrongful convictions.