This post was written by Dr. David Papke and Dr. Elise Papke.
In periods of social strain, assorted societal biases are more likely to come in play. That seems to be the case with American ageism, and as a result it has become even harder than before to be an older American.
Ageism is a multifaceted phenomenon that includes micro-aggression, inattentiveness, harmful stereotypes, and, of course, bias and discrimination. Ageist people often claim that they are trying to help seniors or that they are only joking. Seniors usually see through this, but ageism nevertheless leaves many feeling inferior or even worthless.
One example of ageist rhetoric that has surfaced in the midst of the pandemic is “Boomer Remover.” Offensive and even a bit frightening, this meme or catchphrase refers to and implicitly endorses the notion that the virus will reduce the number of annoying Baby Boomers.
When lawyers think about working with clients who have addictions, we often imagine clients who are young or middle-aged and facing legal consequences such as criminal charges for drug possession or for driving under the influence of alcohol or another drug. But not every person struggling with addictions is young, in trouble with law enforcement, or even using substances in a visible way that signals addiction to family members or professionals.
Can you offer a note of optimism when it comes to the COVID-19 pandemic?
Mike Gousha, Marquette Law School’s distinguished fellow in law and public policy, asked Jeanette Kowalik, the health commissioner of the City of Milwaukee, that question at the end of an online “On the Issues with Mike Gousha” interview on Wednesday, May 20.
Kowalik tried, but it was a challenge to put a cheerful face on the impact the virus is having on Milwaukee and most of the world.
“Definitely what’s happening right now is like Haley’s comet,“ she said. It was hard to anticipate “something at this level” as a health crisis, she said, saying the United States as a whole was experiencing “these astronomical numbers” of confirmed cases and deaths.
Under Wisconsin Law, the governor possesses extremely broad power to issue any order that he or she deems necessary to protect lives and property during a state of emergency. When responding to an outbreak of a communicable disease, the governor has the specific power to prohibit public gatherings in any place within the state and for any period of time while the emergency is ongoing. The source of this authority is the power granted to the governor under the Emergency Management Act, which places a duty on the governor to issue orders coordinating the state’s response to a disaster, and the power granted to the Secretary of the Department of Health Services to issue orders forbidding public gatherings during an epidemic. As the top executive branch official in the State of Wisconsin, Governor Evers has both the statutory authority to direct the state’s emergency response efforts and the constitutional authority to make full use of the power of the state’s administrative departments.
On April 6, the Wisconsin Supreme Court — its members meeting under emergency procedures intended to protect their own health — issued an order that had the practical effect of requiring Wisconsin voters who had not already received an absentee ballot to visit a polling place on April 7 and vote in person if they wished to cast a ballot in the spring election.
The result of the Court’s ruling in Wisconsin Legislature v. Evers was to place Wisconsin voters in an untenable position. The ruling disenfranchised anyone who wished to shelter at home in order to avoid possible exposure to Covid-19, a deadly communicable disease, if that person lacked either a computer, internet access, a scanner for making a digital copy of their ID, or a witness to verify their absentee ballot. All of these prerequisites were necessary before a Wisconsin voter could obtain and cast an absentee ballot whilst still sheltering in place. The majority opinion was clear: for anyone who fell into this category, the price of casting a ballot was risking exposure to Covid-19.
The majority opinion in Wisconsin Legislature v. Evers has nothing to do with defending the Rule of Law, and it is a mistake to characterize it in that fashion. There is nothing in any law passed by the Wisconsin legislature that requires the result announced by the Court. Indeed, had the Wisconsin Supreme Court truly intended to uphold the longstanding statutory scheme relating to government powers in response to an outbreak of communicable disease, the Court would have arrived at a contrary result.
The State of Wisconsin, like the rest of the country, has been engaged in a struggle to contain the spread of a coronavirus known as Covid-19. On March 12, 2020, Governor Tony Evers issued Executive Order 72, declaring a public health emergency in Wisconsin. This order was part of a series of executive actions taken by Governor Evers and other executive branch officials in order to address public health and safety concerns during the spread of this deadly communicable disease. On March 24, 2020, the Secretary-designee of the Wisconsin Department of Health Services, Andrea Palm, acting at the direction of Governor Evers, issued Emergency Order 12 (the “Safer-at-Home Order”). That order directed all individuals in Wisconsin to shelter at home, unless engaged in essential activities, until April 24, 2020, or until such time as a superseding directive took effect.
I had the delightful opportunity at the beginning of the summer to deliver a conference paper in Portugal. Lisbon’s cobblestone alleyways and bustling riverfront were exciting, but odd as it might seem, Portuguese cigarette packaging also caught my eye.
All cigarette packs in Portugal have graphic images related to the dangers of smoking cigarettes: rotted teeth, amputated toes, diseased lungs, stitched-up chests, and naked corpses sprawled out on coroners’ metal tables. The images and the accompanying verbal warnings take up the fronts and backs of the packs, and brand names such as “Marlboro” appear only on the narrow bottoms of the packs.
None of the Portuguese smokers to whom I spoke – and there were plenty – seemed particularly offended by the packaging. So-called “scare messages,” after all, are genuinely intended to get smokers to stop. They are consistent with the World Health Organization’ s directives regarding cigarette packaging, and graphic images appear on cigarette packs in most European countries.
What about graphic images in the United States? It briefly seemed that they would begin appearing after the passage of the Family Smoking Prevention and Tobacco Control Act in 2009. The Act in fact mandated them, and the Food and Drug Administration (FDA) formally approved nine graphic images that it considered especially likely to make people afraid of smoking.
However, the tobacco industry and assorted neo-liberal pundits immediately rose up in arms. The former, of course, worried about its profits, and the latter championed the “right to smoke.” The graphic warnings, the pundits argued, interfered with freedom of choice. They were the efforts of the nefarious “nanny state.” Continue reading “Cigarette Packaging and Smokers’ Rights”
Several years ago, the Wisconsin veterinary state convention focused on the legal standard of informed consent in the profession. Lawyers explained that this meant that veterinarians needed to provide all options to owners and that owners make the decision as to what options to pursue. Although this seemed simple enough, and certainly some veterinarians already practiced some degree of informed consent, some veterinarians were understandably concerned about discussing a “no treatment” option and some veterinarians practice in situations where discussions with owners may be difficult (e.g., production medicine) or the time involved would defeat the purpose of their services (e.g., high-volume spay/neuter clinics). But the take-home message was that veterinarians are not the responsible parties for making the decisions for clients and that veterinarians need to provide all of the options, and all of the information that clients need to make decisions. Informed consent protects both parties to the transaction.
Informed consent provides transparency. In the veterinary profession, owners are held directly responsible for the decisions and charges incurred. When an owner is informed about diagnostic or treatment options, this includes the cost involved with the options. Informed consent means discussing what the diagnostics or treatments entail, the prognosis or outcome expected, and the costs involved. In fact, most veterinarians provide written estimates for procedures or hospitalization and may require a deposit. Although this may seem insensitive in some way—to require a deposit to provide care—the estimate can be the reality check an owner may need and, again, the owner client is the responsible party.
Informed consent is also the standard in the human medical profession, but the human medical profession does not provide estimates and doesn’t seem to even know, or admit to knowing, what price tag attaches to options. Much is said about the failures of human medicine. Some of this can be attributed to allowing the profession to not be transparent—to not providing information. Continue reading “Informed Consent”
Last week, the American Bar Association (“ABA”) designated and celebrated October 10th, 2018 as National Mental Health Day for Law Schools. This date coincided with the World Mental Health Day. The ABA’s National Mental Health Day for Law Schools serves as a vital reminder that the legal profession is not immune from mental health problems. In fact, the numbers themselves highlight just how important discussing and tackling mental health and wellness are to both law schools and the legal profession in general. Both law students and lawyers suffer in large numbers from mental illness and substance abuse. Therefore, it is important to address these concerns and to help both law students and attorneys live a life that focuses on their wellbeing.
Statistics on Attorneys
In comparison to other professions, lawyers themselves experience higher rates of mental health issues and substance abuse. Attorneys are the most frequently depressed occupational group in the United States, and they are 3.6 times more likely to suffer from depression in comparison to non-lawyers. In a study of roughly 13,000 practicing attorneys conducted by the ABA Commission on Lawyer Assistance Programs and Hazelden Betty Ford Foundation, 28% of the attorneys reported experiencing depression, 23% reported experiencing stress, and 19% reported experiencing anxiety. Of these participants, 21% are qualified as problem drinkers, and they “experience problematic drinking that is hazardous, harmful, or otherwise generally consistent with alcohol use disorders at a rate much higher than other populations.”
According to the Post story, the federal Drug Enforcement Administration has long had authority to block suspiciously large shipments of prescription painkillers that pose an imminent danger to the community. In the late years of the Bush Administration and early years of the Obama Administration, the DEA became increasingly aggressive in using this authority to target businesses that were involved in questionable ways with the distribution of opioids. The Post reports that these businesses pushed back, initially finding some success through lobbying the Department of Justice. However, they seemingly had their greatest success when Congress passed, and President Obama signed into law, changes to the DEA’s enforcement standards and procedures.
This legislation is the subject of the Marquette Law Review piece, authored by John Mulrooney and Katherine Legel. Mulrooney is an administrative law judge with the DEA. Legel, a graduate of Marquette Law School, was a judicial law clerk with the DEA. Of the 2016 law, they write, “If it had been the intent of Congress to completely eliminate the DEA’s ability to ever impose an immediate suspension on distributors or manufacturers, it would be difficult to conceive of a more effective vehicle for achieving that goal.” This and other aspects of the law review article are noted in the Post’s reporting. Student-editors who have been working on the article should feel gratified to see the piece playing such a prominent role in the ongoing efforts of journalists, policymakers, and academics to better understand the multitude of factors that may be contributing to the current opioid crisis.
One other new visit this year was with Dr. Ofer Merin, a commander of the Israel Defense Force (IDF) Medical Field Unit and emergency room doctor at Shaare Zedek Medical Center in Jerusalem. As student Margo Clark notes, his roles often require both flexibility and understand beyond our immediate biases.
Dr. Ofer Merin is the Chief of the IDF Field Hospital, which travels to different countries to offer assistance in times of need. One example of the IDF Field Hospital’s greatest accomplishments is its ability to be the only field hospital from a foreign country to help the Japanese people after they were devastated by a tsunami. Their success comes from the amount of flexibility and understanding that Dr. Merin and his team work under. Rather than pushing their own system, Dr. Merin and his team worked under and around Japanese law. Under Japanese law, it is illegal for a foreign doctor to treat a Japanese citizen. The team was flexible and put the Japanese people first. Their flexibility is exemplified by their assisting and enabling Japanese doctors to treat the large number of Japanese people who were in need. By foregoing their egos and putting understanding and flexibility first, Dr. Merin and his team were the only foreign field hospital team to be allowed to help the Japanese people. Here is a MSNBC news report showing the IDF work in Haiti from 2010.
Dr. Merin’s flexibility and understanding is continually shown in his additional role as the Deputy Director of the Shaare Zedek Medical Center. This center is known for simultaneously treating terrorists and the victims of their attacks. It is excessively difficult to imagine how hard it must be to treat a terrorist. However, Dr. Merin understands the consequences of both treating and not treating terrorists and being beyond reproach as far as bias towards his patients. As a doctor, he is an example of following the Hippocratic oath and doing no harm under stressful conditions where many would be tempted to be biased and fail their duties as doctors. His example is important because if he can work without bias towards terrorists, doctors everywhere should use his example to attempt to work without any sort of bias. Continue reading “Israel Reflections 2017–Treating Terrorists and Other Medical Challenges”
When Peggy Troy returned to the Milwaukee area about eight years ago to become president and CEO of Children’s Hospital of Wisconsin, she was struck by the disparities in children’s health she found. She had been a hospital executive in Memphis and expected that things were better overall in Milwaukee. But when it came to medical issues affecting thousands of children in high-poverty neighborhoods, that wasn’t really the case. The disparities in Milwaukee’s central city were some of the worst in the nation.
Since then, Troy has been a central figure in accelerating the efforts by Children’s and many community partners to improve the overall health of children in Milwaukee and throughout Wisconsin. While the national reputation of Children’s for its medical work has continued to rise, the mission statement for the institution goes beyond delivering care for patients. It is to make Wisconsin’s children the healthiest in the nation.
Most of us are familiar with wellness programs—programs sponsored by our employer or health plan that try to incentivize us to eat healthier, sleep well, and get more exercise. If you’re anything like me, it helps to have that extra push or incentive, especially around the holidays when sweets abound, to stay on track—or at least, to not stray too far from health goals. Most of these programs have the added advantage of lowering health care costs, both by providing financial incentives to reduce immediate costs to the individual employees and by boosting the overall health of the employees as a whole, which could reduce future health care costs. However, extensive technical regulations and recent litigation by the AARP make implementing health and wellness programs increasingly tricky for employers.
Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) and the regulations promulgated by the U.S. Equal Employment Opportunity Commission (the “EEOC”) thereunder, generally prohibit “an employer [from] request[ing], require[ing], or purchas[ing] genetic information [which includes an individual’s family medical history] with respect to an employee or a family member of the employee.” 42 U.S.C. § 2000ff–1(b). However, there is an exception for wellness programs, as long as employers jump through a set of hoops. 29 CFR § 1635.8(b)(2). While not without its own problems and excesses, the exception in the EEOC regulations at least allows employers to provide incentives to those employees willing to participate in employer-sponsored wellness programs.
The AARP doesn’t like this whole “incentive” idea to begin with. It recently filed a lawsuit against the EEOC in an attempt to vacate the regulations entirely. AARP v. U.S. Equal Employment Opportunity Commission, No. 1:16-cv-02113 (D. D.C. 2016) (hereafter the “AARP Complaint”). This actually might not be a bad idea, except for the fact that the AARP thinks that the regulations do not have enough hoops. In fact, the AARP would prefer that the regulations abolish any permission for any incentives or penalties to induce participation in employer-sponsored wellness programs. The AARP alleges in its complaint that all employer incentives or penalties to induce participation in employer-sponsored wellness programs violate Title I of the ADA and Title II of GINA. AARP Complaint at 3. Continue reading “That Extra Incentive”