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Published online by Cambridge University Press: 30 December 2024
The 2023 Texas federal district court decision Braidwood Management, Inc. vs. Becerra enjoined the enforcement of the Affordable Care Act’s preventive care mandate, which requires “first-dollar” insurance coverage for a range of preventive measures, including pre-exposure prophylaxis (PrEP), an HIV prophylactic drug. Most scholars have analyzed the case with respect to the conflict between public health goals and the Religious Freedom Restoration Act (RFRA). This Article suggests another reading of the Braidwood decision in light of a broader socio-legal phenomenon I call preventive health stigma. Stereotypes attach to the underlying medical condition that a given measure is aimed at preventing, or to the actual preventive measure resulting in stigmatization. Preventive health stigma penetrated the Braidwood decision through the case’s focus on PrEP users’ signaled prurient behavior instead of the drug’s proven health benefits. After offering a novel reading of the Braidwood decision, this Article also shows how preventive health stigma surfaces in the legal treatment of other preventive measures, such as abortion pills, masking, and vaccines. Understanding how stigma attaches to preventive medicine constitutes an important step in understanding how law and prejudice can undermine health reform.
1 Mike Upton, ‘They Won’t Wear Condoms, So Why Would We Expect Them to Wear Masks?’: Social Media, ‘Circuit Queens’ and the ‘Gay Civil War’ During COVID-19, Sexualities, Oct. 22, 2023, at 11.
2 Id. at 2; Alex Abad-Santos, A Year into the Pandemic, Shame Still Doesn’t Work, Vox (Jan. 27, 2021, 8:30 AM), https://www.vox.com/22245094/gaysovercovid-pandemic-shaming [https://perma.cc/4MAM-ABTA]. For a discussion of mask shaming on account of wearing a mask and not wearing a mask, see generally Doron Dorfman, Mask Shaming: On Private Enforcement and Disability Politics, in Regulating the Body (Austin Sarat & Susanna Lee eds., forthcoming 2025).
3 Upton, supra note 1, at 11. For the original post, see gaysovercovid (@gaysovercovid), Instagram (Aug. 9, 2020), https://www.instagram.com/p/CDrfMHAp_1t/ [https://perma.cc/U8P2-7NYU?type=image].
4 Doron Dorfman, The PrEP Penalty, 63 B.C. L. Rev. 813, 854 (2022) [hereinafter Dorfman, PrEP Penalty].
5 Upton, supra note 1, at 11.
6 CDC guidelines that were published in 2014 require PrEP users to get screened for HIV and STIs every three months to keep their prescription. This conditioning of screens serves as an effective way of dealing with undertesting. This professional guidance might not be binding but has been known to be followed by physicians who prescribe PrEP. See Dorfman, PrEP Penalty, supra note 4, at 856.
7 Upton, supra note 1, at 11.
8 Scott Burris et al., The New Public Health Law: A Transdisciplinary Approach to Practice and Advocacy 6 (2018) (stating that the aim of public health is to prevent rather than treat illness).
9 Patient Protection and Affordable Care Act, Pub. L. No. 111–148, § 1(b), 124 Stat. 119, 124–25 (2010) (codified as amended at 42 U.S.C. § 18001).
10 Doron Dorfman, Penalizing Prevention: The Paradoxical Legal Treatment of Preventive Medicine, 109 Cornell L. Rev. 311, 313–15 (2024) [hereinafter Dorfman, Penalizing Prevention].
11 Id. at 314; see discussion infra Section II.
12 Bruce G. Link & Jo C. Phelan, Conceptualizing Stigma, 27 Ann. Rev. Socio. 363, 365 (2001); Betsy L. Fife & Eric R. Wright, The Dimensionality of Stigma: A Comparison of Its Impact on the Self of Persons with HIV/AIDS and Cancer, 41 J. Health & Soc. Behav. 50, 51 (2000).
13 Erving Goffman, Stigma: Notes on the Management of Spoiled Identity 4 (first touchstone ed., 1986).
14 See, e.g., U.S. Dep’t of Lab., FAQs About Affordable Care Act Implementation Part 47 (2021) (clarifying that cost-sharing may not be imposed on pre-exposure prophylaxis and its accompanying services); Mass. Off. of Consumer Affs. & Bus. Regul., Opinion Letter on HIV PrEP Preventive Health Service Coverage (Sept. 7, 2021); Cal. Dep’t of Ins., Opinion Letter on Preventive Servs. Coverage for HIV Preexposure Prophylaxis with Provider-Administered Antiretroviral Drug Therapy (Dec. 29, 2021).
15 Link & Phelan, supra note 12, at 363.
16 Goffman, supra note 13, at 3.
17 Id.
18 Id. at 107.
19 Link & Phelan, supra note 12, at 365.
20 Goffman, supra note 13, at 4.
21 Richard D. Ashmore & Frances K. Del Boca, Conceptual Approaches to Stereotypes and Stereotyping, in Cognitive Processes in Stereotyping and Intergroup Behavior 1, 16 (David L. Hamilton ed., 2nd ed. 2015).
22 Roger Brown, Social Psychology: The Second Edition 595 (1986).
23 The most famous first study on the topic was done by Katz and Braley in 1933. See Daniel Katz & K. Braley, Racial Stereotypes of One Hundred College Students, 28 J. Abnormal & Soc. Psych. 280, 282 (1933). This study was followed by others. See Penelope J. Oakes et al., Stereotyping and Social Reality 19 (1994); Charles M. Judd & Bernadette Park, Definition and Assessment of Accuracy in Social Stereotypes, 100 Psych. Rev. 109, 109 (1993); David J. Schneider, Modern Stereotype Research: Unfinished Business, in Stereotypes and Stereotyping 419, 420 (C. Neil Macrae et al. eds., 1996).
24 Erin Beeghly, What Is a Stereotype? What Is Stereotyping?, 30 Hypatia 675, 677 (2015).
25 Judd & Park, supra note 23, at 110–11.
26 Lawrence O. Gostin & Lindsay F. Wiley, Public Health Law: Power, Duty, Restraint 15 (3rd ed. 2016).
27 Burris et al., supra note 8, at 6–7.
28 Robert S. Gordon, An Operational Classification of Disease Prevention, 98 Pub. Health Reps. 107, 108 (1983).
29 Burris et al., supra note 8, at 6–7.
30 Dorfman, Penalizing Prevention, supra note 10, at 312–14.
31 Id. at 342–46.
32 Texas v. United States, 340 F. Supp. 3d 579, 619 (N.D. Tex. 2018). One legal scholar stated that after the 2018 Supreme Court decision, Judge O’Connor has been “blinded” by “his contempt of the ACA.” Nicholas Bagley, Opinion, The Latest ACA Ruling Is Raw Judicial Activism and Impossible to Defend, Wash. Post (Dec. 15, 2018, 12:31 PM), https://www.washingtonpost.com/opinions/2018/12/15/latest-aca-ruling-is-raw-judicial-activism-impossible-defend [https://perma.cc/3HSE-PUBQ].
33 The list of mandated preventive services to be covered by insurers derives from recommendations by one of four professional governmental or private, non-profit bodies: the U.S. Preventive Services Task Force, the Advisory Committee on Immunization Practices, the Health Resources and Services Administration’s Bright Futures Project, and the Institute of Medicine’s Committee on Women’s Clinical Preventive Services. See Affordable Care Act, 42 U.S.C. § 300gg‑13; Comm. on Preventive Servs. for Women, Inst. of Med., Clinical Preventive Services for Women: Closing the Gaps 1 (2011).
34 The U.S. Preventive Services Task Force is an independent body “composed of individuals with appropriate expertise. Such Task Force shall review the scientific evidence related to the effectiveness, appropriateness, and cost‑effectiveness of clinical preventive services for the purpose of developing recommendations for the health care community, and updating previous clinical preventive recommendations.” 42 U.S.C. § 299b‑4(a)(1).
35 See Braidwood Mgmt. v. Becerra, 627 F. Supp. 3d 624, 646 (N.D. Tex. 2023).
36 See id. at 652. RFRA provides that the “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless the government shows that it has a “compelling governmental interest” and the policy “is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb‑1(a)–(b).
37 573 U.S. 682, 690 (2014). For an important discussion of Burwell v. Hobby Lobby Stores and its impact, see Elizabeth Sepper, Free Exercise Lochnerism, 115 Colum. L. Rev. 1453, 1496–1507 (2015).
38 Braidwood Mgmt. v. Becerra, 666 F. Supp. 3d 613, 617 (N.D. Tex. 2023).
39 Dorfman, Penalizing Prevention, supra note 10, at 329–30.
40 Preventive Care Benefits for Adults, HealthCare.gov, https://www.healthcare.gov/preventive-care-adults/ [https://perma.cc/7LXF-AH4E]; Women’s Preventive Services Guidelines, Health Res. & Servs. Admin., https://www.hrsa.gov/womens-guidelines/index.html [https://perma.cc/YL8N-HBKT] (last reviewed Mar. 2024).
41 Kristen Underhill, Risk-Taking and Rulemaking: Addressing Risk Compensation Behavior Through FDA Regulation of Prescription Drugs, 30 Yale J. on Regul. 377, 379, 383–86 (2013); Julia L. Marcus et al., Risk Compensation and Clinical Decision Making—The Case of HIV Preexposure Prophylaxis, 380 New Eng. J. Med. 510, 510 (2019).
42 Underhill, supra note 41, at 429–30.
43 Douglas Kirby, The Impact of Schools and School Programs upon Adolescent Sexual Behavior, 39 J. Sex Rsch. 27, 31 (2002); Jonathan Thomas Fanburg et al., Student Opinions of Condom Distribution at a Denver, Colorado, High School, 65 J. Sch. Health 181, 182–83 (1995) (discussing fears surrounding condom distribution).
44 Geoffrey R. Stone, Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century 74 (2017).
45 Anthony S. Fauci et al., Ending the HIV Epidemic: A Plan for the United States, 321 JAMA 844, 844 (2019).
46 Liz Highleyman, First Generic Truvada Now Available in the United States, POZ (Oct. 2, 2020), https://www.poz.com/article/first-generic-truvada-now-available-united-states [https://perma.cc/URD7-CPWK].
47 Press Release, U.S. Food & Drug Admin., FDA Approves First Injectable Treatment for HIV Pre‑Exposure Prevention (Dec. 20, 2021), https://www.fda.gov/news-events/press-announcements/fda-approves-first-injectable-treatment-hiv-pre-exposure-prevention [https://perma.cc/XS5S-8LVD].
48 See U.S. Pub. Health Serv., Ctrs for Disease Control & Prevention, Preexposure Prophylaxis for the Prevention of HIV Infection in the United States – 2021 Update: A Clinical Practice Guideline 43 (2021), https://www.cdc.gov/hiv/pdf/risk/prep/cdc-hiv-prep-guidelines-2021.pdf [https://perma.cc/LH8S-A7CH] (recommending that certain patients receiving PrEP complete STI testing at least every three months).
49 Dorfman, PrEP Penalty, supra note 4, at 826; see also Katherine G. Quinn et al., Intersectional Discrimination and PrEP Use Among Young Black Sexual Minority Individuals: The Importance of Black LGBTQ Communities and Social Support, 27 AIDS & Behav. 290, 291 (2023).
50 Dorfman, PrEP Penalty, supra note 4, at 854.
51 Id. at 854–56.
52 Id. at 854, 860.
54 Dorfman, PrEP Penalty, supra note 4, at 853, 861–62.
55 Craig Konnoth, Drugs’ Other Side Effects, 105 Iowa L. Rev. 171, 186 (2019) (discussing how concerns about risk compensations dominated the FDA’s advisory committee hearing prior to the approval of Truvada as PrEP in 2012).
56 Braidwood Mgmt. v. Becerra, 627 F. Supp. 3d 624, 652 (N.D. Tex. 2023).
57 Tom Baker, Health Insurance, Risk, and Responsibility After the Patient Protection and Affordable Care Act, 159 U. Pa. L. Rev. 1577, 1610–11 (2011).
58 Id. at 1579.
59 Goffman, supra note 13, at 4.
60 Dorfman, Penalizing Prevention, supra note 10, at 366.
61 Allyson Day, The Political Economy of Stigma: HIV, Memoir, Medicine and Crip Positionalities 3 (2021).
62 Dorfman, PrEP Penalty, supra note 4, at 866–67, 875.
63 Sarit A. Golub, PrEP Stigma: Implicit and Explicit Drivers of Disparity, 15 Current HIV/AIDS Reps. 190, 191 (2018).
64 HIV Treatment As Prevention, HIV.Gov (Feb. 1, 2023), https://www.hiv.gov/tasp/ [https://perma.cc/5LJW-KUPM].
68 Diana Taylor & Evelyn Angel James, An Evidence-Based Guideline for Unintended Pregnancy Prevention, 40 J. Obstetric, Gynecologic & Neonatal Nursing 782, 786 (2011); Versie Johnson-Mallard et al., Unintended Pregnancy: A Framework for Prevention and Options for Midlife Women in the US, Women’s Midlife Health, Sept. 15, 2017, at 3 (“Secondary prevention services are focused on identification of unintended pregnancies early in order to improve reproductive health outcomes. Secondary prevention services incorporate pregnancy diagnosis, pregnancy options counseling and management, referral and counseling for pregnancy care, adoption or early abortion referral and care.”).
69 Taylor & James, supra note 68, at 783.
70 Id. at 782.
71 Alina Salganicoff et al., Coverage for Abortion Services and the ACA, KFF (Sept. 14, 2014), https://www.kff.org/womens-health-policy/issue-brief/coverage-for-abortion-services-and-the-aca/ [https://perma.cc/4XA7-BWSA].
72 Id.
73 Id.
74 See, e.g., Constance M. Wiemann et al., Are Pregnant Adolescents Stigmatized by Pregnancy?, 36 J. Adolescent Health 352 (2005) (finding that two out of five adolescent women reported feeling stigmatized by their pregnancy and finding positive correlation with being unmarried or unengaged with baby’s father); Tanya Lewis, 64,000 Pregnancies Caused by Rape Have Occurred in States with a Total Abortion Ban, New Study Estimates, Sci. Am. (Jan. 25, 2024), https://www.scientificamerican.com/article/64-000-pregnancies-caused-by-rape-have-occurred-in-states-with-a-total-abortion-ban-new-study-estimates/ [https://perma.cc/D6UB-G6ZD].
75 See, e.g., Solangel Maldonado, Illegitimate Harm: Law, Stigma, and Discrimination Against Nonmarital Children, 63 Fla. L. Rev. 345, 347 (2011); Karen M. Tani, When a Wrong Creates a Life: Tort Responses to Children Born from Institutional Sexual Violence, 73 DePaul L. Rev. 617, 620 (2024).
76 Pam Belluck & Sheryl Gay Stolberg, Abortion Pills Stand to Become the Next Battleground in Post-Roe America, N.Y. Times (May 5, 2022), https://www.nytimes.com/2022/05/05/health/abortion-pills-roe-v-wade.html; The Availability and Use of Medication Abortion, KFF (Mar. 20, 2024), https://www.kff.org/womens-health-policy/fact-sheet/the-availability-and-use-of-medication-abortion/ [https://perma.cc/3F2V-JBL6].
77 The Availability and Use of Medication Abortion, supra note 76.
78 Questions and Answers on Mifepristone for Medical Termination of Pregnancy Through Ten Weeks Gestation, U.S. Food & Drug Admin. (Sept. 1, 2023), https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-providers/questions-and-answers-mifepristone-medical-termination-pregnancy-through-ten-weeks-gestation.
79 Id.
80 Id.
81 David Cohen et al., Abortion Pills, 76 Stan. L. Rev. 317, 327 (2024); Claire Cain Miller & Margot Sanger-Katz, Virtual Clinics Have Been a Fast-Growing Method of Abortion. That Could Change, N.Y. Times (Apr. 14, 2023), https://www.nytimes.com/2023/04/14/upshot/abortion-virtual-clinics.html.
82 Cohen et al., supra note 81, at 327.
83 Id. at 391.
84 See Historical Abortion Law Timeline: 1850 to Today, Planned Parenthood Action Fund, https://www.plannedparenthoodaction.org/issues/abortion/abortion-central-history-reproductive-health-care-america/historical-abortion-law-timeline-1850-today [https://perma.cc/UDD8-P2M2] (stating doctors began an abortion criminalization campaign circa 1947); see also Carol Sanger, Talking About Abortion, 25 Soc. & Legal Studs. 651, 652 (2016); Carol Sanger, About Abortion: Terminating Pregnancy in Twenty-First-Century America 61 (2017) [hereinafter Sanger, About Abortion]; Reva B. Siegel, ProChoiceLife: Asking Who Protects Life and How – and Why It Matters in Law and Politics, 93 Ind. L.J. 207, 226 (2018); Douglas NeJaime & Reva Siegel, Answering the Lochner Objection: Substantive Due Process and the Role of Courts in a Democracy, 96 N.Y.U. L. Rev. 1902, 1924 (2021).
85 Cohen et al., supra note 81, at 391.
86 Sanger, About Abortion, supra note 84, at 84.
87 Cohen et al., supra note 81, at 391.
88 Id. at 391–92.
89 For an early articulation of the term ‘abortion mill’ as “[a] mill might be defined as an abortionist or several abortionists working steadily in a fairly permanent location and aborting a dozen or so women daily,” see Jerome E. Bates, The Abortion Mill: An Institutional Study, 45 J. Crim. L., Criminology & Police Sci. 157, 157 (1954). The term later appeared in the 1973 decision Roe v. Wade, where the Supreme Court dismissed assertions by the state of Texas that banning abortion was crucial to protect women’s health, observing that mortality rates during the first trimester of pregnancy “appear to be as low as or lower than the rates for normal childbirth” in contrast with the “prevalence of high mortality rates at illegal ‘abortion mills.’” See Roe v. Wade, 410 U.S. 113, 149–50 (1973).
90 Cohen et al., supra note 81, at 393.
91 Id.
92 Food & Drug Admin. v. Alliance for Hippocratic Medicine, No. 23–235 (U.S. June 13, 2024).
93 COVID-19 Stigma and Mental Health: Who Hid Their Illness, Who Shared and Why It Still Matters, Univ. of Mich.: News (Apr. 14, 2023), https://news.umich.edu/covid-19-stigma-and-mental-health-who-hid-their-illness-who-shared-and-why-it-still-matters/ [https://perma.cc/L8QH-XMPK] (citing Soomin Ryu et al., Univ. of Mich. Sch. of Pub. Health, Michigan COVID-19 Recovery Surveillance Study Data Report 6: COVID-19 Stigma and Mental Health in Michigan (2023), https://sph.umich.edu/mi-cress/pdf/MICReSS_Stigma_MentalHealth_Report_April2023.pdf [https://perma.cc/35BE-7594]).
94 Doron Dorfman, Pandemic “Disability Cons,” 49 J.L. Med. & Ethics 401, 403–04 (2021) [hereinafter Dorfman, Pandemic “Disability Cons”].
95 Shana Kushner Gadarian et al., Pandemic Politics: The Deadly Toll of Partisanship in the Age of COVID 100 (2022); Lindsay F. Wiley, Democratizing the Laws of Social Distancing, 19 Yale J. Health Pol’y L. & Ethics 63, 75 (2020); Dorfman, Pandemic “Disability Cons,” supra note 94, at 403.
96 Exec. Order No. 13991, 3 C.F.R. 434 (2022).
97 Gadarian et al., supra note 95, at 100.
98 Id. at 103. Some research doubted the efficiency of masks in combating infection air-borne viruses. Nevertheless, a 2024 study based on population-based SARS-CoV-2 infection data from Ontario, Canada that adjusted the analysis to include for the over-testing of older individuals and under-testing of younger individuals, reached the conclusion that masking is indeed an effective health measure. In the words of the researchers:
While the physical properties of masks and respirators reduce both production of infectious aerosols containing SARS-CoV-2, and inhalation of infectious aerosols, the application of masks and respirators in indoor settings during the pandemic has been variable and controversial… Our findings likely identify an important source of bias towards the null in the available literature on community masking effects. We find that the effects of mask mandates are obscured by disproportionate testing of older individuals who are likely to present with more severe SARS-CoV-2 infection, and under-testing of younger individuals (children, teens, and young men) who are less likely to undergo testing, and more likely to experience minimally symptomatic infection… In summary, we find that adjustment for under-testing in younger age groups demonstrates that community mask mandates in Ontario, Canada were highly effective, and these effects were robust to different modeling approaches. Community masking mandates generated substantial health and economic benefits for the province. Such mandates should be considered a potent tool for the management of future respiratory virus emergences.
Amy Peng et al., Impact of Community Mask Mandates on SARS-CoV-2 Transmission in Ontario After Adjustment for Differential Testing by Age and Sex, PNAS Nexus, Feb. 2024, at 5–7.
99 Gadarian et al., supra note 95, at 110.
100 Dorfman, PrEP Penalty, supra note 4, at 858.
101 Dorfman, Mask Shaming, supra note 2 (manuscript at 11).
102 James R. Mahalik et al., Conformity to Masculine Norms and Men’s Responses to the COVID-19 Pandemic, 23 Psych. Men & Masculinities 445, 447 (2022).
103 Daniel Victor, Coronavirus Safety Runs into a Stubborn Barrier: Masculinity, N.Y. Times (Oct. 10, 2020), https://www.nytimes.com/2020/10/10/us/politics/trump-biden-masks-masculinity.html; see Julia Marcus, The Dudes Who Won’t Wear Masks, Atlantic (June 20, 2020), https://www.theatlantic.com/ideas/archive/2020/06/dudes-who-wont-wear-masks/613375/ [https://perma.cc/4GP3-ZF3A].
104 Ashley Quigley et al., Estimated Mask Use and Temporal Relationship to COVID‑19 Epidemiology of Black Lives Matter Protests in 12 Cities, 10 J. Racial & Ethnic Health Disparities 1213, 1213 (2023).
105 Philip Galanes, Shoppers Should Wear Masks. Shouldn’t Protesters, Too?, N.Y. Times (July 9, 2020), https://www.nytimes.com/2020/07/09/style/mask-wearing-in-public.html.
106 Bjorg Thorsteinsdottir et al., Are Physicians Hypocrites for Supporting Black Lives Matter Protests and Opposing Anti-Lockdown Protests? An Ethical Analysis, Hastings Ctr. (Aug. 27, 2020), https://www.thehastingscenter.org/are-physicians-hypocrites-for-supporting-black-lives-matter-protests-and-opposing-anti-lockdown-protests-an-ethical-analysis/ [https://perma.cc/33VY-2TQ7].
107 Quigley et al., supra note 104, at 1218; Leah Asmelash, Black Lives Matter Protests Have Not Led to a Spike in Coronavirus Cases, Research Says, CNN (June 24, 2020), https://www.cnn.com/2020/06/24/us/coronavirus-cases-protests-black-lives-matter-trnd/index.html [https://perma.cc/DSB6-3PND].
108 Laurie Larsh, Mask Shaming: America’s New Favorite Pastime During COVID-19 — Including in Charlotte, Charlotte Observer (May 19, 2020), https://www.charlotteobserver.com/charlottefive/c5-wellness/article242809766.html [https://perma.cc/K9HX-SPVS].
109 Randall Kennedy, Race, Crime, and the Law 16 (1997); Claude M. Steele, Whistling Vivaldi: And Other Clues to How Stereotypes Affect Us and What We Can Do 6–7 (2011); Paul Butler, Chokehold: Policing Black Men 17–21 (2017).
110 Larsh, supra note 108.
111 Bill Chappell, NYC Mayor Eric Adams Is Telling Stores to Have Customers Remove Their Face Masks, NPR (Mar. 7, 2023), https://www.npr.org/2023/03/07/1161623700/nyc-stores-masking-eric-adams-robberies-shoplifting-bodegas [https://perma.cc/4FL2-9FBC].
112 Stacey Decker, Which States Banned Mask Mandates in Schools, and Which Required Masks, Educ. Wk. (July 8, 2022), https://www.edweek.org/policy-politics/which-states-ban-mask-mandates-in-schools-and-which-require-masks/2021/08 [https://perma.cc/UUD9-JRWW]; State-by-State School Mask Mandates, Nat’l Ctr. for Disability, Equity, & Intersectionality (Apr. 6, 2022), https://thinkequitable.com/state-by-state-school-mask-mandates/ [perma.cc/B465-DR8A].
113 Mical Raz & Doron Dorfman, Bans on COVID-19 Mask Requirements vs Disability Accommodations: A New Conundrum, JAMA Health F. (Aug. 6, 2020), https://jamanetwork.com/journals/jama-health-forum/fullarticle/2782893 [https://perma.cc/S4GA-CMJR].
114 This is as opposed to a universal masking mandate. See Doron Dorfman, Third-Party Accommodations, 123 Mich. L. Rev. (forthcoming 2025) (manuscript at 38), https://ssrn.com/abstract=4742287.
115 Id. (manuscript at 38–46); Doron Dorfman et al., Physicians’ Refusal to Wear Masks to Protect Vulnerable Patients–An Ethical Dilemma for the Medical Profession, JAMA Health F., Nov. 17, 2023, at 1-2, https://jamanetwork.com/journals/jama-health-forum/fullarticle/2811897 [https://perma.cc/J9XG-X649].
116 Dorfman et al., supra note 115; Katherine A. Macfarlane, A Patient’s Right to Masked Health Care Providers, Harv. L. Petrie-Flom Ctr.: Bill of Health (July 20, 2023), https://blog.petrieflom.law.harvard.edu/2023/07/20/a-patients-right-to-masked-health-care-providers/ [https://perma.cc/J5CY-YW9F].
117 Zhan Xu, Partisan Bias in Flu News and Its Impacts on Flu Vaccination Uptake in the U.S., Journalism Prac. 7, 12–13 (May 11, 2023).
118 Wendy E. Parmet, Constitutional Contagion: Covid, the Courts, and Public Health 11–12 (2023); Lev Facher, Experts Warn Full COVID-19 Vaccine Approval Is No Quick Fix for Hesitancy, STAT (July 12, 2021), https://www.statnews.com/2021/07/12/experts-warn-full-covid-19-vaccine-approval-is-no-quick-fix-for-hesitancy/ [https://perma.cc/S6TN-WES2].
119 Dorfman, Penalizing Prevention, supra note 10, at 329–30.
120 For the history of vaccine passports in the U.S., see Kevin Cope et al., Vaccine Passports as a Constitutional Right, 54 Ariz. St. L.J. 25, 32–34 (2022).
121 Seema Mohapatra, Passports of Privilege, 70 Am. U. L. Rev. 1729, 1755–58 (2021).
122 Dorfman, Penalizing Prevention, supra note 10, at 326, 349–50, 361–63 (showing how preventive medicine stigma created a chilling effect around seeking preventive mental health treatment and around the public use of naloxone).
123 Id. at 334, 376.
124 N.J. Stat. Ann. §§ 24:6I-1 to -56 (West 2024).
125 Dorfman, Penalizing Prevention, supra note 10, at 317, 370–71; see also, Linda J. Vorvick, Medical Marijuana, MedlinePlus (Oct. 13, 2023), https://medlineplus.gov/ency/patientinstructions/000899.htm [https://perma.cc/ENM9-8AR5].
126 N.J. Stat. Ann. § 24:6I-6.1 (West 2024); see also Marijuana Pol’y Project, Jake Honig Compassionate Use Medical Cannabis Act 1–2, https://www.mpp.org/assets/pdf/states/new-jersey/jake-honig-compassionate-use-medical-cannabis-act.pdf [https://perma.cc/LT38-8QUE].
127 205 A.3d 1144, 1150 (N.J. Super. Ct. App. Div. 2019).
128 Wild v. Carriage Funeral Holdings, 227 A.3d 1206, 1208 (N.J. 2020).