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In a recently-published article in a leading health law journal, IU McKinney Professor of Law Robert Katz puts his scholarship and hands-on experience to work on behalf of some of the most vulnerable people in the world: U.S prisoners infected with the hepatitis C virus seeking life-saving treatments from the state governments who incarcerate them.

Professor Katz’s article brings critical insights and analysis to prisoners' rights litigators and advocates seeking to defend prisoners’ rights and stop the spread of infectious diseases within U.S. prisons and beyond.

Published in the Summer issue of the Annals of Health Law, the article, entitled “Hepatitis C Litigation: Healing Inmates as a Public Health Strategy,” explores the intersection between the Eighth Amendment’s prohibition against cruel and unusual punishment and the pursuit of public health goals.  It also examines the role that larger public health goals play in judicial opinions ordering prison systems to treat infected inmates.

In its three months leading up to publication, Katz’s article has already been downloaded over 140 times and its abstract viewed over 600 times. It has also received praise from leading scholars in health law, public health, and bioethics.

“In this important article, Professor Katz demonstrates that the U.S. prison system has disregarded its constitutional duty to treat inmates with Hepatitis C virus, and persuasively argues that Eighth Amendment litigation is an effective tool for remedying this failure,” according to Nadia Sawicki, Professor of Law and health law expert at Loyola University Chicago.

The article has also received praise from Peter Schwartz, MD, Ph.D., Director of the IU Center for Bioethics, Associate Professor of Medicine at IU School of Medicine, and Associate Professor of Philosophy at IUPUI.  Dr. Schwartz wrote that the article draws attention to “a crucial issue that has received little attention in the bioethics literature,” namely, the “ethical and legal issues involved in making decisions about treating inmates for Hepatitis C” and, by extension, to infectious diseases more generally. “The importance of this issue,” Schwartz observes, “has been emphasized, to a tragic degree, after Professor Katz wrote his paper, with the COVID-19 pandemic.”

In his current research, Professor Katz extends his analysis to the Covid-19 epidemic and its disproportionate impact on incarcerated populations.  

The article was inspired by Professor Katz’s real-world experience as co-counsel in Stafford v. Carter, a federal class action that seeks to compel the Indiana Department of Correction (IDOC) to treat 3,500 inmates who are chronically infected with the hepatitis C virus (HCV). In September 2018, Professor Katz and his co-counsel, Indianapolis attorney Mark W. Sniderman, '06, won an order from the United States District Court of the Southern District of Indiana that says the IDOC must treat these inmates. The order was written by Chief Judge Jane Magnus-Stinson, ’83.  IDOC ultimately agreed to provide such treatment at an estimated cost of $80 million.

Sniderman says that Professor Katz’s article “has done a service for inmates across the country, and those of us who seek to do a better job representing them. By surveying and analyzing decisions across the circuits, Professor Katz compiles doctrinal approaches, explores tensions, and synthesizes views of the Eighth Amendment. His answers assist all who seek to determine what we owe those whom we imprison.

“And, with COVID-19 raging, this work is more apropos than ever. The prisoner rights’ community is also more active than ever, and with justifiable cause. In order to protect prisoners, their families and the greater society, our litigation efforts are essential. With Professor Katz’s work as a guide for us, the courts, and the prison administrators, we are all better equipped to seek a more humane, and more uniform, manner of treating inmates.”

In addition to contributing to scholarship, Professor Katz intends the article to serve the larger community by putting valuable knowledge in the hands of people who can put it to good use, including other prisoner rights litigators, correctional officials, and prisoner advocates. 

The article also serves people who take a public health approach to HCV in corrections and who connect through the National Hepatitis Correctional Network (NHCN).  This nonprofit organization’s members include correctional administrators and healthcare providers, researchers, legal and policy stakeholders, community-based organizations, and educators.

The most recent issue of NHCN’s newsletter discusses the article at length. NHCN director Mandy Altman wrote that, “As HCV elimination gains more national recognition, we are in an era where many State Corrections Departments can expect to face HCV litigation in some form. We at NHCN believe that all of our network partners and their affiliates will benefit from the cohesive analysis of what to expect from HCV litigation in the correctional setting.

Professor Katz joined the faculty of IU McKinney in fall 2001. He is also an affiliate faculty member at the IU Lilly Family School of Philanthropy and the IU School of Medicine Center for Bioethics. He teaches courses on the law of nonprofit organizations, tax-exempt healthcare organizations, trusts and estates, First Amendment, and law and religion.

His areas of expertise include: prisoners' health care rights; the law of nonprofit organizations and tax-exempt healthcare organizations; trusts and estates; First Amendment; and law and religion. His scholarly interests include prisoners' health care rights; the tension between LGBTQ rights and religious freedom; the law of nonprofit organizations; disaster relief; tissue banking; and social enterprise.