Repugnance doesn't establish standing in court: Supreme Court reverses Kacsmaryk on medical abortion

  Yesterday the Supreme Court ruled unanimously that (for the time being at least) the medical abortion pill mifepristone should remain legal and widely available.  This reverses the decision of judge Matthew Kacsmaryk of the Federal District court in Amarillo Texas, who ruled that the FDA's authorization of the drug was illegal. (That decision was stayed pending appeal, which has now reversed it.)

The Supreme Court left open the underlying legal issues, but ruled against Judge Kacsmaryk's decision that the plaintiffs in the case, a consortium of medical associations and physicians had standing to bring the case. They say clearly that finding a law repugnant doesn't give a plaintiff standing:

“standing screens out plaintiffs who might have only a general legal, moral, ideological, or policy objection to a particular government action.” 

More colorfully, they say

"As Justice Scalia memorably said, Article III [standing] requires a plaintiff to first answer a basic question: “‘What’s it to you?’” A. Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 882 (1983). For a plaintiff to get in the federal courthouse door and obtain a judicial determination of what the governing law is, the plaintiff cannot be a mere bystander, but instead must have a “personal stake” in the dispute."

Here is the full opinion:

SUPREME COURT OF THE UNITED STATES, “ FOOD AND DRUG ADMINISTRATION ET AL. v. ALLIANCE FOR HIPPOCRATIC MEDICINE ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 23–235. Argued March 26, 2024—Decided June 13, 2024, https://www.supremecourt.gov/opinions/23pdf/23-235_n7ip.pdf 

Mexico’s Law Suit Against US Gun Dealers

U.S. gun dealers are protected against lawsuits stemming from crimes committed by their customers. by the Protection of Lawful Commerce in Arms Act (PLCAA), But that law doesn't protect them from lawsuits resulting from their own actions, and a U.S. judge has permitted a suit by Mexico to go forward which accuses five Arizona gun dealers of violating American laws.

Law.com has the story:, 

Federal Court in Arizona Allows Mexico’s Case Against US Gun Dealers to Proceed. The federal gun industry shield law should not keep the suit from moving forward, U.S. District Court Judge Rosemary Márquez ruled. by Amy Guthrie 

"A federal district court judge in Arizona has ruled that a lawsuit filed by the government of Mexico against five Arizona firearm dealers alleged to be engaging in weapons trafficking should be allowed to proceed.

"U.S. District Court Judge Rosemary Márquez held that the federal gun industry shield law, the Protection of Lawful Commerce in Arms Act (PLCAA), should not prevent the suit from advancing. 

...

"The complaint “adequately alleges that defendants’ knowing violation of firearm-specific statutes proximately caused plaintiff’s injuries for purposes of the predicate exception to the PLCAA,” she wrote in her ruling, dated March 22.

"Mexico’s lawsuit seeks to hold the dealers accountable for “reckless and unlawful business practices,” alleging they facilitated gun trafficking across the border into Mexico and contributed to gun violence in that country. "

Hiring former Supreme Court Clerks (is expensive)

 The Washington Post has the story:

Clerks for hire: The Supreme Court recruiting race. Supreme Court clerks are offered bonuses of up to $500,000 to join law firms  By Tobi Raji

"Only around three dozen law clerks work for the justices during each one-year term, which means these lawyers — and their unparalleled knowledge of the court — are in incredibly high demand. Jones Day, the leader in the race to recruit and hire as many clerks as possible, announced last month that it snagged 8 law clerks, all of whom worked for conservative justices during the term that began in October 2022.

...

"The recruitment is so competitive that signing bonuses for Supreme Court law clerks have reached a new high — $500,000, according to a spokeswoman for law firm Gibson, Dunn & Crutcher. Such a sum far exceeds the salaries paid to the justices — the clerks’ former bosses — who are paid slightly less than $300,000 a year.

"The bonuses — alongside annual starting salaries of more than $200,000, which alone are nearly triple Americans’ median household income — are the product of a decades-long competition among elite law firms seeking any advantage they can find in arguing high-profile cases before the Supreme Court. They view the clerks’ experience and knowledge of the court as profitable assets that attract clients in a highly specialized sector of the law, and they see clerkships as effective filtering devices in identifying promising hires, according to interviews with former Supreme Court clerks, lawyers and experts."

Same sex unions take a limited step forward in Hong Kong

 The Washington Post has the story:

Hong Kong court hands rare victory to advocates of same-sex unions, By Lily Kuo and Vic Chiang September 5, 2023 

"In a partial victory for Hong Kong’s LGBTQ community, the city’s top court on Tuesday ordered the government to give same-sex couples some form of legal recognition.

"The surprise ruling, which stopped short of meeting demands for full marriage equality, stated that the Hong Kong government had violated gay citizens’ constitutional rights by not granting them an “alternative framework” such as civil unions or civil partnerships.

"The majority verdict decided by five judges on the Court of Final Appeal gave Hong Kong two years to create a new framework that would confer “legal recognition” on same-sex relationships “in order to provide them with a sense of legitimacy, dispelling any sense that they belong to an inferior class of persons whose relationship is undeserving of recognition.”

...

“We are not addressing the question of whether in terms of social policy for Hong Kong same sex unions should be recognized with rights and obligations similar to those presently enjoyed by heterosexual couples. That is a question for the government and the legislature; and social policy is not a question for the court to decide,” wrote Justice Johnson Lam."

Protest against political persecution of Prof Muhammad Yunus, and more general threats to democracy in Bangladesh

 The Bangladesh Daily Star publishes an open letter, and the NY Times provides some general background.

Here's the  open letter to Prime Minister Sheikh Hasina:

‘Judicial harassment of Yunus’: 104 Nobel laureates, 79 global figures voice concern

"A total of 104 Nobel Laureates and 79 other global figures in an open letter to Prime Minister Sheikh Hasina yesterday expressed concern about the safety and freedom of Nobel Laureate Prof Muhammad Yunus.

...

"As you know, Prof Yunus' work, which has been inspirational to all of us, focuses on how social business can be a force for international progress resulting in zero poverty, zero unemployment, and zero net carbon emissions. He is a leading example of how Bangladesh and Bangladeshis have contributed to global progress in recent decades. We sincerely wish that he be able to continue his path-breaking work free of persecution or harassment.

...

"According to the case documents, officials of the Inspection for Factories and Establishments Department on August 16, 2021, inspected the office of Grameen Telecom in the capital's Mirpur and found several violations of labour laws.

"On June 6 this year, the court framed charges against the accused -- including Prof Yunus -- in the case. The trial began on August 22.

...

"In its review, the law firm said, "Professor Yunus is facing six months in prison for a crime that he not only did not commit, but that legally does not exist….Events are moving quickly in Bangladesh driven by a forthcoming election and a presumed desire to imprison Prof Yunus prior to that election….Not only are the allegations entirely without merit, but the legal process is wrong in law….A miscarriage of justice is happening in Bangladesh and the state must not be allowed to carry it to its conclusion."

"Following are the Nobel Laureates who are the signatories of the letter:

PEACE: Barack H. Obama, 2009; José Ramos-Horta, 1996; Mairead Corrigan-Maguire, 1976; Shirin Ebadi, 2003; Leymah Roberta Gbowee, 2011; Albert Arnold Gore Jr., 2007; Tawakkol Karman, 2011; Denis Mukwege, 2018; Nadia Murad, 2018; Maria Ressa, 2021; Oscar Arias Sanchez, 1987; Juan Manuel Santos, 2016; Rigoberta Menchu Tum, 1992; and Jody Williams, 1997.

CHEMISTRY: Peter Agre, 2003; Thomas R. Cech, 1989; Martin Chalfie, 2008; Emmanuelle Charpentier, 2020; Aaron Ciechanover, 2004; Johann Deisenhofer, 1988; Jacques Dubochet, 2017; Joachim Frank, 2017; Walter Gilbert, 1980; Alan Heeger, 2000; Richard Henderson, 2017; Dudley R. Herschbach, 1986; Avram Hershko, 2004; Roald Hoffmann, 1981; Robert Huber, 1988; Martin Karplus, 2013; Brian K. Kobilka, 2012; Yuan T. Lee, 1986; Robert J. Lefkowitz, 2012; Jean-Marie Lehn, 1987; Michael Levitt, 2013; Tomas Lindahl, 2015; Paul L. Modrich, 2015; John C. Polanyi, 1986; Jean-Pierre Sauvage, 2016; Sir John E. Walker, 1997; Arieh Warshel, 2013; and Sir Gregory P. Winter, 2018.

ECONOMICS: Oliver Hart, 2016; Finn E. Kydland, 2004; Paul R. Milgrom, 2020; Edmund Phelps, 2006; Alvin E. Roth, 2012; Vernon L. Smith, 2002; and Joseph E. Stiglitz, 2001.

LITERATURE: J. M. Coetzee, 2003; Herta Muller, 2009; Orhan Pamuk, 2006; and Wole Soyinka, 1986.

MEDICINE: Harvey J. Alter, 2020; David Baltimore, 1975; Françoise Barré-Sinoussi, 2008; J. Michael Bishop, 1989; Elizabeth H. Blackburn, 2009; William C. Campbell, 2015; Peter C. Doherty, 1996; Jeffrey Connor Hall, 2017; Leland H. Hartwell, 2001; Jules A. Hoffmann, 2011; Tasuku Honjo, 2018; H. Robert Horvitz, 2002; Sir Michael Houghton, 2020; Craig C. Mello, 2006; Edvard Moser, 2014; May-Britt Moser, 2014; Sir Paul M. Nurse, 2001; Ardem Patapoutian, 2021; Sir Peter J. Ratcliffe, 2019; Charles M. Rice, 2020; Sir Richard J. Roberts, 1993; Michael Rosbash, 2017; Gregg L. Semenza, 2019; Hamilton O. Smith, 1978; Jack W. Szostak, 2009; Harold E. Varmus, 1989; Eric F. Wieschaus, 1995; Torsten N. Wiesel, 1981; and Michael W. Young, 2017.

PHYSICS: Barry Clark Barish, 2017; Steven Chu, 1997; Andre Geim, 2010; Sheldon Glashow, 1979; David J. Gross, 2004; John L. Hall, 2005; Takaaki Kajita, 2015; Anthony J. Leggett, 2003; John C. Mather, 2006; Michel Mayor, 2019; Arthur B. McDonald, 2015; Konstantin Novoselov, 2010; Giorgio Parisi, 2021; James Peebles, 2019; Roger Penrose, 2020; William D. Phillips, 1997; H. David Politzer, 2004; Brian P. Schmidt, 2011; Horst L. Stormer, 1998; Daniel C. Tsui, 1998; Carl E. Wieman, 2001; and David J. Wineland, 2012."

********

The letter also appeared as an ad in the International edition of the New York Times:

*************

And here's the NY Times story: 

Quietly Crushing a Democracy: Millions on Trial in Bangladesh

The most active rivals to the country’s ruling party face dozens, even hundreds, of court cases each, paralyzing the opposition as a crucial election approaches. By Mujib Mashal 

"Bangladesh’s multiparty democracy is being methodically strangled in crowded courtrooms across this country of 170 million people.

"Nearly every day, thousands of leaders, members and supporters of opposition parties stand before a judge. Charges are usually vague, and evidence is shoddy, at best. But just months before a pivotal election pitting them against the ruling Awami League, the immobilizing effect is clear.

"About half of the five million members of the main opposition party, the Bangladesh Nationalist Party, are embroiled in politically motivated court cases, the group estimates. The most active leaders and organizers face dozens, even hundreds, of cases."

Sex work contracts are enforceable in small claims court, in Canada

 In Nova Scotia (where selling sex is legal but buying it is not), a sex worker sued a delinquent client for her fee and won (despite his argument that contracts requiring a party to commit a crime were unenforceable).

Former sex worker's victory in small claims court sets precedent, lawyer says. Decision clarifies that contracts for sex work are enforceable. by Moira Donovan · CBC News 

"A former sex worker in Nova Scotia has successfully sued a client in small claims court for non-payment of services. She and her advocates hope the decision will change the legal landscape for sex work in Canada.

"The case relates to an incident in January 2022 when Brogan, whom CBC News is only identifying by her first name because she is a survivor of human trafficking, spent an evening with a client.

"Afterward, the client refused to pay the agreed-upon fee.

"Brogan then turned to small claims court to recover the money — in what advocates believe is the first time such a case has come before the courts in Canada — and won a judgment that she was entitled to the unpaid amount, plus interest and costs.

...

"Brogan met the client in question, ... through a website called LeoList that's used by sex workers and their clients. After some discussion about rates and services, Brogan travelled to Samuelson's apartment, where she spent the evening.

...

"There was offer, there was an acceptance of the offer, there was certainty of terms, so all the hallmarks of an enforceable contract were there," said Jessica Rose, Brogan's lawyer.

"But the central question in the case was whether contracts for sex work are enforceable — a question that relates to the legislation governing sex work in Canada. 

"The Protection of Communities and Exploited Persons Act, which passed in 2014, is supposed to protect people from the risks involved in sex work. It amended the Criminal Code to remove the criminal penalty for individuals who sell their own sexual services, and eliminated criminal charges for those who support sex workers, such as drivers or security personnel.

"But aspects of that work remained criminalized, including the purchase of services.

"In this case, the defendant argued that contracts for sexual services were not enforceable because you could not have a contract in which one party — in this case, the client — had to do something illegal.

...

"adjudicator Darrel Pink concluded that because sex work is legal and the business arrangements supporting sex work are legal, it follows that the benefits of commercial law apply, including access to a civil claim — the same as any other service provider.

...

"Failure of the court to provide a remedy for a wrong or a breach of duty owed by a client would contribute to the very exploitation the legislation was designed to prevent," he wrote."

HT: Kim Krawiec

The Comstock Act returns from the dead, post Roe

 While there's no agreement about whether life begins at conception, it appears that the Comstock Act has risen from the dead to play a role in contemporary legal duels about abortion.

CNN brings it all back:

The 150-year-old chastity law that may be the next big fight over abortion By Tierney Sneed

"A law passed 150 years ago that banned the mailing of contraceptives, lewd materials and drugs that induce abortions could provide a pathway for effectively banning abortion nationwide – even in states where the procedure is legal.

"When the Supreme Court last summer reversed Roe v. Wade and eliminated constitutional protections that guaranteed abortion rights nationwide, the conservative majority fashioned its ruling as returning the matter of abortion policy-making to elected officials, particularly in state legislatures.

"But the battle lines now being drawn around the Reconstruction-era federal law – the Comstock Act – are an example of how the picture after Roe v. Wade is far more complicated as abortion opponents are challenging the means of abortion, such as the drug mifepristone, in court.

"The most sweeping Comstock Act arguments from anti-abortion activists could at the very least end the availability of medication abortion, which make up the majority of abortions in the US today, and could have the effect of eliminating surgical abortions as well by restricting the shipment of medical instruments and supplies used in the procedure.

...

"The Comstock Act, first passed in 1873, is named after Anthony Comstock, who was a special agent of the US Postal Service and an anti-vice crusader.

...

"Prosecutions under the law were bought in the first few decades after its passage, but by the 1930s, courts began whittling down some of its provisions and enforcement of the law ceased. Congress meanwhile amended it in the 1970s to remove its ban on mailing birth control.

...

"The Biden administration, in an internal advisory opinion released by the Justice Department’s Office of Legal Counsel, argues that the law does not apply to the mailing of abortion pills if they’re not being sent with the intent of unlawful use. The opinion pointed to how 20th century courts had interpreted it narrowly as excluding drugs mailed with legitimate intent."

*********

Earlier:

Monday, April 10, 2023

Comstockery and abortifacients, on the way to the Supreme Court

Comstockery and abortifacients, on the way to the Supreme Court

 The Comstock Act of 1873 made it a Federal crime to distribute information or medicines for contraception or abortion, and more generally on material judged to be for "any indecent or immoral purpose."  The 1965 ruling in Griswold vs. Connecticut found the bans on contraception to be unconstitutional, and the bans on pornography were strictly limited the year before in the case Jacobellis v. Ohio.  But the Act reared its head again when it was cited by a Federal judge in Texas, Matthew J. Kacsmaryk, in his ruling that the abortion inducing drug mifepristone was illegal to distribute anywhere in the U.S., including in states where abortion is legal.

Michelle Goldberg in the NYT writes about "The Hideous Resurrection of the Comstock Act"

"suddenly, the prurient sanctimony that George Bernard Shaw called “Comstockery” is running rampant in America. As if inspired by Comstock’s horror of “literary poison” and “evil reading,” states are outdoing one another in draconian censorship. In March, Oklahoma’s Senate passed a bill that, among other things, bans from public libraries all content with a “predominant tendency to appeal to a prurient interest in sex.” Amy Werbel, the author of “Lust on Trial: Censorship and the Rise of American Obscenity in the Age of Anthony Comstock,” described how Comstock tried to suppress photographs of cross-dressing women. More than a century later, Tennessee has banned drag performances on public property, with more states likely to follow.

"And now, thanks to a rogue judge in Texas, the Comstock Act itself could be partly reimposed on America. Though the act had been dormant for decades and Congress did away with its prohibitions on birth control in 1971, it was never fully repealed. And with Roe v. Wade gone, the Christian right has sought to make use of it. The Comstock Act was central to the case brought by a coalition of anti-abortion groups in Texas seeking to have Food and Drug Administration approval of mifepristone, part of the regimen used in medication abortion, invalidated. And it is central to the anti-abortion screed of an opinion by Matthew J. Kacsmaryk, the judge, appointed by Donald Trump, who on Friday ruled in their favor.

...

"On Friday a Washington State judge issued an opinion directly contradicting Kacsmaryk’s and ordering the F.D.A. to continue to make mifepristone available. The dispute now is likely headed to the Supreme Court."

Are embryos property?

 A Virginia judge has managed to make a repugnant legal argument about a repugnant transaction, since the relevant precedent he identifies has to do with the ownership of slaves.

Virginia judge rules human embryos are ‘chattel’ based on centuries-old slave laws  by Matthew Barakat, Associated Press

"Frozen human embryos can legally be considered property, or “chattel,” a Virginia judge has ruled, basing his decision in part on a 19th century law governing the treatment of slaves.

"The preliminary opinion by Fairfax County Circuit Court Judge Richard Gardiner – delivered in a long-running dispute between a divorced husband and wife – is being criticized by some for wrongly and unnecessarily delving into a time in Virginia history when it was legally permissible to own human beings.

“It’s repulsive and it’s morally repugnant,” said Susan Crockin, a lawyer and scholar at Georgetown University’s Kennedy Institute of Ethics and an expert in reproductive technology law.

...

"In a separate part of his opinion, Gardiner also said he erred when he initially concluded that human embryos cannot be sold.

“As there is no prohibition on the sale of human embryos, they may be valued and sold, and thus may be considered ‘goods or chattels,’” he wrote."

HT: Kim Krawiec

Judge shopping for abortion rulings

 Justice (like politics, sausage and econometrics) is constructed in complex ways. The Washington Post has a story on the case against an anti-abortion drug, now being heard by federal judge Matthew Kacsmaryk in Amarillo Texas, which could result in a nationwide ban on that drug.  The case concerns medical issues about drug regulation, and isn't directly concerned with the legal controversy about abortion rights.

The Texas judge who could take down the abortion pill. A devout Christian, Matthew Kacsmaryk has been shaped by his deep antiabortion beliefs. By Caroline Kitchener and  Ann E. Marimow  February 25, 2023 

"The abortion pills lawsuit, which Kacsmaryk could rule on any day, is the latest in a long line of politically explosive cases to appear on the judge’s docket. In a practice known as “forum shopping,” conservative groups have zeroed in on the Amarillo division of the Northern District of Texas as a go-to place to challenge a wide range of Biden administration policies. Because Amarillo is a federal district with a single judge, plaintiffs know their arguments will be heard by Kacsmaryk — who, like any federal judge, is positioned to issue rulings with nationwide implications.

"Appeals from Kacsmaryk’s district follow a path that has regularly yielded favorable outcomes for conservatives — reviewed first by the U.S. Court of Appeals for the 5th Circuit, which upheld a strict Texas abortion ban long before Roe v. Wade was overturned, then ultimately by the conservative-controlled Supreme Court."

********

Here's a related story from Medpage Today:

A Ban on the Abortion Drug Mifepristone Is Looming— A Texas lawsuit may be disastrous for effective abortion access and FDA's authority by Lawrence O. Gostin, JD, LLD, and Sarah Wetter, JD, MPH, February 23, 2023

"In the most consequential and controversial attack on reproductive rights since the overturning of Roe v. Wade, a Texas judge could ban the safest, most effective, and most common method for abortion in all 50 states. The hyper-conservative anti-abortion group Alliance Defending Freedom  (ADF) is seeking to overturn the FDA's approval of mifepristone (Mifeprex), a medication in a two-pill regimen used to terminate pregnancies through the first 10 weeks gestation. The lawsuit does not target the other medication, misoprostol (Cytotec), which FDA approved to treat stomach ulcers, and can be prescribed off-label for abortion.

...

"Given the FDA's rigorous risk evaluation and mitigation strategy (REMS) for mifepristone and its safe use for 23 years, the case is utterly frivolous and political, but due to "judge shopping" the repercussions for reproductive health and equity are real. Perversely, a single federal trial judge has the power to block a federal law, rule, or action on a national scale. The case could make its way to the Supreme Court, with potentially disastrous consequences for safe, effective abortion access and the authority of the FDA."

opens in a new tab or windowfor mifepristone and its safe use for 23 years, the case is utterly frivolous and political, but due to "judge shopping" the repercussions for reproductive health and equity are real. Perversely, a single federal trial judge has the power to block a federal law, rule, or action on a national scale. The case could make its way to the Supreme Court, with potentially disastrous consequences for safe, effective abortion access and the authority of the FDA.

Donate blood or organs to pay a traffic fine or shorten a prison term?

I spend a lot of my time thinking and writing about repugnant transactions and controversial markets, and some of that intersects with my work on blood and organ donation and transplantation (particularly on the controversial issue of compensation for donors, and how that might intersect with varieties of coercion). But today's post is about two proposals that mix all these things together. (My guess is that many people will find them differently repugnant: think of them as a quick test of your own views.)

In Argentina, a municipal judge proposes blood donation to pay traffic fines, and in Massachusetts several legislators co-sponsor a bill to allow bone marrow (blood stem cell) donation or organ donation to reduce prison sentences.

First, blood donation and traffic fines:

 Mario Macis points me to this story in La Nacion, about a city in the Argentine province of Salta:

En una ciudad de Salta las multas de tránsito se pueden pagar con una donación de sangre  [In a city of Salta, traffic fines can be paid with a blood donation]  (English from Google Translate)

"In the city of Tartagal, Salta, it is possible to pay a traffic ticket with a blood donation . The measure, taken two months ago, generates both support and questioning.

...

"The judge of the Court of Misdemeanors of the Municipality of Tartagal, Farid Obeid , proposed in a ruling last August that those who had traffic fines could pay them with their own blood donation or from third parties on behalf of the offenders.

"It was then determined that donations be made in hospitals, voluntarily and only once; that is to say that repeat offenders cannot opt ​​for blood donation.

...

"The ruling received support and criticism, the latter basically from the health sector. Oscar Torres, president of the Argentine Association of Hemotherapy, Immunohematology and Cellular Therapy , sent a letter to the Deliberative Council of Tartagal indicating that the measure removes the "spirit of solidarity and altruism from blood donation" 

Here's a related story about the ongoing debate (also using Google translate):

Controversy over an unusual municipal project: they claim that fines can be paid with blood. "This controversial project was presented to the Deliberative Council of Tartagal, and criticism has already begun"

***********

And here's the new bill proposed in Massachusetts (don't hold your breath waiting for it to be passed into law). It's in English, so the phrase about the necessary "amount of bone marrow and organ(s) donated to earn one’s sentence to be commuted" isn't a translation error; I think it's just awkward (i.e. not meant to be chilling). (But the discussion of donated "organ(s)" makes me think of Kazuo Ishiguro's novel "Never Let Me Go"). 

Bill HD.3822, 193rd (Current), An Act to establish the Massachusetts incarcerated individual bone marrow and organ donation program

"Section 170. (a) The Commissioner of the Department of Corrections shall establish a Bone Marrow and Organ Donation Program within the Department of Correction and a Bone Marrow and Organ Donation Committee. The Bone Marrow and Organ Donation Program shall allow eligible incarcerated individuals to gain not less than 60 and not more than 365 day reduction in the length of their committed sentence in Department of Corrections facilities, or House of Correction facilities if they are serving a Department of Correction sentence in a House of Corrections facility, on the condition that the incarcerated individual has donated bone marrow or organ(s). 

...

"The Bone Marrow and Organ Donation Committee shall also be responsible for promulgating standards of eligibility for incarcerated individuals to participate and the amount of bone marrow and organ(s) donated to earn one’s sentence to be commuted. Annual reports including actual amounts of bone marrow and organ(s) donated, and the estimated life-savings associated with said donations, are to be filed with the Executive and Legislative branches of the Commonwealth. All costs associated with the Bone Marrow and Organ Donation Program will be done by the benefiting institutions of the program and their affiliates-not by the Department of Correction. There shall be no commissions or monetary payments to be made to the Department of Correction for bone marrow donated by incarcerated individuals."

Simultaneous HT to Ron Shorrer, Kim Krawiec, Akhil Vohra

Biden Signs Bill to Protect Same-Sex Marriage Rights

 With little delay after the Senate passage of the bill, the House followed, and now President Biden has signed into law a bill protecting same sex marriage from easily reversing the decision of a previous Supreme Court to make it legal throughout these United States.  The new bill requires states to recognize marriages made legally in other states...

Here's the NYT on the story:

Biden Signs Bill to Protect Same-Sex Marriage Rights. Proponents of the legislation argued that Congress needed to be proactive in ensuring a future Supreme Court would not invalidate same-sex marriages around the country.  By Michael D. Shear

"President Biden signed the Respect for Marriage Act into law on Tuesday, mandating federal recognition for same-sex marriages and capping his own personal evolution toward embracing gay rights over the course of a four-decade political career.

...

"The landmark legislation, passed by a bipartisan coalition in Congress, officially erases the Defense of Marriage Act, which a quarter of a century ago formally defined marriage as between a man and a woman. The new law prohibits states from denying the validity of out-of-state marriages based on sex, race or ethnicity.

...

"For Mr. Biden, who voted for the Defense of Marriage Act as a senator in 1996 and wavered on letting gay men and lesbians serve in the military, the signing ceremony was an indication of how much the president has changed when it comes to championing L.G.B.T.Q. equality.

"It is also another example of how Mr. Biden’s gradual transformation as a politician more broadly has matched the evolution of his own party since he started in public life as a junior senator on Jan. 3, 1973.

...

"Since the Supreme Court’s ruling in June to end the constitutional right to an abortion, Mr. Biden has been fervent in his condemnation of the decision in Dobbs v. Jackson Women’s Health Organization and has repeatedly called for legislation that would replace the 50-year-old court precedent with legal protections for the right of women to have an abortion.

...

"no issue represents Mr. Biden’s tendency to adapt to societal and political change as well as gay marriage. Polls show a sea change in public opinion across the political spectrum in the past decade, with nearly 70 percent of Americans now saying they support the right of same-sex couples to be married, with all the rights that heterosexual couples have under the law.

...

"But it is also a mark of ongoing fear that newfound gay rights may be fragile. The push for passage of the law was driven in part by the Supreme Court opinion overturning abortion rights, in which Justice Clarence Thomas raised the possibility of using the same logic to reconsider decisions protecting marriage equality and contraception rights."

Same sex marriage rights reaffirmed by the Senate

After a Supreme Court ruling in 2015, it seemed secure that the right to same sex marriage was the law of the land. However the recent Supreme Court decision overturning Roe v. Wade sent the question of abortion rights back to the states, and explicitly raised the question of whether other rights, such as marriage rights, might also be overturned. Justice Thomas, in his concurring opinion in the case (Dobbs) also mentioned that the rights to contraception and to same-sex sexual relations could be reconsidered, in his view.  

It appears that there will now be Federal legislation (and not just Court rulings) defending marriage rights. 

The NYT has the story:

Same-Sex Marriage Bill Passes Senate After Bipartisan Breakthrough. The 61-to-36 vote sends the legislation back to the House, which is expected to approve it and send it to President Biden.  By Annie Karni

"There was little question that the bill’s embrace in the Senate, where proponents had a breakthrough this month in drawing a dozen Republican supporters and overcoming a filibuster, gave it the momentum required to become law.

"The bill would repeal the Defense of Marriage Act, which denied federal benefits to same-sex couples. It prohibits states from denying the validity of an out-of-state marriage based on sex, race or ethnicity. 

...

"Its path represents a significant shift in American politics and culture in which same-sex marriage, once considered a divisive political issue, has become so widely accepted by members of both parties that a measure to protect has managed to attract decisive, bipartisan majorities in both the Senate and the House.

...

"Still, more than seven out of 10 Republican senators voted against the bill, underscoring how the party has continued to cater to religious conservatives who oppose same-sex marriage long after large majorities of the American public have come to support it.

...

"In the end, 12 Republicans voted for the measure

...

"The push to pass the legislation began over the summer, after Justice Clarence Thomas suggested in his opinion in the ruling that overturned Roe v. Wade, which had established a constitutional right to abortion, that the court also “should reconsider” precedents enshrining marriage equality and access to contraception.

***********

Earlier posts:

Friday, June 26, 2015

An ancient repugnance crumbles: Same sex marriage is a right, in all 50 of the United States

Black markets in abortion pills

 Americans differ in their opinions about whether American women have a right to end a pregnancy, or whether state legislators have the right to decide the issue for residents of their state.  Six American Supreme Court justices hold the latter opinion, and so overturned the constitutional right defined 50 years ago by the same court in Roe v. Wade.

This means that different states are going to have different laws about abortion. But medical technology is such that abortion pills exist, and can arrive in the mail. So even State laws criminalizing that may not stop it, when abortion and abortion pills remain legal in other states. That is, we're about to see a situation ripe for black markets. We may also see a legal conflict among the states.

The NY Times has a story on that:

Risking Everything to Offer Abortions Across State Lines. Doctors and midwives in blue states are working to get abortion pills into red states — setting the stage for a historic legal clash.  By Emily Bazelon

"When the landscape settles, abortion is likely to be illegal or severely restricted in at least 20 states — where just two years ago, in 2020, about 250,000 people had abortions. It is clear that clinicians in those states will face imminent prosecution if they continue to provide abortions. What is much less clear is what happens if providers in blue states offer telemedicine abortions to women in states where that’s against the law. These clinicians, too, could be arrested or sued or lose their medical licenses. To protect themselves, they may have to give up traveling to certain parts of the country — and it’s still no guarantee.

"In the face of so much uncertainty and an invigorated anti-abortion movement, large organizations and most clinicians are loath to gamble. But Aid Access providers think that the end of Roe calls for doctors to take bold action. Their answer is to mail many more pills to women who otherwise may be forced to carry pregnancies they don’t want.

"The court’s decision overturning Roe last June, Dobbs v. Jackson Women’s Health Organization, polarized the public while opening the door to a new threat — a direct clash among the states over abortion law. In jettisoning the single national standard Roe established, the court invited states to pass or enforce their own laws, which could be diametrically opposed to those of neighboring states."

"Sitting in her office in New York, hundreds of miles from states that could go after her, Prine, at 71, was close to retirement and willing to take chances. “I don’t want younger physicians to be embroiled in lawsuits or criminally charged,” she said. “I’m the one that should happen to. Doctors like me who are at the end of our careers, we should be the ones to step up.”

"Article IV of the Constitution, which addresses the relationships among states, says that if a person charged with a crime in one state flees to another, she must be “delivered up,” or extradited, to the first state. If a doctor from Connecticut, for example, went to Texas, performed an illegal abortion there and then went home, Connecticut would have to send that doctor to Texas for prosecution. But courts have held in the past that if the person never set foot in the state that is prosecuting her, then she didn’t flee, and her state of residence has no constitutional obligation to extradite her. 

...

"But there’s a catch. If a provider travels outside her home state while Texas has a warrant for her arrest, another state without a shield law could follow the customary practice of interstate cooperation — and extradite her to Texas. In addition, if an abortion provider in a pro-access state like Connecticut is sued in Texas rather than prosecuted, Article IV requires the states to help enforce a civil judgment. Connecticut would probably be obligated to comply in collecting damages, for example, if a family member of a woman who had an abortion won a lawsuit for the wrongful death of a fetus. To deter these sorts of suits, Cohen, Donley and Rebouché suggest that states that want to shield their abortion providers could authorize them to countersue for interfering with legally protected health care. “If you’re hoping for a $1 million judgment in Alabama, but you know New York will let someone try to get it back from you, maybe you don’t sue in the first place,” Cohen says.

"The closest historical analogy, however imperfect, for the coming clash may be the conflict between Southern and Northern states over fugitive slave laws in the 19th century. “There are genuinely significant differences between slavery and abortion, morally and legally,” says Jamal Greene, a law professor at Columbia University. “But it’s a reasonable starting point for understanding why it’s a problem, in a nation that wants to hold itself together, when individual states are allowed to make policy about basic rights that people feel extremely strongly about, on both sides.”

"Tensions among the states can become corrosive. The framers of the Constitution gave enslavers the power to recapture enslaved people who escaped to free states. As the cause of abolition gained support, some free states passed personal liberty laws that protected Black people from kidnapping. In 1842, in Prigg v. Pennsylvania, the Supreme Court weighed in on the side of the South, striking down the conviction in Pennsylvania of a slave catcher for kidnapping a mother and her children."

This Supreme Court term has many cases on repugnant transactions and controversial markets

 The newly conservative-dominated Supreme Court is ready for its second term, and has a docket full of what readers of this blog know I think of as controversial markets and repugnant transactions.  While previous court decisions have expanded individual rights on these subjects, such as abortion, the present court seems to view them not as individual rights but as States' rights.  But that may be too simple a characterization of this brand of conservative jurisprudence. We're going to learn more about that as the term plays out. (I'm personally most worried about what decisions will be made about election law, because of the effect those decisions may have on future decisions.)

Here's the NYT on the coming caseload:

As New Term Starts, Supreme Court Is Poised to Resume Rightward Push. The justices return to the bench on Monday to start a term that will include major cases on affirmative action, voting and discrimination against gay couples. Several will take on questions about race.  By Adam Liptak

"The last Supreme Court term ended with a series of judicial bombshells in June that eliminated the right to abortion, established a right to carry guns outside the home and limited efforts to address climate change. As the justices return to the bench on Monday, there are few signs that the court’s race to the right is slowing.

"The new term will feature major disputes on affirmative action, voting, religion, free speech and gay rights. And the court’s six-justice conservative supermajority seems poised to dominate the new term as it did the earlier one.

...

"Several of the biggest cases concern race, in settings as varied as education, voting and adoptions.

"They include challenges to the race-conscious admissions programs at Harvard and the University of North Carolina. As in last term’s abortion case, Dobbs v. Jackson Women’s Health Organization, longstanding precedents are at risk.

"The court has repeatedly upheld affirmative-action programs meant to ensure educational diversity at colleges and universities, most recently in 2016. In an interview that year, Justice Ruth Bader Ginsburg said the issue had been permanently settled.

...

"Mr. Trump went on to name three members of the Supreme Court, including Justice Amy Coney Barrett, who succeeded Justice Ginsburg after her death in 2020.

"Those changes put more than 40 years of affirmative action precedents at risk, including Grutter v. Bollinger, a 2003 decision in which the Supreme Court endorsed holistic admissions programs, saying it was permissible to consider race as one factor among many to achieve educational diversity. Writing for the majority in that case, Justice Sandra Day O’Connor said she expected that “25 years from now,” the “use of racial preferences will no longer be necessary.”

"The court seems poised to say that the time for change has arrived several years early in the two new cases, Students for Fair Admissions v. Harvard, No. 20-1199, and Students for Fair Admissions v. University of North Carolina, No. 21-707. They are set to be argued on Oct. 31.

...

"A challenge to the constitutionality of the Indian Child Welfare Act of 1978, which makes it hard for non-Native Americans to adopt Native children, may also turn on whether the court views those safeguards as based on race, making them vulnerable to constitutional review. The law at issue in the case, Haaland v. Brackeen, No. 21-376, was a response to a history of children being removed from their tribes and heritage; arguments will be heard on Nov. 9.

*******

I think the two university affirmative action cases are no longer as closely linked as they were before the appointment by President Biden of Justice Ketanji Brown Jackson, who has two degrees from Harvard, and may have to recuse herself. See this cryptic note from the Supreme Court's website: 20-1199 STUDENTS FOR FAIR ADMISSIONS V. PRESIDENT AND FELLOWS OF HARVARD COLLEGE

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Earlier:

Wednesday, June 8, 2022

What might the assisted reproduction gray market look like, post Roe?

Tuesday, June 11, 2019

Adoption is complex even when it doesn't include State and Tribal rights...

Lawsuits involving NKR's kidney exchange contracts

 Kim Krawiec, the Sullivan & Cromwell Professor of Law at the University of Virginia, sheds some light on recent legal exchanges between the kidney exchange nonprofit National Kidney Registry and some of the Transplant Centers that are (or were) members of its network. Both suits (which seem to have been settled out of court) involved the TC's desire to withdraw (or partially withdraw) from NKR's system, and NKR's attempt to charge them $1000/kidney/month in perpetuity (or until they supply the kidneys) for kidneys they received in excess of kidneys they supplied. (In particular, NKR wanted $8000 per month from Colorado forever, or until they supplied 8 kidneys.)  Her post is long and learned, and well worth reading in its entirety, but here are some snippets.

She leads off with this graphic of a judge's gavel hammering a stethoscope

Recent Contract Disputes In The Transplant World November 3, 2021 / By Kimberly Krawiec 

"Readers may be interested in two relatively recent lawsuits involving the National Kidney Registry (NKR) and the University of Colorado Hospital Authority (“UCH,” filed 3/26/21) and the University of Maryland Medical Center (“UMMC”, filed 4/2/2018), respectively. (Citations and links to both lawsuits are at the end of this post)

...

This option to specifically perform is interesting in its own right, and I may say more about it later, but what if a Member Center couldn’t deliver kidneys to the network, say because the UCH kidney transplant program had been closed? Or because they determined that kidney exchange was bad for their patients? In the event that delivering kidneys to NKR is impossible, is a court likely to award NKR these fees into perpetuity – a present value of nearly $5 million? (using an interest rate of 2%, which may understate the amount, given the current low interest rate environment)

"Under the penalty doctrine, NKR would have to describe its loss, and why $1000/kidney/month is a reasonable estimate of it, even if it can’t provide a precise amount. Here, the “in perpetuity” aspect may be troubling to courts, even if the present value is not high relative to whatever the alleged loss is, as it seems unlikely that NKR is harmed in perpetuity if a member center backs out.

...

"when federal law prohibits the exchange of valuable consideration for a kidney, by definition there is no market price for either the court or the contracting parties to reference. Here, the parties attempted to overcome that problem by specifying a recurring charge, but it’s continuation into perpetuity may raise eyebrows, even if the present value of the charges is otherwise reasonable.

***********

The various legal documents can be found at these links

https://kimberlydkrawiec.org/wp-content/uploads/2021/11/Member-Terms-and-Conditions.pdf

 https://kimberlydkrawiec.org/wp-content/uploads/2021/11/Complaint.pdf

 https://kimberlydkrawiec.org/wp-content/uploads/2021/11/May-7-motion-to-dismiss.pdf

 https://kimberlydkrawiec.org/wp-content/uploads/2021/11/1Summons-Complaint.pdf

***********

Given NKR's non-profit status, paragraph 30 of the Colorado complaint caught my eye:

Unraveling of appellate court clerkships (only more so)

Steve Leider writes:

"I know you keep an eye on the unraveling of judicial hiring.  Listening to a podcast about the supreme court they gave an example of even more extreme advance hiring.  At about 51:30 minutes into this podcast (recorded at Michigan, ...) they talk about an Appeal's Court judge (Judge Katzmann, 2nd Circuit) currently hiring for the 2024 term.

https://strict-scrutiny.simplecast.com/episodes/standing-cheese 

 As one of the hosts noted - "A law student could get married, give birth, and have a baby - and the baby would be in pre-K before the clerkship even starts."

Repugnant statistical analyses

Joshua Gans points us to an unusual case of repugnance. Here's the beginning of Joshua's blog post:

The unintended consequences of France’s ban on statistical analysis of Judges

"If someone had said that I would be writing a blog post to consider a law that might imprison people for conducting statistical analysis on publicly available data, I would have thought that was unlikely because who would ever propose, let alone enact, such a law?

"The other day we got our answer: France! The very country that produced Laplace, Pascal and Guerry!

"The law in question is Article 33 of the Justice Reform Act which was amended to read as follows:

"The identity data of magistrates and members of the judiciary cannot be reused with the purpose or effect of evaluating, analysing, comparing or predicting their actual or alleged professional practices.

"That maximum sentence (yes, criminal sentence) for violating this is 5 years. This puts ‘statistics’ in the category of a crime. Notice that it is actually using the data for a specific purpose and not something else like publishing outcomes that violate privacy.

What this means is that you cannot do statistical analyses that compare judges. "
**************

Here's a news article from a site called Artificial Lawyer, devoted to legal tech:

France Bans Judge Analytics, 5 Years In Prison For Rule Breakers

"In a startling intervention that seeks to limit the emerging litigation analytics and prediction sector, the French Government has banned the publication of statistical information about judges’ decisions – with a five year prison sentence set as the maximum punishment for anyone who breaks the new law.

"Owners of legal tech companies focused on litigation analytics are the most likely to suffer from this new measure.

"The new law, encoded in Article 33 of the Justice Reform Act, is aimed at preventing anyone – but especially legal tech companies focused on litigation prediction and analytics – from publicly revealing the pattern of judges’ behaviour in relation to court decisions.

"A key passage of the new law states:

‘The identity data of magistrates and members of the judiciary cannot be reused with the purpose or effect of evaluating, analysing, comparing or predicting their actual or alleged professional practices.’ "

Some adult supervision of the law clerk hiring process

Kagan Says She'll 'Take Into Account' Whether Judges Follow New Clerk Hiring Plan

"U.S. Supreme Court Justice Elena Kagan recently threw her support behind the new law clerk hiring plan by saying she will “take into account” in her own hiring whether judges and law schools comply with the new process
...

"Kagan’s message for her own chambers is likely to be heard coast to coast. In her nearly eight years on the high court, Kagan has hired clerks largely from the D.C. Circuit but also from the Fourth, Sixth and Ninth circuits and from judges across the ideological spectrum.

A former Harvard Law School dean and professor, Kagan is in a position to understand the effect on students of the former hiring process in which first-year students faced pressure to make clerkship commitments and law professors make recommendations “on less and less information,” Morrison said."

***********

see my earlier post

Tuesday, March 6, 2018

Another New Federal Law Clerk Hiring (Pilot) Plan

HT: Kim Krawiec

Another New Federal Law Clerk Hiring (Pilot) Plan

Future law clerks who are already in their second or third year of law school have already been hired, but here's a plan to defer the hiring of those who just entered law school this year.  It will have implications for hiring starting in 2019, and again in 2020, after which it will be reviewed. (This will be the seventh such attempt to halt unraveling in this market since 1983.) The attempt to ban exploding offers is new...

The DC Circuit publishes the following announcement:
Notice of Adoption of the New Federal Law Clerk Hiring Plan
February 2018


"Federal Law Clerk Hiring Plan

Starting with students who entered law school in 2017, the application and hiring process will not begin until after a law student’s second year.

For students who entered law school in 2017 (graduating class of 2020): Judges will not seek or accept formal or informal clerkship applications, seek or accept formal or informal recommendations, conduct formal or informal interviews, or make formal or informal offers before June 17, 2019.

For students who enter law school in 2018 (graduating class of 2021): Judges will not seek or accept formal or informal clerkship applications, seek or accept formal or informal recommendations, conduct formal or informal interviews, or make formal or informal offers before June 15, 2020.

A judge who makes a clerkship offer will keep it open for at least 48 hours, during which time the applicant will be free to interview with other judges.

This is a two-year pilot plan. Participating judges will reconsider their participation after June 2020. A copy of the plan will be posted on the OSCAR website at https://oscar.uscourts.gov/federal_law_clerk_hiring_pilot."
**********

And it is now indeed on the OSCAR site: Federal Law Clerk Hiring Pilot

[OSCAR--the Online System for Clerkship Application and Review-- is a web based platform for the law clerk job market.]

HT: Kim Krawiec