Tuesday, May 06, 2025

LGBTQ+ in the Supreme Court: Today's Order

Much will be made in the press of today's brief, unsigned order (to which Justices Sotomayo, Kagan, and Jackson dissented without opinion). The case involved Pres. Trump's Jan. 27 Executive Order 14183 with the Orwellian title, "Prioritizing Military Excellence and Readiness." 

Seven transgender serivce personnel challenged the EO in federal district court. Lead plaintiff is Commander Emily Shilling, a veteran Navy combat pilot who served in two wars and is now a Navy test pilot. The trial judge issued an preliminary injunction against enforcement of the EO until there could be a deision on the merits of the challengers' claims, and the Ninth Circuit Court of Appeals declined to stay the lower court's order. (Click here.) Today's Supreme Court order granted that stay:

This is not your usual procedural order to preserve the status quo pendente lite:
  1. By lifting the lower court's injunction, the Court has allowed the DOD to proceed with its purge of transgender service members. 
  2. That purge began on Feb. 26 and can now resume:

    "On Feb. 26, the Department of Defense issued that ban, which generally disqualifies anyone who either has gender dysphoria or has undergone medical interventions to treat gender dysphoria from serving in the military. The department explained that 'the medical, surgical, and mental health constraints on individuals who have a current diagnosis or history of, or exhibit symptoms with, gender dysphoria are incompatible with the high mental and physical standards necessary for military service.'" (SCOTUSBlog, May 6)

  3. It is a little unclear exactly what standard the Court is using these days to decide on stay motions on its emergency docket. Ordinarily a major factor is whether the party seeking relief is likely to prevail on the merits of the underlying litigation. If this order is based upon such a weighing of probabilities, it's bad news for the challengers.
Why cover this development in HealthLawBlog? Because also pending on the Court's calendar is United States v. Skrmetti, No. 23-477, in which this is the issue: Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow "a minor to identify with, or live as, a purported identity inconsistent with the minor's sex" or to treat "purported discomfort or distress from a discordance between the minor's sex and asserted identity," violates the equal protection clause of the 14th Amendment. Oral argument was held on Dec. 4, after which it was reported that the Court appears ready to uphold Tennessee's ban. 

Friday, May 02, 2025

Krugman: MAGA's War on Science

My last final exam is finally ready for prime time (Mon., May 5, at 1:30: Legislation and Regulation, a required 1L course; I wish my students good luck on the exam).

Grading will begin Tuesday morning.

So this is a perfect time to blog a little something, which I haven't done since February. After my grades are in, I will be on sabbatical for a year, followed by retirement on May 31, 2026. This year I'll be finishing a student treatise on health law regulation and compliance (state and federal), public health law, bioethics, and medical malpractice. Not sure whether blogging fits into that task, at least until September when my draft is due to the publisher.

If it hadn't been for an eye-catching email from Paul Krugman this morning, I probably wouldn't be blogging this afternoon, but his thoughts are compelling for anyone who cares about scientific research in general or medical research in particular. I republishing his email below in the hope that he won't find out won't mind, because his email starts with this: "Forwarded this email? Subscribe here for more." In lieu of literally forwarding his email to you (impossible to do), I'm forwarding in the best way available to me. But definitely subscribe. In my perennially overstuffed Inbox, his messages are among the handful that I genuinely look forward to reading.

So much for the prelude. Now comes Krugman, unvarnished.

Many of us have long noted the growing hostility of the G.O.P. to science. But my experience was that many people viewed those raising the alarm — like Chris Mooney, who wrote a 2005 book titled The Republican War on Science — as over the top scaremongers.

But at this point, can we acknowledge that MAGA is indeed waging war on science? Not just “woke” stuff, but science in general.

Nature tells us that National Science Foundation funds have been frozen, and that even if some money eventually flows again, funding will be heavily politicized:

Staff members at the US National Science Foundation (NSF) were told on 30 April to “stop awarding all funding actions until further notice,” according to an email seen by Nature.

The policy prevents the NSF, one of the world’s biggest supporters of basic research, from awarding new research grants and from supplying allotted funds for existing grants, such as those that receive yearly increments of money. The email does not provide a reason for the freeze and says that it will last “until further notice”.

Earlier this week, NSF leadership also introduced a new policy directing staff members to screen grant proposals for “topics or activities that may not be in alignment with agency priorities”. Proposals judged not “in alignment” must be returned to the applicants by NSF employees. The policy has not been made public but was described in documents seen by Nature.

In effect, NSF, if it supports research at all, will only support research that tells MAGA what it wants to hear. Add in RFK Jr.’s savage cuts at the National Institutes of Health, budget cuts at the National Oceanic and Atmospheric Administration and the Trump administration’s attacks on research universities, and we’re looking at a near-collapse of U.S. science. I don’t mean a hypothetical collapse a few years down the road, but the destruction of large parts of the American scientific enterprise — the envy of the world just a few months ago — this year.

Why should those who aren’t scientists care? In the 21st century, science isn’t some esoteric intellectual affair. It’s the foundation of social and economic progress. And no, we can’t expect the private sector to fill the gap left by loss of government support. Basic research is a public good: it generates real benefits, but those benefits can’t be monetized because everyone can make use of the knowledge gained. So government support is the only way to sustain science. And that support is being rapidly ended.

But why do our new rulers want to destroy science in America? Sadly, the answer is obvious: Science has a tendency to tell you things you may not want to hear. Medical research may tell you that vaccines work and don’t cause autism. Energy research may tell wind power works and doesn’t massacre birds.

And one thing we know about MAGA types is that they are determined to hold on to their prejudices. If science conflicts with those prejudices, they don’t want to know, and they don’t want anyone else to know either. So they really want to destroy science.

Again, this isn’t hyperbole, and it’s not about the long run. American science is being gutted as you read this.