77 Nobel Laureates Oppose RFKJr's Nomination to Head DHHS

For the reportedly first time ever, 77 Nobel Prize Laureates have written a letter (also: here) to the members of the U.S. Senate in which they urge rejection of the Trump Secretary-designate Robert F. Kennedy, Jr. to head the $1.8 trillion/year Department of Health and Human Services. DHHS is the mother ship for operating divisions that administer over 100 health and safety programs. The divisions include:  

• Agency for Healthcare Research and Quality
• Agency for Toxic Substances and Disease Registry
• Administration on Aging
• Centers for Disease Control and Prevention
• Centers for Medicare & Medicaid Services (formerly Health Care Finance Administration)
• Office of Child Support Enforcement 
• Office of Child Support Services 
• Administration for Children and Families 
• Office of Family Assistance
• Food and Drug Administration
• Health Resources and Services Administration
• Indian Health Service
• Inspector General Office, Health and Human Services Department
• National Institutes of Health
• National Library of Medicine
• Program Support Center
• Public Health Service
• Office of Refugee Resettlement 
• Substance Abuse and Mental Health Services Administration
• Community Living Administration
• Strategic Preparedness and Response Administration

The laureates's bill of particulars is as familiar as it is damning: 

In addition to his lack of credentials or relevant experience in medicine, science, public health, or administration, Mr. Kennedy has been an opponent of many health-protecting and life-saving vaccines, such as those that prevent measles and polio; a critic of the well-established positive effects of fluoridation of drinking water; a promoter of conspiracy theories about remarkably successful treatments for AIDS and other diseases; and a belligerent critic of respected agencies (especially the Food and Drug Administration, the Centers for Disease Control, and the National Institutes of Health). The leader of DHHS should continue to nurture and improve---not threaten---these important and highly respected institutions and their employees.

In conclusion:  

In view of his record, placing Mr. Kennedy in charge of DHHS would put the public's health in jeopardy and undermine America's global leadership in the health sciences, in both the public and commercial sectors.

If there is a Senate vote on Mr. Kennedy's nomination -- which is still a matter of some doubt -- we will find out if the Senator -- and Senate Republicans in particular -- share Trump's and Kennedy's disdain for science and medicine and expertise earned over lifetimes of work in these fields. 

Texas AG Sues Pediatrician for Providing Gender-Affirming Treatment

Last week Texas Attorney General Ken Paxton sued Dr. May Lau, a Dallas pediatrician and assistant professor at UT-Southwestern Medical School, for violating Texas's statutory ban on gender-affirming care for persons under the age of 18. Here are some helpful links, ending with links to a relevant U.S. Supreme Court case that will be argued in December:

1. A few newspapers have picked up this story (WaPo, NY Times, Dallas Morning News), all behind a paywall except for this one: The Texas Tribune (Oct. 17, 2024). There is also free coverage from NBC News, CNN, and KERA News (NPR affiliate in Dallas).

2. The AG's complaint is on his official website here. The essence of the complaint is:

a. Dr. Lau provided gender-affirming care to a minor, and

b. She misrepresented the nature of her treatment, allegedly (1) to cover up the medical rationale for testosterone therapy and (2) to secure insurance coverage for the treatments.

 3. The Texas law that provides the basis for the AG's lawsuit is HB 14 (eff. September 1, 2023). It is codified in various places in the Texas Code, e.g.:

a. § 62.151, Health and Safety Code: (g)  The child health plan may not provide coverage for services prohibited by Section 161.702 that are intended to transition a child's biological sex as determined by the child's sex organs, chromosomes, and endogenous profiles. 

b. § 161.702, Health and Safety Code: PROHIBITED PROVISION OF GENDER TRANSITIONING OR GENDER REASSIGNMENT PROCEDURES AND TREATMENTS TO CERTAIN CHILDREN. For the purpose of transitioning a child's biological sex as determined by the sex organs, chromosomes, and endogenous profiles of the child or affirming the child's perception of the child's sex if that perception is inconsistent with the child's biological sex, a physician or health care provider may not knowingly:

               (1)  perform a surgery that sterilizes the child,

  including:

                     (A)  castration;

                     (B)  vasectomy;

                     (C)  hysterectomy;

                     (D)  oophorectomy;

                     (E)  metoidioplasty;

                     (F)  orchiectomy;

                     (G)  penectomy;

                     (H)  phalloplasty; and

                     (I)  vaginoplasty;

               (2)  perform a mastectomy;

               (3)  provide, prescribe, administer, or dispense any of the following prescription drugs that induce transient or permanent infertility:

                     (A)  puberty suppression or blocking prescription drugs to stop or delay normal puberty;

                     (B)  supraphysiologic doses of testosterone to females; or

                     (C)  supraphysiologic doses of estrogen to males; or

               (4)  remove any otherwise healthy or non-diseased body part or tissue. 

c. Sec. 161.704.  PROHIBITED USE OF PUBLIC MONEY.***

d. Sec. 161.705.  PROHIBITED STATE HEALTH PLAN REIMBURSEMENT.***

e.   Sec. 161.706.  ATTORNEY GENERAL ENFORCEMENT. (a) If the attorney general has reason to believe that a person is committing, has committed, or is about to commit a violation of Section 161.702, the attorney general may bring an action to enforce this subchapter to restrain or enjoin the person from committing, continuing to commit, or repeating the violation.***

4. In Texas v. Loe (No. 23-0697, June 28, 2024) the Texas Supreme Court reversed the trial court's preliminary injunction against enforcement of HB 14, concluding:

The trial court concluded that the law likely violates the Texas Constitution, and it temporarily enjoined the law’s enforcement. On direct appeal of the temporary injunction, we do not attempt to identify the most appropriate treatment for a child suffering from gender dysphoria.  That is a complicated question hotly debated by medical experts and policy makers throughout this country and the world.  And, to be sure, neither this Court nor any party to this proceeding suggests that children suffering from gender dysphoria are undeserving of treatment and support.  The reverse is obviously true: they, like all children, deserve the most appropriate treatment together with support, love, and empathy.  We emphasize, though, that the only question we are called upon to answer is a distinctly legal one: whether plaintiffs in this case have established a probable right to relief on their claims that the Legislature’s prohibition of certain treatments for children suffering from gender dysphoria violates the Texas Constitution. 

We conclude that plaintiffs failed to meet that burden.  We have said—and we reaffirm today—that fit parents have a fundamental interest in directing the care, custody, and control of their children free from government interference.  But we have never defined the source or precise scope of this interest, and our precedents make clear that this interest is not absolute.  Indeed, we have never held that a fit parent’s interest in caring for her child free from government interference, though weighty, triggers heightened scrutiny of every statute that restricts any asserted right connected to that interest.  When developments in our society raise new and previously unconsidered questions about the appropriate line between parental autonomy on the one hand and the Legislature’s authority to regulate the practice of medicine on the other, our Constitution does not render the Legislature powerless to provide answers. 

For the reasons explained below, we conclude the Legislature made a permissible, rational policy choice to limit the types of available medical procedures for children, particularly in light of the relative nascency of both gender dysphoria and its various modes of treatment and the Legislature’s express constitutional authority to regulate the practice of medicine.  We therefore conclude the statute does not unconstitutionally deprive parents of their rights or physicians or health care providers of an alleged property right in their medical licenses or claimed right to occupational freedom.  We also conclude the law does not unconstitutionally deny or abridge equality under the law because of sex or any other characteristic asserted by plaintiffs.  We therefore reverse and vacate the trial court’s order (footnote deleted and emphasis added).

  5. In the United States Supreme Court, a very similar Tennessee law will be debated in December. Tenn. SB 1 (eff. July 1, 2023) codified as Tenn. Code § 68-33-103) broadly prohibits medical or surgical treatments for minors with gender dysphoria. A similar law was enacted in Kentucky. Two district courts granted preliminary injunctions to block enforcement of the laws while challenges were being considered in their courts. On appeal from those decisions, the Sixth Circuit -- in a wide-ranging opinion -- reversed the two district courts, concluding that all the usual factors related to injunctions -- including the likelihood of prevailing on the merits of the challenge -- favored denial of the challengers' motions. See L.W. v. Skrmetti (6th Cir., Nos. 23-5600 and 23-5609, Sept. 28, 2023). The challenge in the Supreme Court is limited to the issue presented by the petition for certiorari: "Whether Tennessee Senate Bill 1 (SB1), 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,' Tenn. Code Ann.  § 68-33-103(a)(1), violates the Equal Protection Clause of the Fourteenth Amendment" (emphasis added). 

6. According to the 6th Circuit, 35 states have legislated on this subject, with 21 states prohibiting medical or surgical treatments (or both) and 14 states passing laws protecting patients who seeks such treatment. 

7. My old firm, Covington & Burling, filed an amicus brief in support of the challengers and urging reversal of the 6th Circuit on behalf of the American Academy of Pediatrics, the American Medical Association, and 23 additional medical and health care associations and societies. Additional amicus briefs in support of the challengers were filed by the American Psychological Association and the American Bar Association and literally scores of other amici including many in support of the Commonwealth of Kentucky.

2nd Amendment thoughts -- The Constitution is not a suicide pact (or is it?)

Some random thoughts on Father's Day about gun violence in the United States.  

According to the authoritative Gun Violence Archive website,  there were 125 shootings on Father's Day (July 18) resulting in 149 victim injuries and 49 victim deaths. Six  shootings involved 4 or more victims being injured or killed (the commonly accepted criterion for a "mass shooting"), including 22 injured and 1 killed in a shooting at a Juneteenth celebration in Willowbrook, Illinois, and 9 injured and 1 killed in St. Louis.  Today.

All gun deaths are horrible, but surely it is worth noting that it seems a disproportionate number of victims appear to be young people, the age of our kids (or, in my case, my grandkids).

As parents, it is our responsibility to try to make the world reasonably safe for our kids. We try to protect them from the consequences of choices and conduct that could kill or maim them. It is admittedly impossible to eliminate all risk from the world, but we do our best to manage that risk. Except when it comes to guns.

I am writing this in HealthLawBlog because gun violence is not only a criminal-law issue but also a public-health issue. As the American Public Health Association (APHA) has written:

Gun violence is a leading cause of premature death in the U.S. Guns kill more than 38,000 people and cause nearly 85,000 injuries each year. As a longtime advocate for violence prevention policies, APHA recognizes a comprehensive public health approach to addressing this growing crisis is necessary.

The biggest obstacle is the number of politicians who are beholden to the gun lobby for secure and well-financed primaries. There are plenty of voters who have been sold an absolutist interpretation of the Second Amendment, and politicians are scared of alienating them, too.

The question posed in the title of this post deserves an answer. 

My SMU Law colleague Eric Ruben argues persuasively that Second Amendment absolutism is based upon a serious -- dare I say fatal? -- misreading of that amendment (click here for links to most of his writings; click here for his latest article, forthcoming in the Yale Law Journal). His work is well worth reading. Suffice it to say that gun-rights absolutists base their position on an ahistorical reading of the Second Amendment, an error that is compounded in the Court's most recent Second Amendment decision by what Ruben and his co-author, Joseph Blocher, in their Yale piece call "originalism-by-analogy," a unique version of originalism, seemingly invented to produce a particularly virulent reading of the Second Amendment.

Justice Robert Jackson wrote in his dissent in Terminiello v. City of Chicago:

There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

The current Court would do well to heed the wise words of Justice Jackson. 

RBG on the Overturning of Roe v. Wade

This was posted recently by a wonderful German attorney and former Bioethics student of mine, Christine Gärtner. It appears to be part of an interview with Justice Ginsburg, and I am not sure of the source, but it sure looks like her crystal ball was firing on all cylinders. Of course, lots of others were making the same prediction, though she cut to the policy question that, honestly, can have only one answer:

Editors of New England Journal of Medicine Condemn SCOTUS's Decision to Overrule Roe

The NEJM editorial summarizes the board's reasoning this way:

By abolishing longstanding legal protections, the U.S. Supreme Court’s reversal of Roe v. Wade serves American families poorly, putting their health, safety, finances, and futures at risk. In view of these predictable consequences, the editors of the New England Journal of Medicine strongly condemn the U.S. Supreme Court’s decision.

The full editorial, "Lawmakers v. The Scientific Realities of Human Reproduction,"is available here. 

Justice Breyer's dissenting opinion on behalf of himself and Justices Sotomayor and Kagan lays out the costs in clear and vivid terms:

Today, the Court discards that balance. It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs.  An abortion restriction, the majority holds, is permissible whenever rational, the lowest level of scrutiny known to the law.  And because, as the Court has often stated, protecting fetal life is rational, States will feel free to enact all manner of restrictions. The Mississippi law at issue here bars abortions after the 15th week of pregnancy. Under the majority’s ruling, though, another State’s law could do so after ten weeks, or five or three or one—or, again, from the moment of fertilization. States have already passed such laws, in anticipation of today’s ruling.  More will follow. Some States have enacted laws extending to all forms of abortion procedure, including taking medication in one’s own home.  They have passed laws without any exceptions for when the woman is the victim of rape or incest. Under those laws, a woman will have to bear her rapist’s child or a young girl her father’s—no matter if doing so will destroy her life.  So too, after today’s ruling, some States may compel women to carry to term a fetus with severe physical anomalies—for example, one afflicted with Tay-Sachs disease, sure to die Cite as: 597 U. S. ____ (2022) BREYER, SOTOMAYOR, and KAGAN, JJ., dissenting 3 within a few years of birth. States may even argue that a prohibition on abortion need make no provision for protecting a woman from risk of death or physical harm.  Across a vast array of circumstances, a State will be able to impose its moral choice on a woman and coerce her to give birth to a child.  

Excellent analysis of SB 8 online at JAMA

The litigation history of Texas's abortion statute (SB 8) is a sorry tangle of "hot potato" from federal courts to state supreme court and from trial court to the U.S. Supreme Court, but one thing is unmistakable: The misnamed "heartbeat" law is unconstitutional under current federal law. Full stop. As long as Roe and Casey are good law -- and they may be seriously threatened by a supermajority of conservative justices on the Supreme Court, but for the time being those cases are still the law of the land -- a previability prohibition of abortions violates that law. 

SB 8 prohibits abortions after about six weeks and provides for private parties to enforce the prohibition through civil litigation against anyone who "aids or abets the performance or inducement of an abortion" in violation of SB 8's prohibition. To be clear: an "aider" or "abettor" is a person who "assists someone in committing or encourages someone to commit a crime." Even under SB 8, a violation of its prohibition is not a crime, and Texas officials are barred from enforcing its provisions whether civilly or criminally. Private enforcement was intended to insulate the law from constitutional review (no state actors = no state action, et voila!: no constitutional violation!). If this is upheld, any state that isn't happy with a decision of the Supreme Court can pass a law in violation, provide for exclusively private enforcement, and shield the state law from federal constitutional review.

All of this -- the litigation tangle, the constitutional analysis, and the implications for the future -- are admirably addressed in a brief opinion piece by Glenn Cohen, Rebecca Reingold, and Larry Gostin in the Journal of the American Medical Association, on-line and free. It's worth a read.

Vaccines and Religious Exemptions

Prof. Wendy Parmet had an excellent guest column in the NY Times on 10/31 concerning religious exemptions from vaccination mandates during a pandemic. She points out that the Supreme Court has been pretty consistent since 1905 that medical exemptions -- based upon legitimate medical evaluations -- are legitimate (and may be required by the Constitution -- I think they are), but that until the past year, the Court was clear that religious exemptions are not required by the Constitution. A handful of cases from the Court's "shadow docket" suggest majority support for religious exemptions. As a public-health scholar, Parmet sees this trend as not only worrying but potentially deadly.

Friday's decision to allow Maine's vaccination mandate to remain in effect was not as hopeful a sign as one might expect. Parmet explained that three justices supported a religious exemption as a First Amendment requirement, which turns a century of public-health rulings on their head. Two other conservatives voted with the liberals on process grounds (another shadow docket decision), which suggests there might be five votes for a constitutionally required religious exemption from vaccination mandates. 

Happy Independence Day (almost)

Today (July 5th) is the day of the federal holiday celebrating the Second Continental Congress's adoption of the text of the Declaration of Independence on July 4th, which set out the argument for independence from "the state of Great Britain," which independence was actually declared by vote of the same Congress on July 2nd with the adoption of  the Lee Resolution (a/k/a the Resolution of Independence) with New York abstaining. My best friend from law school, Frank, insists that July 2 is or at least ought to be the true Independence Day, and in that belief he is joined by many others, not least of whom was John Adams, who wrote to his wife Abigail on July 3: "The second day of July, 1776, will be the most memorable epoch in the history of America. I am apt to believe that it will be celebrated by succeeding generations as the great anniversary festival."

For 32 years, NPR staff (news readers, correspondents, commentators) have read the Declaration of Independence during the Morning Edition show closest to the 4th of July. Pretty much in Frank's honor (and out of respect to John Adams), this year the date for the reading fell on Friday, the 2nd of July. For many years, the readers included Bob Edwards, Red Barber, and "Kim Williams of Missoula, Montana," whose distinctive voices and personalities were represented long after their departure from NPR (Bob) and the land of the living (Red and Kim). 

This year was a little different, with a disclaimer that noted the hypocrisy of drafters and signers: "It famously declares 'that all men are created equal' even though women, enslaved people and Indigenous Americans were not held as equal at the time." So the Declaration remains an aspirational document for a country this is still reckoning with the long-term effects of its past. 

It remains, for all its limitations, the founding document that added philosophy and history to the political message of the Lee Resolution. It provided an outline for large parts of the original Constitution and the Bill of Rights. And for all sorts of reasons it is well worth reading at least once a year to remind us not only of the founders who "mutually pledge[d] to each other [their] Lives, [their] Fortunes and [their] sacred Honor" but also of the work left to be done to achieve its goals.

Early Indications Are Leaning Toward a Favorable SCOTUS Decision for the ACA

One thing I learned as a Constitutional Law prof many years ago is to not give full faith and credit to the comments and questions of Justices during oral argument. Sometimes they are simply testing out ideas that they plan to write against when the dust settles. All that said . . . 

Early reports from today's oral argument in the Supreme Court suggest that Justices Sotomayor, Kagan, and Breyer may be joined by Chief Justice Roberts and Justice Kavanaugh in upholding the ACA against the attack mounted by 20 GOP-led states. Policy wonks decry the possibility that 20 million people in this country could lose their health insurance if the ACA is struck down, and millions more will lose coverage if other underwriting reforms go down the tubes, including the prohibition against discriminating on the basis of pre-existing conditions, the ban on annual and lifetime caps, and the option for children to be covered by their parents' health insurance until they turn 26. The Supreme Court doesn't get to make health policy, but consequences as Draconian as these have to figure into their reading of the law, especially in a case in which congressional intent controls the issues. 

There are two issues in play. The first is whether the individual mandate can survive Congress's decision in the 2017 tax law to reduce the penalty tax for failing to secure health insurance all the way down to $0. Without a tax, the plaintiffs have argued, the constitutional basis for the mandate disappears. Maybe. I seem to remember from Income Tax I (Summer 1975) that Congress has from time to time elected not to collect a tax, and the Court has upheld the regulation attached to the tax nonetheless. Even if I recollect incorrectly, it should be at least a close question whether Congress intended to wipe out the individual mandate when they reduced the tax. It seems supremely silly to me 

If the Court answers the first question in the affirmative, the second question shouldn't be close at all: whether the end of the individual mandate means the entire ACA should be tossed out as well. The question is one of severability, and it shouldn't even pass the smile test, although the district court and the Fifth Circuit opined that the ACA could not be saved if the individual mandate were taken out. 

Stay tuned . . . 

Questions for Judge Amy Coney Barrett

Over at The Commonwealth Fund, health-law prof and ACA expert extraordinaire Tim Jost properly focuses not on whether CJ Roberts got it right when he upheld the individual mandate as a proper exercise of Congress's powers under the Taxing Clause of the Constitution (Judge Barrett has argued that he did not) or when he upheld access to ACA premium tax credits for individuals enrolled in insurance plans through the federal exchange (ditto). 

The issues presently before the Court in California v. Texas are (1) whether the individual mandate is unconstitutional now that Congress has zeroed out the tax penalty in the 2018 tax reform bill and, if so, (2) whether the individual mandate provision is severable from the rest of the ACA. The district court (N.D. Tx., Fort Worth Div.) and the Fifth Circuit both answered (1) yes and (2) no, meaning the whole ACA has to be thrown out. Texas v. California, which has been consolidated with California v. Texas, raises a third issue: Whether the individual and state plaintiffs in this case have established Article III standing to challenge the ACA's individual mandate. In the unlikely event that Judge Barrett isn't confirmed before the Court decides these cases, the standing issue could conceivably give a Court split 4-4 on the first two questions a way out. Lack of Article III standing requires dismissal of the case at the district court level, effectively nullifying the two lower-court decisions.

As Tim Jost writes, 

Though she could be asked about standing or the mandate’s constitutionality, questions for Judge Barrett should mainly focus on severability: How much, if any, of the ACA should be invalidated if the mandate is found unconstitutional? (It does not matter much if the unenforceable mandate is invalidated if the rest of the ACA remains in place.) Would she disturb the Court’s long-standing presumption of severability? Cases recently decided by the Court with majority opinions written by Chief Justice Roberts and Justice Kavanaugh reinforce the presumption that if a provision of a statute is found unconstitutional, as much of the rest of the statute as possible should be found severable and preserved. She should be asked if she agrees with this doctrine.

Severability goes to the heart of these two cases. It is nearly inconceivable that she would tip her hand on this issue during the hearings. Democrats will fume and threaten not to vote to confirm, but most of them weren't going to vote for her confirmation anyway, and Mitch McC has enough Republican votes lined up to confirm the judge without the Dems.

"Constitutional Norms for Pandemic Policy"

Here's a précis of an important paper by three professors at the University of Arizona College of Law (Toni Massaro, Justin R. Pidot, and Marvin Slepian). After all the dumb (mostly anti-mask and anti-shutdown) rhetoric about how constitutional rights don't go away in a pandemic, here's some common sense about how our present crisis fits into the constitutional scheme.

Arizona Legal Studies Discussion Paper No. 20-29 (free download)

The COVID-19 pandemic has unleashed a torrent of legal and political commentary, and rightly so: the disease touches every corner of life and implicates all areas of law. In response to the disease, governments, civic institutions, and businesses have struggled to protect public health, respect individual autonomy, and enable Americans to satisfy their elemental instinct to congregate with one another.

Public perceptions about the disease, and our responses to it, have substantially fallen along predictable ideological lines. For example, the willingness of individuals to social distance may indicate something about their risk tolerance, but also about their political affiliation. Our ability to launch a unified response to COVID-19 has, in other words, been affected by rifts that generally infect American political life. 

How we manage these divides over pandemic response matters, because the costs of disunity are high. Those who fear the risk COVID-19 poses to their lives depend on others to participate in mitigation efforts; those who fear the risk our response to COVID-19 poses to their livelihoods depend on others to willingly reengage in economic life. Common ground, while elusive, is essential to America’s response to this pandemic, and the next one that will surely follow. 

We argue that ingredients for consensus already exist, even if they are obscured by political and policy rancor. Americans share the common goal to safely return to families, jobs, schools, places of assembly, pubs, parks, and the myriad of other settings that make up human lives and we share a fidelity to basic constitutional legal norms that can inform how we safely return. 

This Essay identifies four constitutional principles to shape pandemic policies and enable them to garner broad public acceptance: substantive and procedural rationality, respect of fundamental liberties, equal treatment, and flexibility to enable government to nimbly and effectively address emergencies that threaten life itself. Fidelity to these norms is essential for all institutions, public and private, because reopening safely can occur only through the cooperation of private individuals, and individuals will cooperate only if they have confidence in the ability of institutions to protect safety, liberty, and equality.