US Supreme Court Decision Research Articles

C&EN’s Year in Pharma 2022: US Supreme Court decision put medication abortions in the spotlight

C&EN’s Year in Pharma 2022: US Supreme Court decision put medication abortions in the spotlight

Why we need more methods for male contraception.

The US Supreme Court decision against abortion has once again triggered the call for male contraception. However, in addition to existing methods, there are further reasons why pharmacological reversible easy-to-use male contraception should be available. Green activists and environmentalists have to recognize that overpopulation consume resources. Medical progress results in increasing life expectancy and must be combined with contraception. Sharing the risks of contraception among partners and "Reproductive Autonomy for All" are ethical issues. The resistance of the pharmacological industry to becoming partners in male contraception must be overcome by public financial subsidies and popular demand.

Dobbs v. Jackson Women’s Health: An Historical Perspective on Medical Boards, Disciplinary Actions, and Abortion

<i>Dobbs v. Jackson Women’s Health:</i> An Historical Perspective on Medical Boards, Disciplinary Actions, and Abortion

Health implications of the West Virginia v Environmental Protection Agency US Supreme Court decision

On June 30, 2022, the US Supreme Court issued a 6–3 decision in the case of West Virginia v Environmental Protection Agency1 (EPA) that portends poorly for US public health in two ways. First, the decision limits EPA's ability to regulate greenhouse gas (GHG) emissions from electrical power plants and thereby curtails its ability to combat the many health harms caused by the climate crisis. Second, because the decision was based largely on the major questions doctrine, it potentially undermines the ability to regulate health matters of major significance.

The fall of Roe v Wade, the US anti-abortion movement and its influence in Australia

This article examines the overturning of the landmark US Supreme Court decision of Roe v Wade, the precedent which conferred federal constitutional protection on the right to abortion. It looks at the US anti-abortion movement which worked for decades to overturn Roe v Wade and the degree to which Australian law is vulnerable to its influence.

Dobbs v Jackson and access to fertility care among newly diagnosed adolescents and young adults with cancer in the USA.

The US Supreme Court's decision on Dobbs v Jackson reverses Roe v Wade and returns decisions about abortion services to each individual US state. This decision will potentially interfere with fertility preservation for adolescents and young adults with cancer—an essential component of cancer care—by placing controls on genetic testing, storage, and disposal of embryos, including those created in vitro.1,2 Herein, we describe the adolescents and young adults with cancer in the USA whose fertility preservation could be affected.

Dobbs v. Jackson and the Revival of the States' Rights Constitution

AbstractThe US Supreme Court's decision in Dobbs v. Jackson Women's Health ended the federal right to an abortion, first pronounced in the 1973 case Roe v. Wade. Dobbs has immediate implications for American women, but it also exposes a growing hostility by the court to the doctrine of ‘substantive due process’ on which many other federal rights rely. This article argues that the court's weakening of substantive due process is a direct challenge to the constitutional transformation wrought by the Fourteenth Amendment following the Civil War. The amendment asserted a national standard of fundamental rights, profoundly rebalancing power away from the states. Should the Supreme Court extend the logic of Dobbs, the national basis for many substantive due process rights will be removed. The court is reviving a kind of states' rights constitutional thinking hitherto unseen by the current generation of Americans.

Supreme Court’s Splitting of the ‘Jurisdictional Atom’ Threatens to Blow up the Federal Arbitration Act

A recent US Supreme Court decision sharply narrows the jurisdiction of federal district courts to administer arbitration matters under the Federal Arbitration Act (FAA). When a federal district determines whether it has subject-matter jurisdiction to compel arbitration, it may take into consideration both the petition to compel arbitration and the underlying dispute. This is known as the ‘look through approach’ because the court can look beyond the pending motion to the underlying case. Recently, the US Supreme Court ruled that the look through approach cannot be used when the federal court is asked to confirm or vacate an arbitral award. This can produce the incongruous result that a federal district court could have the authority to compel an arbitration but not to confirm the resulting award. The US Supreme Court left for future determination the question of whether the look through approach can be used for other judicial functions under the FAA such as appointment of the arbitrator.

US supreme court decision: the gastroenterological perspective.

US supreme court decision: the gastroenterological perspective.

Japanese biotechnology regulation and life science (gene) patenting

AbstractJapanese patenting system on biotechnological inventions is unique. In 1979, before the US Supreme court's decision in the Chakrabarti case (1980), the Japanese Patent Office (JPO) had issued the “Implementing Guidelines for the Invention of Microorganisms,” and microorganism was considered as patentable. Japan lacks case laws. However, we can find cases like the Engineered Mice case. This study paper critically surveys and focuses on the Japanese life science (Gene/DNA) patenting system and its prevailing issues. This paper critically analyzes the current position and practices of the JPO on DNA patenting, including induced pluripotent stem cells as well as CRISPR gene‐editing technique, its challenges, and its potential future courses on this issue; the basis of granting a patent for DNA in Japan; Japanese outlook at ethical (living organisms) aspects of DNA patenting; depository system in Japan; the impacts of the tragedy of anticommons in Japan; “Creative Commons” movement; and others.

Lady Ada: Limor Fried, Adafruit industries, intellectual property and open source hardware

This paper provides a profile of Limor Fried of Adafruit Industries – as an advocate of open source hardware, and a policy campaigner for intellectual property law reform. This work considers the copyright challenges for open source hardware – particularly with the US Supreme Court decision on copyright subsistence in Star Athletica LLC. v Varsity Brands Inc., and ongoing conflicts over intermediary liability and technological protection measures. It reviews the trademark disputes of Adafruit Industries – looking at the matter of Fried v Linco Inc. It explores the intervention of the Open Source Hardware Association in the design patent dispute in Luxembourg v Home Expressions Inc. It analyses how Adafruit Industries has engaged in defensive patenting, and pushed for patent law reform in dialogues with President Barack Obama. The conclusion considers how open source hardware advocates such as Limor Fried and Adafruit can play an important role in intellectual property law reform in the future. It also explores current and future challenges for Adafruit and open source hardware – including the current coronavirus COVID-19 public health crisis.

How university diversity rationales inform student preferences and outcomes

It is currently commonplace for institutions of higher education to proclaim to embrace diversity and inclusion. Though there are numerous rationales available for doing so, US Supreme Court decisions have consistently favored rationales which assert that diversity provides compelling educational benefits and is thus instrumentally useful. Our research is a quantitative/experimental effort to examine how such instrumental rationales comport with the preferences of White and Black Americans, specifically contrasting them with previously dominant moral rationales that embrace diversity as a matter of intrinsic values (e.g., justice). Furthermore, we investigate the prevalence of instrumental diversity rationales in the American higher education landscape and the degree to which they correspond with educational outcomes. Across six experiments, we showed that instrumental rationales correspond to the preferences of White (but not Black) Americans, and both parents and admissions staff expect Black students to fare worse at universities that endorse them. We coded university websites and surveyed admissions staff to determine that, nevertheless, instrumental diversity rationales are more prevalent than moral ones are and that they are indeed associated with increasing White-Black graduation disparities, particularly among universities with low levels of moral rationale use. These findings indicate that the most common rationale for supporting diversity in American higher education accords with the preferences of, and better relative outcomes for, White Americans over low-status racial minorities. The rationales behind universities' embrace of diversity have nonlegal consequences that should be considered in institutional decision making.

Google v. Oracle: when innovation overwhelmed copyright law

The US Supreme Court Decision on Google v. Oracle (Google LLC v. Oracle America, Inc., US Supreme Court, No. 18–956) may well be one of the most prominent decisions of the decade, with regards to copyright law and software (and broadly, to innovation and IP laws). As the author states: This story is about changing times, about an era where a constant and voracious pace of innovation is overwhelming legal systems, and in this case, copyright law. More precisely, the US 'fair use' framework is instrumentalized by the judges aiming at achieving a much needed equilibrium between copyright law and the use of specific software features, such as API-related code (i.e. declaring code) crucial for interoperability purposes. Notwithstanding the complexity of the case and the considerable merits of such a decision, the price to pay to achieve the outcome of the case was an exceptional instrumentalization of the 'fair use' framework.

Maryland’s Underage Sexting Case: Punishing Revenge Porn Victims?

In 2019, the US State of Maryland’s highest court upheld the conviction of a 16-year-old minor for distributing her own ‘child pornography’ when she privately sent a clip of her performing a (completely legal) sexual act to a social media group of which only she and her two best friends were members. Considering that the child porn statute was never meant to prosecute legal and consensual sexting, this criminalization appears to be contra legem in light of the fact that the Court would not have regarded it as an offence if the girl was two years older (which does not make any difference to the legality of the sexual act since the age of sexual consent in Maryland is 16). The Court’s penalization of this act of sexting seems inappositely puritanical especially when it is noted that the convict was a victim of ‘revenge porn’ since one of the two friends leaked the clip in her school in an apparent act of revenge after their friendship ended. This paper analyses both the majority and dissenting opinions of this 2019 judgment to come to the conclusion that the majority ignores the true purport of the US Supreme Court decisions and wrongly invokes the doctrines for interpreting legislative intent to buttress its stance. As Maryland has criminalized acts of ‘revenge porn’, this article’s focus extends to examining how the Court’s failure of factoring in the effect of Maryland’s ‘revenge porn’ statute in discerning the legislative intent of the ‘child porn’ statute has produced an aberration of a statutory interpretation.

Border-state abortions increased for Texas residents after House Bill 2

ObjectivesTo assess changes in Texas-resident border-state abortions, medication abortions, and abortions ≥22 weeks from last menstrual period (LMP) before and after implementation of House Bill 2 (HB2) in November 2013 and before and after the US Supreme Court's decision regarding HB2 in June 2016. Study designWe conducted an interrupted time series analysis using 2012-2017 data on Texas-resident abortions in Arkansas, Louisiana, Oklahoma, and New Mexico. Data on procedure type and gestational age were available only for abortions in New Mexico. ResultsBorder states reported 762 Texas-resident abortions in 2012, 1,673 in 2014, and 1,475 in 2017. Texas-resident abortions in all border states nearly doubled following HB2’s implementation (incidence rate ratio [IRR]=1.92, 95% CI: 1.67-2.20). Border-state abortions then decreased by 19% after the 2016 US Supreme Court decision, compared to the period prior to the decision and after HB2’s implementation (IRR=0.81, 95% CI: 0.73-0.91). From 2012 to 2014, the proportion of Texas-resident abortions in New Mexico that were medication abortion increased from 5% to 20% (p < 0.001) and the proportion that were ≥22 weeks from LMP decreased from 40% to 23% (p < p<0.001). Texas vital statistics undercounted annual out-of-state abortions, reporting only 13%-73% of abortions reported by border-state clinics during the study period. ConclusionsHB2 was associated with increases in border-state abortions for Texas residents, including in the number of those ≥22 weeks from LMP. Border-state abortions declined after the Supreme Court ruled HB2 unconstitutional yet remained higher than pre-HB2 levels. Implications statementAbortion restrictions that severely curtail access may result in increases in travel out of state for care. Documenting out-of-state abortions is important for evaluating broader policy impacts and to prepare for future service disruptions. Texas residents may have more limited options for care if border states enact restrictive abortion laws.

Stricter Scrutiny of Treaty Violations? How McGirt v. Oklahoma and Textualism Could Buttress American Indian Sovereignity

The 2020 US Supreme Court decision in McGirt v. Oklahoma recognized surviving rights of the Creek nation in a reservation covering much of eastern Oklahoma. This article analyzes the majority opinion's use of textualism, which relies on close reading of Congressional acts, rather than considerations of policy or equity, to rule in favor of the Creek position. The dissent, ostensibly using the same analytical approach, comes to the opposite conclusion by defending a number of oppressive measures taken by the US Government to displace the Creek. Because the decision was 5-4, with the late Justice Ginsburg in the majority, the future impact of this decision is very much in doubt.

Wayfairin Constitutional Perspective: Who Sets the Ground Rules of US Fiscal Federalism?

The 2018 US Supreme Court decision in South Dakota v. Wayfair is arguably the court’s most consequential state tax decision in a generation, perhaps longer. The Wayfair decision overturned the Supr...

Many Nations under Many Gods: Public Land Management and American Indian Sacred Sites by Todd Allin Morman

Reviewed by: Many Nations under Many Gods: Public Land Management and American Indian Sacred Sites by Todd Allin Morman Kari Forbes-Boyte Many Nations under Many Gods: Public Land Management and American Indian Sacred Sites. By Todd Allin Morman. Norman: University of Oklahoma Press, 2018. vii + 248 pp. Notes, bibliography, index. $39.95 paper. Todd Allin Morman’s book, Many Nations Under Many Gods, provides an excellent overview of United States policies and procedures toward Native American sacred land. The book is a compilation of various case studies of sacred places throughout the American West, which are analyzed in terms of the administrative consultation with Native Americans required by law, critical analysis of judicial decisions, and a review of certain legislation. The author successfully intertwines legal theory with a finely detailed narrative. The book is approachable for both the novice and experienced researchers in similar fields. The strength of the work is the author’s unique perspective as a practicing attorney. Morman offers strong analysis of judicial decisions. He deciphers how judicial decisions are made, highlights strengths of arguments, and points out the errors of decisions. He critiques the unwillingness of judges and attorneys to acknowledge the cultural values of place-based religions. He particularly questions the ethnocentrism apparent in the US Supreme Court decisions regarding Native American sacred places. As a geographer, I appreciate his local-level analysis. He effectively examines the land-management consultation process with impacted Native American communities. Through an understanding of what is meant by meaningful consultation, he investigates a variety of cases, commending some administrative decisions while criticizing others. For the scholar interested in the Great Plains, Morman provides examples from this region. His first case study is an analysis of Bear Lodge (i.e., Devil’s Tower) in Wyoming. He also investigates the Dakota Access Pipeline and Standing Rock Reservation. His geographical focus is spread throughout the western US, but the events told are applicable to other conflicts between governmental land-management agencies and Native peoples in the Great Plains. His work will enhance my own research with the Lakota and Bear Butte. I, too, have made the argument that careful and genuine consultation with tribal peoples can open lines of communication. This in turn can help navigate the cultural divide between the settler colonial system and indigenous nations. I would highly recommend this fascinating book for anyone interested in public management, legislative acts, and judicial decisions regarding Native Americans. As a geographer, however, I think the omission of maps and photographs is detrimental. The use of these visual aids adds a contextual layer useful for many readers. But this does not detract from the depth of analysis and the author’s perspective of administrative consultations and judicial decisions that impact the culture and lifeways of Native Americans. [End Page 119] Kari Forbes-Boyte Professor of Geography College of Arts and Sciences Dakota State University Copyright © 2021 Center for Great Plains Studies, University of Nebraska–Lincoln

Negative Freedom in Crisis Times

Pandemic emergencies and concomitant needs for interventions to protect public health place great pressure on individual liberty. In the United States, these pressures are exacerbated by views of negative liberty as the freedom to do whatever one wants with one’s person. This essay argues that the original US Supreme Court decision recognizing legislative powers to protect public health, Jacobson v. Massachusetts, was premised on an understanding of freedom of the person as limited by risks to others. Later court decisions have departed from this analysis, instead viewing individual liberties over the person as conflicting with public health. This jurisprudential approach pitting unlimited individual liberty rights over the person against public health contributes to the tensions in the U. S. over mask wearing and restrictions on religious services during COVID-19.

Rebellious Lawyers for Fair Housing: The Lost Scientific Model of the Early NAACP

Historically-rooted patterns of racial segregation in housing remain a significant contributor to racial inequities in health, intergenerational wealth, and life chances more generally. This article uncovers a powerful but long-forgotten model for rebellious lawyers in the struggle for fair housing. I draw this model from archival research into the innovative early NAACP lawyers who litigated racially restrictive covenants from the 1910s to the 1940s. Facing a hostile judiciary, and with little legal precedent on their side, these lawyers turned their attention to a fundamental conceptual obstacle to their cause: what they termed “property in a sociological vacuum.” In this view, property ownership as an entirely private manner unrelated to the public interest and social context more generally. Under the vacuum logic, segregationist lawyers had convinced the courts that supporting racial covenants was a racially innocent defense of white homeowners’ property rights. The early NAACP lawyers countered this vacuum understanding of property by radically departing from the conventional norms of legal advocacy. In their briefs and oral arguments, they refuted the vacuum view on theoretical grounds and backed up their position with social-scientific findings that mapped out the pervasive use and devastating impacts of racial covenants in communities of color. Courts had never before been presented with such an enormous trove of social scientific research in civil rights litigation. This strategy reached full expression in Shelley v. Kraemer (1948), the land US Supreme Court decision that rendered racially restrictive covenants unenforceable. Shelley is a well-studied staple of the 1L curriculum, but legal history has largely ignored the decades of legal efforts that made it possible. This article traces that history in detail. I show how NAACP affiliated lawyers identified the vacuum view of property as a central target in their litigation strategy and then worked with academics and other social movement allies to develop a vast body of empirical research. This strategy enabled these lawyers to fill the sociological vacuum around property. In this way, they forced the judiciary to see that racial covenants were more than purely private instruments of individual landowners but rather had formed a pervasive land policy of racial apartheid, slum conditions, and excluding people of color from homeownership. I conclude by arguing that this “lost scientific model” should be emulated by today’s fair housing lawyers, who continue to encounter the vacuum view of property as a core theoretical obstacle to racial integration and inclusion.