Second Circuit looks askance at $6 billion OxyContin settlement

MANHATTAN (CN) – A three-judge panel on the Second Circuit Court of Appeals appeared hesitant to revive a settlement plan with drugmaker Purdue Pharma that would include protections for the individual members of the wealthy Sackler family from all current and future civil lawsuits over the toll of opioids.

The owners of OxyContin maker Purdue Pharma filed for bankruptcy in September 2019 in a bid to settle some 2,600 lawsuits — most from state and local governments, but a sweeping nationwide settlement was scuttled last December when a federal judge in New York rejected the deal due to those releases shielding the Sacklers from facing litigation.

During two-hour hearing on Friday, lawyers for the embattled drugmaker insisted that bankruptcy court Judge Robert Drain, who approved the earlier settlement last year, had tailored the releases “verbatim lifting words from Second Circuit case law” to ensure that the deal was up to snuff.

“The releases are not broad,” insisted Pudue attorney Mitchell Huebner. “The reason they’re two pages long is because they’re narrower,” said Huebner, of the firm, Davis Polk & Wardwell.

U.S. Circuit Judge Lee responded that proposed Purdue settlement includes “a broader release than prior cases have really addressed.”

The Biden appointed judge also pressed Purdue’s attorney on the heightened risk of abuse with this type of release. “In a situation like this, where the parties being released are the ones determining the contribution, and kind of driving the plan,” she said.

“That suggest concerns about abuse, or even in future cases, the idea that the parties getting the benefit of this release are determining how much they give, how essential it’s going to be to the plan.”

Senior U.S. Circuit Judge Richard Wesley, a George W. Bush appointee, called some of that case law cited by Purdue’s appeal “kind of a flimsy ship” to rest their case on.

Huebner insisted that the alternative to the settlement deal that includes the releases for the Sacklers would instead be a “firestorm” of the company’s liquidation and endless litigation that would not provide the promised addiction abatement resources that are the table with the current deal.

“Four years of my life have been devoted to doing the best I can for the victims of Purdue to get them the most money for abatement and victims to save lives,” he said during his brief rebuttal on Friday.
“The notion that we should gamble that an alternative that two estate fiduciaries and eleven groups spent years exploring every pathway, because they think it sort of might violate their vision of a gestalt of the code, because they have some generic cases that say normally bankruptcy is about the debtor is an insult to thirty four years of second circuit precedent and the victims of this case.”

The U.S. Trustee’s challenge to the bankruptcy court’s authority to bless the releases in the settlement was handled on Friday by Department of Justice attorney Michael Shih.

“By not declaring bankruptcy, the Sacklers did not have to give up all of their assets, got broader relief –  release for claims for fraud – than they would have gotten under bankruptcy all under the umbra of bankruptcy,” Shih said. “And that’s the sort of assertion by the bankruptcy court that evades specific restrictions on what a discharge could do that the Supreme Court found so problematic in [Czyzewski v. Jevic Holding Corp.]”

In all, the plan could be worth more than $10 billion over time. It calls for members of the Sackler family to give up control of the Stamford, Connecticut-based company so it can be turned into a new entity with profits used to fight the crisis. The deal would not shield members of the family from criminal charges, although there’s no indication any are forthcoming.

The objecting states say the Sacklers have plenty of money.

In sworn testimony, a restructuring consultant for Purdue said family members had received between $12 billion and $13 billion over time from the company.

The prior deal was later rejected by an appellate court judge largely because of the opposition of the attorneys general for eight states and the District of Columbia.

After the initial deal was thrown out last December, the Stamford, Connecticut-based drugmaker went through two months of mediation to reach a new one.

At Friday’s oral arguments, Senior U.S. Circuit Judge Jon O. Newman asked Purdue’s attorney whether it was “a fair inference that the mediators pushed the Sacklers up from their opening bid to $4.2 billion.”

The Carter-appointed senior judge several times repeated his deduction that mediators had negotiated an enhancement at least a billion more dollars to the settlement.

“I’m giving you what I think is a softball question which you’re standing there and letting go right over the plate,” he told Purdue’s lawyer on Friday.

Later in the hearing, Judge Newman angrily scolded attorney Roy T. Englert, who represents the states seeking affirmation of deal and its third-party releases, which the lawyer acknowledged granted a very broad permission to bankruptcy courts.

“Please don’t shoot yourself in the foot by saying it’s the contributions of the Sacklers that make this plan lawful, don’t do that,” Judge Newman interjected. “The burden is on the objectors to find an applicable provision that says the bankruptcy court can’t do this, and your position is as you started is there is none.”

The three-judge panel adjourned Friday’s two-hour hearing without ruling on Purdue Pharma’s appeal.

Like the original settlement, the new one requires members of the Sackler family who own Purdue to give up their ownership. It would be turned into a new company known as Knoa Pharma, with profits being used to fight an opioid crisis that has been linked to the deaths of more than 500,000 Americans over the past two decades.

Also like the original deal, the new one calls for the Sacklers to contribute cash to fight the epidemic in exchange for protection from civil lawsuits.

The key difference is that the Sackler contribution would now be $5.5 billion to $6 billion, an increase of at least $1.2 billion from the previous plan. The exact amount would depend on how much they bring in by selling their international drug companies.

U.S. District Judge Colleen McMahon rejected the prior settlement deal with a finding that bankruptcy judges lack the authority to grant legal protection to people who don’t themselves file for bankruptcy when some parties disagree.

McMahon’s ruling reversed Judge Drain’s bankruptcy court order confirming the Chapter 11 plan of Purdue Pharma LP, and its affiliated debtors, holding that the Bankruptcy Code did not authorize the plan’s non-consensual third-party releases.

“This decision leaves on the table a number of critically important issues that were briefed and argued on appeal – principal among them, whether the Section 10.7 Shareholder Release can or should be approved on the peculiar facts of this case, assuming all the other legal challenges to their validity were resolved in Debtors’ favor,” McMahon noted in her ruling.

Kentucky and Oklahoma are not part of the deal because they both reached previous settlements with Purdue.

More than $100 million is being set aside for medical monitoring and payments for children born in withdrawal from opioids, and Native American tribes are in line for more than $150 million. Advocates say the money is essential to stemming the crisis.

Overdose deaths have been on the rise in the U.S., exacerbated by the isolation of the Covid-19 pandemic and the widespread availability of illicit versions of the synthetic opioid fentanyl.

from Courthouse News

‘Tiger King’

Read the order here.  

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Oklahoma lawmakers pass Texas-style ban on abortions after six weeks

OKLAHOMA CITY (CN) — The Republican-controlled Oklahoma House of Representatives on Thursday overwhelmingly approved a ban on abortions after the sixth week of pregnancy, legislation that mirrors a controversial abortion ban passed in Texas last year.

Senate Bill 1503 – known as the Oklahoma Heartbeat Act – passed 68-12 in the House with no debate, after being approved by the state Senate last month. Republican Governor Kevin Stitt is expected to quickly sign the bill, as he has vowed to sign any anti-abortion bill that reaches his desk.

SB 1503 bans abortions once cardiac activity is detected in a fetus, usually around six weeks into a pregnancy. Critics say this is often before a woman is aware she is pregnant.

Oklahoma’s ban is inspired by the passage of Senate Bill 8 – the Texas Heartbeat Act – last year by the Republican-controlled Texas Legislature. Like in Texas, Oklahoma’s ban includes a provision giving private citizens the power to enforce the ban, allowing them to sue anyone who “performed or induced” an abortion for over $10,000 per violation.

SB 1503 also allows citizens to sue for additional damages if they suffer harm including “loss of consortium and emotional distress,” opening the door for aggrieved fathers to sue a partner seeking an abortion within a six-year statute of limitations.

The Oklahoma House approved the bill with emergency provisions in place, meaning it will go into effect immediately after Stitt signs it. This creates a problem for the large numbers of women from Texas who have traveled to Oklahoma for an abortion after SB 8 was passed last year.

Emily Wales, interim president and CEO of Planned Parenthood Great Plains, said the group will challenge Oklahoma’s ban and noted the immediate effect of a signed law would prevent them from offering abortion services for some time at their two Oklahoma clinics.

“We are more concerned at this point about these Texas-style bans because they have, at least recently, been able to continue and remain in effect,” Wales said. “We’re serving as many Texans as Oklahomans right now, in some cases more Texans than Oklahomans.”

SB 1503’s passage comes weeks after Stitt signed into law SB 612, a law that bans abortions “except to save the life of a pregnant woman in a medical emergency.” Doctors face a felony punishable up to 10 years in state prison and up to $100,000 in fines.

The latest bill also comes two days after Stitt signed a first-of-its-kind ban on nonbinary gender markers being placed on Oklahoma birth certificates. That ban was proposed following Republican outcry to a 2021 civil settlement in a case where an Oklahoma-born Oregon resident sued the state after a request for a nonbinary birth certificate was refused.

Thursday’s vote come six months after Oklahoma County District Judge Cindy Truong blocked House Bill 1102, another near-total ban on abortion. That measure declared abortion doctors are engaging in “unprofessional conduct” and would face a suspension of their medical license for at least one year.

Truong also blocked HB 2441 at the time, a Texas-style ban that forbids an abortion if there is a detectable heartbeat. She concluded both laws are unconstitutional under Roe v. Wade.

from Courthouse News

Child-neglect case drives divide at high court on tribal authority

WASHINGTON (CN) — The justices appeared divided on Wednesday during their last scheduled oral argument session of the term that will decide if the court’s watershed ruling on tribal authority will upend a child-abuse conviction of a non-Indian man for the abuse of his part-Indian stepchild. 

An Oklahoma jury convicted Victor Manuel Castro-Huerta of neglecting his 5-year-old stepdaughter who is legally blind and has cerebral palsy. When the child was rushed to an emergency room in 2015, she was dehydrated, emaciated and covered in lice. An investigation found that Castro-Huerta was only giving his stepdaughter between 12 and 18 bottles if milk in a month when she should have received five bottles a day. She was also found to have been living in a crib with bedbugs and cockroaches. 

The shocking details of the Castro-Huerta case were not front and center during over two hours of arguments on Wednesday. Instead, a case the justices decided only two years ago consumed most of the justices’ time. 

When the court took up this case in January, the justices said they would not consider overturning McGirt v. Oklahoma but the landmark case was still hotly debated during oral arguments. McGirt found that a large swath of land once part of the Creek Nation could be considered Indian country for the purpose of the Major Crimes Act and that Oklahoma could not prosecute Indians or non-Indians for crimes committed there. 

Castro-Huerta appealed his conviction on the basis of jurisdiction just as the Supreme Court took up McGirt. On remand, the trial court determined that the crime was committed within Indian country. The state claimed that, even though the child had Indian blood, Castro-Huerta did not, so its jurisdiction in the case remained.

Oklahoma brought the case to the Court of Criminal Appeals, arguing that it had concurrent jurisdiction with the federal government over crimes committed by non-Indians against Indians in Indian country. The court affirmed the earlier decision, but a case used in that ruling was later vacated. On direct appeal, the court said states do not have concurrent criminal jurisdiction with the federal government. Oklahoma then brought its case to the high court. 

Oklahoma claims McGirt resulted in whole categories of crimes going unprosecuted, and that states should have the authority to prosecute them. 

“The question is whether it state has authority to prosecute non-Indians who commit crimes in Indian country regardless of whether the victim is a non-Indian or an Indian,” said Kannon Shanmugam, an attorney with Paul, Weiss, Rifkind representing the state. “The answer to that question is yes, the state has inherent sovereign authority to punish crimes committed within its borders, and no federal law preempts that authority as to crimes committed by non-Indians.”

Castro-Huerta claims Oklahoma does not have jurisdiction in the case because Congress has said that is federal jurisdiction. 

“Oklahoma’s position would thwart the choice of 25 states not to assume this jurisdiction and nullify consent rights of by my count 190 Indian tribes and for no sound reason,” said Zachary Charles Schauf, an attorney with Jenner & Block representing Castro-Huerta. 

All of the justices who were in the majority in McGirt — Justices Breyer, Sotomayor, Kagan and Gorsuch — expressed strong opposition to Oklahoma’s arguments in this case. The justices focused on the long case law and history that they felt conflicted with the state’s arguments. 

Justice Neil Gorsuch noted that tribes have good reason to distrust states asserting jurisdiction, like when Oklahoma previously used its state courts to deprive Indians of their property when oil was discovered on their lands. 

“It’s easy enough to say that, standing at the podium in Washington D.C., but the history and the reality should stare us all in the face,” the Trump appointee told Shanmugam. “There’s a reason why they’ve resisted jurisdiction over crimes against Indian victims. It’s not just a matter of being contumacious isn’t it?” 

Gorsuch said the court has previously stood firm with promises made in treaties to the Cherokee in the 1830s and suggested a social media campaign was urging the court to go back on those promises. 

“Are we to wilt today because of a social media campaign,” Gorsuch asked. 

Justice Sonia Sotomayor said the state does not have the same rights as Indian tribes. 

“The core of the power of prosecution at its face is the protection of people, of citizens,” the Obama appointee said. “And so the Indian tribes have an inherent right to protect members of their tribes and of their community. The state doesn’t have the same right.” 

Sotomayor also brought up an article published in the Atlantic that suggests Oklahoma was exaggerating the upheaval caused by McGirt. 

Conversely, justices who voted in the minority in McGirt — Justices Roberts, Thomas, Alito and Kavanaugh — seemed to lean into Oklahoma’s arguments. 

“Really, at the end of the day, when you’re talking about McGirt you’re really just waving the bloody shirt,” Chief Justice John Roberts said. “It doesn’t have any direct pertinence on the legal analysis here.” 

Justice Brett Kavanaugh seemed most concerned with potential victims who were not being protected. 

“Victims right now are not being protected because the federal government doesn’t have the resources to prosecute all these crimes,” the Trump appointee said. “And this would not be displacing the federal government, it’s additional prosecutors to protect Indian victims against non-Indians.” 

The case may hinge on Justice Amy Coney Barrett’s position on the case since she is the only justice on the court who was not present during McGirt. Barrett’s questions during oral arguments did not reveal which side she may favor in the case. 

from Courthouse News

Oklahoma governor signs ban on nonbinary birth certificates

OKLAHOMA CITY (AP) — Oklahoma Gov. Kevin Stitt signed a bill Tuesday explicitly prohibiting the use of nonbinary gender markers on state birth certificates, a ban experts say is the first of its kind in the nation.

The bill followed a flap last year over the Oklahoma State Department of Health’s agreement in a civil case allowing a nonbinary option. The birth certificate in that case was issued to an Oklahoma-born Oregon resident who sued after the agency initially refused the request. People who are nonbinary do not identify with traditional male or female gender assignments.

News of the settlement prompted outrage among Republicans, including Stitt, who along with fellow conservatives in a number of GOP-led states have been engaged in a culture war over issues like restricting LGBTQ and abortion rights that drive the party’s base in an election year. Stitt’s appointee to lead the agency abruptly resigned the next day, and the governor then promptly issued an executive order prohibiting any changes to a person’s gender on birth certificates, despite the settlement agreement. A civil rights group has challenged the executive order in federal court, but the state has not yet responded.

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Many states only offer male or female gender options on birth certificates, but Oklahoma is the first to write the nonbinary prohibition into law, according to Lambda Legal, the civil rights group suing Oklahoma.

Currently, 15 states and the District of Columbia specifically allow a gender marker designation outside of male or female, according to the National Center for Transgender Equality. That number will increase on July 1 when Vermont’s new statute goes into effect.

“People are free to believe whatever they want about their identity, but science has determined people are either biologically male or female at birth,” said Oklahoma Rep. Sheila Dills, the House sponsor of the bill, in a statement after the bill passed the House last week. “We want clarity and truth on official state documents. Information should be based on established medical fact and not an ever-changing social dialogue.”

Oklahomans in 2020 elected the nation’s first openly nonbinary legislator in the country, Oklahoma City Democrat Rep. Mauree Turner, who said it was painful to have colleagues single out those who are gender diverse.

“I find it a very extreme and grotesque use of power in this body to write this law and try to pass it — when literally none of them live like us,” Turner tweeted the day the bill was debated.

Join our hosts as they take you in and out of courtrooms in the U.S. and beyond.

Republicans in conservative states across the country have introduced several bills this year targeting transgender and nonbinary people. Oklahoma’s governor earlier this year signed a bill prohibiting transgender girls from playing on female sports teams, one of many such bans being signed into law across the country. Other conservative states, including Alabama, Arkansas, Tennessee and Texas, have passed laws prohibiting gender-confirming treatments for minors.

The U.S. State Department recently announced it had issued its first passport with an “X” gender designation, marking a milestone in the recognition of the rights of people who do not identify as male or female, and expects to be able to offer the option more broadly next year.

Doctors and scientists say sex and gender are not the same thing. While sex typically refers to anatomy, gender identity is more an inner sense of being male, female or somewhere in between, regardless of physical anatomy, according to Dr. Jason Rafferty, a pediatrician and child psychiatrist at Hasbro Children’s Hospital in Rhode Island and a lead author of the American Academy of Pediatrics’ transgender policy.

Russia warns of World War III, West boosts arms to Ukraine

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By SEAN MURPHY Associated Press Writer

from Courthouse News

San Francisco opioid trial opens with Walgreens accused of fueling addiction crisis

(CN) — The trial for San Francisco’s long-awaited “public nuisance” opioid lawsuit finally began in federal court Monday, with a fraction of the defendants that were named when the complaint was first filed in 2018.

Back then, Oxycontin maker Purdue Pharma, whose drug that kicked off an epidemic of opioid abuse that has claimed nearly half a million lives in the U.S., was the marquee defendant. But Purdue declared bankruptcy, and effectively settled claims brought about by hundreds of governmental entities and other plaintiffs during the bankruptcy proceedings. Many of the other drugmakers and distributors named in the suit have also since reached settlements, including Johnson & Johnson, Malinkrodt, Insys and McKesson. Just last week, Endo Pharmaceuticals settled the case for $10 million.

That leaves just four defendants — Walgreens, the second-largest pharmacy chain in the country, Anda, a pharmaceutical distributor and two drugmakers, Teva and Allergan. Lawyers for San Francisco charged the four companies with jumping on Purdue’s opioid bandwagon, “marketing opioids as a ‘risk-free panacea’ for all forms of pain,” according to attorney Aelish Baig in her opening statement to the court on Monday.

The bellwether bench trial, held before U.S. District Judge Charles Breyer, is expected to last months. City attorneys have stated they intend to call more than 80 witnesses. Each of the four defendants will also present their cases and call witnesses.

According to San Francisco, the four defendants followed Purdue’s playbook by aggressively marketing opioids to doctors, pressuring sales teams to meet ever-increasing quotas and helping to propagate the myth that opiates are harmless, that drug seeking behavior by patients who’d been prescribed opioids isn’t addiction, but “pseudo-addiction,” and therefore of no concern. They then ignored all warning signs that some doctors were overprescribing and many patients had grown addicted to the drugs, and failed to report easy-to-detect malfeasance to regulators, the city says.

“The defendants’ conduct promoted the increased supply and widespread access of opioids,” said Richard Heimann, an attorney representing San Francisco in the suit, leading to a five-fold increase in opioid shipments into San Francisco.

Roughly a quarter of all emergency room visits are related to opioid use, according to Heimann.

Baig said that in 2019 there were more than 40,000 living with opioid use disorder — more commonly referred to as addiction — in San Francisco, a city of roughly 874,000 residents. The city, she said, has borne the cost of the opioid crisis, not just in lives lost but in expenditures for emergency room nurses, cops and firefighters, even librarians, some of whom must now be trained to use naloxone, which treats opiate overdoses.

The “public nuisance” legal strategy against drugmakers for causing, or at least fueling the opioid crisis has had a spotty track record in the U.S. This past November, an Orange County Superior Court judge ruled in favor of the defendants, four pharmaceuticals — including Teva — in a suit brought by four cities and counties. That same month, an Oklahoma Supreme Court overturned a $465 million ruling against Johnson & Johnson, rejecting the public nuisance argument.

San Francisco will have to convince Judge Breyer that the public nuisance law applies to drug companies’ behavior in the last 20 years. It will also have to make the case that Walgreens, Anda, Teva and Allergan were more than just bit players in the crisis, that their behavior was important in creating the “paradigm shift” which “helped fuel the crisis,” as Heimann put it during his opening statement.

A key part of San Francisco’s case will be how employees of the four companies were pressured to sell more and more opiates. Heimann told the court that Walgreens pharmacists were under “constant pressure” by corporate management to “to fill and fill quickly” opioid prescriptions. The pharmacy chain, which Heimann said was the leading dispenser of opiate prescriptions in the city, had a policy that every prescription be filled within 15 minutes. That mean, Heimann said, that pharmacists had little time to verify the authenticity of prescription, or to check if patients had been prescribed too much. Pharmacists, he said, were “often penalized for failing to fill prescriptions for controlled substances.”

One Walgreens corporate document, introduced into the record, read, “The best evidence of a well-run pharmacy is the increase in prescriptions and pharmacy sales.”

Plaintiffs say the drugmakers similarly pressured sales representatives to convince doctors to hand out more opioid prescriptions, and at higher doses. Plaintiff attorneys played videos that Teva made to rally its sales force, parodies of movies like “Glengarry Glen Ross” and “A Few Good Men,” with the dialogue in the films dubbed over to portray Teva salesmen pressured to meet quotas for number of prescriptions for Fentora, a brand name drug made from fentanyl, which was approved by the FDA to treat cancer patients’ pain.

“Teva will say these videos were intended to be funny,” said Baig. “But we’re talking about fentanyl here. This drug was only approved for cancer patients.”

The defendants are scheduled to make their opening arguments Tuesday.

from Courthouse News

Georgia inmate takes bid for firing squad execution to Supreme Court

WASHINGTON (CN) — The Supreme Court heard arguments on Monday from a Georgia death row inmate who claims that lethal injection, the state’s only method of execution, is unconstitutional in light of his compromised veins.

Michael Wade Nance robbed a bank and fatally shot a man in an attempted carjacking in Gwinnett, Georgia, in 1993. A jury convicted Nance of murder and he was sentenced to death in 1997, when electrocution was the state’s primary method of execution.

However, on appeal in 2000, the Georgia Supreme Court reversed Nance’s death sentence and remanded for a new sentencing trial, after discovering the trial court had erred by failing to excuse an unqualified juror. A year later, the court declared electrocution to be unconstitutional and Georgia switched to lethal injection as the sole method of execution.

Nance was again sentenced to death in the retrial and the state high court affirmed the sentence in 2005. After unsuccessful appeals in federal district court and the 11th Circuit, he turned to the U.S. Supreme Court. The justices originally denied his petition for certiorari in March 2020, but after the Covid-19 pandemic delayed his scheduled execution the high court eventually agreed to decide if a habeas petition is the proper procedural motion for method-of-execution challenges like Nance’s. 

Nance alleges Georgia’s lethal-injection protocol violates his Eighth Amendment right to be free from cruel and unusual punishment. He says his compromised veins and past use of the seizure medication gabapentin would cause an “intensely painful burning and a prolonged and only partially anesthetized execution.”

He has suggested death by firing squad as a “feasible, readily implemented” alternative to lethal injection. However, Georgia’s Department of Corrections argues it has never executed a prisoner in that manner and lethal injection is the state’s only statutorily authorized method of execution.

While lethal injection is the predominant execution method used in states that permit the death penalty, some states allow alternative methods such as electrocution, primarily due to resistance from drug manufacturers that supply the injections. The firing squad is currently authorized as an alternative method of execution in four states: Oklahoma, South Carolina, Mississippi, and Utah.

In Nance’s appeal to the 11th Circuit, a three-judge panel concluded that because the relief he sought implied the invalidity of his death sentence, his complaint must be construed as a habeas petition. Because he had already filed an earlier habeas petition, the judges found the latest filing was properly considered a “successive” petition, over which a district court lacks subject-matter jurisdiction.

Nance argues to the Supreme Court that the rules governing successive habeas petitions should not apply to claims like his that only become ripe after the conclusion of a prior habeas petition. The inmate’s attorneys cite the high court’s 2007 decision in Panetti v. Quarterman, which held that claims relating to an inmate’s competency to be executed fell outside the successive petition restriction.

Attorney Matthew Hellman, representing Nance, told the justices on Monday that he does not seek to challenge his client’s conviction or sentence, but rather the manner in which it is to be carried out.

Hellman said the challenge falls under 42 U.S.C. §1983 and therefore can be filed directly in federal court for constitutional violations instead of via a habeas petition.

“Under habeas, Georgia could do what it chooses to do in terms of finding a viable method of execution?” asked Justice Sonia Sotomayor, a Barack Obama appointee.

“That’s what makes it a 1983 claim, your honor, because the claim isn’t that he can’t be executed. The claim is a how question – what manner?” Hellman replied.

Chief Justice John Roberts, a George W. Bush appointee, asked if the state would have to change the relevant statute.

Hellman replied that a firing squad may require a statutory amendment, but that is not the alternative the state is obligated to use in the case.

“You make forceful arguments about why 1983 is the appropriate mechanism here. But, if this – suppose it’s in a gray area, and we basically have a choice of which way to proceed here. And suppose relevant to that choice are the practical considerations of how this will play out under 1983 versus habeas in the future,” said Justice Brett Kavanaugh, a Donald Trump appointee. “The other side, I think, says the 1983 route is too susceptible to delay, gamesmanship, those kinds of things.”

Masha Hansford, assistant to the solicitor general, argued as amicus curiae on behalf of the federal government in support of Nance’s petition, claiming that “the state retains the power to enforce its criminal judgment so long as it complies with the injunction’s terms, either by adopting the identified alternative method of execution or any other method that is constitutional.”

Sotomayor addressed the fact that 10 states specify only one method of execution in their laws, while seven states allow multiple methods.

“So your point is, if we rule in respondents’ favor, we’re going to have this patchwork of similar identical issues on a particular method of execution, perhaps around different states, some going into 1983 and some going into habeas,” Sotomayor said.

“The states vary widely, and there are some states like Florida and Alabama that actually just include a safety valve,” Hansford said. “They say our preferred method is lethal injection, also electrocution, but if both of those are unconstitutional, any constitutional manner is fine. The same claim would always be a Section 1983 in those suits.”

Hansford said that if the state defined punishment for the offense to be execution by lethal injection, then a challenge against it would be filed under a habeas petition.

Stephen Petrany, Georgia’s solicitor general representing state Attorney General Christopher Carr and the Georgia Department of Corrections, argued it doesn’t matter whether Nance is able to be executed under a different method.

“The relevant point is that he seeks to bar death by lethal injection, the only state-authorized punishment he’s actually subject to,” Petrany said.

“So I guess I just don’t see what argument you have here,” said Justice Elena Kagan, an Obama appointee, when she questioned Petrany on the fact that Georgia law separates the sentence of death from the method of execution, which is the reason why no one was resentenced when the state changed its method of execution.

“What about new facts? You know, you’ve gotten older and you have a new medical condition that will make lethal injection feel like torture?” Kavanaugh asked.

“I mean, in a lot of circumstances, of course, it’s going to fail because of timeliness or the merits or something like that, but it’s definitely cognizable in Georgia state court,” replied Petrany.

Kavanaugh brought up the Supreme Court’s 2019 decision in Bucklew v. Precythe, in which he said that “all nine justices agreed on one point, which is that somebody in Mr. Nance’s position was entitled to raise an alternative method of execution that had not been authorized by state law.”

Petrany admitted there was nothing precluding the state from changing its laws or regulations if necessary when questioned by Sotomayor.

“But the warden can’t. And the order is going to the warden. I mean, this is an injunction against a particular person who wants to exercise a particular form of custody over Nance. And that’s habeas relief. That’s classic habeas relief. And that’s the bottom of our argument,” Petrany said.

Justice Stephen Breyer, a Bill Clinton appointee who is retiring at the end of this term, brought up a hypothetical situation.

“What’s the prisoner supposed to do if the method seems alright when he is sentenced, and then they change it over 10 years and now it doesn’t seem alright? And he’s filed 14 habeas petitions on other matters,” Breyer asked.

Petrany replied that an inmate could seek relief under state law if they’re able to establish the merits of their claims, but not in a federal habeas petition.

“You’re saying he should go into state court and you mentioned earlier that he was likely – would be likely to lose there,” Roberts said.

Petrany said that Nance in particular would lose due to the timeliness of his claims, arguing that he has known about his compromised veins for decades.

The justices are expected to rule on the issue by July.

from Courthouse News

Abortion training under threat for med students, residents

(AP) — Browse any medical dictionary, and before hitting appendectomy and anesthesia, you’ll find abortion.

The first two procedures are part of standard physician education. But for many U.S. medical school students and residents who want to learn about abortions, options are scarce.

And new restrictions are piling up: Within the past year, bills or laws seeking to limit abortion education have been proposed or enacted in at least eight states. The changes are coming from abortion opponents emboldened by new limits on the procedure itself, as well as a pending Supreme Court decision that could upend the landmark Roe v. Wade decision legalizing abortion.

“It’s quite terrifying what’s going on,” said Ian Peake, a third-year medical student in Oklahoma, where the governor on April 12 signed a measure outlawing most abortions.

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Abortion training is not offered at Oklahoma’s two medical schools and education on the topic is limited. Aspiring doctors who want to learn about it typically seek out doctors providing abortions outside the traditional medical education system.

Peake, 32, said if he wanted to learn to do colonoscopies, for example, he could work with school staff to shadow a doctor doing research or working in a clinic.

“That would be easy,” he said. “To do the same for abortion, that’s almost impossible.” He said it took him six months to find a provider willing to teach him.

Nevada medical student Natasha McGlaun got outside training and created a workshop on how to perform a standard medical procedure used in abortions. She offers it at night, in her own free time.

The 27-year-old is the daughter of “pro-feminist” parents and the mother of two young girls whose right to reproductive choice she wants to protect.

“It was kind of a joke in my family: If people tell me I can’t do something, I’m going to do it twice as hard,” she said. “I kind of feel this moral, righteous drive to go for it.”

‘GLARINGLY ABSENT’ LESSONS

U.S. physician education typically includes four years of medical school, where students learn the basics of general medicine and hands-on patient care. They graduate with a medical degree that officially makes them doctors. Most then spend at least three years in residency programs where they receive intense on-the-job training and specialty skills.

U.S. medical schools require students to complete a clerkship in obstetrics and gynecology, but there is no mandate that it include abortion education. At the post-graduate level, OB-GYN residency programs are required by an accrediting group to provide access to abortion training, though residents who object can opt out of performing abortions.

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OB-GYNs perform most U.S. abortions, followed by family medicine specialists. But these aren’t always the first doctors that women encounter when they learn of an unintended pregnancy. Abortion rights supporters argue all physicians should know enough about the procedure to inform and counsel patients, and that such education should start in medical school.

In 2020, Stanford University researchers said they found that half of medical schools included no formal abortion training or only a single lecture.

“Abortion is one of the most common medical procedures,” they wrote. “Yet abortion-related topics are glaringly absent from medical school curricula.”

McGlaun helped sponsor a measure last year that asked the American Medical Association to support mandated abortion education in medical schools, with an opt-out provision. The influential group has long opposed curriculum mandates and turned down the proposal, but it said it supports giving medical students and residents the chance to learn about abortion and opposes efforts to interfere with such training.

FURTHER RESTRICTIONS

Legislative efforts to curb abortion target all levels of medical education.

An Idaho law enacted last year exemplifies the trend. It bars using tuition and fees for abortion and related activities in school-based clinics at institutions that receive state funds.

Other efforts include a Wisconsin bill that would bar employees of the University of Wisconsin and its hospitals from participating in abortions, including training. It failed to advance in March but its sponsor plans to reintroduce the measure. Similar proposals target public universities in Missouri and Ohio.

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Divya Jain’s introduction to abortion came not at her Missouri medical school — where she said the procedure is rarely discussed — but at a Planned Parenthood clinic in Kansas. She was a clinic volunteer and saw the hurdles out-of-state women faced in obtaining the procedure. Some mistakenly ended up at a crisis pregnancy center across the street that tried to change their minds, Jain said.

Jain, 23, said her first experience observing an abortion was “anti-climactic,” far from the scary image she’d heard opponents describe.

“It’s just a normal in-house procedure,” she said. “It’s just patients seeking medical treatment.”

At that moment, she knew she wanted to provide abortions. “It was like a snap of finger. That kind of changed it for me,” said Jain, who is studying public policy at Harvard while on leave from medical school at the University of Missouri-Kansas City.

The daughter of open-minded but traditional parents who immigrated to Kansas from India, Jain recalls growing up feeling trapped by her family’s traditional culture and a conservative white community where abortion was never discussed.

“I liked to stir the pot” and push boundaries, she said.

Jain knows the U.S. Supreme Court’s decision on whether to uphold Mississippi’s ban on abortions after 15 weeks of pregnancy could drastically change the U.S. abortion landscape. Regardless of the decision — expected by summer — Jain said her goal is set: to perform abortions in “hostile” states where providers are scarce.

“It’s really hard for patients to get the care that patients deserve and need, and I just think it’s wrong,” Jain said.

EXPANDING TRAINING

Dr. Keith Reisinger-Kindle, 33, associate director of the OB-GYN residency program at Wright State University’s medical school in Dayton, Ohio, said his aim to boost abortion training “has been an uphill battle” because of legislative obstacles.

When he arrived at the school almost two years ago, he said, “there was zero formal abortion education available.” He created and implemented abortion coursework for medical students and residents, with support from his university, and offers training at a nearby clinic where he also performs abortions.

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The physician said a state legislator has lobbied university administrators to fire him. And in December, Ohio’s governor signed into law a measure that limits doctors who work at state institutions from working as backup doctors at abortion clinics when rare complications occur. The clinic where Reisinger-Kindle works is suing to block the law.

“There are days that are certainly challenging,” Reisinger-Kindle said. Young doctors eager to learn help keep him going. The program currently has 24 residents. They can opt out of abortion training, but he said nearly all have chosen to participate “in at least some capacity.”

He fears more abortion restrictions are coming, but adds: “In the long-term, I believe we will get this right. I just hope that my students don’t have to suffer.”

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By LINDSEY TANNER AP Medical Writer

The Associated Press Health and Science Department receives support from the Howard Hughes Medical Institute’s Department of Science Education. The AP is solely responsible for all content.

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New Mexico village seeks prayers as deadly wildfire rages

(AP) — With towering pine trees and cool mountain breezes, a pocket of southern New Mexico draws thousands of tourists and horse racing fans every summer. It’s also a community that knows how devastating wildfires can be.

It was a decade ago that fire ripped through part of the village of Ruidoso, putting the vacation spot on the map with the most destructive wildfire in New Mexico’s recorded history when more than 240 homes burned and nearly 70 square miles (181 square kilometers) of forest were blackened by a lightning-sparked blaze.

Now, Mayor Lynn Crawford is rallying heartbroken residents once again as firefighters on Friday tried to keep wind-whipped flames from making another run at the village and the hundreds of homes and summer cabins that dot the surrounding mountainsides.

More than 200 homes already have burned, and an elderly couple was found dead this week outside their charred residence. Close to 5,000 people remain evacuated.

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Crawford said the village is overflowing with donations from surrounding communities.

“So we have plenty of food, we have plenty of clothes, those kinds of things but we still appreciate and need your prayers and your thoughts,” the mayor said during a briefing. “Again, our hearts go out to the family of the deceased, to those that have lost their homes.”

Authorities have yet to release the names of the couple who died. Their bodies were found after worried family members contacted police, saying the couple had planned to evacuate Tuesday when the fire exploded but were unaccounted for later that day.

While many older residents call Ruidoso home year round, the population of about 8,000 people expands to about 25,000 during the summer months as Texans and New Mexicans from hotter climates come seeking respite. Horse races at the Ruidoso Downs also draw crowds, as it’s home to one of the sport’s richest quarter-horse competitions. The racing season was expected to start May 27, and horses that board there aren’t in any danger as fire officials use the facility as a staging ground.

Part-time residents have taken to social media over the last few days, pleading with fire officials for updates on certain neighborhoods, hoping their family cabins weren’t among those damaged or destroyed.

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Authorities said Friday evacuations remain in place and that it was too early to start letting people in to see the damage. They asked for patience as fire crews continued to put out hot spots in the burned neighborhoods and tried to build a stronger perimeter around the blaze.

Incident commander Dave Bales said crews were bracing for stronger winds Friday after having a successful day on Thursday. Helicopters were making water drops, and more engines and firefighters were arriving from elsewhere in the West to help with the effort.

New Mexico authorities said they suspect the fire, which has torched more than 9.5 square miles (24 square kilometers) of forest and grass, was sparked by a downed power line and the investigation continued Friday. Crews also were dealing with toppled trees and downed power lines from the winds that battered the area earlier in the week.

Elsewhere in the U.S., large fires were reported this week in Texas, Colorado and Oklahoma.

Hotter and drier weather coupled with decades of fire suppression have contributed to an increase in the number of acres burned by wildfires, fire scientists say. The problem is exacerbated by a more than 20-year Western megadrought that studies link to human-caused climate change.

The National Interagency Fire Center reported Thursday that since the start of the year, 18,550 wildfires have burned about 1,250 square miles (3,237 square kilometers). That’s well above the 10-year U.S. average of 12,290 wildfires and 835 square miles (2163 square kilometers) burned for the same period.

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By SUSAN MONTOYA BRYAN Associated Press

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Abortion ban after 15 weeks signed into law in Florida

TALLAHASSEE, Fla. (AP) — Florida Gov. Ron DeSantis signed a 15-week abortion ban into law Thursday as the state joined a growing conservative push to restrict access to the procedure ahead of a U.S. Supreme Court decision that could roll back abortion rights in America.

“This will represent the most significant protections for life that have been enacted in this state in a generation,” DeSantis said as he signed the bill at an evangelical church in the city of Kissimmee.

Republicans nationwide have moved to place new restrictions on abortion after the U.S. Supreme Court signaled it would uphold a Mississippi law banning abortions after 15 weeks. The high court’s decision, expected this summer, could potentially weaken or overturn Roe v. Wade, the landmark 1973 decision that established a nationwide right to abortion.

The law DeSantis signed Thursday also deals a blow to overall abortion access in the South, where Florida has provided wider access to the procedure than its regional neighbors.

The new law, which takes effect July 1, contains exceptions if the abortion is necessary to save a mother’s life, prevent serious injury or if the fetus has a fatal abnormality. It does not allow for exemptions in cases where pregnancies were caused by rape, incest or human trafficking, despite several Democratic attempts to amend the bill. Under current law, Florida allows abortions up to 24 weeks.

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Debate over the proposal grew deeply personal and revealing inside the legislature, as lawmakers recalled their own abortions and experiences with sexual assault in often tearful speeches on the House and Senate floors. Republicans have repeatedly called the 15-week ban reasonable.

A federal Centers for Disease Control and Prevention report said about 2% of the nearly 72,000 abortions reported in Florida in 2019 were performed after 15 weeks. That same year, 2,256 out-of-state residents got abortions in Florida, with the majority, or about 1,200 coming, from Georgia and more than 300 from Alabama, according to the CDC. The origin of the remaining patients was not clear.

Democrats were quick to criticize the new law after the signing.

“Politicians have no business getting between a patient and her doctor,” House Democratic Leader Evan Jenne said. “This 15-week abortion ban takes away every woman’s right to make personal decisions that should only be made by themselves, with their family, their doctor, and their faith.”

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The legislation came a few months after the U.S. Supreme Court’s conservative majority indicated it would uphold Mississippi’s 15-week ban. There also has been substantial support among the conservative justices for getting rid of Roe altogether.

If Roe is overturned, 26 states are certain or likely to quickly ban or severely restrict abortion, according to the Guttmacher Institute, a think tank that supports abortion rights. During the debate over the Florida legislation, as well as at the bill’s signing ceremony, Republicans said they want the state to be well placed to limit access to abortions if the Supreme Court upholds Mississippi’s law.

“The reality of the Roe decision is that men on the Supreme Court proclaimed that women, in order to achieve equality with men, must be able to kill their own children,” said Republican Rep. Erin Grall, the bill’s sponsor. “As a woman, I refuse to accept such a perverse version of equality.”

Elsewhere in the U.S., Republican lawmakers have introduced new abortion restrictions, some similar to a Texas law that bans abortion after roughly six weeks and leaves enforcement up to private citizens.

Oklahoma Republican Gov. Kevin Stitt recently signed a bill to make it a felony to perform an abortion, punishable by up to a decade in prison. Arizona Republican Gov. Doug Ducey in March signed legislation to outlaw abortion after 15 weeks if the U.S. Supreme Court leaves Mississippi’s law in place.

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By ANTHONY IZAGUIRRE Associated Press

AP writer Adriana Gomez Licon contributed from Miami.

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Planned Parenthood fights Kentucky abortion ban passed by GOP lawmakers

LOUISVILLE, Ky. (CN) — A law vetoed by Democratic Governor Andy Beshear but still passed by a Republican supermajority in the Kentucky Legislature effectively bans abortions in the commonwealth in violation of patients’ constitutional rights, Planned Parenthood claims in a federal lawsuit filed Thursday.

Kentucky House Bill 3, put into effect by state lawmakers on Wednesday after they voted to override the governor’s veto, has immediate and far-reaching consequences for at least 1 million Kentuckians, according the complaint.

The omnibus bill imposes new reporting requirements for any facility or physician that performs abortions, as well as new restrictions on minors seeking to have the procedure, and also bans all abortions after 15 weeks of pregnancy.

Beshear, who vetoed the bill after it was passed by the legislature, argues the bill will cost taxpayers over $1 million and is effectively an unfunded mandate. It was sponsored by Republican Nancy Tate of Brandenburg.

The veto override spurred protesters to the state Capitol in Frankfort on Wednesday. Representatives for the commonwealth’s only two abortion providers, EMW Women’s Surgical Services and Planned Parenthood, said their clinics have been forced to stop providing abortions until a judge issues a ruling on their challenge to the law.

In its lawsuit, Planned Parenthood says immediate compliance is impossible because the Cabinet for Health and Family Services has yet to publish reporting forms required by the law.

“It is arbitrary and unconstitutional to enforce penalties for noncompliance while failing to provide a means of immediate compliance,” the complaint states. “Plaintiff, in fairness, must be granted time to comply with these sweeping changes to the provision of abortion care. Otherwise, the existence of regulatory requirements uncoupled from the means to comply with them will result in a complete ban on abortion within Kentucky.”

Another alarming feature of the law, according to Planned Parenthood, is the amount of personal information required to be disclosed by the patient to the commonwealth’s Office of Vital Statistics. Included among new reporting requirements are the patient’s city, county, and zip code; her age, race, and ethnicity; the age of the father of the fetus; any previous live births, pregnancies, or abortions; and the reason for the abortion.

“By mandating the disclosure of individually identifiable health information of the most sensitive nature (abortions, sexually transmitted infections, victim of abuse or trafficking, etc.), the act requires the unlawful disclosure of private medical information about an individual’s sexual life and procreation (among others) in violation of their fundamental right to privacy,” the complaint states. (Parentheses in original.)

It continues, “The prospect of such disclosures will dissuade some women from seeking a wanted abortion, particularly if they have a need to keep their abortion decision from an abusive parent, partner or spouse. As such, the act imposes an undue burden on a women’s right to access abortion in Kentucky.”

The lawsuit says the small size of some counties in Kentucky means it would be possible to discover the identity of some women who seek abortions, even though disclosure of a patient’s name is not required under the law.

Abortion providers who fail to comply with the law’s reporting requirements are subject to fines and criminal penalties, and providers are also no longer able to send abortion-inducing medications to their patients through the mail.

The Planned Parenthood Federation of America said in a statement when the law took effect that the Kentucky Legislature’s only goal was “to shut down health centers and completely eliminate abortion access in the state.”

“But we haven’t lost hope — we’re getting to work,” it said. “Trust us when we say that we will do everything in our power to stop this insidious law from preventing Kentuckians from accessing the vital, time-sensitive health care they need and deserve. We are confident that the courts will stop this cruel and unconstitutional omnibus. Everyone deserves to make their own decisions about their bodies, lives, and futures.” 

Planned Parenthood seeks an immediate injunction to prevent HB 3 from taking effect, as well as a judgment the law is unconstitutional.

Republican Attorney General Daniel Cameron provided the following statement to Courthouse News when asked to comment on the litigation: “The General Assembly passed HB 3 to protect life and promote the health and safety of women, and we are prepared to earnestly defend this new law against the legal challenge from Planned Parenthood and the ACLU.”

Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, said in a statement that Kentucky’s Republican lawmakers were spurred to action by similar restrictions in other states.

“The Kentucky Legislature was emboldened by a similar 15-week ban pending before the Supreme Court and other states passing abortion bans, including in Florida and Oklahoma, but this law and others like it remain unconstitutional,” Amiri said. “We urge the court to block this law immediately and ensure that people in Kentucky can continue to access abortion care.”

Planned Parenthood is represented by lead attorney Michael Abate of Kaplan, Johnson, Abate, and Bird in Louisville.

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CDC tacks 2 more weeks onto mask mandate for public transit

(CN) — Covid-19 control measures have largely relaxed throughout the U.S. alongside a drop in cases in recent months, but the Centers for Disease Control and Prevention said Wednesday it will extend its face mask requirement on public transit for an additional 15 days.

The mandate, which was set to expire on Monday, makes masking a must for patrons of U.S. airports, planes, trains and buses until Tuesday, May 3. As of last week, the CDC says the U.S. was seeing around 26,000 Covid-19 cases per week, a 4.9% increase from the week prior. The agency has estimated that more than 85% of new U.S. cases are BA.2, a subvariant of the omicron mutation of the novel coronavirus.

The Transportation Security Administration is in charge of enforcing the rule, and will likewise extend its security measures for the next two weeks.

“In order to assess the potential impact the rise of cases has on severe disease, including hospitalizations and deaths, and health care system capacity, the CDC Order will remain in place at this time,” the TSA said in a statement.

The rule has seen numerous extensions over its 14-months existence but was originally set to expire in May 2021. Put in place by an executive order issued by President Joe Biden upon assuming office, the mandate allows the TSA to issues fines anywhere from $500 to $3,000 to passengers who refuse to mask up. It was last extended in March for one month.

Many states are now pushing back on the order. Two weeks earlier, a coalition of 21 states — in other words, nearly half the nation’s attorneys general — filed a suit challenging the continued implementation of the public transportation mask mandate.

Led by Florida Attorney General Ashley Moody, the group asked a federal court in Tampa to halt the CDC’S requirement that people wear masks while riding on public transportation and in hubs like airports. The 31-page complaint argues that the mandate violates the Administrative Procedures Act by not following notice and comment requirements and failing to consider “lesser alternatives.”

Airline and the hospitality industry leaders, too, have been lobbying the Biden administration to nix both the mask mandate and the requirement to have a Covid-19 test before returning to the United States from other countries.

Airlines for America, a group that speaks for the U.S. Travel Association; the U.S. Chamber of Commerce; and the American Hotel and Lodging Association sent an April 8 letter to White House Covid-19 response coordinator Dr. Ashish Jha, arguing that the mandates were hurting the U.S. economy.

“While the public health benefits of these policies have greatly diminished, the economic costs associated with maintaining these measures are significant,” the letter states.

It also argued in a letter sent to the White House in March that it makes no sense to mask in the air when people are allowed to mix freely on the ground “in crowded restaurants, schools and at sporting events without masks.”

“An airplane cabin is one of the safest indoor environments due to the combination of highly filtered air and constant air flow coupled with the downward direction of the air,” the letter notes.

Joining Florida in the suit over the mask mandate are the attorneys general of Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina. Utah, Virginia and West Virginia. All are Republicans.

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Seventh Circuit urged to resurrect case over Trump-era immigration policy

CHICAGO (CN) — The Trump administration’s controversial public charge rule was at the center of a debate in the Seventh Circuit on Wednesday, at the behest of over a dozen GOP-dominated states.

The rule is a more draconian refinement of immigration screening provisions outlined in the Immigrant Fund Act of 1882. Implemented under Trump by executive order in 2019, the rule made it harder for immigrants to find and keep legal residence in the U.S. if they were deemed “public charges,” or someone who relies on public benefits such as food stamps or housing vouchers. Civil rights groups criticized the policy as a “racist wealth test,” and in March 2021 the Biden administration allowed the rule to be vacated across the country.

The move followed a fraught legal drama passing through several levels of court.

A federal judge in Illinois first blocked the rule’s implementation in 2019, alongside federal courts in New York, Maryland, California and Washington. That first round of holds on the rule was then lifted by the Supreme Court in early 2020, and the Department of Homeland Security began enforcing the rule in February of that year. It didn’t last long.

Over the course of 2020, the Second, Seventh and Ninth Circuits all upheld the lower court injunctions, and U.S. District Judge Gary Feinerman in Illinois vacated the rule in a November 2020 merits decision. He found the policy violated the Administrative Procedure Act, which governs how the federal government can enact regulations.

“The ambiguity in the public-charge provision does not provide [the Department of Homeland Security] unfettered discretion to redefine ‘public charge.’ We find that the interpretation reflected in the rule falls outside the boundaries set by the statute,” wrote Feinerman, a Barack Obama appointee.

The Seventh Circuit stayed that decision one last time pending an appeal from the federal government under the Trump administration, only for the Biden administration to drop the appeal once it came to power in 2021. In doing so, it allowed Feinerman’s vacatur to take effect nationwide. The administration then instructed the DHS to abide by the 1999 field guidance of its predecessor, the Immigration and Naturalization Service, in not considering a person’s use of Medicaid, public housing or SNAP benefits when assessing their residency status.

“The 2019 public charge rule was not in keeping with our nation’s values. It penalized those who access health benefits and other government services available to them,” Homeland Security Secretary Alejandro Mayorkas said in April 2021.

Now the Republican-led governments of Texas, Alabama, Arizona, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina and West Virginia seek to pick up the federal government’s abandoned litigation against the vacatur.

Arguing before the Seventh Circuit on Wednesday morning, the states’ counsel Benjamin Wilson avoided touching on the morality or practicality of the public charge rule itself. Instead he stuck to procedural arguments, asking the Chicago-based appeals court to let the states pursue Rule 60b relief, effectively negating Feinerman’s order within their territory.

“Our path to relief is fairly straightforward… What we’d like to do is intervene in the district court for the purposes of seeking Rule 60b relief,” Wilson said. “As a party we would be entitled to seek that relief. It’s clearly sort of a difficult standard but I think that’s the remedy that remains available to us.”

Wilson’s argument was based on the premise, advanced by the conservative states in their brief to the court, that the Biden administration dropping the appeal of Feinerman’s judgment was itself a violation of the Administrative Procedure Act. They specifically objected to the administration not holding a notice and comment period for state governments to weigh in before abandoning the litigation.

“Less than a week after abandoning its defense of the public charge rule, the federal government issued a final rule immediately removing the public charge rule from the Code of Federal Regulations without going through the notice-and comment process generally required by the APA… The public charge rule thus has become unenforceable in any state,” the states’ appellant brief says.

All three members of Wednesday’s panel – U.S. Circuit Judges Diane Wood, Ilana Rovner and Amy St. Eve, appointed by Bill Clinton, George H. W. Bush and Donald Trump, respectively – expressed skepticism of Wilson’s arguments. Like Wilson, they largely avoided touching on the morality of the rule itself, but questioned why the states wanted to revive old litigation instead of starting fresh with a new APA claim against the federal government.

“Why isn’t the thing to do, to give up this defunct case and… bring an action, assert the rights that you believe will be impacted by all of this?” asked Wood. Rovner agreed with the sentiment.

Wilson said pursuing a new APA action against the federal government would be less likely to succeed than simply gaining relief for the intervenor-appellant states in the existing case, citing arguments from their brief.

“As a general matter, promulgation of new rules is a largely discretionary enterprise, and such a request would certainly be denied by the federal government (as the extraordinary actions the federal government took here to rescind the public charge rule make clear),” the brief states. (Parentheses in original.)

Beyond this line of argumentation, Wood also expressed skepticism that the states were harmed enough by the rule’s vacatur to warrant legal relief. She dismissed Trump-era DHS predictions that the rule’s vacatur could cost states billions of dollars a year in public benefits spending as just that – predictions.

“The record is very thin on whether there is in fact – put [DHS] predictions to one side – in fact any impact,” Wood said.

The judges were much more sympathetic to the arguments presented by the Department of Justice’s counsel Gerard Sinzdak, who agreed with Wood’s sentiment that the GOP states were trying to revitalize dead litigation.

“Here it’s clear what the states are doing – they, in their rule 60b motion, didn’t ask the district court to alter its judgment or amend it any way… It’s clear what they’re seeking is a second bite at the apple,” Sinzdak said. “Or it’d be a third bite I suppose, if it went back to the district court.”

Sinzdak pointed out that if the states truly sought to reinstate the public charge rule, the comment period is still open for a new version of it that was proposed by the DHS in February. As to the states’ claim that the nationwide vacatur order deprived them of their procedural rights, he argued that the solution was to take up litigation limiting the ability of district courts to vacate federal rules nation-wide.

“The solution is in holding that nationwide injunctions… in the appropriate case, that that’s improper. Not to conclude that intervention should be expanded,” Sinzdak said.

The panel took the attorneys’ arguments under advisement and did not say when they would issue a ruling.

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Oklahoma abortion ban

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Judge clears way for San Francisco’s ‘public nuisance’ opioid lawsuit to go to trial

(CN) — A federal judge on Thursday cleared the way for San Francisco’s opioid lawsuit against Walgreens and a number of pharmaceutical companies to head to trial, which is set to begin on April 25.

Thousands of states, cities and counties have sued pharmaceutical companies over their role in the opioid epidemic, which is believed to have been caused by the marketing and overprescription of prescription drugs like Oxycontin. Many patients who were prescribed an opiate later switched over to using illegal narcotics like heroin. According to the CDC, nearly half a million people died from opiate overdoses between 1999 and 2019.

The biggest culprit was Purdue Pharma, which manufactured and marketed Oxycontin, and which entered bankruptcy in 2020. That proceeding hit the pause button on all lawsuits against Purdue, and eventually lead to a massive settlement, in which cities and states will effectively take over ownership of Purdue. The former owners of the company, the Sackler family, contributed $6 billion to the settlement, a good deal of which went to the governmental entities, in exchange for immunity from future lawsuits.

The drugmaker Johnson & Johnson and three pharmaceutical distributors agreed to a $26 billion settlement with states and municipalities in February.

But that still leaves a multitude of other opioid-related lawsuits in active litigation.

San Francisco filed its suit in 2018 against a panoply of defendants, including Purdue, nine members of the Sackler family and a host of other companies. Some of those defendants, like Purdue, have been released from the case thanks to settlements. But some parties remain, including Walgreens, Actavis, Teva Pharmaceuticals and Endo Pharmaceuticals, the latter two of which specialize in making generic versions of drugs.

The city’s suit made a number of what were at the time novel allegations, including public nuisance and racketeering. In 2020, U.S. District Judge Charles Breyer dismissed the racketeering claims, but allowed the public nuisance claims to go through.

On Thursday, Judge Breyer further whittled down the list of defendants. In a 9-page decision, Breyer dismissed claims against parent company Endo International, writing, “evidence fails to suggest that Endo subsidiaries are ‘merely an instrumentality’ of Endo International.” He also dismissed claims against a subsidiary, Par Pharmaceuticals. But Endo Pharmaceutical and Endo Health Solutions must still stand trial.

San Francisco has made two claims about the company — that it “made false and misleading statements about the safety and risks of opioids,” and that it “failed to design and operate effective systems to identify suspicious orders of opioids and to prevent diversion of opioids.” Both of those failures, the city claims, amounted to a public nuisance.

In another, much shorter decision, Breyer dismissed motions for summary judgment from five other defendants, including Teva and Walmart.

“With the exception of a few minor issues, Judge Breyer dismissed the vast majority of the defendants motions yesterday, allowing us to move forward with our trial to ensure opioid manufacturers, distributors and pharmacies are held accountable for the crisis they created,” said Jen Kwart, a spokesperson for the San Francisco city attorney’s office.

Phone calls and emails to the attorneys for the defendants requesting a comment on the ruling were not immediately returned.

The strategy of suing opioid companies by alleging public nuisance has had a mixed track record. An Orange County Superior Court Judge, in November 2021, ruled in favor of four pharmaceuticals (including Endo and Teva) after a bench trial in a lawsuit brought by the counties Santa Clara, Los Angeles and Orange and the city of Oakland. That same month, an Oklahoma Supreme Court overturned a $465 Million ruling against Johnson & Johnson, rejecting the public nuisance argument.

Other lawsuits against drugmakers alleging public nuisance are still pending, including a trial in West Virginia, which started this week.

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