The legal loophole that helped end abortion rights

LUBBOCK, Texas (CN) — A few years back, Jonathan Mitchell thought he’d discovered a loophole in the way courts review laws. A former solicitor general of Texas, he outlined his theory in a 2018 article for the Virginia Law Review.

Courts can stop officials from enforcing a law, but they can’t “strike down” a law with “veto-like power,” he wrote. The law remains on the books — even if officials can’t enforce it.

Mitchell theorized that non-officials could enforce such laws. “Private enforcement through civil lawsuits” could be a “powerful” alternative to typical law enforcement, he wrote.

Even if a law clearly violated federal law or the U.S. Constitution, it would be “practically impossible to bring a pre-enforcement challenge” to laws enforced by citizens, he argued. That’s because “the litigants who will enforce the statute are hard to identify until they actually bring suit.”

More than just legal philosophy, this theory is at the foundation of a coordinated, years-long and very effective effort to undermine abortion access.

It has had a profound impact on abortion rights in the United States — and yet unlike the Supreme Court’s reversal of Roe v. Wade, very few Americans have heard of Mitchell or his ideas.

Months before the fall of Roe, Texas was using these theories to prevent abortions all across the state. Years before that, cities in Texas were helping test them out at the local level.

Before the Supreme Court’s ruling in June, states beyond Texas were already trying out this same loophole. Oklahoma also used it to ban abortions. Missouri considered it.

Going forward, the loophole provides a possible pathway for local governments to ban abortions even in states that offer strong protections for women’s protective rights. John Seago, president of Texas Right to Life, said he’d like to see New Mexico cities try it.

The strategy started in earnest in Lubbock, a West Texas city that in early 2021 became the first place to successfully use Mitchell’s theories to stop abortion.

Lubbock was “proof of concept,” Seago said in an interview.

Samantha Fields, a former organizer for Planned Parenthood in Lubbock, agrees — even though she has very different views on the issue.

Lubbock was a “guinea pig,” she said in an interview. “I absolutely see it as a warning sign.”

The roots of this strategy stretch back years before Lubbock, to the small town of Waskom on the other side of the Lone Star State.

It all started with a rumor. Around 2019, some residents became worried that a reproductive clinic might move across the Louisiana border into Waksom. Anti-abortion activists in the region were determined to stop it. They reached out to Bryan Hughes, an anti-abortion state senator. He connected them with Mitchell.

Because Roe was still law of the land, Waskom couldn’t outright ban abortions. However, Mitchell wrote in his 2018 article, sometimes “the prospect of enforcement” is all that is needed to “induce compliance.”

In 2019, with Mitchell’s help, Waskom passed an unusual anti-abortion ordinance. Rather than banning abortion outright, the measure allowed citizens to sue anyone accused of “aiding or abetting” one.

This language has turned up repeatedly in ant-abortion laws since then, including the one in Lubbock. It took a starring role in Senate Bill 8, the state law that effectively banned the procedure in Texas.

Women protest against Texas’ six-week abortion ban at the state Capitol in Austin on Sept. 1, 2021. (Jay Janner/Austin American-Statesman via AP)

Every time these laws are challenged, the outcome goes exactly as Mitchell predicted. Because officials aren’t enforcing the law, courts find that abortion advocates can’t sue officials to challenge them.

Mitchell declined to be interviewed by phone for this story but did agree to answer questions via email. In a written statement, he described the loophole he helped create as a “crack in the edifice of the Roe regime.”

When Lubbock used his theories to end abortions within city limits, it was “the first time an abortion ban had survived court challenge since Roe v. Wade,” he noted. “How could the Court continue to assert that abortion is a constitutionally protected right after Texas had found a way to ban abortion?”

Back in 2020, as versions of Waskom’s model ordinance cropped up in towns across Texas, the ACLU tried to stop them.

They sued Waskom and several other cities, arguing the ordinances violated the First Amendment by ostensibly limiting the ability of abortion advocates to associate.

The ACLU dropped the case a couple months later, after Waskom and other cities agreed to clarify that people still had “the right to perform abortion-related advocacy work,” the group said in a statement. Still, at the time, Mitchell’s theory had not yet been fully tested in court.

Later that year, Planned Parenthood opened a clinic in Lubbock and announced it would start providing abortion services. The group had operated in the city until 2013, when a previous state law forced it to close.

Lubbock is a conservative city, and some residents were outraged Planned Parenthood was reopening. They urged city officials to ban abortions using the same aiding and abetting language that Waskom had used.

The Lubbock City Council declined to do so, after an outside firm hired by the city said the ordinance was unconstitutional and conflicted with state law. Undeterred, activists gathered signatures and got the measure on the ballot. Last year, it passed with 62% of the vote.

In the ensuing confusion, Planned Parenthood paused providing abortions in the city. It sued Lubbock later that month, seeking clarity from the courts on what exactly the law was.

The case was the first real test of Mitchell’s theories. U.S. District Judge James Hendrix, a Trump appointee, quickly tossed it out.

Planned Parenthood wanted to prevent citizens from suing, but those citizens hadn’t sued yet and Lubbock had no control over them. The group’s lawyers “admit that even if the court gave them everything they wanted, the court’s ruling would not bar private citizens from bringing suit,” Hendrix wrote.

Mitchell’s theories had won in court — and Lubbock had found a way to stop abortions without exactly banning them. The strategy was adopted by Texas lawmakers, who used the same aiding and abetting language to end abortion statewide.

Both the U.S. and Texas supreme courts declined to hear challenges to that law, allowing it to remain in effect. Just like Judge Hendrix, both courts found that advocates couldn’t sue Texas officials to stop the law because Texas officials weren’t the ones enforcing it.

Critics have accused SB 8 of promoting vigilantism. Those arguments miss the point, supporters of the law say.

“We didn’t want bounty hunters filing lawsuits under SB 8,” Mitchell said in an email. “A bounty-hunter lawsuit would have provided an opportunity for a court to declare the statute unconstitutional.”

“The entire point of SB 8,” he added, “was to prevent the judiciary from ruling on the constitutionality of the statute.” In other words, the loophole isn’t effective because it leads to lawsuits but because it creates the threat of them. “No one wanted to take the risk.”

In his 2018 article, Mitchell compared his theories to qui tam, a legal concept that goes back hundreds of years and allows private citizens to act something like prosecutors.

Like the aiding and abetting loophole, qui tam allows citizens to sue for legal violations and receive a reward for doing so. It’s been used in, for example, the False Claims Act, a 1863 federal law that rewards people for reporting fraud in federal government programs.

Mitchell’s article outlines ways the loophole could be used by left-leaning lawmakers, too. The 2010 Supreme Court decision Citizens United v. FEC, he noted, allowed unlimited political spending by corporations without undoing a previous law against it.

“Today corporations and individuals violate this criminal prohibition with impunity, because they know the courts have their back,” he wrote. “The politicians who oppose Citizens United can do more than simply call for its overruling: They can threaten to prosecute anyone who violates” the still-existing law.

To critics, threatening to arrest political opponents for non-crimes might sound like banana-republic stuff. In Mitchell’s view, it’s about reining in courts that have become too powerful.

“The Supreme Court is subject to checks and balances, just like the other institutions of our government,” he said in an email. “There is nothing wrong with a state enacting a law to evade judicial review.”

Still, for abortion providers and patients caught in this loophole, it’s felt like a sneaky and underhanded way to undo abortion rights. After all, one goal of the loophole is to create fear and confusion about what exactly the law is.

As Texas has shown, this fear and confusion can be enough to change behavior.

“Doctors are humans too,” Kate Peaslee, the volunteer chair of the Planned Parenthood Lubbock Community Board, said in an interview. “They’re subject to confusion and self-preservation.”

Early last year, as citizens in Lubbock debated the proposed anti-abortion ordinance, Peaslee helped with fundraising calls for Planned Parenthood. She needed to convince supporters outside Lubbock why the ordinance was worth fighting.

“Don’t think this is a Lubbock or West Texas issue,” she remembers saying. “This is a testing ground.” Indeed, under Mitchell’s loophole, more patients, providers and advocates could soon find themselves in the same position.

from Courthouse News

Semiconductor bill passes House, heads to Biden’s desk

WASHINGTON (CN) — At a time of supply chain headaches and surging prices driven by an international shortage of semiconductors, a field where China has long been the dominant player, U.S. lawmakers passed legislation to bolster domestic semiconductor manufacturing and boost American competitiveness in the technology market.

The House voted 243-187 on Thursday to pass the $280 billion Chips and Science Act, which provides $52 billion in grants for American companies to produce parts for semiconductor chips — small electronic parts used in everything from computers and cellphones to military weapons and electric cars.

A massive portion of the bill, around $100 billion, would fund five years of scientific research as well as programs for the National Science Foundation to create regional technology hubs, kickstarting technology and manufacturing work in areas of the country that do not typically attract tech investments.

The semiconductor chip was invented in the United States, but the American share of the chip production market has fallen over the past 20 years, with Asian countries including China, Taiwan and South Korea now producing the majority of the world’s semiconductors.

According to the Commerce Department, the portion of semiconductors produced in the U.S. has fallen from 40% of the world’s supply to around 12% over the past two decades.

“Our research has generated ground-changing discoveries. Our industry has powered unprecedented prosperity. Our technology has altered the course of history, and our workforce has been the envy of the world,” House Speaker Nancy Pelosi said on the House floor. “But in recent years, many other nations have followed our blueprint. … Their rise not only threatens America’s status as a world leader in innovation, but also the economic security of America’s families.”

Another aspect of Thursday’s bill would offer a 25% four-year tax credit for investments in semiconductor manufacturing — a $24 billion policy that is not without critics.

House Minority Leader Kevin McCarthy slammed the legislation Thursday as a “blank check” for corporate interests, mirroring similar criticisms made in the Senate by Vermont Senator Bernie Sanders, an Independent who caucuses with the Democrats.

The House and Senate had previously passed their own versions of the bill, which included $52 billion in incentives for manufacturers. Months of back-and-forth and negotiations have been underway in the interim, culminating in the Chips and Science Act now headed to President Joe Biden’s desk.

The bill gained bipartisan support in the Senate, where it overcame the filibuster, garnered support from 17 Senate Republicans and passed the chamber on Wednesday.

“The Senate passed a bill that took a small, discretionary program and turned it into a $280 billion blank check, including $79 billion in mandatory spending on corporate welfare to be handed out to whoever President Biden wants,” McCarthy said on the House floor.

Shocking news this week of a deal between Democratic Senator Joe Manchin and Senate Majority Leader Chuck Schumer on a massive climate and health care bill aimed at cutting the deficit led Republican leaders to whip against the semiconductor chips bill as payback.

Republican Representative Frank Lucas of Oklahoma, who voted against the bill, acknowledged his party’s thinking.

“Had Democratic leadership acted in good faith, we would be having a very different discussion today,” Lucas said. “After long and careful thought for what reconciliation will mean to the economy, the expanded government, and the American people, I cannot in good conscience vote for the $52 billion in mandatory spending while knowing that hundreds of billions in taxes and partisan spending are about to bulldoze us.”

Senate Republicans had threatened to hold the semiconductor bill hostage if Democrats pushed for a climate and health care bill.

But Democrats conveniently announced the new bill only after the semiconductor legislation had cleared the Senate.

House Majority Leader Steny Hoyer condemned Republicans who voted against the chips bill out of frustration.

“My Republican friends urge a no vote, not because they think this bill is bad, but because they don’t like another bill. That’s what Xi and Putin are counting on,” Hoyer said Thursday, referring to the presidents of China and Russia. “That’s what the autocrats and authoritarians around the world are counting on — that democracy’s come to a halt. We must not rely on hostile foreign competitors to supply critical components that sustain America’s manufacturing.”

from Courthouse News

Republican attorneys general take aim at USDA’s gender discrimination guidance

(CN) — Two weeks after nearly two dozen Republican attorneys general won an injunction against the U.S. Department of Education and Equal Employment Opportunity Commission for attempting to implement new rules preventing and combating discrimination based on gender identity or sexual orientation, the same group of plaintiffs have returned to the same court to train their crosshairs on a different federal agency. 

The rules were published in the wake of an executive order issued by President Joe Biden on his first day in office in 2021, an order requiring federal agencies to review and revamp policies related to gender or sexual orientation. On July 15, U.S. District Judge Charles E. Atchley Jr. of the Eastern District of Tennessee granted the injunction, determining the rules interfere with states’ rights to enforce their own laws. 

Perhaps emboldened by the order, the same group of conservative attorneys general filed a new complaint in federal court against the U.S. Department of Agriculture (USDA) and its interpretation of how the order applies to federally funded Food and Nutrition Services (FNS) in public schools. 

According to the July 26 complaint, guidance handed down by the USDA in May directed states to update discrimination processing procedures “to ensure discrimination complaints alleging sexual orientation and gender identity discrimination are processed as complaints of prohibited sex discrimination.” Shortly thereafter, the agency provided additional guidance directing state-level administrators of the Supplemental Nutrition Assistance Program (SNAP) — which includes public schools and universities — to “update documents, pamphlets, websites, etc.” to include specific language prohibiting discrimination based on gender identity or sexual orientation.  

Similar to the complaint filed against the Department of Education and EEOC, the coalition of 22 attorneys general led by Tennessee Attorney General Herbert H. Slatery III, claim the USDA’s action is the result of a misapplication of the U.S. Supreme Court’s holding in Bostock v. Clayton County, which determined under Title VII, “employers are prohibited from firing employees on the basis of homosexuality or transgender status.” Further, they claim the USDA ignored the legal process mandated by the Administrative Procedure Act and instead, “coopted a previously discarded proposed regulation from 2016 to issue the new Final Rule.” 

The new complaint refers to the rules as an “overreach,” which “expand the law far beyond what statutory text, regulatory requirements, judicial precedent, and the U.S. Constitution permit.” Further, the group claims the federal government has no right to impose new rules for “highly controversial and localized issues” without public hearings, alleging it creates “unlawful and unnecessary new obligations and liabilities … that apparently stretch as far as ending sex-separated living facilities and athletics and mandating the use of biologically inaccurate preferred pronouns.” 

Alabama Attorney General Steve Marshall issued a news release claiming the policy will “hold schoolchildren’s food hostage to advance radical gender ideology.” Calling it both “immoral and illegal,” Marshall said Alabama’s Title IX and SNAP school-lunch funding “would be at risk if a school determines that a boy cannot compete on the girls’ swim team or refuses to allow boys into the girls’ locker room.” 

Arizona Attorney General Mark Brnovich said the Biden administration’s effort is “unlawful and despicable.” 

“USDA Choice applies to beef at the market, not to our children’s restrooms,” he quipped in a statement. 

According to Marshall’s office, the National School Lunch Program services nearly 30 million schoolchildren each day, many of whom rely on it for breakfast, lunch, or both. Approximately 100,000 public and nonprofit private schools and residential childcare institutions receive federal funding to provide subsidized free or reduced-price meals for qualifying children. 

Also listed as plaintiffs are the attorneys general from Alaska, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and West Virginia. 

The case has not yet been assigned to a judge in the district. 

from Courthouse News Service

‘Improper relationship’ means new trial

Read the ruling here.

from Courthouse News Service

Tennessee judge suspends Biden’s guidance on anti-trans discrimination

(CN) — A federal judge in Tennessee granted 20 Republican state officials’ request to suspend the Biden administration’s interpretation of Title VII and Title IX of the Civil Rights Act, which provided certain protection for transgender students and employees.  

The injunction was granted July 15 on behalf of 20 Republican attorneys general who challenged the legality of guidance provided by the Department of Education and the Equal Employment Opportunity Commission (EEOC) in the wake of an executive order signed by President Joe Biden the day of his inauguration in 2021.  

Biden’s order seized upon the 2020 U.S. Supreme Court ruling in Bostock vs. Clayton County, which determined under Title VII, “employers are prohibited from firing employees on the basis of homosexuality or transgender status.” According to the plaintiffs, Biden’s interpretation broadened the scope of the Bostock ruling to hold that “laws that prohibit sex discrimination … prohibit discrimination on the basis of gender identity or sexual orientation.” His order also directed federal agencies to “fully implement statutes that prohibit sex discrimination.”

Afterward, according to the complaint, both the Department of Education and the EEOC complied, issuing guiding documents clarifying prohibitions on “discrimination based on sexual orientation and gender identity.” The Department of Education said this applied to transgender students who wanted to play on sports teams or using bathrooms matching their identities.

The EEOC was more explicit, prohibiting employers from denying transgender persons the right to dress or present in a manner consistent with that person’s gender identity, while also ensuring equal access to bathrooms, locker rooms and showers corresponding to a person’s gender identity. The EEOC also prohibited the intentional and repeated use of “the wrong name and pronouns to refer to a transgender employee.” 

The plaintiffs claimed the documents were both “procedurally and substantively unlawful” under both the Administrative Procedure Act (APA) and the Constitution and thus filed a motion for preliminary injunction in September 2021. The government moved to dismiss the challenge.

U.S. District Court Judge Charles Atchley Jr., a Trump nominee, found the plaintiffs have standing because they have enacted laws regarding determinations of biological sex for school-sponsored athletic events or for the use of public facilities, and those laws conflict with the guidance. He also determined the plaintiffs would be injured by immediate compliance or future sanctions under the guidance.  

Tennessee, for example, received more than $1.54 billion in federal funds for K-12 schools in 2021, while its public institutions of higher education received some $88 million.

“The loss of such critical federal funding would require Tennessee to eliminate certain educational services or seek new funding sources to continue offering the same programs,” Atchley determined. “Furthermore, as an employer of 42,000 employees, the state of Tennessee faces considerable financial penalties for violating Title VII’s prohibition on sex discrimination as defined in the challenged guidance.” 

The judge found the defendants “ignored the limited reach of Bostock,” which “expressly declined to ‘prejudge’ how its holding would apply to ‘other federal or state laws that prohibit sex discrimination,’ such as Title IX.” Instead, the defendants’ guidance “advanced new interpretations of Titles VII and IX and imposed new legal obligations on regulated entities.” 

Atchley further found the departmental guidance constitutes new legislative rules creating new rights and obligation and, as such, the defendants did not comply with the APA’s notice and comment requirements. 

The injunction will only apply to the plaintiff states, and will require additional guidance from a higher court to lift. In a statement, Tennessee Attorney General Herbert Slatery said it was a victory.  

“The district court rightly recognized the federal government put Tennessee and other states in an impossible situation: choose between the threat of legal consequences including the withholding of federal funding, or altering our state laws to comply,” Slatery said. “We are thankful the court put a stop to it, maintained the status quo as the lawsuit proceeds and reminded the federal government it cannot direct its agencies to rewrite the law.” 

Tennessee was joined in the lawsuit by the attorneys general in Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota and West Virginia. 

from Courthouse News Service

Republicans look abroad to educate our children

Russia is arresting teachers and students for speaking up (murmuring up?) about the war in Ukraine. Students in one school snitched on their English teacher and got her arrested. She faces 15 years in prison after her students sneakily taped her and gave the tape to police.

Not so different from an Arizona law allowing parents to sue teachers for “usurping” parents’ right to tell their kids what to think; or the Texas law offering a bounty of $10,000 to anyone who snitches on a neighbor or family, including a rape victim, who tries to get an abortion, or leave the state to get an abortion. Oklahoma is already enforcing a similar law, and a Missouri law awaits passage.

OK, so: If Republican states enforce these senseless punishments for trying to visit your friends, will we need a passport to travel from one state to another, as in the old Soviet Union?

This year China — that beacon of human rights — arrested more than 30 teachers and imprisoned at least seven of them and their school principal in Xinjiang province, but Xi Jinping would not say why, as the charges are a “state secret.”

Also in China, on July 4, researchers said they have developed a method to verify a person’s loyalty through facial scanning and a polygraph.

Emulating those great ideas, Florida Gov. Ron DeSantis signed a bill requiring faculty and students at state colleges to report their political views and affiliations to the state, or risk loss of funding.

DeSantis said this would prevent professors from “indoctrinating” their students with … well, he didn’t really say. Nor does the bill he signed, HB233, make clear what a teacher might be charged with. 

That law does say, however, that it will “provide a cause of action against a person who publishes certain video or audio recordings; …”.

“[C]ertain video or audio recordings”?

Are you kidding me?

In a law?

Could that possibly be interpreted to mean anything the governor doesn’t like, or that puts him in a bad light, or could embarrass him or his campaign contributors?

Sure it could. Why’ntchya try it, governor? No chance that law could be tossed out for vagueness, Ayatollah, if you pack your courts heavily enough,

We all know, or have been told, that the Republican Party opposes intrusive government mandates. (You could look it up.*) But there are exceptions:

A new Texas law requires every bank and professional services firm wishing to employ workers in Texas to file statements that they will do business with the NRA and gun makers.

So if a young Christian family in Houston asks their financial adviser not to invest their money in Smith & Wesson, or Kalashnikov or Uzi: Can the financial adviser do it? Or could they both face charges, and loss of their business?

How does that fit into your “small government,” Ayatollah Abbott?

Why would you want to kick rich people and financial advisers out of Texas just because they don’t want to buy or sell guns?

You got any skin in that game, governor?

Also in Texas, state Rep. Matt Krause (R-duh) and his co-conspirators want to ban some 850 books from schools, as “pornographic” or “divisive,” or because they might make“students feel discomfort, guilt, [or] anguish,” because of race or sex, or … whatever they say next.

Here is the list of those 850 books, and some of those subversive writers:

“The Confessions of Nat Turner,” by William Styron, which won the Pulitzer Prize.

“Caste: The Origins of Our Discontents,” by Isabelle Wilkerson, recipient of a Pulitzer Prize and a National Book Award.

“Between the World and Me,” by Ta-Nehisi Coates, which won a National Book Award and was a finalist for a Pulitzer Prize and a National Book Award. Also, “We Were Eight Years in Power: an American Tragedy,” by Ta-Nehisi Coates.

“The Handmaid’s Tale,” by Margaret Atwood — a novel.

“Nevertheless, We Persisted,” by Sen. Amy Klobuchar (D-Minn.).

“And Still I Rise; Black America Since MLK,” by Henry Louis Gates Jr., a Harvard professor.

“An Indigenous People’s History of the United States for Young People,” by Jean Mendoza.

“The Indian Removal Act and the Trail of Tears,” by Susan E. Hamen.

“Life, Death and Sacrifice: Women and Family in the Holocaust,” by Esther Hertzog.

And so on.

According to PEN America, in the first nine months of 2021 Republican lawmakers in 24 states introduced 54 bills — PEN calls them “educational gag orders” — nearly all of them targeting race, history and biology. Columbia professor Jeffrey Sachs reports that the number has grown to 137 such bills in 35 states.

By waging this jihad, Republicans are seeking to raise a generation of ignorant children. As part of this plan, they are soliciting violence:

Librarians are being threatened, and teachers are quitting en masse. 

Florida is 9,500 teachers short for the coming school year, according to the Florida Education Association. More than 450,000 Florida students may not have full-time certified teachers in their classrooms this year. Florida is also firing lesbian teachers.

Meanwhile in Virginia, a member of the state House has sued Barnes & Noble for selling books he doesn’t like. 

In Tennessee, the Republican Statehouse passed a bill requiring public school librarians to submit to the Legislature a list of books on their shelves, for state approval. When asked what the schools should do with their banned books, Tennessee Republican state Rep. Jerry Sexton said, “I would burn them.”

Wow, Jerry! Like in Nazi Germany in 1933! And Russia and China today!

Republicans do not want our children to be educated. They want them indoctrinated and punished if they resist, as in Russia and China.

Republicans today have no interest in education or democracy. They are sadists, targeting teachers, students and above all women, who account for three of every four public schoolteachers in the United States.

* Casey Stengel

from Courthouse News Service

San Francisco ‘public nuisance’ opioid lawsuit winds down, with only defendant left

(CN) — Lawyers for city-county of San Francisco presented closing arguments Tuesday in a public nuisance lawsuit which seeks to recover damages incurred as a result of the opioid epidemic. But only one defendant remains after two companies settled days before the end of the trial.

The suit, filed in 2018, was initially aimed at a bevy of defendants — drugmakers, manufacturers, distributors and pharmacies — including Purdue Pharma (which made and marketed Oxycontin, widely credited with sewing the seeds of the nation’s opioid crisis), Johnson & Johnson and McKesson. One by one, the defendants exited the case. Purdue declared bankruptcy. Johnson & Johnson and McKesson signed on to a $26 billion global settlement which resolved more than 4,000 claims by state and local governments, including San Francisco’s. Other companies signed individual agreements. By the time the bench trial started in April, only four defendants remained.

On Tuesday morning, hours before plaintiffs’ lawyers began their closing arguments, it was announced that San Francisco had come to terms with Teva and Allergan. Israel-based Teva agreed to pay the city $25 million in cash and contribute $20 million worth of Narcan, a drug that treats opiate overdoses. The settlement also resolved San Francisco’s claims against the drug distributor Anda Inc., which was purchased by Teva in 2016. AbbVie, the parent company of Allergan, agreed to pay $13 million for its role in perpetuating the opioid crisis.

That left one plaintiff, pharmacy giant Walgreens. The company has denied any wrongdoing.

“Walgreens is the only defendant in this case that won’t look in the mirror and say, what did we do wrong?” said attorney Peter Mougey, in his closing remarks.

Attorney Richard Heimann argued Walgreens’ “corporate culture prioritized profits and sales over all other aspects of the company’s business,” that both distribution centers and pharmacies were “overtaxed and understaffed,” leading to poor oversight. He said that the company allocated “insufficient resources” toward making sure that suspicious prescriptions — for example, those written by pill-mill doctors serving addicts — weren’t filled. His co-counsel, Jayne Conroy, described a “fill, fill, fill” culture at Walgreens.

One Walgreens corporate document from 2010 read, “The best evidence of a well-run pharmacy is the increase in prescriptions and pharmacy sales.”

During the 11-week trial, multiple former Walgreens employees testified they had been pressured to fill prescriptions, and to ignore so-called “red flags” about certain orders. Other pharmacists testified their stores were so understaffed that due diligence was all but impossible. One called the short-staffing a “chronic problem,” adding, “I could not even take a bathroom break.”

According to an internal complaint made by a Walgreens employee, the manager of a pharmacy recieved a bonus based on the volume of prescription sales.

The plaintiffs presented evidence that Walgreens pharmacies sold more than 20 million opioid pills to patients in the San Francisco Bay Area, prescribed by doctors who were later disciplined for opioid misconduct.

Conroy argued Walgreens’ behavior “contributed to a public nuisance in the manner in which it distributed opioids to its stores, and distributed opioids to its customers. It failed to guard against the diversion of these drugs.” The public nuisance, they argued, comprised not just overdose deaths and hospitalizations, but also the draining of public resources. Park rangers, librarians and other city employees testified about tens of thousands of used needles strewn about and homeless drug addicts overdosing in public.

This is not the first time a public nuisance case against a drug company has made it to trial. This past November, the Oklahoma Supreme Court overturned a $465 million ruling against Johnson & Johnson, rejecting the public nuisance argument. That same month, an Orange County Superior Court judge found in favor of the defendants in a public nuisance suit brought by four Southern California cities and counties. In his ruling, the judge wrote, “There is simply no evidence to show that the rise in prescriptions was not the result of the medically appropriate provision of pain medications to patients in need.”

Most experts agree that the opioid overdose epidemic, which claimed nearly 92,000 lives in 2020, started with Purdue Pharma’s aggressive marketing of the powerful opiate Oxycontin. When the federal government finally cracked down on the drug, many users who had become addicted switched to heroin. More recently, many addicts have switched to Fentanyl, a synthetic opiate that is far easier to overdose on than heroin.

During the trial, Walgreens disputed this narrative. One of its witnesses, Bay Area physician Dr. Douglas Tucker, argued the rise in addiction and death from opioids is the result of the increase in recreational drug use that started in the 1970s.

Walgreens attorneys will present their closing arguments Wednesday. The case will then be decided by U.S. District Judge Charles R. Breyer, a Bill Clinton nominee and the brother of former U.S. Supreme Court Judge Stephen Breyer.

from Courthouse News

Need care, will travel: Abortion ban forces Texans across state lines

SANTA TERESA, N.M. (CN) — To get an abortion, Alicia had to travel more than 600 miles. The 24-year-old and her mother left Dallas last Friday, taking a flight and sleeping at an El Paso motel.

The next morning, they drove in a rental car just across the state border, to the El Paso suburb of Santa Teresa in New Mexico. Here, in a nondescript office park less than a mile from Texas, is the Women’s Reproductive Clinic. For months, it’s been a lifeline for Texans who can no longer get abortions in their home state.

That Friday, Alicia and her mother learned the Supreme Court had overturned Roe v. Wade. Alicia was angry. Anti-abortion lawmakers “are not going to help me raise this baby,” she said.

“What if I was homeless?” she said. “Would they expect me to live on the street with it?” (Alicia’s name, like those of other patients in this story, has been changed to protect her safety and privacy, as well as the possibility of any future legal repercussions in Texas.)

Even before the fall of Roe, Texas had already effectively outlawed abortion. The GOP-controlled Legislature last year banned abortions past six weeks, using a strange legal loophole that allows private citizens to sue anyone who “aids or abets” the procedure.

On its face, the law was a clear violation of Roe — but courts largely upheld it on the grounds that private citizens, not state officials, would be enforcing it. Last September, the U.S. Supreme Court declined to hear a challenge to Texas’ law on these same grounds. Other states, including Oklahoma, soon adopted the same enforcement mechanism.

Now, it will indeed be state officials going after doctors and patients. Republican Attorney General Ken Paxton vowed to “immediately” enforce a Texas abortion law from the 1920s, but that plan has been blocked for now. Even in much more liberal states like Michigan, abortion bans from decades ago are still on the books.

At least a dozen states have also passed “trigger laws” designed to automatically ban abortion after Roe was overturned. Texas’ law, which is set to take effect in July, could send doctors to prison for life.

As abortion rights crumble nationwide, experts predict that places where abortion remains accessible, including New Mexico, will become “safe harbor” states for desperate patients. At the Women’s Reproductive Clinic last weekend, that dynamic was already playing out.

“I wish women’s voices were more heard and valued,” said Carolina, who had come from Dallas to support her stepdaughter through an abortion. “We need to make our own decisions.”

The patients arrived all morning, most with Texas plates, many with boyfriends or family members. A few had flown, but most had driven at least five hours to receive a procedure that recently was fully legal in Texas.

They left tired, sad, angry and confused. All had their own reasons for why they didn’t want or couldn’t have a child. Elsa, a 25-year-old from Waco, already had kids and had just lifted herself out of poverty. “It was hard getting time off of work” for the procedure, she said. Another patient, from Austin, had been on birth control, but a different medication had messed with it and she had gotten pregnant anyway.

Dr. Franz Theard, the owner of this clinic, said around half of his patients now come from East Texas on the opposite side of the state. Some come from even farther, including Louisiana and Oklahoma. Many arrive on the weekends, when they’re able to take time off for the long journey.

Until recently, Theard also ran a clinic in central El Paso — but “I saw the writing on the wall,” he said. Near the start of the coronavirus pandemic in 2020, Republican Governor Greg Abbott halted abortions in Texas on the grounds that it was ostensibly not a “medically necessary” procedure. When clinics were allowed to start operating again, “we decided not to reopen,” Theard said.

For years before that, Texas lawmakers had imposed onerous and expensive regulations on abortion clinics, including building requirements and rules requiring clinics to bury or cremate female remains. While some of those laws were ultimately overturned by courts, they still made life difficult for abortion providers and led to the closure of more than half of the state’s clinics.

Theard said he’d also grown tired of rules requiring him to give inaccurate information to patients. “Bullshit information about abortion causing breast cancer and infertility,” he said. “We didn’t feel we were being truthful.”

Patients have found themselves navigating similar hurdles. While looking into abortion options, Elsa, the Waco patient, had accidentally contacted a crisis pregnancy center, a type of group that seeks out patients in need of abortion services and tries to dissuade them, often with disinformation. While abortion clinics can no longer operate in Texas, there are still at least eight crisis pregnancy centers in El Paso alone.

Even after Elsa made it clear she planned to get an abortion, the crisis pregnancy center continued to call and text her. “I told them from the start I didn’t want to have [another child],” she said. “They were trying to change my mind.”

Not long ago, Tess, a 33-year-old medical professional from Houston, could have received an abortion in her hometown. Planned Parenthood has a large center in the city, where until recently it provided the procedure.

She looked into options in Louisiana. Because the state had a 72-hour waiting period, she would have had to miss work or take two trips.

In the end, she spent around $1,200 on airfare, a motel room and a rental car to get an abortion in New Mexico. “I was angry,” she said. “It didn’t seem right at all.”

Even as patients arrived in Santa Teresa, the stress and barriers weren’t yet over. Outside the clinic, a long line of anti-abortion signs spilled along the street:

“Pregnancy is NO Disease”

“SHUN those doing business in the same office park with BABY MURDERERS”

“Celebrate life! Judicially Execute baby murderers”

Norbert Rempe, an anti-abortion protester who lives around 180 miles away in Carlsbad, had placed the signs. He had come here regularly for years, he said.

“We need to abolish abortion like we abolished slavery,” he said. He accused patients of “engaging in murder for hire.”

In the parking lot outside the clinic, employees from a crisis pregnancy center had set up their own signs, instructing people to “CHECK IN HERE.” The notices had a stop-sign symbol on them. While the workers didn’t clearly identify themselves, an email address provided by one employee shows they’re affiliated with Guiding Star, an anti-abortion group.

Asked whether the signs might confuse people, Julie Mendoza, a worker with the group, was noncommittal. “Not really,” she said. She was trying to gives pamphlets to patients. She wouldn’t allow Courthouse News to look at them.

As the sun climbed in the sky on Saturday, Alicia stepped out from her appointment. She called her mother to pick her up. “My emotions are all over the place,” she said.

Alicia already had a kid, a 17-month-old whom a relative was watching. She wants to get married and have another kid some day. But that would be on her own terms — it isn’t up to lawmakers.

“These laws they are passing are fucking bullshit,” she said.

As Texas moves to completely outlaw abortion, support groups have popped up to help patients finance travel out-of-state. Alicia had found one, and she was grateful for their assistance. Otherwise, “I probably wouldn’t be here right now,” she said. “I would have had to use all my savings.”

Still, it had been a long and stressful journey. Across the parking lot, workers from Guiding Star waved and yelled to her.

“I’m ready to go home and lie down,” Alicia said.

from Courthouse News