Legal Morass:
Let’s be truthful here. Everything is political these days. Even law school and yes even medical school are political entities. We never learned DEI in med school, back in the day. We never pledged to bend our treatments to the “betterment” of societal outcomes based on race or prioritize treatment based on some worthiness score. We were supposed to treat each and every individual as just that … an individual.
Anyhow, I have a mixed picture of legal developments to present. There is an optimist’s view and a pessimist’s view on the first case. I will try to remain neutral; umm, make that realistic.
Let it first be said that the conservative end of the legal profession is finally finding some legs. It used to be that all “activism” was from the left. Now, a day late and a dollar short perhaps, conservative lawyers are beginning to claw their way back. And there remain a handful of them, despite appearances otherwise and despite the best attempts of our law schools. Coming at this from a distinct deficit and a late start, we should celebrate any wins we can get and not let losses deter us. As they say, it’s a marathon, not a sprint.
First case: Murthy v Missouri.
This case is hard to stomach. We had such high hopes and especially after an appellate court came down heavily in favor of free speech. It appeared somewhat promising when it went to the Supremes (not the singing group). To recap ultra-briefly, this was the freedom of speech case brought against the US government based on their leaning on social media to suppress accounts that exercised their right to differ with government narratives. The case ended up being a ruling on the “preliminary injunction” enjoined against the government. That is, a lower court had enjoined the Federal government from pushing on social media platforms to censor speech and remove ‘speakers,’ as it were, from their platforms. Four federal judges had previously found that the FBI, the Surgeon General, the CDC and DHS had violated the first amendment by proxy. That is, they could not censor speech themselves and so they leaned heavily on others to do this work for them.
Judge Terry Doughty had previously issued this injunction that barred the Feds from working together with social media outlets to silence Americans on those platforms until a final decision on the case. As you might imagine, the left (being all about central control of everything) lined up with the government and the right (being all about Constitutional supremacy and individual rights) with the plaintiffs in the case.
The Supreme Court ruling in this case may not be definitive. They (cowardly?) chose to only address standing and the injunction itself. They found that ‘neither the individual nor the state plaintiffs have established Article III standing to seek an injunction against any defendant.’ This means that the temporary injunction is gone. Just in time for the elections I might add. Legal commentator Jonathan Turley commented: “... standing is often used to block meritorious claims.”
The case is not ‘lost’ since the ruling was narrowly tailored to reject the standing for an injunction. An actual final ruling has not been forthcoming. A pessimist might say that since the court did not see how this injunction might not be needed to protect the plaintiffs who are STILL being censored, they clearly do not care about government coerced censorship. An optimist might say that this does not prejudice any final ruling if the case continues to proceed looking for a final definitive statement on whether or not the government may do by proxy what it may not do on its own.
I personally take a dim view of this decision and have nothing but disappointment with the supposed conservatives on the court. Only justices Alito, Gorsuch and Thomas disagreed (and rather strongly) with the ruling. I would like to believe, as some have suggested, that this is a small bone thrown out to progressives to mitigate their ire that will be forthcoming with other major decisions in the coming days. I would like to … but it could just as easily be a harbinger of more bad decisions to come. Time will tell.
Importantly, plaintiffs vow to continue to fight this case to its conclusion.
Second case: Moms for America v US Department of Health and Human Services … and President … Joseph R. Biden …
This second case is of high interest to me, although it is a crapshoot at best. The 99 page filing can be viewed here in its original form: Moms for America v USA
This one is just getting underway but it is a doozy. I LOVE the introduction to the document which starts out with “Act in Haste, Repent at Leisure.” The case is somewhat novel in its construction. It argues that the government’s purpose is to protect Americans who are harmed by outside actors including in the medical profession. The focus is on the PREP Act of 2005. You may recall that this is the act of Congress that granted immunity to big pharma with their vaccines. That act was constructed in haste and we have been repenting (suffering the consequences) ever since.
Back in 2006 we were assured that the PREP Act only provided “limited liability” protection to manufacturers and that any significant injuries from vaccines would be compensated. It is stated that the original act did not actually provide blanket immunity but rather “what the legislation does is provide to the Secretary the ability to declare limited liability protection. The secretary can use these declarations to make sure the vaccine gets developed and to make sure doctors are willing to give it when the time comes.”
“In other words, the PREP Act was passed to solve a vaguely defined “hypothetical” future problem …” The suit goes on to say that we are using the act wrongly. We have broadened the liability protection and we have set a brief 1 year statute of limitations for injuries which is wrong considering that by definition we cannot know how long it may take for injuries to occur or show up for a new/novel therapy. Also for any claims of injury, the process in place is not constitutional. It is opaque and there isn’t even a fig leaf of due process or rights commonly granted under common law.
The suit claims jurisdiction (it was filed in Florida, by the way) because one or more plaintiffs live in the jurisdiction. Others are from Mississippi, New York, Oklahoma and Alabama. The suit notes that the immunity provided is vague, undefined, unknowable and nearly absolute. It notes that the sole exception to immunity is for “willful misconduct.” Willful misconduct is a very high bar to prove. In this case it is even worse because the statute doesn’t allow for discovery except in rare instances. The law may as well have been written by the pharma industry itself. Perhaps it was.
The suit claims that “Because the PREP Act covers not only “countermeasures” themselves but also “losses” related to their “administration” and their “use”, the PREP Act’s liability shield covers nearly any action undertaken by a healthcare provider … regardless of how negligent, reckless, or even intentional.
Rights of appeal are essentially non-existent.
The claim goes on to describe in detail the injuries of the named plaintiffs. It is a compelling document to read. Still it is an open question as to whether or not a poorly written act, wildly interpreted by the administrative state, may be challenged. It has been my experience that constitutional protections are easily and breezily discarded when the state wants.
It is claimed that the PREP Act violates separation of powers by removing judicial oversight of a legislated act. It further claims that the act is illegal as it strips citizens of their due process rights guaranteed by the fifth amendment of the Constitution. It also strips citizens of their right to a jury trial as guaranteed by the seventh amendment.
The case is requesting that the act be declared unconstitutional and that injured parties be allowed to pursue relief according to their Constitutional rights.
Let’s hope that the courts begin to restore our rights at some point.
In health,
DocofLastResort