Latest 3 Cases This Week: Whole Woman's Health v. Paxton (5th Cir.), Atkins v. Parker (6th Cir.), Johnson v. Department of Health (Md. Ct. App.)

Drafted and Shafted: Who Should Complain About Male-Only Registration?

SHERRY F. COLB

Cornell law professor comments on a recent opinion by the U.S. Court of Appeals for the Fifth Circuit holding that requiring men but not women to register for the draft is constitutional under mandatory U.S. Supreme Court precedents. Specifically, Colb considers what the U.S. Supreme Court should do if it agrees to hear the case and more narrowly, whether the motives of the plaintiffs in that case bear on how the case should come out.

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Whole Woman's Health v. Paxton

Court: US Court of Appeals for the Fifth Circuit

Docket: 17-51060

Opinion Date: August 22, 2020

Judge: James L. Dennis

Areas of Law: Civil Rights, Constitutional Law, Health Law

Almost three years after a federal district court declared that Texas Senate Bill 8 placed an undue burden on a woman's right to access a previability abortion and enjoined its enforcement, the State seeks to stay the judgment. The Fifth Circuit denied the state's motion for a stay and held that June Medical Servs. LLC v. Russo, 140 S. Ct. 2103 (2020), has not disturbed the undue-burden test, and Whole Woman's Health v. Hellerstedt, 136 S. Ct. 2292 (2016), remains binding law in this circuit. Under this circuit's reading of the Marks principle, that the challenged Louisiana law posed an undue burden on women seeking an abortion is the full extent of June Medical's ratio decidendi. The court stated that the decision does not furnish a new controlling rule as to how to perform the undue-burden test. Therefore, the court held that Hellerstedt's formulation of the test continues to govern this case, and because the district court correctly applied Hellerstedt's balancing test, remand is not warranted. The court also held that the state's law is patently procedurally defective where the state's failure to show the impracticability of moving first in the district court under Federal Rule of Appellate Procedure 8(2) is sufficient grounds to deny its motion.

Atkins v. Parker

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-6243

Opinion Date: August 24, 2020

Judge: Raymond M. Kethledge

Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Health Law

Hepatitis C is a contagious, progressive virus that can lead to cirrhosis of the liver, liver cancer, and ultimately death. There is no vaccine for hepatitis C. Doctors previously treated the virus using interferons; that treatment brought little success and severe side effects. In 2011, the FDA approved new direct-acting antivirals that halt the progress of hepatitis C and eventually cause the virus to disappear. In 2015, the cost of a single course of treatment using direct-acting antivirals was $80,000-$189,000. By the time of trial, those prices was $13,000-$32,000. A 2016 policy specified that the Tennessee Department of Corrections would provide the antivirals only to infected inmates with severe liver scarring. By 2019, approximately 4,740 of Tennessee's 21,000 inmates had hepatitis. Under a 2019 guidance, every new inmate is tested for hepatitis C. Inmates who test positive undergo a baseline evaluation; an advisory committee of healthcare professionals evaluates each infected inmate and determines his course of treatment. The guidance establishes criteria that make antivirals available to “individuals [who] are at higher risk for complications or disease progression," includes a series of procedural steps for local providers, and provides for continuous care and monitoring of infected inmates, regardless of their treatment plan. The Sixth Circuit affirmed the rejection of inmates' claims under 42 U.S.C. 1983, alleging deliberate indifference to their serious medical needs. The 2019 guidance showed reasonable medical judgment to care for the class of infected inmates. While the best course of action might be to treat all infected inmates with antivirals, the defendant could not spend more than was allocated and had repeatedly sought budget increases.

Johnson v. Department of Health

Court: Maryland Court of Appeals

Docket: 71/19

Opinion Date: August 24, 2020

Judge: Biran

Areas of Law: Criminal Law, Health Law

The Court of Appeals affirmed the judgment of circuit court judge upholding the order of the administrative law judge (ALJ) ordering Gregory Johnson's involuntary medication, holding that there was no error in the order authorizing Johnson's involuntary medication. Johnson was charged with attempted first-degree murder and related offenses. The circuit court found Johnson incompetent to stand trial and dangerous and committed him for treatment to a state-run forensic psychiatric hospital. After Johnson repeatedly refused to take prescribed antipsychotic medication the Maryland Department of Health began the process to administer the medication to Johnson involuntarily. An ALJ ordered Johnson's involuntary medication to restore him to competency, and the circuit court upheld the order. The Court of Appeals affirmed, holding (1) Maryland law authorizes involuntary medication to restore an individual's competence to stand trial and does not violate separation of powers by entrusting an ALJ with the power to order such medication subject to judicial review; and (2) because the Department and the ALJ met due process requirements, there was no error in the order authorizing Johnson's involuntary medication.