SCOTUS RECAP

What every ObGyn should know about Supreme Court rulings in the recent term

OBG Manag. 2019 November;31(11):46-51

References

Box v Planned Parenthood of Indiana and Kentucky, Inc. 587 US 18 483 (2019).
Box v Planned Parenthood of Indiana and Kentucky, Inc., at 2.
Box v Planned Parenthood of Indiana and Kentucky, Inc., Justice Thomas concurring.
June Medical Services, LLC, et al. v Rebekah Gee, Secretary, Louisiana Department of Health and Hospitals. 586 US 18A774 (2019).
Box v Planned Parenthood of Indiana and Kentucky, Inc. Docket 18-1019.
Rebekah Gee, Secretary, Louisiana Department of Health and Hospitals v Planned Parenthood of Gulf Coast, Inc., et al. 586 US 17 1492 (2018).
June Medical Services L.L.C., et al., Petitioners, v Rebekah Gee, Secretary, Louisiana Department of Health and Hospitals. No. 18-1323. Brief of Amici Curiae American College of Obstetricians and Gynecologists, American Academy of Family Physicians, American Academy of Pediatrics, American College of Nurse-Midwives, American College of Osteopathic Obstetricians and Gynecologists, American College of Physicians, American Society for Reproductive Medicine, National Association of Nurse Practitioners in Women's Health, North American Society for Pediatric and Adolescent Gynecology, and Society For Maternal-Fetal Medicine, Amicus Curiae in Support of Petitioners. May 2019.
Planned Parenthood of Kansas & Eastern Oklahoma, et al., Petitioners, v Larry Jegley, et al., Respondents. No. 17-935. Brief Amici Curiae of American College of Obstetricians and Gynecologists and American Public Health Association as Amici Curiae in Support of Petitioners. February 1, 2018.
Box v Planned Parenthood of Indiana & Kentucky. No. 18-1019. Brief Amici Curiae of American Association of Pro-Life Obstetricians & Gynecologists, American College of Pediatricians, Care Net, Christian Medical Association, Heartbeat International, Inc., and National Institute Of Family & Life Advocates in Support of Petitioners. March 6, 2019.
Steven T. Marshall, et al., Petitioners, v West Alabama Women's Center, et al., Respondents. No. 18-837. Brief of Amici Curiae American Association of Pro-Life Obstetricians & Gynecologists and American College of Pediatricians, in Support of Petitioners. January 18, 2019.
Azar, Secretary of Health and Human Services v Allina Health Services, et al. 17 1484 (2018).
Alex M. Azar, II, Secretary of Health and Human Services, Petitioner, v Allina Health Services, et al., Respondents. Brief of the American Hospital Association, Federation of American Hospitals, and Association of American Medical Colleges as Amici Curiae in Support of Respondents. December 2018.
Alex M. Azar, II, Secretary of Health and Human Services, Petitioner, v Allina Health Services, et al., Respondents. Brief of Amici Curiae American Medical Association and Medical Society of the District of Columbia Amici Curiae in Support of Respondents. December 2018.
42 U. S. C. §1395hh. https://uscode.house.gov/view.xhtml?req=(title:42%20section:1395hh%20edition:prelim). Accessed October 22, 2019.
The False Claims Act: a primer. Washington DC: US Department of Justice. www.justice.gov/sites/default/files/civil/legacy/2011/04/22/C-FRAUDS_FCA_Primer.pdf. Accessed October 18, 2019.
Universal Health Services, Inc., v United States and Commonwealth of Massachusetts ex rel. Julio Escobar and Carmen Correa. Brief of the American Hospital Association, Federation of American Hospitals, and Association of American Medical Colleges Amici Curiae in Support of Petitioner. No. 15-7. January 2016.
Intermountain Health Care, Inc., et al., Petitioners, v United States ex rel. Gerald Polukoff, et al., Respondents. No. 18-911. Brief of the American Hospital Association and Federation of American Hospitals as Amici Curiae in Support of Petitioners. February 13, 2019.
Cochise Consultancy, Inc., et al., v United States ex rel. Hunt. 18 315 (2018).
34 U.S.C. §20901 et seq. [Chapter 209--Child Protection and Safety.] https://uscode.house.gov/view.xhtml?path=/prelim@title34/subtitle2/chapter209&edition=prelim. Accessed October 17, 2019.
Gundy v United States. 17 6086 (2018).
Henry Schein, Inc., et al., v Archer & White Sales, Inc. 17 1272 (2018).
Lamps Plus, Inc., et al., v Varela. 17 988 (2018).
Merck Sharp & Dohme Corp. v Albrecht et al. 17 290 (2018).
Merck Sharp & Dohme Corp. v Albrecht et al. 17 290 (2018) at 13-14.
Wyeth v Levine, 555 US 555, 571 (2009).
Russell Bucklew, Petitioner, v Anne L. Precythe, Director, Missouri Department of Corrections, et al., Respondents. 17 8151 (2018).
Russell Bucklew, Petitioner, v Anne L. Precythe, Director, Missouri Department of Corrections, et al., Respondents. 17 8151 (2018). American Medical Association, Amicus Curiae Brief, in Support of Neither Party. July 23, 2018.
Final stat pack for October term 2018. SCOTUSblog.com. June 28, 2019. https://www.scotusblog.com/wp-content/uploads/2019/07/StatPack_OT18-7_8_19.pdf. Accessed October 17, 2019.
Barnes R. They're not 'wonder twins': Gorsuch, Kavanaugh shift the Supreme Court, but their differences are striking. Washington Post, June 28, 2019.

Registering sex offenders

The Court upheld the constitutionality of the federal Sex Offender Registration and Notification Act (SORNA).¹⁹ Sex offenders must register and periodically report, in person, to law enforcement in every state in which the offender works, studies, or resides.

At stake. The case involved the applicability of SORNA registration obligations to those convicted of sex offenses before SORNA was adopted (pre-Act offenders).²⁰ The court upheld registration requirements for pre-Act offenders.

A passing: Justice John Paul Stevens

Former Justice Stevens, the longest-living and third-longest-serving Supreme Court justice, died in July 2019 at 99 years of age. He was appointed to the Court in 1975 by President Ford and served until his retirement in 2010, when he was 90. Stevens had recently published a memoir, The Making of a Justice: Reflections on My First 94 Years.

Stevens's judicial philosophy generally is described as having changed over the course of his 35 years of service: He was viewed as becoming more liberal. He was a justice of enduring kindness and integrity. It is possible to find people who disagree with him, but almost impossible to find anyone who disliked him. He was continuously committed to the law and justice in the United States.

Arbitration

The Court continued its practice of deciding at least one case each term that emphasizes that federal law requires that courts rather strictly enforce agreements to arbitrate (instead of to litigate) future disputes.²¹ In another case, the Court ruled that there can be “class” or “joint” arbitration only if the agreement to arbitrate a dispute clearly permits such class arbitration.²²

Pharma’s liability regarding product risk

The Court somewhat limited the liability of pharmaceutical companies for failing to provide adequate warning about the risk that their products pose. The case against Merck involved 500 patients who took denosumab (Fosamax) and suffered atypical femoral fractures.²³

At stake. Because prescribing information (in which warnings are provided) must be approved by the US Food and Drug Administration (FDA), the legal test is: Would the FDA have refused to approve a change in the warning if Merck had “fully informed the FDA of the justifications for the warning” required by state law to avoid liability?^24,25 Lower-court judges (not juries) will be expected to apply this test in the future.

The doctor and the death penalty

The Court has established a rule that, when a prisoner facing capital punishment objects to a form of execution because it is too painful, he has to propose an alternative that is reasonably available. In one case,²⁶ a physician, an expert witness for the prisoner, did not answer some essential relative-pain questions (ie, would one procedure be more painful than another?).

At stake. The AMA filed an amicus brief in this case, indicating that it is unethical for physicians to participate in an execution. The brief noted that “testimony used to determine which method of execution would reduce physical suffering would constitute physician participation in capital punishment and would be unethical.”²⁷

The expert witness’s failure to answer the question on relative pain had the unfortunate result of reducing the likelihood that the prisoner would prevail in his request for an alternative method of execution.

Analysis

Despite obvious disagreements about big issues (notably, abortion and the death penalty) the Court maintained a courteous and civil demeanor—something not always seen nowadays in other branches of government. Here are facts about the Court’s term just concluded:

The Court issued 72 merits opinions (about average).
Only 39% of decisions were unanimous (compared with the average of 49% in recent terms).
On the other hand, 26% of decisions were split 5 to 4 (compared with a 10% recent average).
In those 5 to 4 decisions, Justices were in the majority as follows²⁸: Justice Gorsuch, 65%; Justice Kavanaugh, 61%; Justice Thomas, 60%; Chief Justice Roberts and Justices Ginsburg and Alito, each 55%; Justice Breyer, 50%; and Justices Sotomayor and Kagan each at 45%.
There were 57 dissenting opinions—up from 48 in the previous term.
What is referred to as “the liberal-conservative split” might seem more profound than it really is: “Every conservative member of the court at some point voted to form a majority with the liberal justices. And every liberal at least once left behind all of his or her usual voting partners to join the conservatives.”²⁹

Continue to: Last, it was a year of personal health issues for...

References

Box v Planned Parenthood of Indiana and Kentucky, Inc. 587 US 18 483 (2019).
Box v Planned Parenthood of Indiana and Kentucky, Inc., at 2.
Box v Planned Parenthood of Indiana and Kentucky, Inc., Justice Thomas concurring.
June Medical Services, LLC, et al. v Rebekah Gee, Secretary, Louisiana Department of Health and Hospitals. 586 US 18A774 (2019).
Box v Planned Parenthood of Indiana and Kentucky, Inc. Docket 18-1019.
Rebekah Gee, Secretary, Louisiana Department of Health and Hospitals v Planned Parenthood of Gulf Coast, Inc., et al. 586 US 17 1492 (2018).
June Medical Services L.L.C., et al., Petitioners, v Rebekah Gee, Secretary, Louisiana Department of Health and Hospitals. No. 18-1323. Brief of Amici Curiae American College of Obstetricians and Gynecologists, American Academy of Family Physicians, American Academy of Pediatrics, American College of Nurse-Midwives, American College of Osteopathic Obstetricians and Gynecologists, American College of Physicians, American Society for Reproductive Medicine, National Association of Nurse Practitioners in Women's Health, North American Society for Pediatric and Adolescent Gynecology, and Society For Maternal-Fetal Medicine, Amicus Curiae in Support of Petitioners. May 2019.
Planned Parenthood of Kansas & Eastern Oklahoma, et al., Petitioners, v Larry Jegley, et al., Respondents. No. 17-935. Brief Amici Curiae of American College of Obstetricians and Gynecologists and American Public Health Association as Amici Curiae in Support of Petitioners. February 1, 2018.
Box v Planned Parenthood of Indiana & Kentucky. No. 18-1019. Brief Amici Curiae of American Association of Pro-Life Obstetricians & Gynecologists, American College of Pediatricians, Care Net, Christian Medical Association, Heartbeat International, Inc., and National Institute Of Family & Life Advocates in Support of Petitioners. March 6, 2019.
Steven T. Marshall, et al., Petitioners, v West Alabama Women's Center, et al., Respondents. No. 18-837. Brief of Amici Curiae American Association of Pro-Life Obstetricians & Gynecologists and American College of Pediatricians, in Support of Petitioners. January 18, 2019.
Azar, Secretary of Health and Human Services v Allina Health Services, et al. 17 1484 (2018).
Alex M. Azar, II, Secretary of Health and Human Services, Petitioner, v Allina Health Services, et al., Respondents. Brief of the American Hospital Association, Federation of American Hospitals, and Association of American Medical Colleges as Amici Curiae in Support of Respondents. December 2018.
Alex M. Azar, II, Secretary of Health and Human Services, Petitioner, v Allina Health Services, et al., Respondents. Brief of Amici Curiae American Medical Association and Medical Society of the District of Columbia Amici Curiae in Support of Respondents. December 2018.
42 U. S. C. §1395hh. https://uscode.house.gov/view.xhtml?req=(title:42%20section:1395hh%20edition:prelim). Accessed October 22, 2019.
The False Claims Act: a primer. Washington DC: US Department of Justice. www.justice.gov/sites/default/files/civil/legacy/2011/04/22/C-FRAUDS_FCA_Primer.pdf. Accessed October 18, 2019.
Universal Health Services, Inc., v United States and Commonwealth of Massachusetts ex rel. Julio Escobar and Carmen Correa. Brief of the American Hospital Association, Federation of American Hospitals, and Association of American Medical Colleges Amici Curiae in Support of Petitioner. No. 15-7. January 2016.
Intermountain Health Care, Inc., et al., Petitioners, v United States ex rel. Gerald Polukoff, et al., Respondents. No. 18-911. Brief of the American Hospital Association and Federation of American Hospitals as Amici Curiae in Support of Petitioners. February 13, 2019.
Cochise Consultancy, Inc., et al., v United States ex rel. Hunt. 18 315 (2018).
34 U.S.C. §20901 et seq. [Chapter 209--Child Protection and Safety.] https://uscode.house.gov/view.xhtml?path=/prelim@title34/subtitle2/chapter209&edition=prelim. Accessed October 17, 2019.
Gundy v United States. 17 6086 (2018).
Henry Schein, Inc., et al., v Archer & White Sales, Inc. 17 1272 (2018).
Lamps Plus, Inc., et al., v Varela. 17 988 (2018).
Merck Sharp & Dohme Corp. v Albrecht et al. 17 290 (2018).
Merck Sharp & Dohme Corp. v Albrecht et al. 17 290 (2018) at 13-14.
Wyeth v Levine, 555 US 555, 571 (2009).
Russell Bucklew, Petitioner, v Anne L. Precythe, Director, Missouri Department of Corrections, et al., Respondents. 17 8151 (2018).
Russell Bucklew, Petitioner, v Anne L. Precythe, Director, Missouri Department of Corrections, et al., Respondents. 17 8151 (2018). American Medical Association, Amicus Curiae Brief, in Support of Neither Party. July 23, 2018.
Final stat pack for October term 2018. SCOTUSblog.com. June 28, 2019. https://www.scotusblog.com/wp-content/uploads/2019/07/StatPack_OT18-7_8_19.pdf. Accessed October 17, 2019.
Barnes R. They're not 'wonder twins': Gorsuch, Kavanaugh shift the Supreme Court, but their differences are striking. Washington Post, June 28, 2019.

What every ObGyn should know about Supreme Court rulings in the recent term

References

Registering sex offenders

Arbitration

Pharma’s liability regarding product risk

The doctor and the death penalty

Analysis

Pages

Recommended Reading