Supreme Court

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SCOTUS kills Chevron deference, giving courts more power to block federal rules

Policy, Supreme Court, supreme court chevron / /
Supreme Court Chief Justice John Roberts and Associate Justice Sonia Sotomayor wearing their robes as they arrive for the State of the Union address.

Enlarge / Supreme Court Chief Justice John Roberts and Associate Justice Sonia Sotomayor arrive for President Joe Biden’s State of the Union address on March 7, 2024, in Washington, DC.

Getty Images | Win McNamee

The US Supreme Court today overturned the 40-year-old Chevron precedent in a ruling that limits the regulatory authority of federal agencies. The 6-3 decision in Loper Bright Enterprises v. Raimondo will make it harder for agencies such as the Federal Communications Commission and Environmental Protection Agency to issue regulations without explicit authorization from Congress.

Chief Justice John Roberts delivered the opinion of the court and was joined by Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Justice Elena Kagan filed a dissenting opinion that was joined by Sonia Sotomayor and Ketanji Brown Jackson.

Chevron gave agencies leeway to interpret ambiguous laws as long as the agency’s conclusion was reasonable. But the Roberts court said that a “statutory ambiguity does not necessarily reflect a congressional intent that an agency, as opposed to a court, resolve the resulting interpretive question.”

“Perhaps most fundamentally, Chevron‘s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do,” the ruling said. “The Framers anticipated that courts would often confront statutory ambiguities and expected that courts would resolve them by exercising independent legal judgment. Chevron gravely erred in concluding that the inquiry is fundamentally different just because an administrative interpretation is in play.”

This is especially critical “when the ambiguity is about the scope of an agency’s own power—perhaps the occasion on which abdication in favor of the agency is least appropriate,” the court said. The Roberts opinion also said the Administrative Procedure Act “specifies that courts, not agencies, will decide ‘all relevant questions of law’ arising on review of agency action—even those involving ambiguous laws,” and “prescribes no deferential standard for courts to employ in answering those legal questions.”

Kagan: SCOTUS majority now “administrative czar”

The Loper Bright case involved a challenge to a rule enforced by the National Marine Fisheries Service. Lower courts applied the Chevron framework when ruling in favor of the government.

Kagan’s dissent said that Chevron “has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds—to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.”

Ambiguities should generally be resolved by agencies instead of courts, Kagan wrote. “This Court has long understood Chevron deference to reflect what Congress would want, and so to be rooted in a presumption of legislative intent. Congress knows that it does not—in fact cannot—write perfectly complete regulatory statutes. It knows that those statutes will inevitably contain ambiguities that some other actor will have to resolve, and gaps that some other actor will have to fill. And it would usually prefer that actor to be the responsible agency, not a court,” the dissent said.

The Roberts court ruling “flips the script: It is now ‘the courts (rather than the agency)’ that will wield power when Congress has left an area of interpretive discretion,” Kagan wrote. “A rule of judicial humility gives way to a rule of judicial hubris.”

Kagan wrote that the court in recent years “has too often taken for itself decision-making authority Congress assigned to agencies,” substituting “its own judgment on workplace health for that of the Occupational Safety and Health Administration; its own judgment on climate change for that of the Environmental Protection Agency; and its own judgment on student loans for that of the Department of Education.”

Apparently deciding those previous decisions were “too piecemeal,” the court “majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law,” Kagan wrote. “As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar. It defends that move as one (suddenly) required by the (nearly 80-year-old) Administrative Procedure Act. But the Act makes no such demand. Today’s decision is not one Congress directed. It is entirely the majority’s choice.”

The unanimous 1984 SCOTUS ruling in Chevron U.S.A. Inc. v. Natural Resources Defense Council involved the Environmental Protection Agency and air pollution rules. Even with Chevron deference in place, the EPA faced limits to its regulatory power. A Supreme Court ruling earlier this week imposed a stay on rules meant to limit the spread of ozone-generating pollutants across state lines.

Consumer advocacy group Public Knowledge criticized today’s ruling, saying that it “grounds judicial superiority over the legislative and executive branches by declaring that the Constitution requires judges to unilaterally decide the meaning of statutes written by Congress and entrusted to agencies.”

Public Knowledge Senior VP Harold Feld argued that after today’s ruling, “no consumer protection is safe. Even if Congress can write with such specificity that a court cannot dispute its plain meaning, Congress will need to change the law for every new technology and every change in business practice. Even at the best of times, it would be impossible for Congress to keep up. Given the dysfunction of Congress today, we are at the mercy of the whims of the Imperial Court.”

SCOTUS kills Chevron deference, giving courts more power to block federal rules Read More »

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SCOTUS tears down Sacklers’ immunity, blowing up opioid settlement

addiction, bankruptcy, opioid, opioid crisis, overdose, oxycontin, Policy, purdue pharma, Science, SCOTUS, settlement, Supreme Court / /

Not immune —

Majority of justices ruled on meaning of legal code; dissenters called it “ruinous”

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Grace Bisch holds a picture of stepson Eddie Bisch who died as a result of an overdose on outside of the U.S. Supreme Court on December 4, 2023 in Washington, DC. The Supreme Court heard arguments regarding a nationwide settlement with Purdue Pharma, the manufacturer of OxyContin.

Enlarge / Grace Bisch holds a picture of stepson Eddie Bisch who died as a result of an overdose on outside of the U.S. Supreme Court on December 4, 2023 in Washington, DC. The Supreme Court heard arguments regarding a nationwide settlement with Purdue Pharma, the manufacturer of OxyContin.

In a 5-4 ruling, the US Supreme Court on Thursday rejected an opioid settlement plan worth billions over the deal’s stipulation that the billionaire Sackler family would get lifetime immunity from further opioid-related litigation.

While the ruling may offer long-sought schadenfreude over the deeply despised Sackler family, it is a heavy blow to the over 100,000 people affected by opioid epidemic who could have seen compensation from the deal. With the high court’s ruling, the settlement talks will have to begin again, with the outcome and possible payouts to plaintiffs uncertain.

Between 1999 and 2019, as nearly 250,000 Americans died from prescription opioid overdoses, members of the Sackler family siphoned approximately $11 billion from the pharmaceutical company they ran, Purdue Pharma, maker of OxyContin, a highly addictive and falsely marketed pain medication. In 2007, amid the nationwide epidemic of opioid addiction and overdoses, Purdue affiliates pleaded guilty in federal court to falsely branding OxyContin as less addictive and less abusive than other pain medications. Out of fear of future litigation, the Sacklers began a “milking program,” the high court noted, draining Purdue of roughly 75 percent of its assets.

An “appropriate” deal

In 2019, Purdue filed for Chapter 11 bankruptcy, leading to negotiations for a massive consolidated settlement plan that took years. As part of the resulting deal, the Sacklers—who did not file for bankruptcy and had detached themselves from the company—agreed to return up to $6 billion to Purdue, but only in exchange for immunity. The bankruptcy court approved the controversial condition, while a district court later overturned it and a yet higher court reinstated it.

In today’s majority opinion from the Supreme Court, Justices Gorsuch, Thomas, Alito, Barrett, and Jackson found that the lower courts that approved the Sackers’ immunity condition had erred in interpreting Chapter 11 bankruptcy code. “No provision of the code authorizes that kind of relief,” they court ruled. The explanation boiled down to a single sentence in a catchall provision. While the code speaks solely about responsibilities of a debtors—which in this case is Purdue, not the Sacklers—the catchall provision allows “for any other appropriate provision” not otherwise outlined.

The erring lower courts, the high court wrote, had interpreted the word “appropriate” far too broadly. Based on the context, any additional “appropriate” arrangements in a settlement that was not explicitly outlined would apply only to the debtor (in this case, Purdue) not to nondebtors (the Sacklers). The provision cannot be read, the justices wrote, “to endow a bankruptcy court with the ‘radically different’ power to discharge the debts of a nondebtor.”

“Ruinous” ruling

Justices Kavanaugh, Sotomayor, Kagan, and Roberts disagreed. In a minority opinion penned by Kavanaugh and joined by Sotomayor and Kagan, the justices blasted the ruling, calling it “wrong on the law and devastating for more than 100,000 opioid victims and their families.”

“The text of the Bankruptcy Code does not come close to requiring such a ruinous result,” Kavanaugh wrote, noting that such deals granting immunity to “nondebtors” is a longstanding practice used to secure just settlements. Neither legal structure, context, nor history necessitate today’s ruling, Kavanaugh continued. “Nor does hostility to the Sacklers—no matter how deep: ‘Nothing is more antithetical to the purpose of bankruptcy than destroying estate value to punish someone,” he wrote, citing a legal essay on Chapter 11 for mass torts.

The opioid victims and others will “suffer greatly in the wake of today’s unfortunate and destabilizing decision,” the dissenting justices wrote. “Only Congress can fix the chaos that will now ensue. The Court’s decision will lead to too much harm for too many people for Congress to sit by idly without at least carefully studying the issue.”

SCOTUS tears down Sacklers’ immunity, blowing up opioid settlement Read More »

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SCOTUS nixes injunction that limited Biden admin contacts with social networks

biden administration, censorship, COVID-19, election misinformation, facebook, First Amendment, free speech, misinformation, Policy, SCOTUS, Supreme Court / /
SCOTUS nixes injunction that limited Biden admin contacts with social networks

On Wednesday, the Supreme Court tossed out claims that the Biden administration coerced social media platforms into censoring users by removing COVID-19 and election-related content.

Complaints alleging that high-ranking government officials were censoring conservatives had previously convinced a lower court to order an injunction limiting the Biden administration’s contacts with platforms. But now that injunction has been overturned, re-opening lines of communication just ahead of the 2024 elections—when officials will once again be closely monitoring the spread of misinformation online targeted at voters.

In a 6–3 vote, the majority ruled that none of the plaintiffs suing—including five social media users and Republican attorneys general in Louisiana and Missouri—had standing. They had alleged that the government had “pressured the platforms to censor their speech in violation of the First Amendment,” demanding an injunction to stop any future censorship.

Plaintiffs may have succeeded if they were instead seeking damages for past harms. But in her opinion, Justice Amy Coney Barrett wrote that partly because the Biden administration seemingly stopped influencing platforms’ content policies in 2022, none of the plaintiffs could show evidence of a “substantial risk that, in the near future, they will suffer an injury that is traceable” to any government official. Thus, they did not seem to face “a real and immediate threat of repeated injury,” Barrett wrote.

“Without proof of an ongoing pressure campaign, it is entirely speculative that the platforms’ future moderation decisions will be attributable, even in part,” to government officials, Barrett wrote, finding that an injunction would do little to prevent future censorship.

Instead, plaintiffs’ claims “depend on the platforms’ actions,” Barrett emphasized, “yet the plaintiffs do not seek to enjoin the platforms from restricting any posts or accounts.”

“It is a bedrock principle that a federal court cannot redress ‘injury that results from the independent action of some third party not before the court,'” Barrett wrote.

Barrett repeatedly noted “weak” arguments raised by plaintiffs, none of which could directly link their specific content removals with the Biden administration’s pressure campaign urging platforms to remove vaccine or election misinformation.

According to Barrett, the lower court initially granting the injunction “glossed over complexities in the evidence,” including the fact that “platforms began to suppress the plaintiffs’ COVID-19 content” before the government pressure campaign began. That’s an issue, Barrett said, because standing to sue “requires a threshold showing that a particular defendant pressured a particular platform to censor a particular topic before that platform suppressed a particular plaintiff’s speech on that topic.”

“While the record reflects that the Government defendants played a role in at least some of the platforms’ moderation choices, the evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment,” Barrett wrote.

Barrett was similarly unconvinced by arguments that plaintiffs risk platforms removing future content based on stricter moderation policies that were previously coerced by officials.

“Without evidence of continued pressure from the defendants, the platforms remain free to enforce, or not to enforce, their policies—even those tainted by initial governmental coercion,” Barrett wrote.

Judge: SCOTUS “shirks duty” to defend free speech

Justices Clarence Thomas and Neil Gorsuch joined Samuel Alito in dissenting, arguing that “this is one of the most important free speech cases to reach this Court in years” and that the Supreme Court had an “obligation” to “tackle the free speech issue that the case presents.”

“The Court, however, shirks that duty and thus permits the successful campaign of coercion in this case to stand as an attractive model for future officials who want to control what the people say, hear, and think,” Alito wrote.

Alito argued that the evidence showed that while “downright dangerous” speech was suppressed, so was “valuable speech.” He agreed with the lower court that “a far-reaching and widespread censorship campaign” had been “conducted by high-ranking federal officials against Americans who expressed certain disfavored views about COVID-19 on social media.”

“For months, high-ranking Government officials placed unrelenting pressure on Facebook to suppress Americans’ free speech,” Alito wrote. “Because the Court unjustifiably refuses to address this serious threat to the First Amendment, I respectfully dissent.”

At least one plaintiff who opposed masking and vaccines, Jill Hines, was “indisputably injured,” Alito wrote, arguing that evidence showed that she was censored more frequently after officials pressured Facebook into changing their policies.

“Top federal officials continuously and persistently hectored Facebook to crack down on what the officials saw as unhelpful social media posts, including not only posts that they thought were false or misleading but also stories that they did not claim to be literally false but nevertheless wanted obscured,” Alito wrote.

While Barrett and the majority found that platforms were more likely responsible for injury, Alito disagreed, writing that with the threat of antitrust probes or Section 230 amendments, Facebook acted like “a subservient entity determined to stay in the good graces of a powerful taskmaster.”

Alito wrote that the majority was “applying a new and heightened standard” by requiring plaintiffs to “untangle Government-caused censorship from censorship that Facebook might have undertaken anyway.” In his view, it was enough that Hines showed that “one predictable effect of the officials’ action was that Facebook would modify its censorship policies in a way that affected her.”

“When the White House pressured Facebook to amend some of the policies related to speech in which Hines engaged, those amendments necessarily impacted some of Facebook’s censorship decisions,” Alito wrote. “Nothing more is needed. What the Court seems to want are a series of ironclad links.”

“That is regrettable,” Alito said.

SCOTUS nixes injunction that limited Biden admin contacts with social networks Read More »

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SCOTUS rejects challenge to abortion pill for lack of standing

Abortion, mifepristone, miscarriage, reproductive health, Science, SCOTUS, Supreme Court / /

“Near miss” —

The anti-abortion defendants are not injured by the FDA’s actions on mifepristone.

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Mifepristone (Mifeprex) and misoprostol, the two drugs used in a medication abortion, are seen at the Women's Reproductive Clinic, which provides legal medication abortion services, in Santa Teresa, New Mexico, on June 17, 2022.

Enlarge / Mifepristone (Mifeprex) and misoprostol, the two drugs used in a medication abortion, are seen at the Women’s Reproductive Clinic, which provides legal medication abortion services, in Santa Teresa, New Mexico, on June 17, 2022.

The US Supreme Court on Thursday struck down a case that threatened to remove or at least restrict access to mifepristone, a pill approved by the Food and Drug Administration for medication abortions and used in miscarriage care. The drug has been used for decades, racking up a remarkably good safety record in that time. It is currently used in the majority of abortions in the US.

The high court found that the anti-abortion medical groups that legally challenged the FDA’s decision to approve the drug in 2000 and then ease usage restrictions in 2016 and 2021 simply lacked standing to challenge any of those decisions. That is, the groups failed to demonstrate that they were harmed by the FDA’s decision and therefore had no grounds to legally challenge the government agency’s actions. The ruling tracks closely with comments and questions the justices raised during oral arguments in March.

“Plaintiffs are pro-life, oppose elective abortion, and have sincere legal, moral, ideological, and policy objections to mifepristone being prescribed and used by others,” the Supreme Court noted in its opinion, which included the emphasis on “by others.” The court summarized that the groups offered “complicated causation theories to connect FDA’s actions to the plaintiffs’ alleged injuries in fact,” and the court found that “none of these theories suffices” to prove harm.

Weak arguments

The anti-abortion medical groups, led by the Alliance for Hippocratic Medicine, argued that the FDA’s relaxation of mifepristone regulations could cause “downstream conscience injuries” to doctors who are forced to treat patients who may suffer (rare) complications from the drug. But the court noted that there are already strong federal conscience laws in place that protect doctors who refuse to participate in abortion care. Further, the doctors failed to provide any examples of being forced to provide care against their conscience.

The plaintiffs further claimed “downstream economic injuries” by way of having to divert resources from other patients and services. But the court flatly knocked down this argument, too, noting that the argument is “too speculative, lacks support in the record, and is otherwise too attenuated to establish standing.” Further, the organizations claimed that the FDA’s actions “caused” them to conduct studies and “forced” them to engage in advocacy and outreach efforts. “But an organization that has not suffered a concrete injury caused by a defendant’s action cannot spend its way into standing simply by expending money to gather information and advocate against the defendant’s action,” the Supreme Court ruled.

In a response to the ruling, reproductive health rights group National Institute for Reproductive Health blasted the lower courts’ actions that brought the case to the Supreme Court and described it as a warning. “This case should never have made it to the Supreme Court in the first place,” Haydee Morales, interim president of NIRH, said in a statement. “Anti-abortion operatives brought this case with one goal in mind—to ban medication abortion and they failed. This case was a near miss for the science and medicine community and it won’t be the last attack.”

SCOTUS rejects challenge to abortion pill for lack of standing Read More »

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Kagan: Florida social media law seems like “classic First Amendment violation”

florida social media law, Policy, Supreme Court, texas social media law / /
The US Supreme Court building is seen on a sunny day. Kids mingle around a small pool on the grounds in front of the building.

Enlarge / The Supreme Court of the United States in Washington, DC, in May 2023.

Getty Images | NurPhoto

The US Supreme Court today heard oral arguments on Florida and Texas state laws that impose limits on how social media companies can moderate user-generated content.

The Florida law prohibits large social media sites like Facebook and Twitter (aka X) from banning politicians and says they must “apply censorship, deplatforming, and shadow banning standards in a consistent manner among its users on the platform.” The Texas statute prohibits large social media companies from moderating posts based on a user’s “viewpoint.” The laws were supported by Republican officials from 20 other states.

The tech industry says both laws violate the companies’ First Amendment right to use editorial discretion in deciding what kinds of user-generated content to allow on their platforms and how to present that content. The Supreme Court will decide whether the laws can be enforced while the industry lawsuits against Florida and Texas continue in lower courts.

How the Supreme Court rules at this stage in these two cases could give one side or the other a big advantage in the ongoing litigations. Paul Clement, a lawyer for Big Tech trade group NetChoice, today urged justices to reject the idea that content moderation conducted by private companies is censorship.

“I really do think that censorship is only something that the government can do to you,” Clement said. “And if it’s not the government, you really shouldn’t label it ‘censorship.’ It’s just a category mistake.”

Companies use editorial discretion to make websites useful for users and advertisers, he said, arguing that content moderation is an expressive activity protected by the First Amendment.

Justice Kagan talks anti-vaxxers, insurrectionists

Henry Whitaker, Florida’s solicitor general, said that social media platforms marketed themselves as neutral forums for free speech but now claim to be “editors of their users’ speech, rather like a newspaper.”

“They contend that they possess a broad First Amendment right to censor anything they host on their sites, even when doing so contradicts their own representations to consumers,” he said. Social media platforms should not be allowed to censor speech any more than phone companies are allowed to, he argued.

Contending that social networks don’t really act as editors, he said that “it is a strange kind of editor that does not actually look at the material” before it is posted. He also said that “upwards of 99 percent of what goes on the platforms is basically passed through without review.”

Justice Elena Kagan replied, “But that 1 percent seems to have gotten some people extremely angry.” Describing the platforms’ moderation practices, she said the 1 percent of content that is moderated is “like, ‘we don’t want anti-vaxxers on our site or we don’t want insurrectionists on our site.’ I mean, that’s what motivated these laws, isn’t it? And that’s what’s getting people upset about them is that other people have different views about what it means to provide misinformation as to voting and things like that.”

Later, Kagan said, “I’m taking as a given that YouTube or Facebook or whatever has expressive views. There are particular kinds of expression defined by content that they don’t want anywhere near their site.”

Pointing to moderation of hate speech, bullying, and misinformation about voting and public health, Kagan asked, “Why isn’t that a classic First Amendment violation for the state to come in and say, ‘we’re not going to allow you to enforce those sorts of restrictions?'”

Whitaker urged Kagan to “look at the objective activity being regulated, namely censoring and deplatforming, and ask whether that expresses a message. Because they [the social networks] host so much content, an objective observer is not going to readily attribute any particular piece of content that appears on their site to some decision to either refrain from or to censor or deplatform.”

Thomas: Who speaks when an algorithm moderates?

Justice Clarence Thomas expressed doubts about whether content moderation conveys an editorial message. “Tell me again what the expressive conduct is that, for example, YouTube engages in when it or Twitter deplatforms someone. What is the expressive conduct and to whom is it being communicated?” Thomas asked.

Clement said the platforms “are sending a message to that person and to their broader audience that that material” isn’t allowed. As a result, users are “not going to see material that violates the terms of use. They’re not going to see a bunch of material that glorifies terrorism. They’re not going to see a bunch of material that glorifies suicide,” Clement said.

Thomas asked who is doing the “speaking” when an algorithm performs content moderation, particularly when “it’s a deep-learning algorithm which teaches itself and has very little human intervention.”

“So who’s speaking then, the algorithm or the person?” Thomas asked.

Clement said that Facebook and YouTube are “speaking, because they’re the ones that are using these devices to run their editorial discretion across these massive volumes.” The need to use algorithms to automate moderation demonstrates “the volume of material on these sites, which just shows you the volume of editorial discretion,” he said.

Kagan: Florida social media law seems like “classic First Amendment violation” Read More »

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Anti-abortion group’s studies retracted before Supreme Court mifepristone case

Abortion, fda, health, mifepristone, retraction, Science, Scientific publishing, Supreme Court / /

retracted —

A large number of other, non-retracted studies find mifepristone to be very safe.

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Mifepristone (Mifeprex) and misoprostol, the two drugs used in a medication abortion, are seen at the Women's Reproductive Clinic, which provides legal medication abortion services, in Santa Teresa, New Mexico, on June 17, 2022.

Enlarge / Mifepristone (Mifeprex) and misoprostol, the two drugs used in a medication abortion, are seen at the Women’s Reproductive Clinic, which provides legal medication abortion services, in Santa Teresa, New Mexico, on June 17, 2022.

Scientific journal publisher Sage has retracted key abortion studies cited by anti-abortion groups in a legal case aiming to revoke regulatory approval of the abortion and miscarriage medication, mifepristone—a case that has reached the US Supreme Court, with a hearing scheduled for March 26.

On Monday, Sage announced the retraction of three studies, all published in the journal Health Services Research and Managerial Epidemiology. All three were led by James Studnicki, who works for The Charlotte Lozier Institute, a research arm of Susan B. Anthony Pro-Life America. The publisher said the retractions were based on various problems related to the studies’ methods, analyses, and presentation, as well as undisclosed conflicts of interest.

Two of the studies were cited by anti-abortion groups in their lawsuit against the Food and Drug Administration (Alliance for Hippocratic Medicine v. FDA), which claimed the regulator’s approval and regulation of mifepristone was unlawful. The two studies were also cited by District Judge Matthew Kacsmaryk in Texas, who issued a preliminary injunction last April to revoke the FDA’s 2000 approval of mifepristone. A conservative panel of judges for the 5th Circuit Court of Appeals in New Orleans partially reversed that ruling months later, but the Supreme Court froze the lower court’s order until the appeals process had concluded.

Mifepristone, considered safe and effective by the FDA and medical experts, is used in over half of abortions in the US.

Criticism

Amid the legal dispute, the now-retracted studies drew immediate criticism from experts, who pointed out flaws. Of the three, the most influential and heavily criticized is the 2021 study titled “A Longitudinal Cohort Study of Emergency Room Utilization Following Mifepristone Chemical and Surgical Abortions, 1999–2015” (PDF). The study suggested that up to 35 percent of women on Medicaid who had a medication abortion between 2001 and 2015 visited an emergency department within 30 days afterward. Its main claim was that medication abortions led to a higher rate of emergency department visits than surgical abortions.

Critics noted a number of problems: The study looked at all emergency department visits, not only visits related to abortion. This could capture medical care beyond abortion-related conditions, because people on Medicaid often lack primary care and resort to going to emergency departments for routine care. When the researchers tried to narrow down the visits to just those related to abortion, they included medical codes that were not related to abortion, such as codes for ectopic pregnancy, and they didn’t capture the seriousness of the condition that prompted the visit. Medication abortions can cause bleeding, and women can go to the emergency department if they don’t know what amount of bleeding is normal. The study also counted multiple visits from the same individual patient as multiple visits, likely inflating the numbers. Last, the study did not put the data in context of emergency department use by Medicaid beneficiaries in general over the time period.

In contrast to Studnicki’s study, the American College of Obstetricians and Gynecologists notes that studies looking at tens of thousands of medication abortions have concluded that “Serious side effects occur in less than 1 percent of patients, and major adverse events—significant infection, blood loss, or hospitalization—occur in less than 0.3 percent of patients. The risk of death is almost non-existent.”

Anti-abortion group’s studies retracted before Supreme Court mifepristone case Read More »

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Supreme Court denies Epic v. Apple petitions, opening up iOS payment options

App Store, Apple, Apple v Epic, epic, fortnite, gaming, Google, Policy, Supreme Court, Tech / /

Epic v. Apple —

Most of Epic’s arguments are moot now, but one point will change the App Store.

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Fortnite characters looking across the many islands and vast realm of the game.

Enlarge / Artist’s conception of iOS developers after today’s Supreme Court ruling, surveying a new landscape of payment options and subscription signaling.

Epic Games

The Supreme Court declined to hear either of the petitions resulting from the multi-year, multi-court Epic v. Apple antitrust dispute. That leaves most of Epic’s complaints about Apple’s practices unanswered, but the gaming company achieved one victory on pricing notices.

It all started in August 2020, when Epic sought to work around Apple and Google’s app stores and implemented virtual currency purchases directly inside Fortnite. The matter quickly escalated to the courts, with firms like Spotify and Microsoft backing Epic’s claim that Apple’s App Store being the only way to load apps onto an iPhone violated antitrust laws.

The matter reached trial in May 2021. The precise definitions of “games” and “marketplace” were fervently debated. Epic scored a seemingly huge victory in September 2021 when a Northern California judge demanded that Apple allow developers to offer their own payment buttons and communicate with app customers about alternate payment options. An appeals court upheld that Apple’s App Store itself wasn’t a “walled garden” that violated antitrust laws but kept the ruling that Apple had to open up its payments and messaging.

Today’s denial of petitions for certiorari means that Apple has mostly run out of legal options to prevent changes to its App Store policies now that multiple courts have found its “anti-steering” language anticompetitive. Links and messaging from developers should soon be able to send users to alternative payment options for apps rather than forcing them to stay entirely inside Apple’s App Store, resulting in a notable commission for Apple.

Epic’s goals to see Fortnite restored to the App Store or see third-party stores or sideloading on iPhones remain unfulfilled. This is not the case with Epic’s antitrust suit against Google, which in mid-December went strongly in Epic’s favor. With a unanimous jury verdict against Google, a judge this month will determine how to address Google’s violations—potentially including Epic’s request that it and other developers be allowed to issue their own app stores and payment systems on Android devices.

Tim Sweeney, CEO of Epic Games, wrote in a thread on X (formerly Twitter) that the Supreme Court’s denial means the “battle to open iOS to competing stores and payments is lost in the United States” and that it was a “sad outcome for all developers.” Sweeney noted that as of today, developers on Apple’s platforms can “tell US customers about better prices on the web.” And he noted that regulatory and policy actions around the world, including the upcoming EU Digital Markets Act, may have further impact.

Apple has yet to comment on today’s Supreme Court decision.

Supreme Court denies Epic v. Apple petitions, opening up iOS payment options Read More »

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After losing everywhere else, Elon Musk asks SCOTUS to get SEC off his back

elon musk, elon musk sec, Policy, Supreme Court / /

Musk v. SEC —

Musk’s last-ditch effort to terminate settlement over “funding secured” tweets.

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Elon Musk on stage at an event, resting his chin on his hand

Enlarge / Elon Musk at an AI event with Britain Prime Minister Rishi Sunak in London on Thursday, Nov. 2, 2023.

Getty Images | WPA Pool

Elon Musk yesterday appealed to the Supreme Court in a last-ditch effort to terminate his settlement with the Securities and Exchange Commission. Musk has claimed he was coerced into the deal with the SEC and that it violates his free speech rights, but the settlement has been upheld by every court that’s reviewed it so far.

In his petition asking the Supreme Court to hear the case, Musk said the SEC settlement forced him to “waive his First Amendment rights to speak on matters ranging far beyond the charged violations.”

The SEC case began after Musk’s August 2018 tweets stating, “Am considering taking Tesla private at $420. Funding secured” and “Investor support is confirmed. Only reason why this is not certain is that it’s contingent on a shareholder vote.” The SEC sued Musk and Tesla, saying the tweets were false and “led to significant market disruption.”

The settlement required Musk and Tesla to each pay $20 million in penalties, forced Musk to step down from his board chairman post, and required Musk to get Tesla’s pre-approval for tweets or other social media posts that may contain information material to the company or its shareholders.

Musk told the Supreme Court that the need to get pre-approval for tweets “is a quintessential prior restraint that the law forbids.”

In the settlement, “the SEC demanded that Mr. Musk refrain indefinitely from making any public statements on a wide range of topics unless he first received approval from a securities lawyer,” Musk’s petition said. “Only months later, the SEC sought to hold Mr. Musk in contempt of court on the basis that Mr. Musk allegedly had not obtained such approval for a post on Twitter (now X). In effect, the SEC sought contempt sanctions—up to and including imprisonment—for Mr. Musk’s exercise of his First Amendment rights.”

Musk’s court losses

In April 2022, Musk’s attempt to get out of the settlement was rejected by a US District Court judge. Musk appealed to the US Court of Appeals for the 2nd Circuit, but a three-judge panel unanimously ruled against him in May 2023. Musk asked the appeals court for an en banc rehearing in front of all the court’s judges, but that request was denied in July, leaving the Supreme Court as his only remaining option.

The 2nd Circuit panel ruling dismissed Musk’s argument that the settlement is a “prior restraint” on his speech, writing that “Parties entering into consent decrees may voluntarily waive their First Amendment and other rights.” The judges also saw “no evidence to support Musk’s contention that the SEC has used the consent decree to conduct bad-faith, harassing investigations of his protected speech.”

There is no guarantee that the Supreme Court will take up Musk’s case. Musk’s petition says the case presents the constitutional question of whether “a party’s acceptance of a benefit prevents that party from contending that the government violated the unconstitutional conditions doctrine in requiring a waiver of constitutional rights in exchange for that benefit.”

Musk argues that his settlement violates the unconstitutional conditions doctrine, which “limits the government’s ability to condition benefits on the relinquishment of constitutional rights.” He says his case also presents the question of “whether the government can insulate its demands that settling defendants waive constitutional rights from judicial scrutiny.”

“This petition presents an apt opportunity for the Court to clarify that government settlements are not immune from constitutional scrutiny, to the immediate benefit of the hundreds of defendants who settle cases with the SEC each year,” Musk’s petition said.

Musk complains about SEC investigations

Musk claims he is burdened with an “ever-present chilling effect that results from the pre-approval provision” and complained that the SEC has continued to investigate him. “In the past three years, the SEC has at all times kept at least one investigation open regarding Mr. Musk or Tesla. The SEC’s actions—in seeking contempt and then maintaining a steady stream of investigations—chills Mr. Musk’s speech,” the petition said.

As previously noted, the 2nd Circuit appeals court judges did not think the SEC investigations of Musk had gone too far. “To the contrary, the record indicates that the SEC has opened just three inquiries into Musk’s tweets since 2018,” the May 2023 appeals court decision said. The first of those three investigations led to the settlement that Musk is trying to get out of. The second and third investigations sought information about tweets in 2019 and 2021.

Although Musk has repeatedly lost his attempts to undo the SEC settlement, he prevailed against a class-action lawsuit that sought financial damages for Tesla shareholders. The judge in that case ruled that Musk’s tweets about having secured funding to take Tesla private were false and reckless, but a jury sided with Musk on the questions of whether he knew the tweets were false and whether they caused Tesla investors to lose money.

Despite the class-action suit’s failure, Tesla investors are getting some money. The $40 million in fines paid to the SEC by Musk and Tesla, plus interest, is in the process of being distributed to investors.

After losing everywhere else, Elon Musk asks SCOTUS to get SEC off his back Read More »