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9/21/1981: Justice Sandra Day O’Connor is confirmed by the Senate, 99-0.

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Attorneys general from across the country reacted to the opioid crisis by taking big pharmaceutical companies to court. The fund they won, they promised, would be spent on addiction services, thus working to end the crisis. “This settlement helps hold these companies accountable for their role in contributing to the opioid epidemic and will provide Floridians struggling with opioid addiction the services they need to recover,” Florida Gov. Ron DeSantis declared in July, after agreeing to a massive settlement with the McKesson Corporation.

But that’s not how the story has been working out.

Since 2011, the United States has seen spikes in fentanyl overdoses. They killed an estimated 93,000 people in the last year alone. The popular media narrative is that this crisis was caused by Purdue pharma’s OxyContin and the company’s marketing push to use addictive opioids to treat chronic and acute pain. This wrongly puts the blame on patients while ignoring public health authorities’ role in creating this addiction epidemic. Nor does it recognize how public health agencies (in particular, the FDA) made an addiction crisis lethal by forcing Purdue to reformulate oxycontin to be abuse-deterrent, thus pushing millions of casual drug users onto more dangerous black-market substances. Nevertheless the pharma-only narrative has been a winner in court. Thousands of state and local governments have sued pharmaceutical manufacturers and distributors, winning billions.

The largest of these settlements is this year’s McKesson/AmerisourceBergen/Cardinal Health settlement, worth $26 billion. Their alleged transgression, which the companies still dispute, is to not do enough to stop suspicious opioid orders. When the settlement is finalized, it will account for most of the 3,000 or so opioid lawsuits nationwide and will be the second largest settlement in U.S. history—with a whopping $2.3 billion allocated for lawyer fees and expenses.

Then there’s the $12 billion settlement with Purdue pharma, over the company’s negligence and mismarketing of Oxycontin and other drugs. Under the bankruptcy settlement terms, Purdue is dissolved, its assets are now managed by a public benefits firm, and the former owners (the Sackler family) are on the hook for $4.5 billion. Both settlements provide some protection from future litigation. However, the Justice Department is apparently miffed the Sacklers will not see jail time and is threatening to hold the Purdue settlement up. Even still, this is one of the most punitive settlements in legal history.

“As opioid settlements are reached, we must learn from the missed opportunity with tobacco,” Sen. Dick Durbin (D–Ill.) wrote in Stat News earlier this year. “That means dedicating the funds from opioid settlements to build the public health systems our nation needs to respond to the opioid crisis and prevent future addiction.”

But due to the separation of powers established in the Constitution, courts cannot dictate much about how the states use litigation settlement funds. Unless specified otherwise by state law, those funds are at the discretion of the state attorneys general, who must vet the funds for use in the general budget. Fighting addiction with settlement funds is a lie, and it always was.

This isn’t the first time this con has been played. The largest settlement in U.S. history was the 1998 tobacco master settlement, which cost American tobacco companies $206 billion. Then as now, the narrative said the government was getting big bucks to stop America’s cigarette habit. Despite those assurances, 98 percent of those funds ended up in states’ general budgets.

Durbin and other politicians promise that this time it will be different. So far, 19 states have passed legislation designating settlement money as special funds, with another nine legislating allocation agreements. But those bills sound better than they really are.

For an example, look at Colorado. 

The Colorado Memorandum Agreement, which is more detailed than most states’ measures, states how opioid settlement funds are to be divvied up. State coffers will receive 10 percent of the funds, then 20 percent for local governments. The lion’s share, 60 percent, will go to different regions, whose leadership and advisory groups will—with broad discretion—determine how to spend the funds. Of the $400 million in settlement money coming their way, Coloradans can only be sure that $40 million, just 10 percent, will go towards “opioid abatement infrastructure projects.”

Even then, it’s unclear how that money will be spent and how effective it will be. While addiction experts generally favor harm reduction, state leaders of both parties are prone to advocating heavy-handed law enforcement policies, such as mandatory drug courts and further surveillance of physicians and patients. And even if you could push aside the drug crusaders, an anti-addiction policy might mean anything.

Consider just a sampling of the “anti-addiction” policies those settlements are funding. In West Virginia, addiction services mean more in education spending; in Oklahoma, it means more money for corrections. Oregon likes medical research and equity; Connecticut is particular to social services. In Minnesota, the focus is on non-narcotic pain treatments. Michigan’s plans include efforts to help new mothers.

And there’s a bigger problem: There is little to stop states from using those funds according to the established parameters, then shifting the regular budgeted funds elsewhere. After the McKinsey settlement, then–New York Gov. Andrew Cuomo notified the Office of Addiction Services and Supports that of the state’s $32 million share, $21 million will be going to the state’s general fund.

It could get worse. In 2007, then–West Virginia Gov. Joe Manchin tried to use settlement funds from Purdue Pharma to purchase a gubernatorial helicopter. Who knows what misappropriations could be on the way now? The public reaction to the misallocation of funds from the tobacco master settlement will be nothing compared to the angry response from the families of opioid overdose victims when they realize the healing and justice promised to them was a sham.

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“More money, more problems” might as well be the slogan for how San Francisco and Los Angeles approach homelessness.

Voters in both cities recently approved billions of dollars in new spending for supportive housing and services for homeless residents. Although the intentions are good and the resources are there, projects in both cities have suffered from major delays and cost overruns. Meanwhile, their homeless populations continue to grow.

San Francisco’s “safe sleeping” open-air tent encampments were supposed to get homeless people out of crowded, dangerous indoor shelters while still providing them with meals, showers, security, and social services. The funding for these sites came from Proposition C, a 2018 ballot initiative that imposed the largest tax increase in San Francisco’s history, raising $300 million for homelessness services.

The initiative won at the ballot box with 60 percent of the vote, even though most of the city’s political leaders came out against it. They argued that the tax hike was excessive and that the plan for spending all that money was vague and lacked accountability.

Those warnings proved prescient. Under Proposition C, the city is spending around $61,000 annually on each “safe sleeping” occupant, or $5,083 per month. By comparison, the median monthly rent for an apartment in San Francisco is $2,913.

In contrast with Proposition C, Proposition HHH, which Los Angeles voters approved in 2016, had the enthusiastic backing of Mayor Eric Garcetti, who saw it as the cornerstone of his plan to turn back a rising tide of homelessness. The $1.2 billion bond initiative included a much clearer spending plan and required that the city controller release an annual audit of its progress. It was supposed to build 10,000 new units of affordable and supportive housing over 10 years.

The city controller’s reports have shown that Los Angeles can spend homelessness dollars about as effectively as San Francisco. Five years after Proposition HHH’s passage, the city had managed to build only about 700 of the 10,000 promised units. In a recent ruling, U.S. District Court Judge David Carter said the city’s “inaction” on homelessness likely violates the 14th Amendment’s Equal Protection Clause.

Both cities struggle with restrictive land use regulations that raise the costs and completion times of housing projects. Those rules have blocked private development and pushed rent prices up. The same red tape is now tripping up city officials who are trying to build shelter for the homeless.

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Residents of Durham, Ontario, Canada, will have to keep records of anyone who comes into their home for a “social gathering,” no matter how small, and turn them over to the local health department if requested. Dr. Robert Kyle, Durham’s chief medical officer, has mandated that homeowners keep a list of the full names and contact information of anyone attending a social gathering in their home for one month. They must turn that information over within 24 hours if requested. Kyle said the order is aimed at stemming the spread of COVID-19. Those who do not comply face a fine of up to $5,000 ($3,925 U.S.).

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Today the Solicitor General filed a brief in Dobbs. The government argues that there is no middle path. According to the United States, there is no way to uphold the Mississippi law without overruling Roe and Casey.

Petitioners devote most of their brief to urging the Court to repudiate all constitutional protection for abortion. In their view, a woman’s interest in deciding for herself whether to carry a pregnancy to term merits no greater constitutional protection than social and economic rights that trigger rational-basis review. But petitioners also briefly assert (Br. 45-49) that if this Court “is not prepared to reject heightened scrutiny” altogether, it should uphold the Act on one of two purportedly more modest “alternative[]” grounds.That modesty is illusory. Both of petitioners’ alternatives would still require the Court reject the viability rule, which is “the most central principle” of Roe and Casey. June Medical, 140 S. Ct. at 2135 (Roberts, C.J., concurring in the judgment) (quoting Casey, 505 U.S. at 871 (plurality opinion)). Taking that step would carry all of the stare decisis harms identified in Casey.

This strategic choice is significant. Indeed, the SG seems to agree with Sherif Girgis that there is no half-loaf approach. The government is putting the Roberts Court to a choice: uphold the Mississippi law or uphold Roe and Casey; it can’t do both.

On the merits, the United States also attempts to make something of a historical argument. Who knew that Blackstone and Thomas Jefferson provide support for a right to abortion!

First, this Court’s decisions recognize a right to “bodily integrity.” Casey, 505 U.S. at 857. At the Founding, a person’s “uninterrupted enjoyment of his life, his limbs, his body, [and] his health,” and “[t]he preservation of [his] health from such practices as may prejudice or annoy it,” were considered to have been “vested in [him] by the immutable laws of nature”; “the principal aim of society” was to protect “individuals in the enjoyment of ” these and other “absolute rights.” 1 Blackstone 120, 125, 130. The “equal right of every citizen” to the “management” of “his person” thus was considered a “foundation of republican government.” Letter from Thomas Jefferson to Samuel Kercheval (July 12, 1816).

These citations are not helpful. In the letter, Jefferson addresses a proposal for equal representation in the House and the Senate. Here is the full passage:

The true foundation of republican government is the equal right of every citizen, in his person and property, and in their management. Try by this, as a tally, every provision of our constitution, and see if it hangs directly on the will of the people. Reduce your legislature to a convenient number for full, but orderly discussion. Let every man who fights or pays, exercise his just and equal right in their election.

Jefferson said nothing at all about “bodily integrity.” The SG spliced words completely out of context to create a false impression.

The Blackstone citation fares no better. Indeed, these references should be familiar. Justice Thomas cites these very pages in his Obergefell dissent that lambastes the notion of substantive due process:

After Magna Carta became subject to renewed interest in the 17th century, see, e.g., ibid., William Blackstone referred to this provision as protecting the “absolute rights of every Englishman.” 1 Blackstone 123. And he formulated those absolute rights as “the right of personal secu-rity,” which included the right to life; “the right of personal liberty”; and “the right of private property.” Id., at 125. He defined “the right of personal liberty” as “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.” Id., at 125, 130.[2]

The key phrase, which is omitted from the SG’s brief, is that a person could be restrained pursuant to the “due course of law.” And, as argued by Blackstone, the due process of law concerned procedural rights, and not substantive rights.

Later in the brief, the SG writes:

The core holding of Roe and Casey follows naturally from these long-established principles.

What are these “long-established principles”? In the prior paragraph, the Court cites cases like Obergefell, Eisenstadt, Baird, and Griswold! After nearly 50 years of Roe, the government could not come up with anything better. This attempt at originalism failed.

Finally, the SG sought leave to participate in oral argument. At present, the Acting SG is Brian Fletcher. I do not know if Elizabeth Prelogar will be confirmed as SG prior to the December 1 argument date. I suspect the Biden administration would prefer the optics of having a female argue this case.

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A few moments ago, I wrote about the first S.B. 8 Test Case. It was filed by an Arkansas plaintiff. The second test case was filed by Felipe N. Gomez of Illinois. Gomez is a self-professed “Pro Choice Plaintiff.” Indeed, Gomez states that he filed the suit so that the court can declare S.B. 8 unconstitutional.

Plaintiff, a USA citizen (Illinois resident) and “person” as defined in the Texas Hearbeat [sic] Act files this suit against Defendant, MOVES the Court to declare that the Act is Unconstitutional, and in violation of Roe v Wade. . . .

Plaintiff alleges that Defendant did not violate Roe v Wade, and that the Act is illegal as written and as applied here until Roe v Wade is reversed or modified.

WHERFORE [sic], PLAINTIFF seeks the Court Declare the Act to be illegal as written and/or as applied to the instant facts.

In federal court, such a complaint would lack adversity. If I didn’t know better, the suit seems collusive, though I doubt Braid would conspire with this pro-se litigant.

In any event, Braid may try to sue Gomez in federal court. In light of the pleading, that strategy may yield a default judgment. Removal would not fare much better.

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