Month: June 2022

From Does 1-6 v. Mills, decided yesterday by Judge Jon Levy (D. Me.):

The Plaintiffs are eight Maine healthcare workers and one individual healthcare provider who challenge an August 2021 change to Maine law that requires employees of designated Maine healthcare facilities to be vaccinated against the COVID-19 coronavirus. The Media Intervenors now seek an order unsealing the Plaintiffs’ identities, arguing that the Plaintiffs should not continue to be permitted to proceed pseudonymously because the Plaintiffs’ alleged fear of harm no longer outweighs the public’s interest in open legal proceedings….

At the outset of this litigation, the Plaintiffs moved to proceed pseudonymously, contending that their reasonable fear of harm if their identities were revealed outweighed the public’s interest in open litigation. I granted the Plaintiffs’ motion in part after taking judicial notice of the substantial public controversy that surrounded COVID-19 vaccination mandates at the time, but I reserved the authority to revisit the issue if the case proceeded beyond the preliminary-injunction stage. {The motion was granted in part to permit the Plaintiffs to proceed pseudonymously as to the public but denied as to Plaintiffs’ request to conceal their identities from the State Defendants’ counsel of record, the individual State Defendants, and State employees with knowledge of the facts alleged in the complaint and who were determined by State Defendants’ counsel to be reasonably necessary to respond to the Plaintiffs’ motion for preliminary injunction.} I subsequently denied the Plaintiffs’ request for preliminary injunction …, [and the denial] was affirmed by the U.S. Court of Appeals for the First Circuit….

The Federal Rules of Civil Procedure require that all parties be named in the caption of a complaint and do not provide a mechanism for pseudonymous litigation. Fed. R. Civ. P. 10(a) (“The title of the complaint must name all the parties.”). “This rule serves more than administrative convenience.” “It protects the public’s legitimate interest in knowing all of the facts involved, including the identities of the parties.” Id. (quoting Frank, 951 F.2d at 322). Additionally, “[t]here is a strong common law presumption favoring public access to judicial proceedings and records,” and in general, a case must proceed in the actual names of the parties. In the context of public access to judicial records and documents, the First Circuit has repeatedly explained that such access “allows the citizenry to ‘monitor the functioning of our courts, thereby insuring quality, honesty and respect for our legal system.'”  In addition to the common law presumption of public access, courts have generally acknowledged the existence of a qualified First Amendment right of access to certain proceedings and documents in criminal cases, and likely in civil cases as well.

However, Federal courts permit plaintiffs in civil suits to proceed pseudonymously in “exceptional cases.” An exceptional case may exist where the party seeking pseudonymity “‘has a substantial privacy right which outweighs the customary and constitutionally embedded presumption of openness in judicial proceedings.'” ….

The Plaintiffs assert that they have substantial privacy interests in their religious beliefs opposing the COVID-19 vaccine and their resulting medical decisions to refuse the vaccine. These interests, they assert, are inextricably intertwined with one another and support shielding their identities from public disclosure. I consider this argument primarily under the second Megless factor, which requires an assessment of the reasons the Plaintiffs fear the public disclosure of their identities and the substantiality of those reasons.

As alleged in the complaint, the Plaintiffs’ reason for refusing the COVID-19 vaccination is rooted in their religious-based objection to abortion and their assertion  that fetal stem cells were used in the development of COVID-19 vaccines. I take judicial notice of the fact that the Plaintiffs’ religious-based opposition to abortion is a belief held by many Americans and is associated with a longstanding public debate concerning the use of fetal cells for medical and scientific purposes. Accordingly, and contrary to the Plaintiffs’ position, I treat the religious beliefs underlying the Plaintiffs’ opposition to mandatory COVID-19 vaccinations as not so highly controversial or unique as to subject the Plaintiffs to a reasonable fear of severe harm if their identities are revealed.

The same is true with respect to the Plaintiffs’ unvaccinated status. A person’s decision to receive or refuse a vaccine is not on par with the intimate medical or psychiatric matters that have traditionally been protected by pseudonymous proceedings. As one court recently characterized it “vaccination status simply is not at that level.” Vaccinations and the need to provide proof of vaccination status have become commonplace in modern times. Thus, a person’s unvaccinated status—whether in relation to COVID-19 or some other infectious disease for which a vaccine is publicly mandated—is not in and of itself an inherently private, highly sensitive medical condition that calls for pseudonymity. {To the extent that there are sensitive medical records or information that may be relevant to this litigation, those privacy interests can be addressed through a protective order.} …

The Plaintiffs also contend that the heightened public passions concerning mandatory COVID-19 vaccinations place them at a heightened risk of severe social stigma and worse if their identities are publicly revealed…. The primary evidentiary support the Plaintiffs’ have offered in support of maintaining their anonymity is the declaration of their attorney, Daniel J. Schmid …. It includes the following quotes from anonymous on-line comments made in response to a Bangor Daily News article published on August 25, 2021, regarding this lawsuit:

Anyway, Church Lady, what’s this Constitution thingy people are referring to all the time.

Anyway Church Lady, what’s this lawsuit about again?

Well one would have to wonder if the above is really true since both these deplorable ‘Christian’ sociopathic groups see no harm in placing innocents at risk of serious long term health problems or death.

These people turn my stomach! Somebody’s fake religion has nothing to do with our health. Such a lawsuit shouldn’t even be considered by the court. In fact, maybe as citizen, Americans ought to be suing the fools who put this lawsuit together.

The Liberty Counsel is the Christian American Taliban.

This dangerous and deadly public health matter presents an opportunity to further control those who look to [religion] for spiritual nourishment.

When your choice endangers everyone around you, you are a public threat, and should be incarcerated, just as you would be if you were firing a gun at random in a crowd.

Some of these comments express hostility toward the Plaintiffs’ opposition to being vaccinated against COVID-19, but they do not contain any direct or indirect threats of harm against the Plaintiffs or others. Hostile and arguably intemperate comments of this sort are often part of the public discourse litigants encounter when they turn to a public forum, such as a court, seeking redress of their federal constitutional and statutory rights. The comments cited in Attorney Schmid’s declaration do not demonstrate that the social ostracization Plaintiffs could face if their identities are made known to the public is so substantial as to constitute a reasonable fear of severe harm.

Further, the information contained in the Schmid Declaration does not allow for a meaningful evaluation of specific adverse consequences or threats that can reasonably be expected from the public disclosure of the Plaintiffs’ identities. The individual Plaintiffs themselves have not submitted declarations which allow for an assessment of the harm or harms they fear if their identities are revealed. In addition, although the Schmid Declaration asserts that, as of August 2021, an unspecified number of the Plaintiffs would remove themselves from this action if their identities were disclosed to their employers and to the public, the record reflects that none of the Plaintiffs withdrew from this case following the court-authorized disclosure of their identities to their employers in December 2021….

[T]he Plaintiffs contend that because the issues presented by their complaint are purely legal and not factual in nature, the public’s interest in their identities is nominal. This argument ignores that the complaint includes as-applied challenges to Maine’s COVID-19 vaccine mandate. For example, the complaint asserts that “[t]he Governor’s COVID-19 Vaccine Mandate, on its face and as applied, places Plaintiffs in an irresolvable conflict between compliance with the mandate and their sincerely held religious beliefs.” By challenging the actions of the private hospital employers, the Plaintiffs have, as another court has recently recognized in a case involving similar claims, “put factual questions about [their own] actions at issue in this lawsuit.” The complaint asserts employment discrimination claims against the Plaintiffs’ private hospital employers under Title VII. The Title VII claims made against the private healthcare provider Defendants will necessarily require consideration of facts associated with each Plaintiff’s employment circumstances, specific accommodation request, and credibility.

The seventh and eighth Megless factors together assess the level and strength of the public’s interest in knowing the Plaintiffs’ identities. The level of public interest in the subject matter of this case is high because the Plaintiffs seek to invalidate a mandatory vaccination requirement for healthcare workers adopted in response to a nationwide pandemic. The statewide effectiveness of the public health response to the pandemic is an important matter and, consequently, is of great public interest. In addition, the Plaintiffs’ employment discrimination, as-applied claims against the private healthcare provider Defendants—operators of several of Maine’s largest healthcare systems—suggests that there is a strong public interest in the identities, occupations and accommodation requests of potentially hundreds or even thousands of Maine healthcare workers who would be exempt from the mandatory vaccination requirement if the Plaintiffs prevail in this action….

The court noted that other courts have disagreed on this question:

Compare Navy Seal 1 v. Austin, CASE NO. 8:21-cv-2429, 2022 WL 520829, at *1-2 (M.D. Fla. Feb. 18, 2022) (granting the plaintiffs’ request to proceed using pseudonyms in a challenge to a government COVID-19 vaccine mandate), Does 1 through 11 v. Bd. of Regents of the Univ. of Colo., Civil Action No. 21-cv-02637, 2022 WL 43897, at *5 (D. Colo. Jan. 5, 2022) (granting the plaintiffs’ request to proceed pseudonymously prior to ruling on the motion for preliminary injunction and “until further order of the court”), and Does 1-2 v. Hochul, 21-CV-5067, 2022 WL 836990, at *10 (E.D.N.Y. Mar. 18, 2022) (allowing the plaintiffs to proceed pseudonymously in their challenge to New York’s COVID-19 vaccine mandate for healthcare workers, but noting that, “although the balance of factors tips in favor of Plaintiffs at this phase of the case, this balance could change as the case progresses”), with Oklahoma v. Biden, Case No. CIV-21-1136-F, 2022 WL 356736, at *2-4 (W.D. Okla. Feb. 2, 2022) (denying the plaintiffs’ request to proceed pseudonymously in a challenge to a government COVID-19 vaccine mandate because the vaccination decision is not “highly sensitive” even when that choice is faith based, and concluding that criticism and ostracism are not equivalent to a real danger of physical harm), and Doe v. City Univ. of N.Y., No. 21 Civ. 9544, 2021 WL 5644642, at *6 (S.D.N.Y. Dec. 1, 2021) (denying the plaintiff’s request to proceed pseudonymously in challenging his college’s COVID-19 vaccination policy because he did not “me[e]t his burden of demonstrating that his ‘interest in anonymity’ outweighs the prejudice to defendants and ‘the customary and constitutionally-embedded presumption of openness in judicial proceedings”).

The post No Pseudonymity for Challenge to appeared first on Reason.com.

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I am a huge advocate of using pulse oximeters, which measure blood oxygen saturation levels, to help monitor how Covid is affecting one’s lungs. A pulse oximeter may have even saved my life; when I caught Covid in fall 2020, I had no trouble breathing but my handy pulse oximeter told me that my measurements were at a level where I should seek medical attention, and physicians in my family told me to go immediately to Georgetown Hospital. Once there, they found significant pneumonia in my lungs, admitted me, treated me, and released me good as new (after a few weeks recovery).

One concern about pulse oximeters, however, has been that they may work less well on people with dark skin. Specifically, that they slightly overestimate blood saturation levels; that slight overestimation, however, can have significant consequences regarding medical attention and treatment.

Today, the Wall Street Journal breathlessly reports on a study that seems to confirm that the concern is warranted.

The recent study looked at more than 7,000 patients diagnosed with Covid-19 between March 2020 and November 2021 at five hospitals in the Johns Hopkins Health System.

Pulse oximeter measurements were taken for all 7,000 patients. More-accurate but invasive arterial blood gas measurements also were taken from about 1,200 of the patients.

When the researchers compared measurements from the arterial blood gas tests with pulse oximeter readings, they found discrepancies among patients of all races but a more pronounced difference for patients of color. Compared with white patients, pulse oximeters overestimated oxygen saturation by an average of 1.2 percentage points among Black patients, 1.1 percentage points among Hispanic patients and 1.7 percentage points among Asian patients.

Some doctors, not quoted, expressed reservations to the Journal, but Dr. Martin Tobin stated that the study shows that pulse oximeters are “intrinsically biased against people of color.” That’s an oddly unscientific way of putting it; at most, we can say that the device gives less accurate results for people with darker skin pigmentation. Many “white” people have darker skin than many Hispanic, Asian, and some Black Americans.

Which brings me to some concerns about the study. First, you want to measure how accurate pulse oximeters are for people with dark skin, why not directly study that? Self-identified race and ethnicity is a crude substitute for skin tone.

This is particularly true given the internal diversity within each category. The study in question used data from the Johns Hopkins health system. Is the Hispanic and Asian population of the mid-Atlantic representative of the national Hispanic and Asian population in terms of skin tone, given that they have populations with different national origins (e.g., way fewer Mexican Americans on the East Coast than in the nation as a whole)? If so, how dark-complexioned are they compared to whites and African Americans? I doubt anyone has even considered those questions.

And then the results themselves are odd, if skin tone is really the decisive factor. Recall that the study finds that “pulse oximeters overestimated oxygen saturation by an average of 1.2 percentage points among Black patients, 1.1 percentage points among Hispanic patients and 1.7.” I don’t need a scientific study to tell me that the average African American is darker-complexioned than the average Hispanic or Asian American (though if you want scientific studies, we do know from DNA studies that Hispanic Americans have a much higher percentage of European ancestry than do African Americans, which would be reflected in average skin tones.) If dark complexion were the issue, we would expect the overestimation to be greatest among Black patients, not Asians, and we would expect the gap between Black and Hispanic patients to be greater.

The reporter, apparently caught up in the “people of color” paradigm, does not seem to even notice these questions.

The article concludes:

The FDA recommends accuracy studies include 10 or more healthy subjects who vary in age and gender. At least two participants, or 15% of the participant pool, should be “darkly pigmented.” The FDA said it was evaluating whether its guidance should be modified.

It strikes me that what needs to be done is a wide scale study that ignores America’s unscientific official racial and ethnic categories and directly measures subjects’ skin pigmentation, and measures whether darker skin pigmentation correlates with less accurate results. And if the government wants to measure whether pulse oximeters indeed work less well on, e.g., “Asian Americans” for reasons other than complexion, it needs to break the categories down by subgroup; there is no particular genetic or sociological commonality between South Asians like Indians and Pakistanis and East Asians like Chinese and Vietnamese.

The post Are Pulse Oximeters "Instrinsically Biased Against People of Color?" appeared first on Reason.com.

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[This month, I’m serializing my 2003 Harvard Law Review article, The Mechanisms of the Slippery Slope; I’ll begin here with a slightly reordered introduction, which generally summarizes my analysis, but if you want more details, you’ll get them in later posts.]

Consider one classic slippery slope claim (more shortly on why it makes sense to so label it): the claim that gun registration (A) might lead to gun confiscation (B). (This was written before D.C. v. Heller (2008) held that gun confiscation is unconstitutional; but Heller, which is a 5-4 decision, may be seen as potentially vulnerable to overruling in the future, and in any event may leave room for confiscation of particular categories of weapons.) Setting aside whether we think this slippery slope is likely—and whether it might actually be desirable—it turns out that the slope might happen through many different mechanisms, or combinations of mechanisms:

1. Registration may change people’s attitudes about the propriety of confiscation, by making them view gun possession not as a right but as a privilege that the government grants and therefore may deny.
2. Registration may be seen as a small enough change that people will reasonably ignore it (“I’m too busy to worry about little things like this”), but when aggregated with a sequence of other small changes, registration might ultimately lead to confiscation or something close to it.
3. The enactment of registration requirements may create political momentum in favor of gun control supporters, thus making it easier for them to persuade legislators to enact confiscation.
4. People who don’t own guns are more likely than gun owners to support confiscation. If registration is onerous enough, over time it may discourage some people from buying guns, thus decreasing the fraction of the public that owns guns, decreasing the political power of the gun-owning voting bloc, and therefore increasing the likelihood that confiscation will become politically feasible.
5. Registration may lower the cost of confiscation—since the government would know which people’s houses to search if the residents don’t turn in their guns voluntarily—and thus make confiscation more appealing to some voters.
6. Registration may trigger the operation of another legal rule that makes confiscation easier and thus more cost-effective: if guns weren’t registered, confiscation would be largely unenforceable, since house-to-house searches to find guns would violate the Fourth Amendment; but if guns are registered some years before confiscation is enacted, the registration database might provide probable cause to search the houses of all registered gun owners.

In the registration-to-confiscation scenario, only the latter two mechanisms seem fairly plausible to me; in other scenarios, others may be more plausible. And there are of course mechanisms that may work in the opposite direction, so that decision A may under some political conditions make decision B less likely. (For instance, gun registration might energize gun-rights groups, and lead them to be even more effective in fighting broader gun controls; or if gun registration seems ineffective or unduly intrusive, some formerly pro-gun-control voters might become more skeptical of gun controls generally.)

But the important point is that being aware of all these phenomena, including the several kinds of slippery slope mechanisms, can help us (as citizens and policymakers) think through all the possible implications of some decision A—and can help us (as advocates) make more concrete and effective arguments for why A would or would not lead to B. Even if you are skeptical of one kind of slippery slope claim, you may find that others are worth considering.

I hope this has sufficiently intrigued you; now, let me explain how I define slippery slope arguments, why I think this definition makes sense, and how I think we can helpfully think about the subject.

Say you are a legislator, a voter, a judge, a commentator, or an advocacy group leader. You need to decide whether to endorse decision A, for instance a partial-birth abortion ban, a limited school choice program, or a gun registration mandate.

You think A might be a fairly good idea on its own, or at least not a very bad one. But you’re afraid that A might eventually lead other legislators, voters, or judges to implement policy B, which you strongly oppose—for instance, broader abortion restrictions, an extensive school choice program, or a total gun ban.

What does it make sense for you to do, given your opposition to B, and given your awareness that others in society might not share your views? Should you heed James Madison’s admonition that “it is proper to take alarm at the first experiment on our liberties,” and oppose a decision that you might have otherwise supported were it not for your concern about the slippery slope? Or should you accept the immediate benefits of A, and trust that even after A is enacted, B will be avoided?

Slippery slopes are, I will argue, a real cause for concern, as legal thinkers such as Madison, Jackson, Brennan, Harlan, and Black have recognized, and as our own experience at least partly bears out: we can all identify situations where one group’s support of a first step A eventually made it easier for others to implement a later step B that might not have happened without A (though we may disagree about exactly which situations exhibit this quality). Such an A may not have logically required the corresponding B, yet for political and psychological reasons, it helped bring B about.

But, as thinkers such as Lincoln, Holmes, and Frankfurter have recognized, slippery slope objections can’t always be dispositive. We accept, because we must, some speech restrictions. We accept some searches and seizures. We accept police departments, though creating such a department may lead to arming it, which may lead to some officers being willing to shoot innocent civilians, which may eventually lead to a police state (all of which has happened with the police in some places). Yes, each first step involves risk, but it is often a risk that we need to take.

This need makes many people impatient with slippery slope arguments. The slippery slope argument, opponents suggest, is the claim that “we ought not make a sound decision today, for fear of having to draw a sound distinction tomorrow.” To critics of slippery slope arguments, the arguments themselves sound like a slippery slope: if you accept this slippery slope argument, then you’ll end up accepting the next one and then the next one until you eventually slip down the slope to rejecting all government power (or all change from the status quo), and thus “break down every useful institution of man.”

Exactly why, the critics ask, would accepting (for instance) a restriction on “ideas we hate” “sooner or later” lead to restrictions on “ideas we cherish”? If the legal system is willing to protect the ideas we cherish today, why won’t it still protect them tomorrow, even if we ban some other ideas in the meantime? And even if one thinks slippery slopes are possible, what about cases where the slope seems slippery both ways—where both alternative decisions might lead to bad consequences?

My aim here is to analyze how we can sensibly evaluate the risk of slippery slopes, a topic that has been surprisingly underinvestigated. I think the most useful definition of a slippery slope is one that covers all situations where decision A, which you might find appealing (or at least not highly objectionable), ends up materially increasing the probability that others will bring about decision B, which you oppose. {Slippery slope arguments are sometimes made by people who dislike both A and B: the arguer may say “Even if A is good on its own, it might lead to a bad B,” while really thinking that A is bad itself. But the argument is framed this way only because the arguer thinks some listeners may like A but oppose B. These listeners need to decide whether to oppose A given the risk that it might lead to B, even if the arguer need not determine this (since he already opposes A).}

If you are faced with the pragmatic question “Does it make sense for me to support A, given that it might lead others to support B?,” you should consider all the mechanisms through which A might lead to B, whether they are logical or psychological, judicial or legislative, gradual or sudden. You should consider these mechanisms whether or not you think that A and B are on a continuum where B is in some sense more of A, a condition that would in any event be hard to define precisely. You should think about the entire range of possible ways that A can change the conditions—whether those conditions are public attitudes, political alignments, costs and benefits, or what have you—under which others will consider B.

The slippery slope is a familiar label for many instances of this phenomenon: when someone says “I oppose partial-birth abortion bans because they might lead to broader abortion restrictions,” or “I oppose gun registration because it might lead to gun prohibition,” the common reaction is “That’s a slippery slope argument.” But whatever one calls these arguments, the important point is that a person is asking the question “Does it make sense for me to support A, given that it might lead others to support B?,” which breaks down into “How much do I like A?,” “How much do I dislike B?,” and, the focus of this Article, “How likely is A to lead others to support B?” And this last question in turn requires us to ask “What are the mechanisms by which A can lead others to support B?”

These mechanisms will be the focus of this Article. Slippery slopes, camel noses, thin ends of wedges, floodgates, and acorns are metaphors, not analytical tools. The Article aims to describe the real-world paths that the metaphors represent—to provide a framework for analyzing and evaluating slippery slope risks by focusing on the concrete means through which A might possibly help cause B. This analysis should also help people construct slippery slope arguments (and counterarguments); but the primary goal is understanding the means through which slippery slopes may actually operate, and not simply the rhetorical structure of slippery slope arguments.

The post Slippery Slope June: An Introduction to Thinking About Slippery Slope Arguments appeared first on Reason.com.

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