Attacks on Women’s Health Research
Recently, complying with several Executive Orders issued by President Donald J. Trump, the National Institutes of Health (NIH) ended hundreds of grants worth $8 billion that it linked to studies related to diversity, equity, and inclusion (DEI). In response, several grant recipients filed a challenge in the Massachusetts Federal District Court alleging that the administration’s termination of their grants and the basis on which the administration decided to terminate those grants was illegal.
Judge William Young (a Reagan appointee) in a 103-page opinion found “an unmistakable pattern of discrimination against women’s health issues” and “palpable” racial discrimination of a sort the judge had “never seen” in 40 years on the bench. This policy of mass grant terminations was “breathtakingly arbitrary and capricious,” so the District Court declared it unlawful and vacated the challenged NIH directives and the resulting terminations of the recipients’ grants. As with almost all cases in which the Trump administration loses, the Government immediately went to the Supreme Court’s emergency or “shadow” docket to ask the court to block Judge Young’s order. In the shadow docket, the cases are not briefed, nor are there oral arguments. Furthermore, most of the Court’s orders are neither signed nor provide the reasoning of its order.
In this case, National Institutes of Health v. American Public Health Association, the Supreme Court addressed two separate issues, resulting in two decisions. First, in a 5-4 vote, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett ruled that the grant recipients had to go to the Court of Federal Claims to recover their money. However, a different 5-4 majority of the court, comprising Justices Roberts, Sotomayor, Kagan, Barrett, and Jackson, ruled that the lower court was correct in invalidating and enjoining the policy of canceling medical research grants because the Trump administration had determined that the researchers were too “woke.” Justice Barrett was the justice who switched sides and voted in favor of this claim-splitting regime.
For seventy years, jurisprudence in administrative law has dictated that when the district courts find that plaintiffs are harmed by an unlawful agency grant-related policy, the court should vacate that wrongful policy and restore the funding. However, in this order, the Supreme Court states that individuals whose funds are being wrongfully withheld must file two separate challenges in two distinct locations to prevail. To recover their money, they go to the Court of Federal Claims which may not have authority to restore the grants. To get a court to enjoin the policy on which the administration is illegally withholding grants, they have to go to a federal district court. But, then what?
Justice Jackson’s dissent really lets all of them have it. “With potentially life-saving scientific advancements on the line, the Court turns a nearly century-old statute aimed at remedying unreasoned agency decision-making into a gauntlet rather than a refuge… years-long studies will lose validity. Animal subjects will be euthanized. Lifesaving medication trials will be abandoned. Countless researchers will lose their jobs. And community health clinics (providing, inter alia, preventative treatment for infectious diseases) will close.”
In a broader sense, however, this ruling is of a piece with this Court’s recent tendencies. ”[R]ight when the Judiciary should be hunkering down to do all it can to preserve the law’s constraints,” the Court opts instead to make vindicating the rule of law and preventing manifestly injurious Government action as difficult as possible. This is “Calvinball jurisprudence” with a twist. (The term “Calvinball” from the comic strip Calvin and Hobbes has become a metaphor for any situation or system where rules are arbitrarily changed or selectively applied.)
With this Supreme Court ruling, we seem to have two rules: There are no fixed rules, and the Administration always wins.
Now more than ever, we need to make our voices heard, to Stand UP and Speak OUT.
