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Tuesday, December 14, 2021

Should Justice Thomas Find Jurisdiction in Dobbs?

One fascinating wrinkle in Dobbs v. Jackson Women’s Health is the suppressed question of standing. This issue has a certain edge for Justice Thomas: given his past views, Thomas’s path to reaching the merits is a bit unclear and probably discretionary.

Originally included in the state’s petition for certiorari, the standing issue has to do with whether abortion providers can assert the rights of third-parties, namely, patients seeking abortions. The Court declined to grant review of this issue in Dobbs, perhaps because the issue had recently been resolved, in favor of standing, in June Medical (2020).

But Justice Thomas cannot ignore the third-party standing issue. Thomas was emphatic in June Medical that abortion providers lack Article III standing, which is an essential requirement of subject-matter jurisdiction. Bearing out that strong jurisdictional claim, Thomas insisted that this problem was not subject to waiver. 

One might respond that Thomas could simply follow the precedent set in June Medical and similar cases. But there, too, lies a question, for Thomas has defended only a limited approach to stare decisis. In Gamble v. United States (2019), Thomas’s separate opinion argued that the Court had permission to follow precedent in two situations. 

First, the Court may follow precedent when the justices have been given no reason to doubt a precedent’s validity, such as when no “previous opinion persuasively critiques the disputed precedent.” That principle does not apply in Dobbs, however, because Thomas himself criticized the third-party standing cases in June Medical.

Second, the Court may follow precedent that permissibly interprets the law. Here is how Thomas puts the point: “Federal courts may (but need not) adhere to an incorrect decision as precedent, but only when traditional tools of legal interpretation show that the earlier decision adopted a textually permissible interpretation of the law.” 

This second principle could apply in Dobbs—but only if Thomas believes that the third-party standing cases adopted a “textually permissible interpretation.” And that conclusion is in tension with Thomas’s June Medical dissent, which was based on “a proper understanding of Article III’s case-or-controversy requirement.” So if Thomas sticks to his views on Article III, he might be obligated not to find jurisdiction in Dobbs.

Even if the second principle does apply, another question would arise. To repeat Thomas’s words with added emphasis: “Federal courts may (but need not) adhere to an incorrect decision” that is permissible. So even if the precedents are permissible and Thomas has the option to follow them, he would also have the option not to. How should he exercise that discretion?

That question relates to a third principle. In June Medical, Thomas voted to “remand with instructions to dismiss for lack of jurisdiction.” But he also noted: “Alternatively, if I were to reach the merits because a majority of the Court concludes we have jurisdiction, I would affirm, as the plaintiffs [abortion providers] have failed to carry their burden . . . even under our precedents.” This passage seems to extend the option to follow permissible precedents by recognizing a similar option to follow the majority’s current jurisdictional views. So the question again arises: how should Thomas exercise his discretion?

Thomas’s general commitment to judicial restraint might seem to counsel against exercising discretion to reach the merits. To again quote Thomas’s June Medical dissent: “In light of the ‘overriding and time-honored concern about keeping the Judiciary’s power within its proper constitutional sphere, we must put aside the natural urge to proceed directly to the merits of an important dispute and to “settle” it for the sake of convenience and efficiency’” (citations omitted). Given this view, it might be odd for Thomas to vote for major changes in precedent while simultaneously denying that the Court has jurisdiction to rule at all.

Yet Thomas is at ease with discretionary adjudication in many situations. Apart from the above principles recognizing discretion as to stare decisis, in cases like AT&T v. Concepcion Thomas has played a critical role in forming majority opinions, even when he disagreed with the resulting precedents. And Thomas might further argue that normal principles of judicial restraint, even as to issues of subject-matter jurisdiction, do not apply in Dobbs. Perhaps the Court, in Thomas’s view, may be unrestrained when dismantling the products of unrestrained decision-making.

It will be interesting to see if Thomas addresses these issues—not least because his vote will likely be key to how Dobbs is decided. 

Posted by Richard M. Re on December 14, 2021 at 02:20 PM | Permalink

Comments

Another question is, is it unconstitutional to fire someone or restrict someone from participating in Life, Liberty and The Pursuit of Happiness due to their individual iron status which will determine how they will respond to being exposed to Covid 19’s Spike Protein with the addition of a human furin receptor as well as how they will respond being exposed to a vaccine and possible repeated booster shots, which target that same Spike Protein that has an addition of a human furin receptor, since both exposures can cause iron deregulation in certain individuals due to the proper balance of furin and hepcidin being disrupted?

And how can one mandate an experiment vaccine that actually is a form of immune therapy, due to its targeting of the spike protein that includes a human furin receptor that will effect the immune systems of individuals differently depending on their individual iron status?

Since it is true that our inherent, Unalienable Right to Life, the securing and protection upon which our inherent Right to Liberty and The Pursuit Of Happiness depends, is Endowed to us from our Creator, and not Caesar. Who is Caesar to Mandate a Vaccine, that can cause iron deregulation in certain susceptible individuals, depending on their iron status, while denying the fact that targeting the spike protein with the addition of a furin receptor has the potential to cause for some susceptible individuals, more harm than good.

Since the CDC is well aware of the role that both furin and hepcidin play in iron regulation and conversely in iron deregulation, why are these vaccine manufacturers not held accountable for any harm?

harm?


“Control of Systemic Iron Homeostasis by the Hemojuvelin-Hepcidin Axis, which requires the proper balance of furin and hepcidin.

“Pro-hepcidin is unable to degrade the iron exporter ferroportin unless maturated by a furin-dependent process.”

“Hepcidin is homeostatically regulated by iron and erythropoietic activity. Iron excess stimulates hepcidin production, and increased concentrations of the hormone in turn block dietary iron absorption thus preventing further iron loading.”

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2855274/

https://pubmed.ncbi.nlm.nih.gov/19070914/

“Pro-hepcidin is unable to degrade the iron exporter ferroportin unless maturated by a furin-dependent process.”

“Hepcidin deficiency causes iron overload in hereditary hemochromatosis and iron-loading anemias, whereas hepcidin excess causes or contributes to the development of iron-restricted anemia in inflammatory diseases, infections, some cancers, and chronic kidney disease.”

https://onlinelibrary.wiley.com/doi/full/10.1111/ijlh.12358#d14144625

https://pubmed.ncbi.nlm.nih.gov/21520181/

The hepcidin circuits act: balancing iron and inflammation

https://pubmed.ncbi.nlm.nih.gov/24319154/

Iron and hepcidin: a story of recycling and balance

“Although ferritin is an indicator of cellular iron stores in healthy subjects, it provides little information on iron turnover in the body. Transferrin is a “shuttle protein” (24), mainly synthesized in the liver, and its principal role is to transport ionic iron to the liver, spleen, and bone marrow (25).

https://care.diabetesjournals.org › co...
Ferritin and Transferrin Are Associated With Metabolic ...”

https://www.google.com/search?q=prohepcidin&ie=UTF-8&oe=UTF-8&hl=en-us&client=safari

Hemochromatosis is a common disorder, and between 1 in 200 to 1 in 400 persons of northern European ancestry is a C282Y homozygote. Among the Irish the rate of C282Y homozygosity is higher than 1 in 100. Other less common forms of hemochromatosis exist.

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7267810/

COVID-19: hemoglobin, iron, and hypoxia beyond inflammation. A narrative review

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7563913/

COVID-19 and iron dysregulation: distant sequence similarity between hepcidin and the novel coronavirus spike glycoprotein

Posted by: N.D. | Dec 18, 2021 12:57:03 PM

I think it would be asking a bit for the advocates to use the specific questions Thomas role to shift gears. They had to answer the questions too.

Also, they realized given the matter at hand particularly, it would be a rather little "bit" of pressure anyhow. Justice Thomas might be somewhat more consistent in following strict procedural rules, but only so much.

This is especially clear given Thomas gives himself an out (going by the discussion of the OP) to avoid the question. He regularly as an aside notes his concerns but goes along since some procedural or substantive matter is not pressed. We saw this in abortion cases too.

There was so much to cover so I think the "another" missed opportunity is at most a venial sin. The procedural matters has been addressed by some analysts, of course, including a suggestion the whole thing should be dismissed as improvidentially granted.

Posted by: Joe | Dec 17, 2021 10:53:02 AM

And let us not forget:

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7563913/
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7457603/

“The liver peptide hepcidin regulates iron absorption and recycling. ... Furin is up-regulated by iron deficiency and hypoxia in association with the stabilization of HIF-1α. Increased s-HJV in response to HIF-1α occurs during differentiation of murine muscle cells expressing endogenous Hjv.Jan 15, 2008”

https://ashpublications.org › article
Furin-mediated release of soluble hemojuvelin: a new link between hypoxia and iron homeostasis | Blood | American Society of Hematology

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2211381/

It is important to note, in regards to Religious Liberty and the vaccine, no where in the First Amendment does it state, “do not endorse religion, rather “The First Amendment to the U.S. Constitution states that “ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of ...”
In no way, shape, or form, does a religious exemption to a vaccine mandate that requires that vaccines that do not provide full immunity, nor keep the virus from spreading, be given to persons, regardless of their iron status, considering the fact that we do not know whether the vaccine, in some susceptible persons, will result in iron deregulation and disease similar to the disease that Covid 19 causes in certain susceptible individuals due to iron deregulation, fulfill the necessary requirements for the passing of a law establishing a religion.
https://kids-clerk.house.gov/grade-school/lesson.html?intID=17

Posted by: N.D. | Dec 16, 2021 12:58:39 PM

That being said, Should Justice Thomas, given the fact that he is a Pro-Life Justice, find Jurisdiction in the unconstitutional “emergency” vaccine mandate that requires that vaccines that do not provide full immunity, nor keep the virus from spreading, be given to persons, regardless of their iron status, when considering the fact that we do not know whether the vaccine, in some susceptible persons, will result in iron deregulation and disease similar to the disease that Covid 19 causes in certain susceptible individuals due to iron deregulation? Surely, we all have standing when it comes to the equal protection of the Law, regardless of our iron status.

https://www.karger.com/Article/Pdf/373883

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7218962/


An important consideration relates to mutations in the S protein that may affect the degree of viral pathogenesis [39]. Direct evidence of functionally meaningful S protein mutations affects the S protein SARS-CoV-2 and the host cell ACE2, which appears to mediate a higher binding affinity when compared with SARS-CoV [40]. The reason for this increased S protein/ACE2 affinity in SARS-CoV-2 (−15.7 Kcal/mol) versus that of SARS-CoV (−14.1 Kcal/mol) is mainly attributed to three main factors [40]. First, the emergence of two loops aroundthe RBDs in SARS-CoV-2 may promote its chemical interaction with ACE2 by increasing the number of atoms needed. Second, more amino acid residues in the S protein of SARS-CoV-2 determine a higher number of protein-protein contacts between S protein and ACE2. Third, a longer capping loop in the S protein of SARS-CoV-2 favors its interaction with the receptor. Therefore, it is difficult to ensure that the new vaccine that is targeted to S protein can be used long term or in the near future, if there is the possibility that the vaccine will not be effective because of mutations in the S protein.


See page 13 in section -Potential Advantages and Limitations of mRNA-based SARS-CoV-2 Vaccines

Posted by: N.D. | Dec 16, 2021 12:19:30 PM

Nancy
“In light of the ‘overriding and time-honored concern about keeping the Judiciary’s power within its proper constitutional sphere, we must put aside the natural urge to proceed directly to the merits of an important dispute and to “settle” it for the sake of convenience and efficiency’” (citations omitted). Given this view, it might be odd for Thomas to vote for major changes in precedent while simultaneously denying that the Court has jurisdiction to rule at all.”

I suppose the question in regards to the posterity and prosperity of this Nation and The World, is this:

It is a fact that every human person, past, present, and future, can only be conceived by human persons, and thus from the moment of their conception when they are brought into being as a beloved son or daughter, all human persons, by virtue of the fact that they possess equal human Dignity, are endowed by God with their inherent Unalienable Right to Life, the
securing and protection upon which their inherent Right to Liberty and The Pursuit Of Happiness depends.

It is also a fact that ‘‘The Fourteenth Amendment enjoins ‘the equal protection of the laws,’ and laws are not abstract propositions”, as Justice Frankfurter once wrote. All sons and daughters of human persons, by virtue of the fact that they are human persons, possessing equal human Dignity, are equal before The Rule of Law, and thus our inherent Unalienable Rights are universal Rights, because they are endowed to every son and daughter, from God, not from Caesar.

Thus, it cannot be true, that abortion providers have standing when it comes to violating Due Process Law through the act of abortion at any time during pregnancy and because it is not possible for a man and woman to conceive a son or daughter who is not a human person, by virtue of this fact, personhood is established for every unborn son or daughter and the Court must rule that the Right to Life of the unborn is guaranteed specifically by the 14th Amendment.

“If this suggestion of personhood is established, [Roe's] case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [14th] Amendment.”- Roe v. Wade, 410 U.S. 113 (1973)

https://mirrorofjustice.blogs.com/mirrorofjustice/2021/12/commentary-on-the-dobbs-arguments.html

Posted by: N.D. | Dec 14, 2021 3:22:30 PM

Yeah, another missed opportunity by the providers' lawyers, who I think might have created just a bit of pressure on this choice by saying, at argument in answer to his obviously unsympathetic questions on the merits, that if he's inclined to overrule Roe he must, on his lights, do so in a suit brought by a patient and not reach a question of this magnitude sans jurisdiction.

Posted by: Asher | Dec 14, 2021 2:53:16 PM

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