Jun 29, 2022 • 8M

🗞️The Post-Roe Era Begins, What's Left of Miranda Rights, & Juul Fights for Survival

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This Week: Surveying the new Post-Roe landscape, understanding the implications of the SCOTUS ruling on Miranda Rights, and the latest in the vaping wars. Plus, how the recession may affect remote work, the corporate response to the Roe reversal, and the internal discussions at Big Tech over Roe.

🏥 Welcome to a Post-Roe America

Last week was a colossal week of rulings for the Supreme Court — the most historic one, of course, being the overturning of Roe v. Wade, ending about a half-century of constitutionally-protected abortion rights for women across the United States. The ruling had been expected for a few weeks now, as a leaked draft of the ruling was initially published by POLITICO back in May. Even still, the 6-3 decision struck the nation hard (regardless of which side you're on), with consequences being felt almost immediately.

  • The majority opinion, written by Justice Alito, says the 1973 Roe v. Wade ruling had no basis in the US Constitution. He adds, “Roe and Casey are overruled, and the authority to regulate abortion is returned to the people and their elected representatives.”

  • The 3 justices comprising the dissent (Justices Breyer, Kagan, and Sotomayor) wrote their opinion concurrently, without a named author — a rare move. They said that the majority's ruling creates a nation in which, “from the very moment of fertilization, a woman has no rights to speak of.”

  • According to the Washington Post, some 8 states saw abortion procedures banned immediately with the overruling of Roe as a result of trigger laws, with an additional 5 states set to ban abortions within 30 days of the ruling. In states like Wisconsin and Texas, abortion providers have already begun calling patients to cancel their upcoming abortion appointments.

Thomas's Warning

Writing in a concurring majority opinion, Justice Clarence Thomas signaled that Roe's reversal (and the court's reasoning) may mean more landmark cases could soon fall. “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” writes Justice Thomas, notes The Verge. “Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.” 

The Verdict

It's been a shocking few weeks for SCOTUS — between the unprecedented Roe leak and its fall. Women across the country are already grappling with their new reality in which they have fewer rights than they did just last week. No doubt that the fight over abortion access isn't over, but just entering a grizzly new phase.

🎧 What We’re Listening to

This week, we’re jamming to tenor saxophonist Sonny Rollins. Rising to fame in the 1950s, the NYC-born musician landed early features with Miles Davis, Art Taylor, J.J. Johnson, Bud Powell, and Thelonious Monk while developing his classic style of jazz. In 1958, he came out with Freedom Suite, a 5-track, 50m album in the style of Hard-Bop that portrays his experience as a black musician at the height of the civil rights era.

Freedom Suite - Sonny Rollins
Apple Music / Spotify / YouTube Music / Amazon Music

🚓 Are the Miranda Rights Wrong?

In another stunning reversal, the Supreme Court also ruled last week that police officers cannot be subject to civil liability for failing to warn an arrested suspect of their “right to remain silent” — also known as Miranda Rights — which protects suspects from self-incrimination and was established by the high court in 1966. The 6-3 ruling stated that federal civil rights law cannot be used against a police officer who fails to present a suspect with their Miranda Rights, even if any self-incriminating evidence is then used in court. 

  • As CNN notes, Justice Alito stated that violating Miranda Rights “is not itself a violation of the Fifth Amendment,” and that “we see no justification for expanding Miranda to confer a right to sue.”

  • Meanwhile, Justice Kagan, in joining with Breyer and Sotomayor in the minority opinion, said the decision strips “individuals of the ability to seek a remedy for violations of the right recognized in Miranda.”

Digital Rights

How does this decision affect digital Miranda Rights, if at all? This was the question Ars Technica posed back in 2016 (which now seems like an eternity ago), yet the issue has only gotten murkier, not more clear. Of course, when the Miranda case we settled, computers (let alone smartphones in every pocket) were not even fathomable. But, today, should a police officer arresting a suspect ask them for their phone's passcode, what should the suspect do? “You shouldn’t resist a police order, you should lodge your dissent, and you should ask and clarify that they’re asking you to do it,” Alex Abdo, an attorney with the American Civil Liberties Union, told Ars Technica at the time. “But you should comply — as a lawyer that’s the advice you’re going to have to give.”

The Verdict

In an era when police accountability is a major social issue, the Supreme Court ruling removed a central tool in that fight. Will a new case have to be brought before the high court to reinstate some sort of protection against self-incrimination?

🆘 Let’s Prepare

Red flags aside, we’re all (well) aware of where the economy is right now. Companies are gearing up for budget cuts, layoffs, and well — the looming downturn. Legal’s “cost center” moniker isn’t exactly helping to give them a voice in the discussion.

But is legal the underdog advisor the C-suite needs? We’ll be chatting over what legal can and is doing to mitigate risk during these troubling times with experts Matt Lubniewski (Associate GC, Zynga), Eric Fisher (Deputy GC, Gopuff), and Jared S. Mermelstein (Deputy GC, Evergreen Trading) next week Thursday!

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🚬 Banning the Crown Juul

Big Tobacco's cat and mouse game with the FDA is back in the news. This time with the ban of products by e-cigarette maker Juul (owned by Altria, formerly Phillip Morris). While the FDA has been publicly vocal about how vapes and e-cigarettes are contributing to the rise in smoking and nicotine addiction among teens, the agency's ban was directed rather at something else. The FDA's decision “was based on what the agency said was insufficient and conflicting data from the company about potentially harmful chemicals that could leach out of Juul’s e-liquid pods,” reports the New York Times.  

  • “Today’s action is further progress on the F.D.A.’s commitment to ensuring that all e-cigarette and electronic nicotine delivery system products currently being marketed to consumers meet our public health standards,” Dr. Robert M. Califf, FDA commissioner, said in a statement. 

  • In response, Juul immediately filed a stay of the ban, which has since been temporarily granted. 

The Temporary Stay

At the end of the week, a federal appeals court granted Juul's stay request. In its filing, the company argued that the FDA's ban was based on politics rather than science. Juul added that the political pressure to ban its products was aimed at stemming the youth vaping crisis, “even though several of its competitors now have a larger market share and much higher underage-use rates,” the filing reads, according to the New York Times. The FDA has until July 7th to file a motion in response.  

The Verdict

It's clear that the genie is already out of the bottle when it comes to teens and vaping. If that is the FDA's underlying goal with the Juul ban, then it’s too little too late. If, as the FDA states, the ban is rather a public safety matter, then Juul would be wise to make a safer vape and keep itself out of bigger problems.

📤 What Else We're Forwarding

Recession WFH: The Hustle asks if a recession will push workers back into the office for fear of losing their jobs otherwise. Then again, a recession also leads to cost-cutting measures by companies, which could include ditching the office altogether.

Corporate Response: Several major corporations, including Apple, Disney, and Google, have been responding to the overturning of Roe by offering to cover travel expenses linked to abortion care for employees, notes CNET. Other companies, like Bumble, have further pledged to support abortion resources like Planned Parenthood.

Post-Roe Row: Not every company stands perfectly unified in support of abortion rights, says Bloomberg Law. Several companies, Amazon and Meta included, have had heated internal discussions among employees about the Supreme Court ruling — leading Meta to bar employees from discussing the issue.

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See ya next week!

✌🏽 Raad