World Anti-Doping Agency Code

By: Elizabeth Bulat

Edited By: Rayyana Hassan and Kirsten Huh

Before the 2021 Olympics, 20 athletes failed to meet anti-doping guidelines and had to forfeit their eligibility to compete in the summer games. [1] The issue of doping in sport has been managed by the Athletes Integrity Unit to ensure that athletes don’t have an unfair advantage while competing. Their guidelines follow the World Anti-Doping Code (WADA) that adheres to specific procedures, testing, and education resources to maintain a standard for athletes around the world. [2]

WADA outlines criteria for all substances to meet on the Prohibited List to ensure clarity. According to the WADA Code, a substance is added to the Prohibited List if it fits within at least two of the following: (1) poses a health risk to an athlete, (2) has the potential to enhance an athlete’s performance, or (3) violates the spirit of the game.

The WADA Prohibited List includes cannabinoid forms CBT, CBG, CBN, CBND, CBE, and CBL. In 2018, cannabidiol, or CDB, was removed from the Prohibited List since it doesn’t have the properties of intoxication or euphoria that arguably, “violate the spirit of the game.” The 2021 Tokyo Olympics were the first games where athletes were allowed to use CBD to enhance their recovery. [3]

Marijuana is currently illegal under federal law, however, 19 states and the District of Columbia have legalized the use of recreational Marijuana. [4] Despite the legal pluralism that protects individuals in a state, the additional level of surveillance by the WADA and Athletes Integrity Unite again prohibits its use.

Critics claim that the research behind the first and second criteria for the WADA Prohibited List is contradictory. A published paper by WADA argues that marijuana can pose a health risk to athletes since the drug slows their reaction times and cognitive function. [5] Therefore, according to this claim, the second point wouldn't necessarily enhance the athlete’s performance since their physical response to the drug isn’t favorable for sport. 

Furthermore, to determine whether or not marijuana is indeed performance-enhancing, many studies have taken place. The Clinical Journal of Sports Medicine conducted a study and review that concluded, “there is no evidence for cannabis use as a performance-enhancing drug.” [6] Meanwhile, the study’s findings also suggest that cannabis products, CBD included, could potentially enhance an athlete's recovery in terms of pain reduction, anxiety management, and sleep improvement. 

However, since other prescription and over-the-counter drugs can help an athlete achieve these same “performance-enhancing” qualities, it is debated reasoning to prove that cannabis is a justly violated substance. Jordan Tishler, M.D., a cannabis specialist explained in a Runner’s World interview that cannabis will only impact an athlete’s performance when they are under the influence. [7] Furthermore, the side effects of weed would be harmful to athletic performance if this were to be the case. Therefore, Tishler and other experts agree that cannabis can provide athletes with enhanced recovery, not enhanced performance. 

The third criterion for the WADA Prohibited List is perhaps the most difficult to establish. Multiple media outlets, including NPR, have reached out to WADA in hopes of obtaining a more clear and measurable definition for this point. [8] None have received a concrete response from WADA, leaving the public to assume that the spirit of the game boils down to the fact that athletes are role models for the future of the sport. Athletes, spectators, and research have suggested the hypocrisy of alcohol being permitted under this clause if drugs are excluded. 

The Drug Policy Alliance is working to remove all forms of cannabis from the WADA Prohibited List in addition to legalizing it across the United States. The Drug Policy Alliance released in a statement that, "drug testing does nothing to show current impairment. The USADA must undo this archaic, inhumane, and unscientific policy.” [9]

A particular athlete whose WADA suspension caught the media’s attention was sprinter Sha’Carri Richardson. Soon after she qualified for the Olympics in the 100-meter dash at the US Team Trials, Richardson failed a routine drug test that revealed she had levels of THC in her system. [10] Despite her dominance at the Trials, she was suspended for a month which overlapped with her Olympic race date. 

Contrary to the public’s typical response to a doping athlete, much of the fan and media coverage of Richardson was compassionate. In addition to sympathy being expressed for Richardson, the public began to question the US Anti-Doping Association’s ruling regarding marijuana. The major argument concerned CBD being allowed, and sometimes even encouraged, in the athletic world while the similar in theory but different biological compound, THC, is a suspendable substance.

As Richardson sat out of the Olympic games for using marijuana, US women’s soccer team forward, Megan Rapinoe, not only openly uses CBD but has her line of CBD products, Mendi. Rapinoe was featured in Forbes and celebrated by the athletic community for her and Mendi’s efforts to promote recovery and mental health. Ironically, this feature was published the same month Richardson was suspended for her use of THC. 

Supporters of Richardson and some skeptics interpreted this as not only hypocritical but also a moral issue. Twitter was flooded with opinions justifying that Rapino has played by the WADA rules while Richardson was well aware that her actions were punishable by the Athletic Integrity Unit. Other Tweets, including, “Rapinoe gets CBD brand deals while Richardson gets suspended. Sounds about WHITE,” suggest that this disproportionate response to a similar compound reflects racial injustice. Another Twitter user compared the THC and CBD discrepancies to crack cocaine being more criminalized than powder cocaine, leading to disproportionate incarceration rates by income. This comparison is rooted in the accessibility and popularity of the drug’s variations within different demographics.

WADA, the Athletic Integrity Unit, and the Olympic Committee have yet to comment or make policy changes since these points have been brought up. However, there is currently a bill in Congress to legalize marijuana in the United States. Since CBD is currently approved by the Food and Drug Administration and permitted under WADA, there are implications that it is difficult to prohibit an FDA-approved substance. Alcohol is another example of this. 

Marijuana and sport have a dynamic relationship in both policy and public opinion. Laws for Olympic competition are contingent upon WADA judgments that will likely waiver as further legislation and studies advance. Although CBD is an allowed substance, the products can contain trace amounts of other cannabis compounds that are flagged in drug tests. Therefore, until all marijuana forms are approved by WADA, no particular cannabinoid is truly safe to use in sport considering the risk involved. 

NOTES:

1. Tori Powell. “20 Olympic Athletes Ineligible to Compete after Failing to Meet Anti-Doping Guidelines.” CBS News, CBS Interactive, 29 July 2021, www.cbsnews.com/news/20-olympic-athletes-ineligible-to-compete-failing-anti-doping/ 

2. Fifth World Conference on Doping in Sport. “2021 CODE AND STANDARDS DOCUMENTS.” World Anti-Doping Agency, WADA's Mission Is to Lead a Collaborative Worldwide Movement for Doping-Free Sport., 1 Jan. 2021, www.wada-ama.org/en/resources/search?f%5B0%5D=field_resource_collections%3A228 

3. Griffin Lynch. “Summer Olympics 2021: Athletes Can Use CBD.” BATCH, BATCH, 10 Oct. 2021, https://hellobatch.com/blogs/cbd-blog/summer-olympics-2021-athletes-can-use-cbd 

4. Claire Hansen, Horus Alas, and Elliot Davis Jr. “Where Is Marijuana Legal? A Guide to Marijuana ...” US News, www.usnews.com/news/best-states/articles/where-is-marijuana-legal-a-guide-to-marijuana-legalization 

5. Kelly Malcom. “An Olympic Controversy: Do Marijuana and Athletics Mix?” Health & Wellness Topics, Health Tips & Disease Prevention, 22 July 2021, https://healthblog.uofmhealth.org/bones-muscles-joints/an-olympic-controversy-do-marijuana-and-athletics-mix 

6. Alan Edwards. “Cannabis and the Health and Performance of the Elite Athlete : Clinical Journal of Sport Medicine.” LWW, https://journals.lww.com/cjsportsmed/Fulltext/2018/09000/Cannabis_and_the_Health_and_Performance_of_the.9.aspx 

7. Ashley Mateo. “Peak Performance Is Not Likely to Happen When You're Using Cannabis, Experts Say.” Runner's World, Runner's World, 2 Nov. 2021, www.runnersworld.com/health-injuries/a37350981/is-marijuana-performance-enhancing/ 

8. Vanessa Romo. “As Megan Rapinoe Promotes CBD Use, Sha'carri Richardson Sits out the Olympics.” NPR, NPR, 28 July 2021, www.npr.org/sections/tokyo-olympics-live-updates/2021/07/28/1021545034/megan-rapinoe-cbd-shacarri-richardson-tokyo-olympics  

9. “Marijuana Legalization and Regulation.” Drug Policy Alliance, http://drugpolicy.org/issues/marijuana-legalization-and-regulation  

10. Elisha Fieldstadt. “U.S. Sprinter Sha'carri Richardson Suspended for One Month after Failed Drug Test.” NBCNews.com, NBCUniversal News Group, 14 July 2021, www.nbcnews.com/news/sports/sha-carri-richardson-could-miss-olympics-after-failed-drug-test-n1272960 

BIBLIOGRAPHY:

Costa, Jean-Paul. Legal Opinion 2019 (Expert Opinion) on the World Anti-Doping Code. WADA, 28 Oct. 2019, www.wada-ama.org/sites/default/files/resources/files/avis_2019_code_mondial_en.pdf  

Edwards, Alan. “Cannabis and the Health and Performance of the Elite Athlete : Clinical Journal of Sport Medicine.” LWW, https://journals.lww.com/cjsportsmed/Fulltext/2018/09000/Cannabis_and_the_Health_and_Performance_of_the.9.aspx 

Fifth World Conference on Doping in Sport. “2021 CODE AND STANDARDS DOCUMENTS.” World Anti-Doping Agency, WADA's Mission Is to Lead a Collaborative Worldwide Movement for Doping-Free Sport., 1 Jan. 2021, www.wada-ama.org/en/resources/search?f%5B0%5D=field_resource_collections%3A228 

Hansen, Claire, et al. “Where Is Marijuana Legal? A Guide to Marijuana ...” US News, www.usnews.com/news/best-states/articles/where-is-marijuana-legal-a-guide-to-marijuana-legalization 

Lynch, Griffin. “Summer Olympics 2021: Athletes Can Use CBD.” BATCH, BATCH, 10 Oct. 2021, https://hellobatch.com/blogs/cbd-blog/summer-olympics-2021-athletes-can-use-cbd 

Malcom, Kelly. “An Olympic Controversy: Do Marijuana and Athletics Mix?” Health & Wellness Topics, Health Tips & Disease Prevention, 22 July 2021, https://healthblog.uofmhealth.org/bones-muscles-joints/an-olympic-controversy-do-marijuana-and-athletics-mix 

“Marijuana Legalization and Regulation.” Drug Policy Alliance, http://drugpolicy.org/issues/marijuana-legalization-and-regulation  

Mateo, Ashley. “Peak Performance Is Not Likely to Happen When You're Using Cannabis, Experts Say.” Runner's World, Runner's World, 2 Nov. 2021, www.runnersworld.com/health-injuries/a37350981/is-marijuana-performance-enhancing/ 

Perishable. “Marijuana FAQ.” U.S. Anti-Doping Agency (USADA), 29 Sept. 2021, www.usada.org/athletes/substances/marijuana-faq/ 

Romo, Vanessa. “As Megan Rapinoe Promotes CBD Use, Sha'carri Richardson Sits out the Olympics.” NPR, NPR, 28 July 2021, www.npr.org/sections/tokyo-olympics-live-updates/2021/07/28/1021545034/megan-rapinoe-cbd-shacarri-richardson-tokyo-olympics  

Tori, Tori. “20 Olympic Athletes Ineligible to Compete after Failing to Meet Anti-Doping Guidelines.” CBS News, CBS Interactive, 29 July 2021, www.cbsnews.com/news/20-olympic-athletes-ineligible-to-compete-failing-anti-doping/ 

“U.S. Sprinter Sha'carri Richardson Suspended for One Month after Failed Drug Test.” NBCNews.com, NBCUniversal News Group, 14 July 2021, www.nbcnews.com/news/sports/sha-carri-richardson-could-miss-olympics-after-failed-drug-test-n1272960

Vaccine Mandates: The Supreme Court’s Decisions on the Future of Public Health

By: Mia Xia

Edited By: Katherine Ferreira O'Connor and Luke Vredenburg

        As COVID-19 has taken the United States by storm, resistance against mask and vaccine mandates has quickly followed. With anti-vaccine marches across Washington D.C, thousands of Americans have made their stance on the vaccine clear [1]. Federal judges have also rejected immunization requirements for federal workers, and the legality of vaccination mandates is making headway into the Supreme Court [2]. The Court’s most recent decisions blocked the Biden Administration’s attempt to institute vaccine mandates for businesses with more than 100 employees but provided an exception allowing mandates for healthcare workers at hospitals receiving federal money, prompting greater questions regarding where the lines for vaccination mandates are drawn [3]. Though federal vaccination mandates have been employed in past efforts to combat novel diseases, the Biden Administration has faced resistance from the courts in its attempts to implement similar policies. 

        In America, most vaccination mandates come into effect during childhood. For diseases like Hepatitis A and B, Tuberculosis, Polio, and Meningococcal ACWY, many states have implemented vaccine mandates as a prerequisite to enrolling in K-12 schools, both public and private [4]. Oftentimes, if families have not stated religious or medical reasons for opting out of immunization, children will not be allowed to enroll in daycares or attend school [5]. Some states have specific vaccine requirements – in New York and Rhode Island, all healthcare workers must be vaccinated against measles and rubella, with Rhode Island workers also being mandated to get the annual flu shot [6]. In many American universities, both public and private, vaccine mandates for diseases like Human Papillomavirus (HPV) are common, and COVID-19 vaccine requirements have become prevalent as well [7]. Thus, if immunization requirements are not abnormal in American society, what are the legal grounds for blocking legislation supporting COVID-19 vaccination mandates?

        In the recent decision concerning National Federation of Independent Business v. OSHA, the Supreme Court voted 6-3 against vaccination mandates for large, private businesses, with the majority reasoning that Congress does not have the power to regulate public health [8]. The dissenting opinion from Justices Breyer, Sotomayor, and Kagan wrote that the majority overruled legislative and executive powers without a proper legal basis [9]. For the majority to undermine the Occupational Safety and Health Administration’s (OSHA) jurisdiction to protect public safety, the minority argued, a greater burden would be placed on healthcare workers and future economic opportunities [10]. It is worth noting that within the clauses of OSHA’s Enabling Act, Congress grants the agency the ability to set an emergency standard if it believes workplace safety is at grave risk of toxic or physical harm [11]. In this regard, even with the OSHA reporting that blocking a vaccination mandate would mean “6,500 deaths and 250,000 preventable COVID cases,” the majority came to the conclusion that the OSHA had overexerted its powers to enact rules to protect workers [12]. However, considering the measurable steps OSHA took to define the public health risk and propose a vaccination mandate in response, the agency appears to make constitutional decisions and still remain within the bounds of its granted powers. The majority decision appears to have prioritized personal liberties and individual agency, where workers ought to have a say over their vaccination status. Meanwhile, the dissenting opinion’s interpretation regards vaccination mandates as a means of protecting public health, following the precedent of the use of previously enforced vaccination mandates for previous public health risks as the basis of their dissent. 

        In a similar case ruled alongside National Federation of Independent Business v. OSHA, the 5-4 decision made in favor of vaccine mandates in Missouri v. Biden contradicts the majority decision of OSHA. With Justices Roberts and Kavanaugh joining the liberal Justices in a majority decision, the Supreme court ruled that healthcare providers who are employed at facilities that accept Medicare and Medicaid are required to abide by a vaccination mandate for COVID-19 [13]. In the Congressional statute defining the Secretary of Health and Human Services abilities, the Secretary is allowed to issue regulations that ensure proper administration of federal healthcare programs like Medicare and Medicaid and ultimately, protect the health and safety of constituents [14]. In this decision, the majority argued that mandates enforced by current Secretary Alex Azar were made within the bounds of authority Congress had granted him [15]. The dissenting opinion instead regarded these statutes as “scattered provisions” that did not justify a vaccination mandate, employing a similar argument from the OSHA case that healthcare workers ought not to be subjected to procedures against their will [16]. 

        Vaccines and masks are the answer to the public health crisis that continues to ravage this nation [17]. However, in the Court’s divisive rulings which favor the interests of private industries, the lines drawn between public and private institutions have been made extremely clear. On one hand, the Court has allowed for private entities to function under the radar of public health expectations, opting for the prioritization of individual liberties and choice. Meanwhile, for federally supported health care facilities already burdened with the increasing number of COVID cases and extreme fatigue, the Court has recognized the cruciality of vaccination mandates to protect both workers and patients. Vaccination mandates are essential for individuals to not only preserve their own health and wellbeing but also to protect those around them who may be in a more vulnerable position. There exists a historical precedent for federal vaccination mandates, yet questions of constitutionality still linger. Vaccine and mask mandates are the best solutions to protect the collective health of a community, and the race against time to prevent further deaths is limited. Taking the necessary steps to stop the spread is key to ending the pandemic once and for all. 

NOTES:

1. Katie Mettler et al, Anti-Vaccine Activists March in D.C. - a City That Mandates Coronavirus Vaccination - to Protest Mandates, (The Washington Post, 24 Jan. 2022), https://www.washingtonpost.com/dc-md-va/2022/01/23/dc-anti-vaccine-rally-mandates-protest/. 

2. Peter Sullivan, Federal Judge in Texas Blocks Biden's Vaccine Mandate for Federal Workers, (The Hill, 21 Jan. 2022), https://thehill.com/policy/healthcare/590797-federal-judge-in-texas-blocks-bidens-vaccine-mandate-for-federal-workers. 

3. Adam Liptak, Supreme Court Blocks Biden's Virus Mandate for Large Employers, (The New York Times, 13 Jan. 2022), https://www.nytimes.com/2022/01/13/us/politics/supreme-court-biden-vaccine-mandate.html. 

4. Drew DeSilver, States Have Mandated Vaccinations since Long before COVID-19, (Pew Research Center, 8 Oct. 2021), https://www.pewresearch.org/fact-tank/2021/10/08/states-have-mandated-vaccinations-since-long-before-covid-19/. 

5. Drew DeSilver, States Have Mandated Vaccinations since Long before COVID-19.

6. Ibid.

7. Ibid.

8. Kevin Breuninger and Spencer Kimball, Supreme Court Blocks Biden Covid Vaccine Mandate for Businesses, Allows Health-Care Worker Rule (CNBC, 14 Jan. 2022), https://www.cnbc.com/2022/01/13/supreme-court-ruling-biden-covid-vaccine-mandates.html. 

9. Breuninger and Kimball, Supreme Court Blocks Biden Covid Vaccine Mandate for Businesses, Allows Health-Care Worker Rule. 

10. Richard Lempert, The Vaccine Mandate Cases, Polarization, and Jurisprudential Norms, (Brookings Institute, 15 Jan. 2022), https://www.brookings.edu/blog/fixgov/2022/01/15/the-vaccine-mandate-cases-polarization-and-jurisprudential-norms/. 

11. Lempert, The Vaccine Mandate Cases, Polarization, and Jurisprudential Norms.

12. Ibid. 

13. Liptak, Supreme Court Blocks Biden's Virus Mandate for Large Employers. 

14. Ibid. 

15. Ibid. 

16. Ibid. 

17. Lindsay Kalter, Why Vaccine and Mask Mandates Hold up in Court, (WebMD, 12 Oct. 2021), www.webmd.com/vaccines/covid-19-vaccine/news/20211012/why-mandates-hold-up-in-court. 

Bibliography:

Breuninger, Kevin, and Spencer Kimball. “Supreme Court Blocks Biden Covid Vaccine Mandate for Businesses, Allows Health-Care Worker Rule.” CNBC, 14 Jan. 2022, https://www.cnbc.com/2022/01/13/supreme-court-ruling-biden-covid-vaccine-mandates.html. 

DeSilver, Drew. “States Have Mandated Vaccinations since Long before COVID-19.” Pew Research Center, 8 Oct. 2021, https://www.pewresearch.org/fact-tank/2021/10/08/states-have-mandated-vaccinations-since-long-before-covid-19/. 

Kalter, Lindsay. “Why Vaccine and Mask Mandates Hold up in Court.” WebMD, 12 Oct. 2021, www.webmd.com/vaccines/covid-19-vaccine/news/20211012/why-mandates-hold-up-in-court. 

Lempert, Richard. “The Vaccine Mandate Cases, Polarization, and Jurisprudential Norms.” Brookings Institute, 15 Jan. 2022, https://www.brookings.edu/blog/fixgov/2022/01/15/the-vaccine-mandate-cases-polarization-and-jurisprudential-norms/. 

Liptak, Adam. “Supreme Court Blocks Biden's Virus Mandate for Large Employers.” The New York Times, 13 Jan. 2022, https://www.nytimes.com/2022/01/13/us/politics/supreme-court-biden-vaccine-mandate.html. 

Mettler, Katie, et al. “Anti-Vaccine Activists March in D.C. - a City That Mandates Coronavirus Vaccination - to Protest Mandates.” The Washington Post, 24 Jan. 2022, https://www.washingtonpost.com/dc-md-va/2022/01/23/dc-anti-vaccine-rally-mandates-protest/. 

Sullivan, Peter. “Federal Judge in Texas Blocks Biden's Vaccine Mandate for Federal Workers.” The Hill, 21 Jan. 2022, https://thehill.com/policy/healthcare/590797-federal-judge-in-texas-blocks-bidens-vaccine-mandate-for-federal-workers.

A Legal History of Affirmative Action

By: Mia Xia

Edited By: Renan Dennig and Anna Westfall

In American society, race plays a significant role in influencing and determining educational outcomes. Throughout a student’s entire educational journey, race consciousness lingers in the minds of BIPOC families. They are forced to worry about how a child’s identity could hinder their ability to learn if the wrong school is chosen. In attempts to address the historical inequities present in the educational system, American universities have made efforts to implement affirmative action measures that allow admissions to account for a student’s racial identity. However, multitudes of white Americans have criticized the practice. They argue that affirmative action discriminates against white students to uplift undeserving students. As a result, with the founding of Students For Fair Admissions Inc., a non-profit that “believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional,” legal advocates have proposed questions of the legality of affirmative action in state and federal courts as a tactic to end the practice. [1] The most recent legal case, Students For Fair Admissions Inc. v. President & Fellows of Harvard College, questions whether or not affirmative action discriminates against Asian American students. With the pending hearing from the Supreme Court, the course of education may change drastically.

The practice of affirmative action began with President John F. Kennedy’s executive order in 1961 requiring government contractors to utilize affirmative action to “ensure that applicants are employed…[and] treated during employment, without regard to their race, creed, color, or national origin.” [2] While affirmative action began as an accountability measure for businesses that received federal funding, the procedure has been broadened to include educational institutions that have discriminated against students of color in the past, using affirmative action as a remedy for their historical injustices. [3] Various laws following President Kennedy’s executive order have been passed to uphold and reaffirm anti-discriminatory practices, notably Title VI of the Civil Rights Act of 1964, Title IX of the Educational Amendments of 1972, and Section 504 of the Rehabilitation Act of 1973. [4] In terms of Supreme Court cases, most decisions have upheld the cruciality of affirmative action as a means to ensure that BIPOC students are not actively discriminated against in admissions processes. With majority decisions in Brown v. Board of Education (1954), Regents of the University of California v. Bakke (1978), and Grutter v. Bollinger (2003), the Supreme Court has consistently recognized the intrinsic purpose of affirmative action and its continued necessity within an inequitable educational system. [5] 

Following these notable legal challenges, in Fisher v. University of Texas (2013 & 2016), Students for Fair Admissions Inc. (SFFA) brought forth a lawsuit on behalf of two white students, Abigail Fisher and Rachel Michalewicz. [6] Students For Fair Admissions sought to challenge affirmative action practices by attempting to identify violations of the Equal Protection Clause of the 14th Amendment that mandates equality under the law. [7] Interestingly, affirmative action actually benefits students like Fisher and Michalewicz as white females. In a report from the American Association of University Women in 2009, it was found that white women were receiving most bachelor’s, master’s, and doctoral degrees. In addition, the number of women physicians tripled over three decades, growing from 7.6% to 25.2%. [8]

In the first instance of the case, Fisher I, the Supreme Court ruled on a 7-1 decision in favor of Fisher on the basis that UT’s admissions policies must be reviewed under strict scrutiny, and ruled that the lower Court of Appeals’ decision in favor of UT Austin did not take the decisions made in Regents or Grutter into enough consideration. [9] The only dissenting opinion from Justice Ginsburg argued that race was only one factor in a holistic admissions process, which was permissible under judicial precedent. She noted the harms of color-blind admissions as an attempt to overlook the historical discrimination students of color have faced. [10] As a result, the case was remanded to promote further deliberations on the university’s admissions practices. 

In the second instance of the case, Fisher II, the Supreme Court upheld in a 4-3 decision that UT Austin's affirmative action policy was constitutional and encouraged more educational opportunities and a diverse student body. [11] Noting the past decision made in Grutter v. Bollinger, where affirmative action policy was allowed but racial quotas were deemed unconstitutional, the majority opinion emphasized their opposition towards utilizing quotas and percentages of a certain racial group as a means of diversifying a university’s student body. [12] 

While these decisions have continued to support and reaffirm the constitutionality of affirmative action, Students for Fair Admissions has continued in its efforts to dismantle the practice on the basis of unfair admissions practices against white students. With the unsuccessful result of Fisher II, the organization began to advocate for color-blind admissions under pretenses that affirmative action violates the Civil Rights Act in 2014, arguing that Harvard has discriminated against Asian American students in their admissions processes. [13] From research conducted by SFFA, the organization argued that Asian American applicants had received significant penalties relative to white students, even if they had stronger academic and extracurricular performance and achievement. [14] However, a subsequent decision issued by the 1st Circuit Court of Appeals followed precedent by upholding the constitutionality of race-conscious admissions. [15]

SFFA v. Harvard currently awaits its Supreme Court hearing in 2022. With a lawsuit against one of the most elite and profound institutions in American education, the Supreme Court could change the course of educational opportunities to adopt a more “color-blind approach.” [16] With Justices Gorsuch, Kavanaugh, and Barrett serving as new additions to the bench since the last affirmative action case, Fisher II, it is entirely uncertain what the outcome will be. Nevertheless, the elimination of affirmative action would pose detrimental consequences for efforts to address and alleviate historical injustices imposed upon BIPOC students. While white Americans perceive affirmative action as a practice that creates “easier” pathways to admissions for BIPOC students, in reality, the process has most benefited and served white females. [17] In addition, even if SFFA has directed its attention towards representing Asian Americans, 70% of Asian American voters actually support affirmative action. [18] Rather than disparaging a practice that had to be implemented to reduce a gap created by centuries of oppression, America ought to critique the foundations of the American university system that have always favored the most privileged applicants. 

NOTES:

1. About, (Students for Fair Admissions), www.studentsforfairadmissions.org/about/

2. Affirmative Action, (Legal Information Institute), www.law.cornell.edu/wex/affirmative_action. 

3. Affirmative Action.

4. Affirmative Action.

5. Martha S. West, The Historical Roots of Affirmative Action, (History Lessons, The Women’s Review of Books, vol. XIII, 1996), lawcat.berkeley.edu/record/1116312/files/fulltext.pdf.

6. Allyson Waller, Lawsuit Targeting UT-Austin’s Affirmative Action Policy Dismissed by Judge, (The Texas Tribune, 27 July 2021), www.texastribune.org/2021/07/27/ut-austin-affirmative-action.

7. Fisher v. University of Texas, (Oyez), www.oyez.org/cases/2012/11-345. 

8. Victoria M. Massie, White women benefit most from affirmative action — and are among its fiercest opponents, (Vox, 23 June 2016), https://www.vox.com/2016/5/25/11682950/fisher-supreme-court-white-women-affirmative-action

9. Fisher v. University of Texas. 

10. Fisher v. University of Texas. 

11. FISHER v. UNIVERSITY OF TEX. AT AUSTIN, (Legal Information Institute, 23 June 2016), www.law.cornell.edu/supremecourt/text/14-981.

12.  FISHER v. UNIVERSITY OF TEX. AT AUSTIN.

13.  P. R. Lockhart, Students for Fair Admissions v. Harvard, the Affirmative Action Case, Explained, (Vox, 19 Oct. 2018), www.vox.com/2018/10/18/17984108/harvard-asian-americans-affirmative-action-racial-discrimination.

14.  Students for Fair Admissions v. President of Harvard College, (Casetext, 12 Nov. 2020), casetext.com/case/students-for-fair-admissions-v-president-of-harvard-coll-1.

15.  Students for Fair Admissions v. President of Harvard College.

16.  Jennifer Lee, Affirmative Action and Anti-Asian Racism, (Science, 3 Feb. 2022), www.science.org/content/blog-post/affirmative-action-and-anti-asian-racism.

17.  Sally Kohn, Affirmative Action Has Helped White Women More Than Anyone, (Time, 17 June 2013), time.com/4884132/affirmative-action-civil-rights-white-women.

18.  Lee, Affirmative Action and Anti-Asian Racism.

BIBLIOGRAPHY:

“About.” Students for Fair Admissions, www.studentsforfairadmissions.org/about/.

“Affirmative Action.” Legal Information Institute, www.law.cornell.edu/wex/affirmative_action. Accessed 8 Feb. 2022.

“FISHER v. UNIVERSITY OF TEX. AT AUSTIN.” Legal Information Institute, 23 June 2016, www.law.cornell.edu/supremecourt/text/14-981.

“Fisher v. University of Texas.” Oyez, www.oyez.org/cases/2012/11-345. Accessed 8 Feb. 2022.

Kohn, Sally. “Affirmative Action Has Helped White Women More Than Anyone.” Time, 17 June 2013, time.com/4884132/affirmative-action-civil-rights-white-women.

Lee, Jennifer. “Affirmative Action and Anti-Asian Racism.” Science, 3 Feb. 2022, www.science.org/content/blog-post/affirmative-action-and-anti-asian-racism.

Lockhart, P. R. “Students for Fair Admissions v. Harvard, the Affirmative Action Case, Explained.” Vox, 19 Oct. 2018, www.vox.com/2018/10/18/17984108/harvard-asian-americans-affirmative-action-racial-discrimination.

Massie, Victoria M. “White Women Benefit Most from Affirmative Action - and Are among Its Fiercest Opponents.” Vox, 23 June 2016, www.vox.com/2016/5/25/11682950/fisher-supreme-court-white-women-affirmative-action. 

“Students for Fair Admissions, Inc. v. President of Fellows of Harvard College.” samv91khoyt2i553a2t1s05i-wpengine.netdna-ssl.com/wp-content/uploads/2014/11/SFFA-v.-Harvard-Complaint.pdf. Accessed 7 Feb. 2022.

“Students for Fair Admissions v. President of Harvard College.” Casetext, 12 Nov. 2020, casetext.com/case/students-for-fair-admissions-v-president-of-harvard-coll-1.

Waller, Allyson. “Lawsuit Targeting UT-Austin’s Affirmative Action Policy Dismissed by Judge.” The Texas Tribune, 27 July 2021, www.texastribune.org/2021/07/27/ut-austin-affirmative-action.

West, Martha S. “The Historical Roots of Affirmative Action.” History Lessons, The Women’s Review of Books, vol. XIII, 1996, lawcat.berkeley.edu/record/1116312/files/fulltext.pdf

Whole Woman’s Health v. Jackson and its Implications

By: Daniel Wolf

Edited By: Alexandre Brunet and Michael Crystal

         The Supreme Court recently released its decision in Whole Woman’s Health v. Jackson. The case revolved around Texas’s S.B. 8 law, which prohibits doctors from performing abortions after around six weeks into a woman’s pregnancy. S.B. 8 clearly violates Roe v. Wade, the landmark 1973 case in which the Court determined that the Due Process Clause of the Fourteenth Amendment allows women to seek abortions. Consequently, Texas devised a unique strategy for enforcing S.B. 8. To elude judicial review, Texas granted only private citizens – rather than state officials – the right to enforce the law. S.B. 8 provides citizens with “not less than $10,000” for each successful lawsuit brought against someone seeking an abortion made illegal under S.B. 8 or someone who intended to help provide a woman with an illegal abortion.[1] Essentially, this law designated all citizens as bounty hunters and removed all enforcement responsibility from state officials. By positioning private citizens as the enforcers of S.B. 8, Texas intentionally made it unclear whom abortion providers could sue to overturn the law. Ultimately, the Supreme Court remanded the case to a lower court, allowing S.B. 8 to remain in effect for the time being. Moreover, the Court issued a separate decision that prevents citizens from suing most Texas state officials over S.B. 8, drastically limiting people’s ability to effectively challenge the law until its constitutionality can once again be questioned. The Court’s limited ruling in Jackson has troubling implications for protecting fundamental rights in America and could cause states to pass a spate of laws similar to S.B. 8. 

         The Court’s opinion in Jackson is multipronged. In an 8-1 decision, the Court ruled that abortion providers may challenge S.B. 8 by suing “executive licensing officials” in Texas.[2] While this ruling may sound exciting for abortion access supporters, “executive licensing officials” include only state officials “responsible for licensing medical providers.”[3] Notably, it excludes higher-ranking Texas officials, such as court clerks, the attorney general, or the governor. These narrow grounds on which the Court has authorized lawsuits will make further challenges to the law exceedingly difficult.[4] Those wishing to sue the state for S.B. 8 will only be able to secure injunctions “preventing medical providers from being delicensed,” which, as The Guardian writes, will render their lawsuits “largely toothless.”[5] There is no indication that lawsuits brought against licensing officials would prevent potential bounty hunters from filing their own lawsuits, and private citizens may still be able to sue those who help facilitate an abortion.[6]

         In a separate 5-4 decision, the Court explicitly ruled that abortion providers may not sue Texas state clerks or Texas’s attorney general. Justice Neil Gorsuch authored the 5-4 opinion, stating that providers could not sue these state officials because of the doctrine of sovereign immunity, which protects states and state officials from private lawsuits.[7] There exists an exception to sovereign immunity called Ex Parte Young, which allows individuals to sue government officials who “attempt to enforce an unconstitutional law” or a law that runs counter to federal law.[8] However, Justice Gorsuch wrote that Young was inapplicable for state clerks and judges because the exception “does not normally permit federal courts to issue injunctions against state-court judges or clerks.”[9] Gorsuch concluded that suits brought against the attorney general could not proceed because, under the specifics of S.B. 8, the attorney general lacks “any enforcement authority.”[10] 

         There are numerous points of contention in Gorsuch’s argument. First, Gorsuch opines that state clerks and the attorney general are free from lawsuits because of sovereign immunity. However, this assessment requires an exclusionary reading of the precedent outlined in Young. As Chief Justice Roberts noted in his dissent, Young allows individuals to sue state officials for enforcing unconstitutional laws so long as the official in question can “take enforcement actions” under the law.[11] Under S.B. 8, the Texas attorney general can “‘institute an action for a civil penalty’ if a physician violates a rule” of S.B. 8. Thus, the Texas attorney general can “take enforcement actions” under S.B. 8 and should fall under the Young exception.[12] Although court clerks do not “normally” enforce state laws, under the “peculiar” rules of S.B. 8, court clerks still “issue citations and docket S.B. 8 cases” and are thus “sufficiently ‘connect[ed] to such enforcement to be proper defendants’” under Young.[13] 

         A second and more critical issue with Gorsuch’s argument is that he focused too heavily on the intricacies of sovereign immunity and its exceptions. In his dissent, Roberts affirmed that the “novelty” in his analysis of whom sovereign immunity applies to was a consequence of the “novelty of Texas’s scheme.”[14] Indeed, a scheme like Texas’s is unprecedented in America. Gorsuch carefully analyzed the specific details of S.B. 8 and relevant precedent but failed to consider the bigger picture. Texas’s law is a blatant attempt to nullify past Supreme Court rulings. In Marbury v. Madison (1803), perhaps the most important Supreme Court case in America’s history, Chief Justice John Marshall declared for the first time that the Constitution is “the fundamental and paramount law of the nation.”[15] Further, he stated that it “is emphatically the province and duty of the judicial department to say what the law is.”[16] Roberts observed in his dissent that “‘if the legislatures of the several states may, at will, annul the judgments of the courts…and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.’”[17] 

         Alas, at least regarding highly contested issues like abortion, the majority of the Court appears to have no interest in enforcing its own rulings. They have demonstrated such by refusing to repeal S.B. 8, which clearly violates the precedents outlined in Roe v. Wade and Planned Parenthood v. Casey. If Texas can violate federal law just by being creative with enforcement tactics, there is nothing to stop other states from doing the same. In a separate dissent, Justice Sonia Sotomayor lambasted the majority opinion because it “effectively invites other States to refine S.B. 8’s model for nullifying federal rights.”[18] Indeed, four states have already begun work on bills strikingly similar to S.B. 8.[19] On December 12, California Governor Gavin Newson announced his intention to design an assault weapons ban akin to S.B. 8 that could run afoul of the Second Amendment like S.B. 8 does of Roe v. Wade. Newsom’s announcement demonstrates that the Court’s decision in Jackson could have unforeseen consequences across the political spectrum.[20] The Court released its decision on December 10, and other states are already using the ruling to devise their own ways to undermine constitutional precedent. If the Court does not reverse course soon and resume enforcing its own precedential opinions, it could lose its position as the final authority on the law of the land, resulting in a dangerous destabilization of the stare decisis-based foundation on which our legal system rests.

Notes:

1. Whole Woman’s Health v. Jackson, 595 U.S. 4 (2021)

2. Whole Woman's Health v. Jackson, 4. 

3. Moira Donegan, “The Supreme Court's Abortion Ruling Is Even More Unsettling than It May Seem,” The Guardian, Guardian News and Media, December 11, 2021, https://www.theguardian.com/commentisfree/2021/dec/11/supreme-court-abortion-ruling-unsettling. 

4. “The Supreme Court’s Abortion Ruling,” The Guardian.

5. “The Supreme Court’s Abortion Ruling,” The Guardian.

6. Mark Joseph Stern, “The Supreme Court's Texas Abortion Decision Is a Disaster for Constitutional Rights.” Slate Magazine. Slate,  December 10, 2021. https://slate.com/news-and-politics/2021/12/supreme-court-texas-abortion-sb8-gorsuch-sotomayor.html. 

7. “The Supreme Court’s Texas Abortion Decision,” Slate Magazine.

8. Ex Parte Young, 209 U.S. 123 (1908)

9. Whole Woman's Health v. Jackson, 3.

10. Whole Woman's Health v. Jackson, 3.

11. Whole Woman's Health v. Jackson, 4.

12. Whole Woman's Health v. Jackson, 3.

13. Whole Woman's Health v. Jackson, 3.

14. Whole Woman's Health v. Jackson, 5.

15. Marbury v. Madison, 5 U.S. 137 (1803)

16. Marbury v. Madison, 4.

17. Whole Woman's Health v. Jackson, 4.

18. Whole Woman's Health v. Jackson, 2.

19. “The Supreme Court’s Texas Abortion Decision,” Slate Magazine.

20. The Associated Press, “California's Governor Pledges to Model an Assault Weapons Ban on Texas Abortion Law,” NPR, NPR, December 12, 2021, https://www.npr.org/2021/12/12/1063489922/california-governor-gavin-newsom-assault-weapons-ban-texas-abortion-law.

Bibliography:

Ex Parte Young, 209 U.S. 123 (1908)

Marbury v. Madison, 5 U.S. 137 (1803)

Press, The Associated. 2021. “California's Governor Pledges to Model an Assault Weapons Ban on Texas Abortion Law.” NPR. NPR. December 12. https://www.npr.org/2021/12/12/1063489922/california-governor-gavin-newsom-assault-weapons-ban-texas-abortion-law. 

“The Supreme Court's Abortion Ruling Is Even More Unsettling than It May Seem | Moira Donegan.” 2021. The Guardian. Guardian News and Media. December 11. https://www.theguardian.com/commentisfree/2021/dec/11/supreme-court-abortion-ruling-unsettling. 

Whole Woman's Health v. Jackson, 595 U.S. 4 (2021)

Stern, Mark Joseph. 2021. “The Supreme Court's Texas Abortion Decision Is a Disaster for Constitutional Rights.” Slate Magazine. Slate. December 10. https://slate.com/news-and-politics/2021/12/supreme-court-texas-abortion-sb8-gorsuch-sotomayor.html.