Case updates this week:

Thursday January 4th: Do No Harm, a conservative nonprofit whose stated mission is to “protect healthcare from a radical, divisive, and discriminatory ideology,” filed a suit in the federal District Court for the Western District of Louisiana challenging the state’s recently implemented diversity requirement for the Louisiana Medical Licensing Board. Board members are appointed by the Governor and confirmed by the state Senate. The 2018 law challenged in this suit sets forth the process for creating the list of candidates from which the Governor must choose. The law designates seven hospitals, medical schools, and physician organizations who each provide the Governor with a list of candidates. The law also prescribes the number of Board members that must come from each of those lists. Thus, for example, two members of the Board must come from a list submitted by the Louisiana Medical Association. The law also specifies with respect to four of the eight required lists that “[a]t least every other member appointed from a list provided for in this Paragraph shall be a minority appointee.”

The suit alleges that this violates the Equal Protection Clause of the Fourteenth Amendment because government classifications based on race require a narrowly tailored remedy to address a compelling governmental interest. The group argues that there is no compelling governmental interest served by the statute because they claim there are no “specific instances of racial discrimination” that it serves to remedy.

Tuesday January 23rd: The Fifth Circuit Court of Appeals dismissed a challenge to the FDA’s emergency-use authorization for COVID-19 vaccination in children in Children’s Health Defense v. FDA. The suit was brought by Children’s Health Defense, the anti-vaccine group founded by Robert F. Kennedy, Jr. that has previously been covered in this newsletter. The plaintiffs argued they had standing because their children might be vaccinated without their consent by a third party. However, the court rejected this argument, stating that it was too speculative to base standing on this hypothetical third party when they did not allege facts that would establish that their children would or could receive a COVID-19 vaccine without their consent. The plaintiffs also argued that they were injured by general societal pressure to get vaccinated, but the court held that this is both not a harm in and of itself, and also not sufficiently tied to the FDA’s issuance of an emergency use authorization.