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Medication Abortion and the Mails: The Ghost of Anthony Comstock Rides Again?
Full text linkMail-order dispensing of the prescription drug mifepristone has become the latest flashpoint in this country’s long-running debate over abortion access. It also has brought back from the dead one of the oldest federal statutes to address that contentious subject. In their fight to limit access to a drug approved by the FDA one quarter of a century ago, abortion opponents have rediscovered the Comstock Act. Although amended on several occasions since 1873, Congress never managed to repeal or clarify its ambiguous language relating to abortion. On its narrowest reading, this provision would have no impact whatsoever on access to mifepristone; conversely, an overly expansive interpretation suggests that it imposes a federal ban on all forms of abortion, by medication or otherwise.
As this Article explains, a more plausible construction falls somewhere between these two extremes, which would jeopardize the dispensing of mifepristone by mail—and, more ominously, perhaps all mechanisms for shipping the drug—at least when labeled for use in abortion, but it should have no impact on access to other drugs when used “off-label” for this purpose and certainly would not interfere with the distribution of general purpose tools used in abortion procedures. Given the anti-vice crusade that animated the Comstock Act, this Article next asks whether the Fifth Amendment might limit its application to medication abortion. Although courts have at times suggested that legislation might fail rational basis scrutiny if designed to serve nothing other than an interest in promoting public morals, recent shifts in related constitutional doctrines make this an unlikely way of reinterring the Comstock Act and facilitating remote access to mifepristone
Honoring a Lasting Impact: Dr. Tom Beauchamp
No full textDr. Tom Beauchamp wrote multiple seminal articles that influenced bioethics, research ethics, and animal ethics. But his influence extends beyond his academic scholarship. Here we honor Dr. Beauchamp’s contributions as a scholar, mentor, and teacher
Okefen-Not-Okay: Georgia’s Wetlands Are in Danger
Full text linkWetlands are considered the kidneys of the earth’s ecosystem. Their complex hydrologic systems work to clean pollutants from surface and ground water—water that often ends up as drinking water. Since the 1940s, Congress has recognized the importance of clean water in our everyday lives, and it has passed several water protection laws including the Clean Water Act. The Clean Water Act requires a permit for any activity that discharges dredge or fill material into “waters of the United States.” However, environmentalists and private landowners were at odds on how broad the Environmental Protection Agency and Army Corps of Engineers could interpret waters of the United States, and the term’s jurisdiction had been expanded or weakened depending on the political body in charge.
In 2006, the Supreme Court had an opportunity to definitively define waters of the United States in Rapanos v. United States, but instead there was only a plurality decision. Justice Kennedy’s opinion held that wetlands which significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as “navigable” were protected under the Clean Water Act. In 2023, the scope of the waters of the United States was again challenged in Sackett v. Environmental Protection Agency. This time the Supreme Court reached a majority decision that significantly restricted the scope of the Clean Water Act’s protections for wetlands. Instead of only needing to have a significant impact on traditional navigable waters to be protected, the wetland now needs a continuous surface connection to a traditional navigable water. For states like Georgia that relied on the Clean Water Act’s permitting system to regulate dredging activities, wetlands are now in serious peril unless wetland protections are strengthened.
This Note explores protection options for Georgia’s wetlands at both the state and federal levels. First, Georgia could consider adopting legislation to protect wetlands throughout the entire state. Second, Georgia could at least consider adopting legislation to protect wetlands surrounding the celebrated Okefenokee Swamp. Finally, the federal government could use its constitutional authority under the Property Clause to protect wetlands surrounding the Okefenokee and other federally protected waterways
Tax Evasion and Judicial Oversight: Examining the Circuit Split on Conservation Easements
Full text linkConservation easements have long been an attractive tool for those seeking to minimize their tax bill. After all, it is a low-cost method of getting a sizeable tax deduction. But what should be an incentive for the environmental or historical preservation of land is instead a frequent avenue for tax abuse and avoidance. Regulations are one way the Internal Revenue Service (IRS) works to make the deduction harder to abuse. The subject of this Note provides one example: the “Proceeds Regulation,” which provides certain protections for the recipient of the conservation easement.
However, after a challenge from a taxpayer in Alabama, the Court of Appeals for the Eleventh Circuit found the Proceeds Regulation to be procedurally invalid. This has left the IRS without an important tool against abuse in the region of the United States that uses this deduction the most. This decision is now part of a circuit split, with the only other circuit court to consider the Proceeds Regulation’s validity coming to the opposite conclusion. This circuit split has left the validity of the rule in question throughout the country, creating uncertainty for taxpayers seeking a deduction for the charitable donation of a conservation easement. This Note evaluates and compares the respective decisions in the Eleventh and Sixth Circuits and offers potential solutions for how this newfound uncertainty can be resolved in a judicial landscape that is increasingly hostile to administrative actions
