One of my primary themes here is to remind readers that the Founding Fathers honored and protected the civil litigation process for all types of civil suits, including those filed by my friends and allies in the social conservative movement. The 7th Amendment protects the right to a jury trial for civil suits for standard tort claims arising from accidents, defective products, and medical malpractice… and that right also protects our religious liberty, gun rights, property rights, and so on. One of the points I make with my conservative friends is that “the tort reform movement is coming for you” in ways they would never imagine. This week, we might have the third instance in two years, and the second this year, in which tort reform confronts social conservatives.
In a 5-4 decision in the Pliva vs. Mensing case, the Supreme Court ruled that federal legislation regulating generic drugs pre-empts state law, effectively immunizing generics from state court cases. The decision also leaves generics in a favorable legal position compared to brand-name drugs, since the Court decided in Wyeth vs. Levine two years ago that the federal law regulating brand-names doesn’t pre-empt state law, a point that Justices acknowledged in the Mensing decision. As generics constitute upwards of 70% of all drug sales, the Mensing decision marks a major step forward in the tort reform movement’s campaign to eliminate lawsuits immediately upon FDA approval.
For the pro-life movement, this raises the specter that the makers of generic forms of RU-486, the “morning-after pill,” can count on federal pre-emption to immunize them from civil suits over the pill’s dangerous side-effects. So the Mensing decision may have created a permanent safe harbor for generic RU-486, foreclosing an important tool in the pro-life movement’s fight to ban RU-486. As I posted on August 28, 2010, trial lawyers have assisted the pro-life and womens’ health causes for decades, by pursuing dangerous abortifacients, unsafe drugs, and defective medical devices, all approved by a FDA asleep at the switch. Civil suits might be the last line of defense for champions of the unborn against the new wave of abortifacient technology, but not if the technology is immunized through pre-emption in federal law.
This comes after the Supreme Court decisions in the Iqbal and Twombly cases, which also impact social conservatives, especially those who litigate on behalf of their causes. I’ve written often on those cases and the potential impact on all plaintiffs. The Alliance Defense Fund wrote an important letter in early 2010 to Congress over its concern that the decisions could threaten every American’s religious liberty through imposition of an uncertain “plausibility” standard, which invites “defensive lawyering” and subjective dismissals of complaints by individual judges.
And the House Judiciary Committee is still preparing to act on H.R. 966, the “Lawsuit Abuse Reduction Act,” the tort reform movement’s bill to unnecessarily impose sanctions on plaintiffs’ attorneys as a means of preventing lawsuits. As I wrote on March 10, “LARA” could “scare away nonprofits or small firms specializing in religious liberty cases from filing suits against large entities, for fear that a judge could impose costly sanctions.rights to protect religious liberty against infringement by various parties.” If “LARA” had been in effect last year, social conservatives might not have filed a lawsuit that forced the University of Illinois to back down from threatening to fire a professor for discussing Christianity in his history class.
Social conservatives should look over their shoulder; the tort reform movement is coming for them, case by case.