HHS Proposes Facilitating Abortions and Medical “Gender Transitions” for Unaccompanied Children

On October 4, 2023, the U.S. Department of Health and Human Services’ Administration for Children and Families (ACF) proposed new regulations “relating to the key aspects of the placement, care, and services provided to unaccompanied children” by the Office of Refuge Resettlement (ORR). The proposed rule titled, “Unaccompanied Children Program Foundational Rule,” is open for public comment until Monday, December 4, 2023.

EEOC Enforcement Guidance on Harassment in the Workplace: Proposed Updates Raise Concerns

Rachel Morrison

Testing the Testers: The Supreme Court is Set to Consider the Standing of Private Citizens Who Sue to Enforce the Americans with Disabilities Act

Karen Harned

On October 4, the Supreme Court will hear arguments in Acheson Hotels LLC v. Laufer. The case explores whether so-called “tester” plaintiffs under the Americans with Disabilities Act have standing to sue for alleged ADA violations under Article III of the Constitution, even when such plaintiffs have no intention of patronizing the business they are suing.

New Legal Analysis: Regulatory Implications of Turning Internet Platforms Into Common Carriers

Neil Chilson

The content moderation policies of major internet platforms like Facebook and X (formerly Twitter) have faced escalating criticism in recent years. Many conservatives now argue that because these platforms exhibit political bias and routinely censor right-leaning political views and news stories, some sort of government regulation is required. Standing in the way, however, is the First Amendment.

Is It Lawful to Use Regulatory Impact Analysis to Achieve Equity?

J. Kennerly Davis, Jr.

Circular A-4, issued by the Office of Management and Budget (OMB), provides detailed guidance to federal agencies regarding the methodological attributes of sound regulatory impact analysis. The Biden administration has proposed modifications to Circular A-4 that were recently peer reviewed in preparation for the finalization and public release of a modified Circular A-4, perhaps by the end of this calendar year.

EEOC Proposes Expansive Pregnant Workers Fairness Act Regulations

Rachel Morrison

On August 7, 2023, the Equal Employment Opportunity Commission (EEOC) issued proposed regulations implementing the Pregnant Workers Fairness Act (PWFA). The Commission is accepting public comment on its proposal until Tuesday, October 10.

The Origins of the 2011 Dear Colleague Letter on Campus Sexual Assault

KC Johnson

Six years ago, I filed a FOIA request for various documents relating to the origin of the Dear Colleague letter, the 2011 Obama administration guidance on Title IX that sought to crack down on campus sexual assault by requiring universities to adjust their procedures to make it more likely that accused students would be found responsible.

Do Title IX Proceedings Count as Legal Processes, or Don’t They?

KC Johnson

The Obama administration’s efforts to use Title IX to pressure universities to crack down on campus sexual assault transformed higher-education law. To date, 512 accused students have filed federal lawsuits (more than 200 have filed suit in state courts), and they’ve enjoyed surprising success—securing favorable rulings from the First, Second, Third, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuit Courts of Appeal. The specific facts and legal theories vary from case to case. But the core issue remains whether campus procedures that “have been compared unfavorably to those of the infamous English Star Chamber” have sufficient procedural integrity to be reliable.

The Problem with AI Licensing & an “FDA for Algorithms”

Neil Chilson and Adam Thierer

Last year, we released a study for the Federalist Society predicting “The Coming Onslaught of ‘Algorithmic Fairness’ Regulations.” That onslaught has now arrived. Interest in artificial intelligence (AI) and its regulation has exploded at all levels of government, and now some policymakers are floating the idea of licensing powerful AI systems and perhaps creating a new “FDA for algorithms,” complete with a pre-market approval regime for new AI applications. Other proposals are on the table, including transparency mandates requiring government-approved AI impact statements or audits, “nutrition labels” for algorithmic applications, expanded liability for AI developers, and perhaps even a new global regulatory body to oversee AI development.

HHS Proposes Special HIPAA Privacy Rules for “Reproductive Health Care” Information

Rachel Morrison

In accord with the Biden administration’s pro-abortion agenda, the U.S. Department of Health and Human Services issued a notice of proposed rulemaking (NPRM) on April 17, 2023, titled “HIPAA Privacy Rule To Support Reproductive Health Care Privacy.” The NPRM would modify privacy standards under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) for information related to “reproductive health care.”