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Washburn Law Journal Online, Volume 63

The Post-Roe Era: Standards of Care or Standards of Statute?

Caitlin A. Kremer | March 26, 2024 | Read this comment

Summary: Zurawski v. Texas is believed to be the first case women have sued for being denied an abortion since 1973.  Since the Supreme Court overruled Roe v. Wade in June 2022, abortion access has been left to each individual state.  After the Dobbs decision overturned Roe, Texas imposed a nearly complete abortion ban after six weeks of pregnancy.  While the Texas law gives exceptions to its abortion ban, “Emergent Medical Condition Exception,” plaintiffs in Zurawski v. Texas claim the exceptions are too vague, making physicians wary about their liability in providing abortions, and putting patient lives at risk.

The case includes several plaintiffs who were denied abortions in Texas—all experiencing complications with desired pregnancies.  While their situations vary, they all have the same thing in common: they were denied abortions in Texas that should have fallen under an emergency medical exception but ambiguity surrounding the Texas exceptions put the plaintiffs—and other fetuses—at risk.

The plaintiffs also include physicians.  These physician plaintiffs fear losing their medical licenses, receiving hefty fines, and earning up to 99 years in prison for providing abortion services.  Consequently, doctors are turning patients away and preventing patients from receiving the standard of care, or the degree of care a prudent and reasonable physician would provide in the same situation.  The fear and uncertainty regarding the scope of the life and health exceptions in the Texas law have put patient lives and physician livelihood in danger.  Such criminalization of a physician’s medical judgment is prohibiting adequate abortion care for fear of criminal and professional consequences, essentially coercing physicians away from the standard of care physicians should be providing.

Preferred Citation: Caitlin A. Kremer, The Post-Roe Era, 63 Washburn L.J. Online  55 (2024),

Two-Stepping Around Reasonable Suspicion: How Shaw v. Jones Remedies the Present Battle but Fails to Win the War on Fourth Amendment Abuses in Kansas

Dillon M. Schreckler | March 26, 2024 | Read this comment

Summary: Since 2014, the Kansas Highway Patrol has used the “Kansas Two-Step” to combat the so-called “war on drugs.”  To effectuate this strategy, troopers primarily stopped travelers from states which have legalized marijuana.  Once a trooper initiates a legal pre-textual stop on an individual traveling through Kansas, they must have reasonable suspicion before searching the vehicle.  This “two-step” strategy plays on a show of authority by officers unreasonably extending traffic stops to coerce consent to search a vehicle.  The officer begins by telling a detained individual an ambiguous statement that may signal they are free to go, but after a momentary pause re-engages the motorist to attempt to coerce consent to search.  The question before the Kansas district court was: does a reasonable person feel free to leave after the conclusion of a traffic stop, and does that person’s continued interaction with police suffice as a consensual encounter?  The district court said no and found the Two-Step tactic unconstitutional, violating both the Fourth Amendment and 42 U.S.C § 1983.  Yet, the court failed to provide a mechanism to prevent the possibility of future Fourth Amendment abuses on a nationwide scale.  To counter this problem, a bright line rule requiring officers to inform motorists of their right to end the encounter is needed.  This prerequisite helps ensure officers inform unaware citizens of their rights and then they can make the informed choice of whether to continue the encounter.  This bright line rule would help officers to understand their Fourth Amendment obligations.

Preferred Citation: Dillon M. Schreckler, Two-Stepping Around Reasonable Suspicion, 63 Washburn L.J. Online  43 (2024),

The Rapanos Nightmare is Over but WOTUS Worries Remain

Nicholas VanHee | March 21, 2024 | Read this comment

Summary: In Sackett v. Env’t Prot. Agency, the United State Supreme Court narrowed the Environmental Protection Agency’s and the United States Army Corps of Engineer’s jurisdiction over wetlands because of the confusion and lengthy and expensive litigation caused by the Rapanos decision in 2006.  Although this resolved the long-standing problem of understanding the term “waters of the United States,” this ruling risks half of the remaining 100 million acres of wetlands in the lower forty-eight states.  Justice Alito, author of the majority, relied upon scant legal authority to reach his conclusion that only adjoining wetlands should enjoy the protections of the Clean Water Act.  In Riverside Bayview, the Supreme Court held that all adjacent wetlands including wetlands separated by a dam, dike, natural berm, or other barrier are protected.  Now, these wetlands will no longer be protected thus jeopardizing the health of America’s waterways and its people. To limit the detrimental effects of this decision, Congress should use its power of the purse to incentivize states to take up their own wetland protection programs and include language in 2023 Farm Bill to conserve wetlands.

Preferred Citation: Nicholas VanHee, The Rapanos Nightmare Is Over but WOTUS Worries Remain, 63 Washburn L.J. Online  31 (2024),

Acquitted-Conduct Sentencing: Judicially Bypassing the Fifth and Sixth Amendments [United States v. McClinton, 23 F.4th 732 (7th Cir. 2022), cert. denied, 143 S. Ct. 2400 (2023)]

Preston K. Killingsworth | March 21, 2024 | Read this comment

Summary: In United States v. McClinton, the Seventh Circuit Court of Appeals, affirmed by the Supreme Court, upheld the constitutionality of acquitted-conduct sentencing because a sentencing judge is allowed to take into consideration underlying conduct committed in furtherance of the crime charged, to enhance a defendant’s sentence.  Relying on precedent that framed the issue under a Due Process analysis, the Supreme Court never really addressed the concerns regarding the Sixth Amendment right to a jury trial.  Because acquitted-conduct sentencing undermines the jury’s role in a criminal trial, the use of acquitted-conduct to enhance a defendant’s sentence should be a violation of the Sixth Amendment.  Additionally, with differentiating burdens of proof, the allowance of inadmissible evidence, and the vast amount of discretionary power at the sentencing phase, acquitted-conduct sentencing promotes unconstitutional practices under the Due Process Clause of the Fifth Amendment.  Affirming the constitutionality of acquitted-conduct sentencing allows for manipulation of our criminal justice system.

Preferred Citation: Preston K. Willingsworth, Acquitted-Conduct Sentencing, 63 Washburn L.J. Online  19 (2024),

The IDEA Behind Educationism and Meaningful Participation [Beer v. USD 512 Shawnee Mission]

Annie C. McHenry | February 22, 2024 | Read this comment

Summary: In Beer v. USD 512 Shawnee Mission, the United States District Court for the District of Kansas held that a child’s free, appropriate public education was denied partly due to the school’s failure to allow the parents to “participate meaningfully” in the creation of their child’s Individualized Education Program.  The court conducted a thorough analysis of this issue and concluded that the parents needed not only access to all relevant information regarding their child’s education but also needed to understand the information they were given.  This Comment discusses the educationism illustrated by the court and why structural change is necessary in order to ensure special needs children receive the level of education they are entitled to.

Preferred Citation: Annie C. McHenry, The IDEA Behind Educationism and Meaningful Participation, 63 Washburn L.J. Online  9 (2024),

Range v. Att’y Gen.: When Overbreadth Becomes Dangerous

Joshua N. Becker | February 2, 2024 | Read this comment

Summary: Statutes that prohibit felons from possessing firearms have existed for quite a while in the United States. But now, the Third Circuit Court of Appeals, is casting doubt on the validity of those statutes. To make it worse, they casted doubt on the statutes when they did not have to. The court took a case of a very low-level criminal and stretched Second Amendment principles beyond their logical limit to reach a conclusion that may have invalidated felon-in-possession law entirely.

They should not have reached so broad a conclusion. There were opportunities for a narrow decision that does justice to Range but protects necessary safeguards that protect us all from dangerous people having guns. Their alternatives were: (1) invalidate the federal “felony-equivalent” standard because that standard violates due process; (2) applying their Circuit’s test correctly to find valid regulations that have “historical analogues” to historical gun regulations; or (3) applying a “dangerousness” test to prohibit only dangerous felons from possessing firearms on a case-by-case basis.

Preferred Citation: Joshua N. Becker, Range v. Att’y Gen.: When Overbreadth Becomes Dangerous, 63 Washburn L.J. Online  35 (2024),

Paving a Path to Justice: Examining the Implications of the Ruan v. United States Decision on the Opioid Crisis [Ruan v. United States, 142 S. Ct. 2370 (2022)]

Yvonne Theresa SparrowSmith | December 15, 2023 | Read this comment

Summary: The Controlled Substances Act places stringent restrictions on prescribing controlled substances, such as opiates, and subjects doctors to criminal prosecution for violating those restrictions.  In Ruan v. United States, however, the Court held that a doctor does not violate the Controlled Substances Act unless the government can prove he knew his conduct fell outside an exception for prescriptions authorized under related regulations.  These exceptions allow doctors to prescribe controlled substances following their professional discretion.

In short, this decision is vital for both healthcare providers and patients who rely on prescriptions for controlled substances to relieve pain.  For healthcare providers, the holding provides much-needed clarity about when they may prescribe controlled substances without fear of criminal prosecution.  This clarity will help them continue providing needed care to patients without unnecessarily burdening themselves with worry about the threat of criminal prosecution.  For patients, the decision means they can continue relying on their doctor’s prescription for a controlled substance to relieve pain without fear their doctor may be criminally prosecuted.

Preferred Citation: Yvonne Theresa SparrowSmith, Paving a Path to Justice: Examining the Implications of the Ruan v. United States Decision on the Opioid Crisis, 63 Washburn L.J. Online  21 (2023),

Cargill v. Garland: How Ambiguous Is It?

Nathan T. Seltzer | December 15, 2023 | Read this comment

Summary: In 2017, the horrific mass-shooting in Las Vegas, Nevada, raised the profile of a previously obscure weapon modification known as a “bump stock.”  Following a presidential directive, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) reinterpreted the definition of “machinegun” under the Firearms Control Act to include semi-automatic guns modified with bump stocks, reversing a position it had held since at least 2008.  This made possession of bump stocks illegal, and the ATF confiscated two such devices from Michael Cargill, who sued.

The government won in district court under Chevron deference, and the judgment was upheld by a Fifth Circuit panel.  However, in the case at bar, a 13-3 decision of an en banc Court reversed the panel and created a circuit split by holding the statute was unambiguously contrary to the ATF position; but, even if it was ambiguous, the rule of lenity foreclosed the ATF position.

Chevron does not apply to criminal statutes; the rule of lenity resolves ambiguity against criminality.

Preferred Citation: Nathan T. Seltzer, FCargill v. Garland: How Ambiguous Is It?, 63 Washburn L.J. Online  11 (2023),

Failing to Develop Justice: How SCOTUS Holds Habeas Petitioners Responsible for Ineffective Counsel’s Failure to Develop the Record [Shinn v. Ramirez, 142 S. Ct. 1718 (2022)]

Lindsay N. Kornegay | December 15, 2023 | Read this comment

Summary: When a criminal defendant receives ineffective assistance of counsel at trial, the defendant may attack the legality of their confinement through postconviction proceedings.  But what happens when postconviction counsel is also ineffective and fails to properly raise the issue of ineffective assistance of trial counsel?  Prior to Shinn v. Ramirez, federal courts provided a slim opportunity for relief when a defendant received ineffective assistance during both trial and postconviction proceedings for state-level charges.  Ramirez constructively closed this narrow avenue for federal relief, however.  Ramirez holds that when a state record is underdeveloped, federal courts may not allow further development of the record, even when ineffective counsel caused the underdevelopment of the record.  Ramirez therefore weakens the ability to meaningfully redress the issue of ineffective trial counsel because an underdeveloped record often results in insufficient evidence to support a claim.  Effectively foreclosing federal habeas relief for state-level charges bodes particularly ominous considering the underfunding of public defense systems.  State and federal legislative bodies must act to mitigate the harmful effects of Ramirez.

Preferred Citation: Lindsay N. Kornegay, Failing to Develop Justice: How SCOTUS Holds Habeas Petitioners Responsible for Ineffective Counsel’s Failure to Develop the Record, 63 Washburn L.J. Online  1 (2023),