Wednesday, April 12, 2017
by Richard Storrow
In the wake of the confirmation of Justice Neil Gorsuch, two experts have weighed in on the future of the United States Supreme Court. Both Adam Liptak and Lisa Marshall Manheim agree that we will see little difference in the work of the Supreme Court in the short term. After all, Gorsuch is a "one-for-one" "close match" for Justice Antonin Scalia.
Both Liptak and Manheim do predict notable changes in the long term, however. Manheim believes the "realignment of checks and balances" that accompanied Gorsuch's confirmation has strengthened the executive branch's power to appoint. With filibusters and the need for approval by sixty senators out of the way, presidents may feel emboldened to nominate ideologues that appeal to their political supporters. Such nominations, if successful, could polarize the court and upend the "ideological balance" that currently prevails. Yes, perhaps. But Manheim admits that this scenario may depend on whether the president's party has control of the Senate.
Liptak's contribution, noting that party affiliation has become a strong predictor of voting trends for the members of the Supreme Court, speculates on what would have happened had Judge Merrick Garland joined the supreme bench. Chief Justice Roberts would have been ideologically sidelined and Citizens United would have been scheduled for the chopping block. Oh, what might have been. Reminding us that the Court's liberal wing is aging, Liptak believes the arrival of Gorsuch portends a reinvigoration of the projects of the Roberts court: deregulation of campaign finance, rollbacks of voting rights, roll forwards of gun rights and an insistence on race blindness in everything from education to housing.
Neither author mentions that Gorsuch's claimed originalism remains inadequately categorized. As David Dorsen notes in The Washington Post, as a lower court judge, Gorsuch was constrained by Supreme Court precedent, and his writings on euthanasia are not those of an originalist but of a moral philosopher. Only in a 2016 law review article does Gorsuch embrace a vigorous originalism. But the article is the transcript of a speech, which, delivered in the wake of Justice Scalia's death, became mired in encomium. Given the context, the originalism it describes is a caricature without nuance. It fails to grapple with the practicalities or the wider ramifications of being a judge who adheres to a particular brand of originalism. It tells us little about what Gorsuch believes originalism is or how it should be used to address the issues of our day.
Contrary to Dorsen, I would submit that we probably do gain good insight into Gorsuch's brand of originalism from his concurrences and dissents while serving on the 10th Circuit Court of Appeals. It is a narrow originalism capturing Gorsuch's disdain for the administrative state. It focuses squarely on ideas about the separation of powers and how those lines have become blurred with the mushrooming of the fourth branch. But it is not an originalism that seeks to aggrandize power in the elected branches, as was Scalia's. Instead, Gorsuch views the separation of powers as essential to due process and equal protection. See, e.g., Gutierrez-Brizela v. Lynch (10th Cir. 2016). This could be good news for those who worry about what position he will take on questions of affirmative action, immigration and abortion, subjects about which he has not yet said enough.
Monday, February 13, 2017
New York Times (Feb. 7, 2017): Reading Between the Lines for a Nominee's Views on Abortion, by Adam Liptak:
Neil Gorsuch's 2006 book The Future of Assisted Suicide and Euthanasia (New Forum Books) may provide a window onto the nominee's views on abortion. In the book, Gorsuch canvasses the Supreme Court's abortion jurisprudence for clues about whether a right to assisted suicide exists. He concludes that it does not, because "human life is a good in itself."
The learned tome does not critique the Supreme Court's abortion jurisprudence per se and reveals nothing about where Gorsuch stands on Roe v. Wade. It likewise leaves unclear whether Gorsuch's perspective on human life would lead him to conclude that a fetus is a human life. In his 2006 confirmation hearing following his nomination to the federal bench, Gorsuch remarked that his personal views have no effect on his judicial work and that his writings defend existing law "'in most places.'"
Gorsuch does, however, acknowledge that jurists he respects hold views contrary to existing law. This is most notably true of his former employer Byron White, for whom Gorsuch was a law clerk in the early 1990s. In dissent in the 1986 case of Thornburgh v. American College of Obstetricians and Gynecologists, White notoriously called for the overruling of Roe v. Wade:
However one answers the metaphysical or theological question whether the fetus is a "human being" or the legal question whether it is a "person" as that term is used in the Constitution, one must at least recognize, first, that the fetus is an entity that bears in its cells all the genetic information that characterizes a member of the species homo sapiens and distinguishes an individual member of that species from all others, and second, that there is no nonarbitrary line separating a fetus from a child or, indeed, an adult human being. Given that the continued existence and development -- that is to say, the life -- of such an entity are so directly at stake in the woman's decision whether or not to terminate her pregnancy, that decision must be recognized as sui generis, different in kind from the others that the Court has protected under the rubric of personal or family privacy and autonomy.
White's analysis was mercilessly skewered in the concurrence of Justice John Paul Stevens, though the perennially judicious Stevens was careful to remark, "I have always had the highest respect for his views on this subject."
Perhaps more telling than Gorsuch's views on Roe v. Wade, which remain unknown, are his views on Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), which The Future of Assisted Suicide and Euthanasia argues should be "read narrowly." Gorsuch objects to the use of the "flowery" language in the decision invoking "the mystery of life." Like White before him, who favored limiting, nay, overruling Roe, Gorsuch favors cabining Casey within the confines of a "stare decisis decision," in other words one that merely pays deference to settled law. But saying one is devoted to upholding settled law is not the same thing as affirming that a right should not have been declared fundamental in the first place. The possibility that Gorsuch might be tempted to channel Bryon White in saying so lies well within the realm of possibility.
Monday, September 19, 2016
Linda Greenhouse and Reva Siegel have posted their analysis of Whole Woman's Health v. Hellerstedt to SSRN. The abstract follows:
This essay offers a brief account of the Supreme Court’s most recent abortion decision, Whole Woman’s Health v. Hellerstedt, and its implications for the future of abortion regulation. We draw on our recent article on health-justified abortion restrictions — Casey and the Clinic Closings: When “Protecting Health” Obstructs Choice, 125 Yale L.J. 1428 (2016) — to describe the social movement strategy and the lower court rulings that led to the decision. We show that in Whole Woman’s Health the Court applies the undue burden framework of Planned Parenthood v. Casey in ways that have the potential to reshape the abortion conflict.
In Whole Woman’s Health, the Court insisted on an evidentiary basis for a state’s claim to restrict abortion in the interests of protecting women’s health, and found none in the Texas law under review. The Court instructed judges how to assess the asserted health benefits of regulations that predictably will force clinics to close: it required judges to balance the demonstrated benefit of the law against the burden that a shrunken abortion infrastructure will have on the ability of women to exercise their constitutional rights.
As we show, Whole Woman’s Health clarifies the law defining what counts as a burden and what counts as a benefit to be balanced within the Casey framework. Particularly notable, even unexpected, is the Court’s capacious understanding of “burden” as the cumulative impact of abortion regulation on women’s lived experience of exercising their constitutional rights. The decision thus offers a robust reaffirmation of the right to abortion and of the need for judges to protect access to the right. By clarifying what counts as a burden and what counts as a benefit to be balanced within the Casey framework, the decision constrains regulations explicitly aimed at protecting fetal life as well as those ostensibly intended to protect women’s health.
Saturday, July 2, 2016
ABC News (June 28, 2016): Supreme Court Rejects Pharmacists' Religious Rights Appeal, by Rachel La Courte:
SCOTUS declined to hear a Washington State appeal regarding a pharmacist's ability to refuse to administer Emergency Contraception (EC) should the have a religious objection. With SCOTUS passing on hearing the appeal, the regulations from 2007 still stand - pharmacists may pass the buck to another pharmacist, in the same store, should they feel religiously opposed to administering EC.
Chief Justice Roberts, along with Justice Alito and Justice Thomas, wanted to hear the appeal:
Calling the court's action an "ominous sign," Alito wrote a stinging 15-page dissent for the three dissenting justices. "If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern," he wrote.
Monday, June 27, 2016
United States Supreme Court (Jun. 27, 2016): Whole Woman's Health v. Hellerstedt:
In a 5-to-3 decision, the United States Supreme Court has overturned a Texas law that threatened to drive more than half of Texas's abortion clinics out of business and place abortion services beyond the reach of countless women.
Drawing on tenets established in Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey, the Court struck down a law requiring doctors performing abortions to have admitting privileges at a hospital and requiring clinics performing abortions to meet the standards imposed upon surgical centers. Regarding the admitting privileges requirement, the Court noted that the practice of abortion did not present a safety issue. Moreover, abortion is safe enough that requiring clinics to meet the requirements of surgical centers would be superfluous. Finally, the court could not reconcile the law with the lack of regulation of more dangerous surgical procedures and the wide distribution of waivers of the surgical-center requirements to clinics offering non-abortion services. It declared that the restrictions placed substantial obstacles in the path of women seeking previability abortions in Texas.
Saturday, June 18, 2016
Rewire, June 9, 2016, Here’s What You Need to Know About Your Birth Control Access Post-Supreme Court Ruling, by Bridgette Dunlap
In a well-thought-out and organized article, Bridgette Dunlap looks at the impact the Supreme Court’s “non-decision” in Zubik v. Burwell will actually have on women’s access to contraceptives. Quelling what she assumes to be a reader's ever present worry, Dunlap discusses the current legal mandates in place for employers of all kinds and emphasizes that “the vast majority of people with insurance are currently entitled to contraption without a co-payment – that includes people for the most part, who work for religiously affiliated organizations.” Dunlap emphasizes the importance that coverage of the Supreme Court's ruling in Zubik not not overstate the impact of the non-decision:
The fact that equitable coverage of women’s health care is the new status quo is a very big deal that can be lost in the news about the unprecedented litigation campaign to block access to birth control and attacks on Obamacare more generally. Seriously, tell your friends.
Thursday, March 17, 2016
Professor Caroline Mala Corbin has posted to SSRN (here) the issue brief she wrote for the American Constitution Society on why the Religious Freedom Restoration Act does not provide a defense to the contraception mandate under the Affordable Care Act. The issue is presented in the case of Zubik v. Burwell.
Here is the abstract:
The Affordable Care Act requires that health care plans include all FDA-approved contraception without any cost sharing. In Hobby Lobby v. Burwell, for-profit businesses with religious objections successfully challenged this “contraception mandate.” In this term’s Zubik v. Burwell, it is religiously affiliated nonprofits like Baptist universities and Catholic Charities challenging the contraception benefit. But there is a major difference: these religiously affiliated nonprofits are exempt from the contraception mandate. Once they certify that they are religiously opposed to contraception and notify either their insurance carriers or the Department of Health and Human Services, the responsibility for contraception coverage shifts to private insurance companies. The nonprofits do not have to provide, pay for, or even inform their employees or students of the separate coverage.
Despite the ability to opt out of contraception coverage, many nonprofits complain that the religious accommodation itself imposes a substantial religious burden in violation of the Religious Freedom Restoration Act (RFRA). According to these nonprofits, providing notice of their objections triggers the provision of contraception to their employees and students, thus making them complicit in sin. Their RFRA claim cannot succeed. RFRA requires that the contraception regulations impose a substantial religious burden and fail strict scrutiny, and neither requirement is met. First, filing paperwork to receive an exemption is not a substantial burden on the nonprofits’ religious exercise. The nonprofits’ claims to the contrary are based on a mistake of law, and while court must defer to the nonprofits’ interpretation of religious theology, courts should not defer to their interpretation of federal law. Second, the contraception mandate passes strict scrutiny: it advances compelling government interests in women’s health and equality, and the accommodation provided to objecting nonprofits is the least restrictive means of accomplishing those interests.
Wednesday, March 16, 2016
SCOTUS Blog (Mar. 7, 2016): Court Restores Woman’s Right to Be a Mother, by Lyle Denniston:
In a victory for LGBTQ advocates, the Supreme Court issued a unanimous decision on Monday, restoring a mother’s legal parenting rights to the children she had adopted with her same-sex partner, the children’s birthmother. The case, V.L. v. E.L., originated in Alabama, where plaintiff E.L. appealed a visitation order granted to V.L. to the Alabama Court of Civil Appeals. The Alabama Supreme Court nullified the visitation order, refusing to recognize the adoption decree granted in Georgia.
The Court’s unsigned (“per curiam”) decision in the Alabama adoption case was based entirely on the provision in the Constitution’s Article IV declaring that “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state,” and on the Court’s prior interpretations of that clause. If a state court has jurisdiction under its own laws to issue a decision, Monday’s opinion said, then that decision is entitled to respect in the courts of every other state.
Tuesday, February 23, 2016
Atlantic (Feb. 19, 2016): The Muddled Future of Reproductive Rights, by Julie Rovner:
Prior to Justice Scalia's death, the Supreme Court frequently voted 5-4 votes on controversial decisions. Following Justice Scalia's death, there is a chance that the Court could deadlock, 4-4 in cases this term. When there is a tie vote, the appellate court's decision will stand, but it does not create national precedent.
This March the Supreme Court is scheduled to hear two reproductive rights cases, one on abortion and one on contraceptive insurance coverage. Whole Women's Health v. Hellerstadt challenges a Texas law that imposes restrictions on abortion clinics. The district court struck down the law, but the Fifth Circuit's decision reversed the district court and would allow the law to go into effect with minor changes. Zurbik v. Burwell challenges the religious accommodation that has been created for religious-affiliated institutions who wish to opt-out of contraceptive coverage. Current rules do not require that religious hospitals or schools contract for contraceptive coverage. Instead, they must inform the government who their insurer is so that the government can arrange for coverage. The lower courts in the cases consolidated in Zurbik found that the administration's rules don't violate religious rights.
Because appellate courts have ruled differently on both the contraceptive regulations and the constitutionality of laws like the Texas law challenged in Whole Women's Health, a tied Supreme Court decision would prolong Circuit splits. If the Supreme Court cannot reach a decision in the two cases, it can also hold them over and re-hear them next term.
Friday, January 22, 2016
Mother Jones (Jan. 22, 2016): How Roe v. Wade Survived 43 Years of Abortion Wars, by Hannah Levintova:
Mother Jones has been on the front lines throughout the abortion wars with its up-close-and-personal profiles of women making difficult, personal reproductive choices and clinic staff dedicated to helping them. In this chronicle of its coverage, MJ traces the current spate of legislative rollbacks of Roe v. Wade to the unveiling of the "undue burden" standard in the 1992 Supreme Court decision Planned Parenthood v. Casey and the Partial Birth Abortion Ban Act of 2003. Perhaps most poignant is the following insight: In contrast to what Roe v. Wade accomplished back in 1973--stopping deaths from botched abortions "overnight"-- today "discussions of women's safety are more often heard in statehouses enacting further restrictions on abortion." There have been more anti-abortion laws passed since 2010 than in any other five-year period since Roe was decided.
Wednesday, October 14, 2015
Scotus Blog (Oct. 9, 2015): Relist Watch OT2015Edition, by John Elwood:
Currier v. Jackson Women's Health Clinic was one of several cases relisted by the court last week, but a conference has yet to be scheduled.
A challenge to a similar Texas law arrived at the Court in June. The Court issued a stay in that case, Whole Women’s Health v. Cole, 15-274, by a five-to-four vote. The Court likely rescheduled Currier to allow Whole Women’s Health, which is still being briefed, to “catch up.” Since a stay requires a showing of a “reasonable probability” of a cert. grant and a “fair prospect” that a majority of the Court will conclude that the decision below was erroneous, there is a good chance we’ll see a grant of at least one of these cases once all the briefing is in.
Tuesday, February 24, 2015
ThinkProgress: The Nation’s Most Restrictive Anti-Abortion Law Just Reached The Supreme Court, by Ian Millheiser:
A Mississippi law that would eliminate access to abortion within that state — a law so restrictive that it was halted by one of the most conservative federal appeals courts in the nation — arrived in the Supreme Court on Wednesday after the state filed a petition asking the justices to hear the case. Should the Court agree to do so, Mississippi could win the right to close down its only abortion clinic. . . .
Monday, February 16, 2015
MSNBC: Ruth Bader Ginsburg on abortion, race and the broken Congress, by Irin Carmon:
The Roe v. Wade decision legalizing abortion isn’t in danger of being overturned anytime soon, Supreme Court Justice Ruth Bader Ginsburg told msnbc in a wide-ranging, exclusive interview. But Ginsburg warned that the abortion restrictions being enacted by states around the country are having an outsize impact on low-income women. . . .
Thursday, January 22, 2015
JURIST (commentary): Fourth and Fifth Circuits Confront Abortion Exceptionalism, by Caitlin Borgmann:
Federal Courts of Appeals have recently addressed two important abortion cases, either of which could end up before US Supreme Court. Last week, the US Court of Appeals for the Fifth Circuit heardoral arguments on the merits of a Texas law that requires abortion facilities to meet hospital-like building and construction standards. The US Court of Appeals for the Fourth Circuit issued a decision[PDF] in late December striking down a North Carolina pre-abortion ultrasound law that requires abortion providers to perform a sonogram before an abortion and to display and describe it to the woman. Each case is important for abortion rights in different ways, but a common theme the cases raise is the question of abortion exceptionalism: whether courts should treat abortion as an exceptional case when states purport to regulate it for health and safety reasons (in the Texas case) or when state restrictions encroach on the right against compelled speech (in the North Carolina case) . . . .
Wednesday, January 7, 2015
The New York Times: Texas Abortion Clinic Rules Tested in Appeals Court, by Erik Eckholm:
Lawyers for abortion clinics squared off with Texas state attorneys in a federal appeals court here on Wednesday, arguing over the constitutionality of stringent abortion clinic rules that would force more than half the remaining abortion providers in Texas to close.
But more is at stake than whether large portions of South and West Texas will be left with no abortion clinics, forcing some women to drive hundreds of miles for an abortion, for safety reasons that doctors and clinic owners call a pretense.
The case argued here — along with others arising from the hundreds ofabortion restrictions adopted by more than half of the states in recent years — poses issues that are likely to end up before the Supreme Court in the next year or two, many legal experts say . . . .
Al Jazeera America: Texas abortion clinics: How far is too far to drive?, by Michael Keller & Marisa Taylor:
Is 150 miles too far to drive in order to get an abortion? In some parts of Texas, that distance could get a lot longer, and it’s up to a federal appeals court to decide whether that places too much of a burden on women seeking to end their pregnancies. . . .
“It’s always been a little bit unclear exactly what constitutes an ‘undue burden,’” said Caitlin Borgmann, a professor at CUNY School of Law with expertise on reproductive rights law. . . .
“If women can’t access abortions, then the right is meaningless,” Borgmann said. “This very much goes to the core of what it means to be a constitutional right to abortion.”
The Al Jazeera America story includes interactive maps that show what parts of Texas would be left without any available abortion clinics if the ambulatory surgical center requirement is upheld.
Monday, December 15, 2014
The New York Times: Justices Let Abortion Decision Stand, by Adam Liptak:
The Supreme Court on Monday let stand a decision temporarily blocking an Arizona law that limits the availability of medicinal, nonsurgical abortions. As is its custom when it denies review, the court gave no reasons for its action.
The law, enacted in 2012, requires abortion providers to comply with a 2000 protocol from the Food and Drug Administration for mifepristone, anabortion-inducing drug that is sometimes called RU-486. . . .
The 2000 protocol calls for the drug to be given in higher doses than is customary today, and only in the first seven weeks of pregnancy. . . .
This denial is interesting in part because the Supreme Court had previously agreed to review a similar law from Oklahoma, which had been struck down by the Oklahoma Supreme Court. The U.S. Supreme Court had then certified questions to the Oklahoma Supreme Court regarding the law's interpretation. The Oklahoma Supreme Court read the law broadly, in a way that would have prohibited all medication abortions, including to treat ectopic pregnancies. After receiving the Oklahoma Supreme Court's interpretation, the U.S. Supreme Court in November 2013 dismissed the writ of certiorari as improvidently granted. It seemed possible that the U.S. Supreme Court would still be interested in reviewing a medication abortion restriction that was interpreted more narrowly as requiring adherence to the FDA-approved protocol. The Ninth Circuit decision on the preliminary injunction assumed for purposes of the opinion that the Arizona law only reached this far, but still found it to constitute an undue burden.
Monday, December 1, 2014
The Washington Post: Former UPS driver at center of pregnancy discrimination case before Supreme Court, by Brigid Schulte:
Peggy Young didn’t want to become a national icon for pregnant workers. She never imagined she would be at the center of a Supreme Court case that has united every major women’s rights organization on the left with major anti-abortion rights groups on the right. . . .
The Supreme Court will hear arguments in Young v. United Parcel Service this Wednesday, Dec. 3.
Sunday, November 9, 2014
NPR: Two Of Three States Reject Ballot Measures Restricting Abortion, by Jennifer Ludden:
Amid all the shakeout from this week's midterm elections, many are trying to assess the impact on abortion.
Two abortion-related ballot measures were soundly defeated. A third passed easily. And those favoring restrictions on abortion will have a much bigger voice in the new Congress. . . .
The Los Angeles Times: On abortion, election delivered mixed messages, by Maria La Ganga:
The 2014 midterm election was a mixed bag for abortion rights supporters: Two out of three state ballot measures that would have regulated the procedure went down to defeat, but control of the U.S. Senate swung to the Republican Party, with its antiabortion candidates claiming victory.
"It is a happy day for us, a great day for pro-lifers," said Marilyn Musgrave, vice president for government affairs with the Susan B. Anthony List, which advocates for female antiabortion candidates. "The life issue won." . . .
Mother Jones: The Fight for Abortion Rights Just Got a Whole Lot Harder, by Molly Redden:
Activists thought they had a chance to expand reproductive rights. The Red Wave put an end to that
The GOP wave didn't just crash into the US Senate. It flooded state legislatures, as well. By Wednesday evening, Republicans were in control of 67 of the nation's 99 state legislative chambers—up from 57 before the election. It's still unclear which party will control two other chambers.
Already, anti-abortion advocates are calling it a big win. Hundreds of the country'smost extreme anti-abortion bills pop up in these statehouses every year, and Tuesday's results won't do anything to put a stop to that. But reproductive rights advocates also suffered big setbacks Tuesday in places where they had actually been playing offense. Now, Democratic losses in states like Colorado, Nevada, New York, and Washington could torpedo their efforts to expand reproductive rights. . . .
Wednesday, October 15, 2014
The New York Times: Texas Abortion Clinics to Reopen Despite a Future in Legal Limbo, by Erik Eckholm:
A day after the Supreme Court blocked a Texas law that had forced abortion clinics to close, some of the shuttered facilities prepared to reopen, pleased at the reprieve but mindful that the legal fight was far from over.
Tuesday’s order increased the chances, legal experts said, of a major face-off in the Supreme Court over a crucial question: What restrictions add up to an “undue burden” on a woman’s right to abortion? . . .
While the order did not necessarily reveal how or whether the Supreme Court might ultimately rule, it did indicate that the justices “saw the potentially irrevocable damage if the clinics were forced to close,” said Caitlin E. Borgmann, a professor at the CUNY School of Law in New York.
. . . The basic issue, Ms. Borgmann said, is how much a state may restrict abortion without banning it altogether.
“How much travel is too much? How much do costs matter? These are questions the Supreme Court has never answered,” Ms. Borgmann said, adding that appeals of the Texas law could give the court an opportunity to clarify the issue. . . .
The New York Times: Supreme Court Allows Texas Abortion Clinics to Stay Open, by Adam Liptak:
The Supreme Court on Tuesday allowed more than a dozen Texas abortion clinics to reopen, blocking a state law that had imposed strict requirements on abortion providers. Had the law been allowed to stand, it would have caused all but eight of the state’s abortion clinics to close and would have required many women to travel more than 150 miles to the nearest abortion provider.
The Supreme Court’s order — five sentences long and with no explanation of the justices’ reasoning — represents an interim step in a legal fight that is far from over. But abortion rights advocates welcomed what they said was the enormous practical impact of the move. Had the clinics been forced to remain closed while appeals went forward, they said, they might never have reopened. . . .
The Supreme Court, in an unsigned order apparently reflecting the views of six justices, blocked the surgical-center requirement entirely and the admitting-privileges requirement as it applied to clinics in McAllen, Tex., and El Paso.
Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. said they would have allowed the law to be enforced. . . .
See also: SCOTUSblog: Court blocks abortion limits in Texas, by Lyle Denniston.
This is significant, because when the Court last November considered only the admitting privileges portion of this law on an emergency basis, it refused to block the Fifth Circuit's ruling that allowed the law to take effect. That time, the 4 liberal Justices dissented.