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.