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Tag Archives: Abortion
The Supreme Court recessed for the summer after their last conference (the wrap-up conference) on Monday afternoon. After the order from that conference was issued on Tuesday morning, the Supreme Court has filled twenty-nine of the thirty argument slots for the fall. (A little below average as they normally have some carry-over for the January argument session. )
Monday featured three significant opinions — the Texas abortion case, Governor McDonnell’s corruption case, and an interesting case involving gun control and domestic violence. These cases saw some interesting combinations of Justices as very different judicial philosophies combine to reach the same result.
While the Supreme Court does not have a hard and fast rule on when it recesses for the summer, traditionally the Supreme Court tries to issue opinions in all the outstanding cases before July 4. As a result, the last part of June typically sees the media remembering that we have a Supreme Court as major decisions pour out of the court in a flood during this time of year. It’s not that the Justices intentionally save the major cases until the end, but rather that these cases are the ones that are most likely to go back and forth with drafts and counter-drafts until the deadline for resolving the cases hits.
This year, there are thirteen cases left to be decided. The Supreme Court has actually been making decent progress over the past month — having gone to two opinion days per week two weeks ago and issuing eleven opinions over the past two weeks. While the Supreme Court will not announce additional opinion days for this week until after issuing opinions on Monday, it is likely that there will be at least one more opinion day (and maybe two more opinion days) later this week. Of the remaining thirteen cases, three or four of them have major political implications.
When people think about key dates in the Supreme Court calendar, the day that most comes to mind is the First Monday in October (the official start of the annual term) — probably because it is the only date that is set in stone. The first argument day of each term is always the first Monday in October. There are other key points in the term, but they float a bit. One of those floating dates is the Monday after the last January argument. That date (which was earlier this week) is key because of the effective time table created by the Supreme Court’s rules. Under those rules, barring emergencies required rushed briefing and argument (United States vs. Nixon, Bush vs. Gore), the soonest that a case can be argued is approximately three months after the Supreme Court decides to grant full argument on a case. Because the last argument session is always in late April/Early May, any case accepted for argument after January will not be heard before the next term begins in October. That makes this point of the year the first time that it is possible to say with absolute certainty what cases will be heard and decided by June. With this being an election year, the politically explosive cases on the Supreme Court’s argument calendars are even more explosive.
Over the last two weeks, the United States Supreme Court has granted review in two sets of cases that will bring the abortion issue to the front and center of the opinions likely to be issued in May and June of 2016 and thus into the presidential campaign. How the Supreme Court addresses these issues will determine who sees a need to win the election to protect their rights.
The first set of cases involve the Affordable Care Act and the Religious Freedom Restoration Act. In 2014, the Supreme Court decided to view the coverage requirements of the Affordable Care Act from the perspective of the employer paying for coverage rather than from the employee deciding how to use that coverage. Viewing the scope of coverage from the perspective of the employer, the Supreme Court decided that a mandate to purchase coverage which included benefits for contraceptives would substantially infringe on the religious freedom of corporation which had religious objections to such coverage. (Many of these organizations express the religious belief that certain contraceptives are abortifacients, notwithstanding that from a medical perspective these items are not abortifacients.) Because there were alternative ways to provide contraceptive coverage to employees, the Supreme Court found that the Affordable Care Act violated the Religious Freedom Restoration Act (which applies a compelling interest/narrowly tailored test to federal laws that substantially infringe on religious beliefs).
Since the 2014 decision, the Department of Health and Human Services has created a form to allow employers to opt-out of paying for coverage. The form, however, requires the employer to provide information about that employer’s insurance policy that allows the government to pay the additional premium to make contraceptive coverage for the employees of the company. Several non-profit organizations with religious affiliations object to the form claiming that any cooperation with the government’s provision of such coverage makes the organization an accomplice to the provision of contraceptive coverage, thereby violating the organization’s religious beliefs.
When the Supreme Court meets on Monday in what is commonly referred to as the “long conference” (because it covers three months worth of petitions that have piled up during the summer), it will begin the process of filling the second half of its argument schedule — cases that will be decided by the end of June. As with the cases already set for argument this fall, there will be a mix of criminal cases, routine matters of statutory interpretation, and the politically explosive. While the criminal cases and the statutory cases are important to practitioners and businesses, it is the politically explosive cases that I will focus on for this blog.
In recent years, the Supreme Court has changed how it grants cases. In the past, the Supreme Court tended to accept or reject a case immediately (at its initial conference). However, after several cases had hidden problems (preliminary issues that had to be addressed before the Supreme Court could reach the issue presented in the petition), the Supreme Court has tended to “relist” (postpone consideration to a later conference) the cases that it is seriously considering granting to take a closer look for such potential problems. In addition, even putting aside the large number of petitions with little or no chance of being granted, there are more cases that raise significant issues than the Supreme Court is inclined to take.
In the current conference, one potentially interesting case involves a criminal prosecution from Puerto Rico. Generally, federal law recognizes a “dual sovereign” exception to the rule against double jeopardy (that you can’t be tried twice for the same offense). Thus, for the same course of conduct, a person can be charged by multiple states or by a state and the federal government. The issue in this case is whether Puerto Rico is a separate sovereign from the federal government. While legally, this case is probably not a close issue, the impact of the Supreme Court explaining Puerto Rico’s current status (essentially a territory of the U.S. with any home rule being by grace of Congress) could crystalize the debate over Puerto Rico’s status.