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This week, we are hosting a symposium before oral argument on March 4 in June Medical Services v. Gee. Click to read the contributions.

Denise Harle is legal counsel with the Alliance Defending Freedom Center for Life (@AllianceDefends), which filed an amicus brief on behalf of Louisiana legislators in June Medical Services v. Gee. Harle served as Florida’s deputy solicitor general from 2015 to 2017.

Of all the questions raised in June Medical Services v. Gee, the most fundamental one is threshold: Do abortion providers represent the interests of women seeking an abortion when those providers sue to invalidate laws protecting those women’s health and safety? It’s a question of third-party standing that has been largely ignored for decades.

The law at issue in this case makes the standing dilemma crystal clear. Act 620, Louisiana’s Unsafe Abortion Protection Act, was named to match its purpose. The law requires abortion doctors to meet the same standard as doctors at ambulatory surgical centers across the state by maintaining admitting privileges at a nearby hospital. One of the requirement’s main purposes is obvious: It ensures women’s wellbeing by guaranteeing that their abortion doctor can admit and treat them quickly at a hospital should something go wrong during the abortion procedure. Not a big ask. Again, physicians at all other ambulatory surgical centers in Louisiana already must do the same. Continue reading »

On January 28, Casetext and SCOTUSblog conducted the first webinar in a two-part series previewing the biggest decisions expected this term at the Supreme Court. Casetext chief operating officer and general counsel Laura Safdie moderated the panel, featuring SCOTUSblog founder and Goldstein & Russell partner Tom Goldstein and Goldstein & Russell partner Sarah Harrington. The webinar covered high-profile cases involving Title VII and LGBT discrimination, the DACA program, the Second Amendment and the future of an abortion law in Louisiana.

The second part of this series will be live on Thursday, February 20, at 12 noon EST. Register now.

Wednesday round-up

By on Jan 29, 2020 at 6:42 am

Briefly:

  • Mario Ariza reports for the South Florida Sun Sentinel on a cert petition that “highlights what experts say is a glaring legal loophole that allows the federal government to seize the property of innocent citizens at little cost or consequence to itself.”
  • At Bloomberg Law, Jacklyn Wille reports that “[t]he U.S. Supreme Court on Monday signaled its interest in a lawsuit over the University of Pennsylvania’s retirement plan by asking university employees to respond to the school’s petition for review.”
  • At the Daily Caller, Kevin Daley reports that “Justice Neil Gorsuch invoked J.R.R. Tolkien’s tri-part epic ‘The Lord of the Rings’ in a Monday concurrence that suggested the Supreme Court may need to curtail the use of nationwide injunctions.”

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Fadwa Hammoud is the solicitor general of the state of Michigan, which joined an amicus brief on behalf of the petitioner in June Medical Services v. Gee.

Many articles concerning June Medical Services v. Gee attempt to read the tea leaves regarding the future of abortion rights in light of the newer members of the Supreme Court, Justices Neil Gorsuch and Brett Kavanaugh. And rightfully so, given the effect that the court’s composition can have on American life. But I will leave the tasseography to others, and instead try to shed light on one of the elements of appellate decision-making that may well control the outcome of this case: the importance of standards of review.

Standards of review are not merely boilerplate recitations sandwiched between the statement of facts and the application of the law. Rather, they facilitate the orderly functioning of our court system. And evasion of those bedrock standards will result in real shifts in the substantive law—sometimes marginal but sometimes with drastic consequences. June Medical Services illustrates that danger. Continue reading »

Thomas M. Fisher is Solicitor General of the state of Indiana, which co-authored an amicus brief on behalf of the respondent in June Medical Services v. Gee.

In June Medical Services v. Gee, the Supreme Court will likely clarify third-party-standing rules and potentially address the chaos of abortion-rights doctrine wrought by its 2016 decision in Whole Woman’s Health v. Hellerstedt. Whether or not the court confronts either or both issues, chances are that abortion-rights cases will look very different very soon.

The ability of abortion practitioners to assert the 14th Amendment rights of hypothetical future patients has been at the core of abortion providers’ litigation strategy for several decades. Formerly, as in Roe v. Wade and Doe v. Bolton (among many other cases), women affected by abortion restrictions would bring their own constitutional challenges using pseudonyms. In Singleton v. Wulff, however, a plurality of the court in 1976 permitted an abortion practitioner to assert the rights of hypothetical future patients to state funding of nontherapeutic abortions. In so doing, the court, intentionally or not, sounded a starter pistol for third-party-rights abortion cases. Today, few challenges to abortion regulations are brought by individual women asserting their own constitutional rights. Continue reading »

Tuesday round-up

By on Jan 28, 2020 at 6:58 am

Yesterday the Supreme Court, in a 5-4 ruling, allowed the federal government to begin enforcing a new rule affecting legal immigrants applying for green cards who are considered likely to become a “public charge.” Amy Howe covers the order for this blog, in a post that first appeared at Howe on the Court. Pete Williams reports for NBC News that “[t]he government has long had authority to block immigrants who were likely to become public charges, but the term has never been formally defined”; the Department of Homeland Security “proposed to fill that void, adding noncash benefits and such factors as age, financial resources, employment history, education and health.” For the New York Times, Adam Liptak reports that “[i]n the past, only substantial and sustained monetary help or long-term institutionalization counted, and fewer than 1 percent of applicants were disqualified on public-charge grounds.” At Fox News, Shannon Bream and Bill Mears report that “Justice Neil Gorsuch — supported by Justice Clarence Thomas — wrote a separate concurrence, criticizing the increased reliance on nationwide injunctions to block government policies.” Additional coverage comes from Kevin Daley at the Daily Caller and from Mark Walsh at Education Week. Commentary comes from Scott Cozenza at Liberty Nation, Kent Scheidegger at Crime & Consequences and the editorial board of The Wall Street Journal (subscription required).

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Today a divided Supreme Court granted the Trump administration’s request for permission to enforce a rule known as the “public charge” rule, governing the admission of immigrants to the United States. The government had argued that it would suffer “effectively irreparable harm” if it could not implement the new rule while it appeals a pair of orders by a federal district court in New York. In a brief order, the court temporarily put the lower court’s rulings on hold until the government’s appeals to the U.S. Court of Appeals for the 2nd Circuit and, if necessary, the Supreme Court, are resolved.

The rule that the government will now be able to enforce interprets a provision of federal immigration law that bans noncitizens from receiving a green card if the government believes that they are likely to become a “public charge” – that is, reliant on government assistance. In August 2019, the Department of Homeland Security defined “public charge” to refer to noncitizens who receive a variety of government benefits, including cash, health care or housing, for more than 12 months over a three-year period. The rule also considers factors such as age, employment history and finances to determine whether a noncitizen might become a public charge in the future. Continue reading »

When he ran for president in 2016, then-candidate Donald Trump promised that, if elected, he would appoint “pro-life” Supreme Court justices, which would result in the overturning of Roe v. Wade, the landmark 1973 decision establishing a woman’s right to an abortion. In the three years since taking office, Trump has put two new justices on the bench: Justice Neil Gorsuch, who filled the vacancy created after the February 2016 death of Justice Antonin Scalia, and Justice Brett Kavanaugh, who was confirmed in October 2018 after the retirement of Justice Anthony Kennedy. On March 4, the Supreme Court will hear oral argument in a challenge to the constitutionality of a Louisiana law regulating abortion. Although the case does not directly implicate Roe, the justices’ ruling may signal what direction the Roberts Court is likely to take in future abortion cases.

The law at the center of the dispute is known as the Louisiana Unsafe Abortion Protection Act. Enacted in June 2014, it requires doctors who perform abortions in the state to have the right to admit patients to a hospital within 30 miles of the place where the abortion is performed. In 2016, in Whole Woman’s Health v. Hellerstedt, the Supreme Court struck down a similar law from Texas, which that state had defended on the ground that it was intended to protect the health of pregnant women. In the wake of Justice Antonin Scalia’s death, the vote was 5-3: Justice Anthony Kennedy and the court’s four more liberal justices agreed that the state has a legitimate interest in protecting the health of pregnant women. However, the majority continued, there was no evidence that the admitting-privileges requirement actually advanced such an interest – but it did, on the other hand, make it much harder for women to get an abortion. Continue reading »

No new grants today

By on Jan 27, 2020 at 11:33 am

The Supreme Court released orders this morning from the justices’ private conference last week. The justices once again did not act on several high-profile petitions for review that they considered at last week’s conference, including a case involving whether the state of Washington violated a florist’s constitutional rights by requiring her to provide flowers for same-sex weddings despite her religious objections and a challenge to a 2018 rule that expanded the definition of “machinegun” under federal law to include “bump-stocks” – attachments that help a semiautomatic rifle to fire faster.

The justices called for the views of the federal government in CACI Premier Technology v. al Shimari, a case brought against CACI, a government contractor that provided civilian interrogators at the Abu Ghraib prison in Iraq, by Iraqi citizens who allege that they were abused by CACI employees while detained there. The issue on which the U.S. solicitor general will weigh in is whether an order denying CACI’s claim for derivative sovereign immunity can be appealed immediately.

The justices also ordered oral argument in a dispute between New Mexico and Texas over the use of the waters of the Pecos River, which originates in north-central New Mexico and flows into Texas, where it empties into the Rio Grande River.

The justices are now in their winter recess. Their next conference is scheduled for Friday, February 21; orders from that conference will likely be released at 9:30 a.m. on Monday, February 24.

This post was originally published at Howe on the Court.

Monday round-up

By on Jan 27, 2020 at 6:30 am

Briefly:

  • At Bloomberg Law, Lydia Wheeler reports that the court “is slated to hear two cases that could help decide the fate of Obamacare, and they have nothing to do with health care[:] The cases, which challenge the validity of a federal financial agency and a decades-old robocall law, focus on a central question at the heart of the Obamacare challenge— whether an entire law must be tossed out if one provision is found to be unconstitutional.”
  • In a new episode of Bloomberg Law’s Cases and Controversies podcast, Kimberly Robinson and Jordan Rubin “get you current with the latest Obamacare case and the challenge to ‘faithless electors’”; they also “highlight star-powered arguments that featured tense rebuttals and even millennial slang.”
  • In the latest episode of the Heritage Foundation’s SCOTUS 101 podcast, Elizabeth Slattery and Tiffany Bates “talk about grants in cases involving ‘faithless’ presidential electors and the Little Sisters of the Poor,” “recap oral argument in the Montana school choice case and discuss the highlights of John Roberts’s new job presiding over President Trump’s impeachment trial.”

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

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