Orders: Court expands abortion review

UPDATE 1:22 p.m.

The Supreme Court on Monday agreed to review a second case on the constitutionality of the federal ban on so-called “partial-birth” abortions. The Court added a case from the Ninth Circuit Court to one previously granted from the Eighth Circuit. The new case raises a remedy issue that did not appear to be present in the earlier grant, and also poses variations on the constitutional issues at stake in the earlier grant.. It is Gonzales v. Planned Parenthood (05-1382). The Solicitor General had argued against adding the new case to the decision docket, but the city of San Francisco and abortion rights groups contended that the remedy and other substantive issues would be better explored in this case.

The earlier case is Gonzales v. Carhart (05-380), granted review on Feb. 21. It is a government appeal arguing that the 2003 federal law is not invalid just because it lacks an exception to allow the abortion procedure when a woman’s health is at risk. The new case raises issues about the alleged vagueness of the federal ban, and about whether it sweeps so widely that it imposes an undue burden on the rights of pregnant women.

The cases will be argued and decided in the new Term starting in October. The Court has not yet scheduled the cases for argument. Presumably, they will be heard back-to-back, but that has not yet been determined.

The Court also agreed to decide next Term whether federal banking law bars states from regulating the activities of state-chartered subsidiaries of national banks that engage in mortgage lending activities. An appeal in a Michigan case also raises the issue of whether treating a state-chartered subsidiary as the equivalent of a national bank violates the Tenth Amendment. The Sixth Circuit found state regulation to be preempted, and rejected the Tenth Amendment challenge. The case is Watters v. Wachovia Bank (05-1342). The Court had asked for, and received, the views of the U.S.Solicitor General on the preemption issue in another case, Burke v. Wachovia Bank (05-431). The Solicitor General opposed review of that case. The Court took no action on it, while granting the separate Michigan case. Thirty-two other states support the appeal by Michigan officials.

In the third of three granted cases, the Court said it would decide when an individual claiming false arrest may file a civil rights damages lawsuit — at the time of arrest or shortly afterward, or only after a conviction and sentence has been overturned on appeal. The question is when such a claim “accrues” when “the fruits of the search were introduced in the criminal trial” and the accused was convicted. The case is Wallace v. Chicago (05-1240).

The Court, without comment, denied five states permission to sue the federal government directly in the Supreme Court to challenge a key funding formula in the new federal prescription drug programs. The Court also refused to issue a preliminary injunction against that formula. The five states now would be free to bring their challenge in lower courts. That case was Texas, et al., v. Leavitt (135 Original).

The Court asked the U.S. Solicitor General for the government’s views on whether the process of selling new stocks after their initial offering on stock markets — in the “aftermarket” — is immune to antitrust challenge. The Securities and Exchange Commission and the Justice Department’s Antitrust Division took opposing positions on that issue in the Second Circuit. The case is Credit Suisse First Boston v. Billing, et al. (05-1157). The Second Circuit denied the immunity claim. Chief Justice John G. Roberts is recused from that case.

In a per curiam ruling, dividing the Court 6-3, the Justices ordered the West Virginia Supreme Court of Appeals to reconsider a ruling in a criminal case in which prosecutors had failed to disclose favorable evidence to the accused. The deeply split state court had found no error in the trial, but did not examine the specific constitutional issues. On Monday, the Court said it would be better to have the full views of the state tribunal before reaching the merits — an outcome that produced vigorous complaints from the dissenters about improper use of the process of vacating and remanding a pending case. The dispute came in Youngblood v. West Virginia (05-6997).

Among the new cases the Court declined to hear was an appeal by the state of Alabama asking the Court to reconsider its March 2005 decision in Roper v. Simmons, striking down the death penalty for those who wee younger than 18 at the time of the crime. The Alabama Supreme Court found itself bound by that ruling. The case is Alabama v. Adams (05-1309).

Other issues that the Court refused to hear were:
** Whether federal law regulating energy-using products bars states from having their own regulations of household appliances (Air Conditioning & Refrigeration Institute v. Energy Resources and Development Commission, 05-331) The Ninth Circuit upheld California’s authority to enforce its own regulations..

** Whether a Cuban company that has a trademark in other countries but not the U.S. on its premium cigars’ name is entitled to some protection for the mark inside the U.S. (Empresa Cubana del Tabaco v. General Cigar, 05-417). The Second Circuit found the Cuban firm was barred from seeking trademark relief in the U.S.

** Whether an invention may be patented if it was previoiusly creaed by someone, although that was done unwittingly and was not recognized at the time (SmithKline Beecham v. Apotex, 05-489). The Court of Appeals for the Federal Circuit rebuffed an attempt to enlarge the patent for the anti-depressant drug Paxil.

** Whether California prison inmaes may raise new challenges to the state’s “three strikes” criminal senencing law, if they did not do so in state court. (Woodford v. Ramirez, 05-736) and Ornoski v. Reyes, 05-755). The Ninth Circuit allowed such claims under the Eighth Amendment.

** Whether Federal Reserve Banks act unconstitutionally in failing to pay interest to banks on earnings made by investing the “reserves” the banks must deposit with the Fed. (Texas State Bank v. U.S., 05-1168).The Court of Appeals for the Federal Circuit rejected the “takings” claim.

** Whether bankruptcy courts are confined to ruling on issues arising or directly related to bankruptcy, or may also rule on other legal questions somehow linked to a pending case. (Sasson v. Sokoloff, 05-1171). The Ninth Circuit found that the bankruptcy courts may exercise supplemental jurisdiction over non-bankruptcy issues.