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Court bypasses abortion test case (UPDATED)

UPDATED 1:31 p.m.  This post has now been expanded to provide fuller coverage of this morning’s orders.


The Supreme Court on Monday chose to bypass the first case to reach it testing a new round of state laws restricting abortion rights.  Without comment and without any noted dissents, the Court refused to hear an Arizona case involving a ban on abortions at twenty weeks of pregnancy.  The case was Horne v. Isaacson (13-402).

The Court asked the U.S. Solicitor General to provide the federal government’s views on a plea to revive claims running into the hundreds of millions of dollars in lawsuits aimed at major banks and investment firms for alleged roles in the Bernard Madoff “Ponzi scheme.”  The case is Picard v. JPMorgan Chase Bank (13-448).  Although the JPMorgan bank is still in the title of the case, it has reached a settlement (not yet final) with the liquidation trustee in the case.

The Court also sought the government’s views on two other cases: Maryland Comptroller v. Wynne (13-485), on the power of state governments to tax income that residents earn in other states, and B&B Hardware v.Hargis Industries (13-352), on the right to pursue a trademark confusion claim in an infringement lawsuit, after the federal trademark board has ruled on the confusion issue.

The Court’s reaction to the new Arizona abortion case had been eagerly awaited, for two reasons: it was a test of whether the Court would relax its repeated view that states cannot flatly ban abortion in the period before a fetus could live outside the pregnant woman’s body, and it was a test of whether the Justices would clear the way for state legislatures to experiment with bans on abortions at increasingly earlier stages in pregnancy.

Because the Court chose not to review the case, nothing final can be read into that denial, except perhaps that the Court is not ready to reopen the whole question about the continuing validity of its precedents on women’s abortion rights.  Lawyers for anti-abortion groups have been attempting to fashion arguments that they hoped would lead the Court to see that earlier-stage laws against pregnancy terminations were actually regulations of the procedure, not a total ban.  State legislatures have been passing a series of new laws to move the ban earlier, making the same argument that this is only a form of regulating the procedure.

In the Arizona case, for example, the ban on abortions in the twentieth week or later was said to be a measure aimed at protecting fetuses from feeling pain during an abortion procedure, and at protecting women from the health risks of abortions in that part of their pregnancies.  Those arguments did not succeed in this case, with the U.S. Court of Appeals for the Ninth Circuit striking down the 2012 state law, treating it as a flat ban that would interfere with a woman’s right to an abortion before the point of fetal viability — somewhere around twenty-four weeks of pregnancy.

This marked the second time this Term that the Court has bypassed a new abortion control law.  After first taking on a case involving an Oklahoma law that put limits on doctors’ ability to perform medical, rather than surgical, abortions, the Court took that case off of its docket after getting a fuller explanation of the law by the Oklahoma Supreme Court.

However, in November, the Court divided by an apparent five-to-four vote in refusing to block the implementation of a new Texas law that bars abortions in any clinic that does not have a doctor on its staff with full professional privileges at a nearby hospital.  The U.S. Court of Appeals for the Fifth Circuit is now reviewing the constitutionality of that law, after allowing it to take effect in the meantime.

The Supreme Court’s order Monday asking for the federal government’s views on a key follow-up to the Bernard Madoff “Ponzi scheme” involves a decision by the U.S. Court of Appeals for the Second Circuit barring a trustee overseeing the closing affairs of the Madoff brokerage firm from suing banks and investment advisory firms on the theory that they were partners in the scheme that cost investors perhaps $20 billion in lost portfolio value.

The reference of the case to the Solicitor General for comment will mean that the Justices will take no further action on it until they have the government’s views.  There is no deadline for the government to file those views.


Recommended Citation: Lyle Denniston, Court bypasses abortion test case (UPDATED), SCOTUSblog (Jan. 13, 2014, 9:43 AM),