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Petitions of the week

Two new tests of the court’s abortion jurisprudence

This week we highlight cert petitions that ask the Supreme Court to consider the constitutionality of two controversial abortion laws – and, more broadly, to clarify how lower courts analyzing abortion restrictions should apply last year’s fractured decision in June Medical Services v. Russo. These two new petitions join Dobbs v. Jackson Women’s Health Organization (which has been pending before the justices for nearly a year) in asking the court to wade back into the abortion debate.

Box v. Planned Parenthood of Indiana and Kentucky involves the constitutionality of an Indiana law that provides for parental notice before a minor obtains an abortion. Indiana generally requires minors to have their parents’ consent in order to get an abortion, but the state also allows minors to petition a juvenile court to bypass the parental-consent requirement. (That judicial-bypass exception is required under Supreme Court precedent.) In 2017, the Indiana legislature enacted a law providing that, even when a minor receives a judicial bypass to get an abortion, her parents must still be given advance notice of the abortion unless the judge finds that such notice would not be in the minor’s best interests.

Planned Parenthood challenged the parental-notification law, and a district court blocked it from taking effect. In 2019, a divided panel of the U.S. Court of Appeals for the 7th Circuit ruled that the law is likely unconstitutional in light of the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt. While the state petitioned the Supreme Court to review the 7th Circuit’s ruling, the justices handed down their decision in June Medical, in which Chief Justice John Roberts’ solo concurrence arguably adjusted the test for evaluating the constitutionality of abortion restrictions. The Supreme Court then sent the Indiana case back to the 7th Circuit with instructions for that court to re-evaluate the parental-notification law in light of June Medical.

Last month, the 7th Circuit panel – again divided 2-1 – ruled that June Medical did not alter the conclusion that the law is likely unconstitutional. Indiana is now back at the Supreme Court, again asking the justices to weigh in on the law. Taking the case, the state argues, would allow the court to resolve a circuit split on parental-notification requirements and, more broadly, to clarify the impact of June Medical.

Rutledge v. Little Rock Family Planning Services involves a 2019 Arkansas law that prohibits medical providers from performing abortions if the sole reason for the abortion is a prenatal test indicating that the fetus has Down syndrome. A district court blocked the law from taking effect, and a panel of the U.S. Court of Appeals for the 8th Circuit – relying on Roberts’ concurrence in June Medicalaffirmed that ruling in January. Two judges on the panel wrote separately to say they regret the outcome even though they believe binding precedent requires it.

In its petition for review, Arkansas argues that the 8th Circuit and other lower courts have misconstrued Roberts’ June Medical concurrence as holding that a state’s asserted interests in enacting abortion restrictions are no longer relevant in the legal analysis of whether those restrictions are constitutional. Like Indiana, Arkansas says that granting its petition would provide the court with an ideal vehicle to clarify the current state of the court’s abortion jurisprudence.

These and other petitions of the week are below:

Recovery Innovations Inc. v. Rawson
Issue: Whether through the provision of mental health services, a private, non-profit hospital and private healthcare providers become state actors, subject to claims under 42 U.S.C. § 1983, when they provide mental health services to a person who was deemed to be “gravely disabled” and to “present[ ] a likelihood of serious harm to others” under the state’s involuntary commitment law.

Threatt v. Farrell
Issue: Whether, and to what degree, a district court must consider counsel’s lodestar in awarding “reasonable attorney’s fees” under Federal Rule of Civil Procedure 23(h).

City of Portland, Oregon v. Federal Communications Commission
Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in upholding the Federal Communications Commission’s interpretation of “effect of prohibiting” in light of its plain meaning, lack of a limiting standard and National Cable & Telecommunications Association v. Brand X Internet Services; and (2) whether the divided 9th Circuit erred in affirming the FCC’s interpretation of 47 U.S.C. § 253 to mandate access, at cost, to public property for private commercial use.

Box v. Planned Parenthood of Indiana and Kentucky Inc.
Issue: Whether, when a court permits an unemancipated minor to have an abortion, the state may require that her parents be notified before the abortion occurs except where such notice would contravene her best interests.

Fox v. Summers
Issue: Whether the 14th Amendment due process right to informational privacy protects information of a personal, sexual nature related to one’s victimization from government dissemination absent a compelling state interest, a question as to which the courts of appeals are in conflict.

Rutledge v. Little Rock Family Planning Services
Issue: Whether the 14th Amendment bars states from prohibiting abortions that are sought solely because of a prenatal diagnosis of Down syndrome.

Recommended Citation: James Romoser and Andrew Hamm, Two new tests of the court’s abortion jurisprudence, SCOTUSblog (Apr. 25, 2021, 11:45 PM),