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Court dismisses abortion “gag rule” cases, adds arbitration and habeas cases to docket

The Supreme Court’s announcement that it would take up a challenge to Mississippi’s ban on abortions after the 15th week of pregnancy (covered in a separate article here) dominated coverage of Monday’s orders. But in the same set of orders, the justices also dismissed a trio of cases – American Medical Association v. Becerra, Oregon v. Becerra and Becerra v. Mayor and City Council of Baltimore – that raised issues relating to abortion – specifically, a regulation issued by the Trump administration in 2019 that barred clinics that receive federal family-planning funds from providing abortion referrals. Acting U.S. Solicitor General Elizabeth Prelogar and the lawyers challenging the regulation (sometimes referred to as a “gag rule”) had asked the court to dismiss the cases in March because the Biden administration is in the process of unwinding the rule. But a group of states and conservative medical groups argued that the dispute remained a live controversy and asked the court to allow them to intervene to defend the rule.

Late last month the justices asked the Biden administration for more information about whether it intends to enforce the rule outside Maryland – where the U.S. Court of Appeals for the 4th Circuit has blocked its enforcement – until a new rulemaking process has finished, and how the administration would respond if new litigation were filed outside Maryland to challenge the rule.

In a brief order on Monday, the court explained that, based on the Biden administration’s pledge to continue to enforce the regulation outside of Maryland (at least until the administration replaces it with a new rule of its own), the court would deny the motions to intervene in the case and dismiss the cases from its docket. But it left open the possibility that if the Biden administration failed to defend the rule while it remains in effect, the states and medical groups could return to court, including the Supreme Court if necessary.

Justices Clarence Thomas, Samuel Alito and Neil Gorsuch indicated that they would have allowed the states and conservative medical groups to intervene and would have denied the motions to dismiss the cases.

Monday’s other grants

In addition to the Mississippi abortion case, the court added two other cases to its docket for its next term. In Badgerow v. Walters, the justices agreed to decide whether federal courts have the power to confirm or vacate an arbitration award under Sections 9 and 10 of the Federal Arbitration Act, which provide procedures to enforce and vacate an arbitration award, when the only basis for that power is that the underlying dispute involved a federal issue. The question comes to the court in a dispute between a Louisiana financial adviser and the owners of the firm for which she worked. A Financial Industry Regulatory Authority arbitration panel issued an award that dismissed the adviser’s claims; when the adviser went to state court to vacate the award, arguing that the owners had obtained the award against her by fraud, the owners moved the case to federal court and asked the judge to confirm the award.

The district court denied the adviser’s motion to send the case back to state court and confirmed the arbitration award; the U.S. Court of Appeals for the 5th Circuit agreed that the district court properly denied the adviser’s motion to remand the case. The adviser then came to the Supreme Court, which agreed on Monday to weigh in.

The justices also granted Arizona’s request to review a ruling by the U.S. Court of Appeals for the 9th Circuit that gave one death row inmate a new hearing to review evidence that his lawyer had failed to provide adequate representation and required a new trial for another, 25 years after his original conviction. The state came to the Supreme Court earlier this year, asking the justices to weigh in on the impact of the court’s decision in a 2012 case on the general rule that a federal court cannot consider evidence outside the state court record when reviewing a state prisoner’s claim for post-conviction relief. The justices will hear oral argument in the case, Shinn v. Ramirez, and in Badgerow in the fall.

A call for the government’s views

The justices sought the federal government’s views in a case filed against Union Pacific Railroad by an engineer who slipped on an oily platform on a locomotive. The engineer, Bradley LeDure, suffered injuries to his spine, shoulder and head that required multiple surgeries; he was later declared permanently disabled from railroad work. The court asked the federal government to weigh in on questions arising from the Locomotive Inspection Act and the Federal Employers’ Liability Act, which provides the only remedy for railroad workers injured on the job. Justice Amy Coney Barrett participated in the case as a judge on the U.S. Court of Appeals for the 7th Circuit and recused herself from the consideration of LeDure’s petition.

Notable denials of review

The justices turned down a petition for review from James Calvert, a Texas inmate who was sentenced to death for the murder of his ex-wife. Justice Sonia Sotomayor penned a statement regarding the court’s decision not to hear Calvert’s case. She recounted testimony at Calvert’s sentencing hearing from a former corrections officer about an incident in which he was stabbed in the eye with a pencil – by an inmate who was not Calvert. The state argued that the officer’s testimony and a brain scan showing the extent to which the pencil penetrated the officer’s brain could be introduced to show “an inmate’s opportunity for violence within the penitentiary.” Calvert, Sotomayor wrote, had raised a “serious argument that the State’s reliance on a graphic instance of violence by an unrelated inmate to prove that he posed a future danger” took away his right to an individualized sentencing. But, Sotomayor continued, she agreed with the decision not to take up Calvert’s case because it “does not meet the Court’s traditional criteria for granting” review.

The Supreme Court also declined to review the case of Lloyd Harris, who in 2016 was sentenced to life in prison for the 1996 rape and murder of a 15-year-old girl. Harris was a primary suspect in the girl’s murder soon after her body was discovered in a wooded area near where Harris lived at the time, but in 2000 prosecutors declined to indict him. Although the state did not discover any new evidence, the state brought charges 16 years later – during which time, Harris alleges, another suspect in the murder and a forensic analyst died, evidence was lost, witnesses became unavailable and he lost his ability to present an alibi. After considering the case at 13 consecutive conferences, the justices on Monday without comment turned down Harris’ request to decide what standard courts should apply to a claim that a delay before indictment violates the Constitution’s due process clause, when the delay has harmed the defendant’s ability to defend himself.

The justices’ next private conference is scheduled for Thursday, May 20, with orders from that conference to follow on Monday, May 24, at 9:30 a.m.

This article was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Court dismisses abortion “gag rule” cases, adds arbitration and habeas cases to docket, SCOTUSblog (May. 17, 2021, 6:33 PM),