This will be the high court’s first abortion case in nine years.
Since 1992, the court has ruled on three abortion cases, each time affirming further abortion restrictions. In 1992, in Planned Parenthood v. Casey, a divided court upheld the right to abortion, but left it to the states to set abortion restrictions, saying that these regulations can’t put an “undue burden” on abortion access. This broad ruling opened the door for the hundreds of so-called Targeted Regulation of Abortion Providers or TRAP laws that states have passed in recent years—onerous regulations placed on abortion providers, often purporting to protect women’s health. In its last ruling in 2007, the court upheld a law outlawing dilation-and-extraction second-trimester abortions. If the court continues its pattern of voting against abortion rights and rules to allow Texas to move forward with several burdensome abortion restrictions, it will open the door for other states to do the same, dealing a serious blow to the right to legal abortion guaranteed by Roe v. Wade.
“The Court now has the opportunity to decide whether we will continue to allow elected officials to play politics with women’s health,” wrote Ilyse Hogue, the president of NARAL Pro-Choice America, in a statement. “This case represents the greatest threat to women’s reproductive freedom since the Supreme Court decided Roe vs. Wade over 40 years ago. Laws like the ones being challenged in Texas are designed to subvert the Constitution and end the right to a safe and legal abortion.”
In this case, the justices are expected to focus on two of the Texas law’s most onerous requirements: that abortions be performed in ambulatory surgical centers, hospital-like facilities that specialize in outpatient surgery, and the requirement that abortion providers obtain admitting privileges at a nearby hospital. Many medical professionals argue that these restrictions put unnecessary burdens on abortion providers: Building and maintaining an ASC is expensive, given the strict requirements regarding features like hallway width and ventilation. Nor do ASCs enhance the standard of care for abortion; the American College of Obstetricians and Gynecologists and other medical groups have repeatedly noted that the procedure can be safely performed in a typical doctor’s office. The admitting privileges’ provision gives hospitals in conservative communities or with a religious affiliation the power to effectively stop abortions by denying the necessary admission privileges to doctors.
“The common-sense measures Texas has put in place elevate the standard of care and protect the health of Texas women,” wrote Texas Attorney General Ken Paxton in a statement released following Friday’s Supreme Court’s announcement. “We look forward to demonstrating the validity of these important health and safety requirements in Court.”
The number of abortion clinics in Texas has already been cut by more than half, as elements of HB 2, such as restrictions on medication abortion, a 20 week abortion ban, and the admitting privileges requirement, have gone into effect over the last two years. Before the law, there were 41 clinics in Texas. Today, there are 18. As my colleague Molly Redden reported in September, this has created large swathes of the state where women must travel hundreds of miles to get abortion care. If the Supreme Court upholds HB2 in full, including the ambulatory surgical center requirement, the number of abortion clinics in Texas could fall to ten.
The justices seem appalled by a Georgia death penalty case.
Every so often, Supreme Court Justice Sonia Sotomayor reminds us that she isn’t quite the same as her colleagues when it comes to background and experiences. Sometimes it happens on Sesame Street. But—with increasing frequency—it can happen from the bench itself. Monday is one of those days.
The case is Foster v. Chatman, a dispute about how an all-white jury was seated in the capital murder trial of a young black man in Georgia. The year was 1987. The Supreme Court had only just decided, in a 1986 case called Batson v. Kentucky, that so-called peremptory challenges, which let prosecutors exclude a juror for no stated reason, could not be used in an attempt at “purposeful racial discrimination to bar African Americans from juries.” (Peremptory challenges stand in contrast to “for cause” challenges, where lawyers must explain to a judge why they are excluding a juror.) Of course, given the opportunity after the fact to proffer “a neutral explanation” for why they struck any one juror, most prosecutors—indeed most high-functioning middle-schoolers—can usually muster a reason that sounds reasonable and race-neutral. Supreme Court Justice Thurgood Marshall worried about the potential toothlessness of the ruling even as he signed onto the Batson ruling.
Timothy Tyrone Foster, a black 18-year-old, was charged in connection with the brutal slaying of Queen Madge White, a 79-year-old white woman. In seating Foster’s jury, the two prosecutors managed to strike all four prospective black jurors. Later, at a hearing to determine if they had violated the Batson rule, prosecutors justified striking each of these jurors by saying that, for instance, the candidates failed to make eye contact, or looked bored, or had a son who was close in age to the defendant, or was a social worker. White jurors who shared many of those qualities were not excluded.
Untested drugs from secret sources have given an Oklahoma prisoner at least 37 days more to live, as the governor ordered an inquiry into the legality of the drugs and again raised questions about the drugs’ origins.
What went wrong
About an hour before Richard Glossip’s scheduled execution on Wednesday, governor Mary Fallin issued a 37-day stay due to “last-minute questions” about “Oklahoma’s execution protocol and the chemicals used for lethal injection”. Prison officials intended to kill Glossip, a 52-year-old convicted murderer, with an injection cocktail of a sedative, paralytic and finally a drug to stop the heart.
Only one of the three drugs, the paralytic, is relatively uncontroversial. The sedative midazolam was involved in three prolonged and gruesome executions last year, including the killing of Oklahoma inmate Clayton Lockett, who writhed and groaned for more than 40 minutes after injections were administered. After Glossip and other inmates argued to the supreme court that the painkiller rendered execution unconstitutionally cruel, the justices decided 5-4 to allow the drug.
But the controversial drug in Glossip’s current case is the third chemical, potassium acetate, which Oklahoma acquired as a substitute for potassium chloride, the salt usually used to overload a human body with potassium and stop the heart. Justice Elena Kagan, who voted against allowing the sedative, noted last year that people have compared the experience of potassium chloride injection to “being burned alive from the inside”.
A ruling on the state’s requirements for abortion providers could roil the 2016 race.
Supreme Court justices will meet behind closed doors Monday to start the process of deciding which cases to take up this term, with all eyes on a challenge to a Texas abortion law that could roil the presidential race just months before voters go to the polls.
The case, Whole Woman’s Health v. Cole, centers on a series of far-reaching restrictions on Texas abortion providers and clinics, which led to the closure of about half of the state’s abortion facilities. It promises to be the most significant abortion case in at least two decades, and could inject divisive social issues into the presidential race at a key moment.
If the justices hear the case after their term officially begins Oct. 5, they are expected to focus on two of the most significant restrictions in the Texas law — that abortion providers must have admitting privileges at a nearby hospital and that abortions be performed in facilities that meet the same building standards as ambulatory surgical centers. Many other states — mostly red states where opposition to abortion is strong — have also imposed such restrictions.
Supporters say such laws ensure that women terminating pregnancies will get safe, quality care. But abortion rights advocates say that the regulations are unnecessarily onerous, often forcing clinic closures and that they are designed to restrict abortion, not make it safer.
The laws are part of a movement within many conservative states to increase the number of regulations on doctors and clinics that perform abortions. Arguments over the case will likely turn on whether the state has imposed an “undue burden” on women’s access to abortion.
In 1992, the court ruled in Planned Parenthood v. Casey that states could impose some restrictions on abortion as long as they did not pose an undue burden on a woman’s access to the procedure. A ruling in this case would be only the second time since the Casey decision that the high court has reviewed such limits.
A federal appeals court on Thursday ruled against ObamaCare’s birth control mandate in a decision that could invite a Supreme Court review.
The 8th Circuit Court of Appeals ruled that four Christian nonprofits should not have to comply with the ObamaCare rule that all employer healthcare plans include contraception options or face a fee. While employers can seek exemptions to the law, the court argued that doing so poses a “substantial burden” on that organization’s religious rights.
The decision is particularly important because it directly contradicts another federal court’s ruling.
“With today’s decisions, the [Supreme] Court will have great reason to decide this issue in the next term,” one religious rights group, the Becket Fund for Religious Liberty, wrote in a statement Thursday.
The Supreme Court already has several cases involving the birth control mandate it could take up in its fall term.
Conservatives were quick to praise the decision, which reignites a years-long battle against the ObamaCare rule.
“This court ruling is a victory for the rights of freedom and liberty that were critical to our Founding Fathers and American exceptionalism to this day,” Rep. Peter Roskam (R-Ill.) wrote in a statement Thursday.
The ruling includes 30 references to Burwell v. Hobby Lobby, the 2014 Supreme Court case that allowed certain for-profit companies to opt out of the mandate. Since that decision, multiple nonprofits, including universities, have taken legal action demanding to be granted the same permissions.
Under ObamaCare, employer healthcare plans are required to cover all federally approved forms of birth control. That includes, as the court notes, emergency contraception that some religious organizations believe is “functionally equivalent to abortion on demand.”
Groups can receive an exemption by writing a letter to the Health and Human Services Department or filling out a two-page form to document their objections. Houses of worships are automatically exempt from the law.
A White House spokeswoman on Thursday said the administration is “disappointed” in the decision, but believes the mandate will ultimately be upheld.
“As all of the other seven courts of appeals to address this issue have held, the contraceptive accommodation process strikes the proper balance between ensuring women have equal access to health care and protecting religious beliefs,” the spokeswoman said.
– Updated at 4:56 p.m.
49% say officials with religious objections should be able to refuse licences
Republicans say religious rights should come first, Democrats say gay rights
The supreme court’s ruling last month legalising same-sex marriage nationwide has left Americans sharply divided, according to an Associated Press-GfK poll that suggests support for gay unions may be down slightly from earlier this year.
The poll also found a near-even split over whether local officials with religious objections should be required to issue marriage licenses to same-sex couples, with 47% saying that should be the case and 49% say they should be exempt.
Overall, if there is a conflict, a majority of those questioned think religious liberties should win out over gay rights, according to the poll. While 39%t said it is more important for the government to protect gay rights, 56% said protection of religious liberties should take precedence.
The poll was conducted from 9 to 13 July, less than three weeks after the supreme court ruled states cannot ban same-sex marriage.
According to the poll, 42% support same-sex marriage and 40% oppose it. The percentage saying they favour legal same-sex marriage in their state was down slightly from the 48% who said so in an April poll. In January, 44% were in favour.
Asked specifically about the supreme court ruling, 39% said they approve and 41% said they disapprove.
“What the supreme court did is jeopardise our religious freedoms,” said Michael Boehm, 61, an industrial controls engineer from the Detroit area who describes himself as a conservative-leaning independent.
“You’re going to see a conflict between civil law and people who want to live their lives according to their faiths,” Boehm said.
Boehm was among 59% of the poll respondents who said wedding-related businesses with religious objections should be allowed to refuse service to gay and lesbian couples. That compares with 52% in April.
Also, 46% said businesses more generally should be allowed to refuse service to same-sex couples, while 51% said that should not be allowed.
Claudette Girouard, 69, a retiree from Chesterfield Township, Michigan, said she is a moderate independent voter who has gradually become supportive of letting same-sex couples marry.
“I don’t see what the big hoopla is,” she said. “If they’re happy, why not?”
Girouard said local officials should be required to perform same-sex marriages, but does not think that wedding-related businesses should be forced to serve same-sex couples.
“If the official doesn’t like what he’s being asked to do, then quit,” she said. “But businesses are kind of independent, so if they have a strong belief against it, there are enough other businesses out there for someone to use.”
The poll found pronounced differences in viewpoints depending on political affiliation.
For example, 65% of Democrats but only 22% of Republicans favoured allowing same-sex couples to legally marry in their state. And 72% of Republicans but just 31% of Democrats said local officials with religious objections should be exempt from issuing marriage licences.
By a 64-32 margin, most Democrats said it is more important to protect gay rights than religious liberties when the two are in conflict. Republicans said the opposite, by 82-17.
On Monday, the Supreme Court ruled against one of the Obama administration’s primary battle victories in the so-called war on coal. The court decided that the government hadn’t appropriately considered the economic cost to the coal industry of new rules designed to limit toxic mercury emissions. But buck up, environmentalists. The defeat for the Environmental Protection Agency probably won’t make much of a difference.
At the heart of the court’s decision was a dispute about the benefits of cracking down on mercury pollution from coal burning. From USA Today:
While the estimated annual cost of $9.6 billion is not widely disputed, the cost-benefit ratio is. Opponents said the benefits are as low as $4 million a year. Proponents said when all secondary pollutants are considered, they’re as high as $90 billion.
Under the Clean Air Act, regulations like this must be “appropriate and necessary.” The Supreme Court took the side of the opponents and ruled that the rules did not fit that mandate. “One would not say that it is even rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits,” wrote Justice Antonin Scalia, in the majority opinion. “No regulation is ‘appropriate’ if it does significantly more harm than good.”
The ruling has been widely interpreted as a setback for Obama’s second-term focus on the environment, but a close reading of the ruling shows that not a whole lot will actually change. My Slate colleague Mark Stern has the main takeaway:
WASHINGTON — The Supreme Court ruled 5-4 on Monday that a voter-approved independent redistricting commission in Arizona is constitutional. The conservative wing of the court was in the minority.
In response to complaints that the state legislature was engaging in partisan gerrymandering of congressional districts, Arizona voters approved an independent commission to draw district lines in a 2000 ballot initiative. The commission has two Republicans and two Democrats, who legislative leaders choose from a list composed by the state’s Commission on Appellate Court Appointments, in addition to a chairman who may not be a member of either party.
Republican legislators sued after the 2012 election, arguing that they shouldn’t be completely cut out of the district-drawing process.
The case before the Supreme Court — Arizona State Legislature v. Arizona Independent Redistricting Commission — hinged on one word: “legislature.” It arose out of a debate over the Constitution’s elections clause, which dictates that the “times, places, and manner” of federal elections “shall be prescribed in each state by the legislature thereof.”
In oral arguments before the court in early March, the court’s four more conservative justices, plus Justice Anthony M. Kennedy, the swing vote, seemed skeptical of the commission’s argument that “legislature” can also mean the legislative process, including ballot initiatives.
But in its decision, the court’s majority, including Kennedy, wrote that overturning the independent commission would go against the spirit of the elections clause.
“The Elections Clause permits the people of Arizona to provide for redistricting by independent commission,” the decision read. “The history and purpose of the Clause weigh heavily against precluding the people of Arizona from creating a commission operating independently of the state legislature to establish congressional districts. Such preclusion would also run up against the Constitution’s animating principle that the people themselves are the originating source of all the powers of government.”
The decision continued: “The Framers may not have imagined the modern initiative process in which the people’s legislative power is coextensive with the state legislature’s authority, but the invention of the initiative was in full harmony with the Constitution’s conception of the people as the font of governmental power. It would thus be perverse to interpret ‘Legislature’ in the Elections Clause to exclude lawmaking by the people, particularly when such lawmaking is intended to advance the prospect that Members of Congress will in fact be ‘chosen… by the People of the several States.'”
Supreme Court rulings affirming ObamaCare and gay marriage are unnerving the right, which sees a leftward tilt in the Chief Justice John Roberts era.
To be sure, the court has issued right-leaning rulings since Roberts was confirmed in 2005, perhaps most notably by opening up campaign coffers to private organizations in Citizens United v. FEC, and striking down a section of the 1965 Voting Rights Act.
But in a series of other rulings, the court has issued decisions cheered by the left that have disappointed conservatives and soured them on Roberts.
The court’s early direction under Roberts appeared in line with expectations.
In 2010, a New York Times analysis of the first five years of the Roberts Court found it to be one of the most conservative in decades, issuing conservative opinions 58 percent of the time.
Some of the recent decisions have highlighted a disturbing trend for conservatives.
While the court’s four liberal justices have ruled in unison on gay marriage, ObamaCare, discrimination in housing and other issues, conservatives on the court have been split.
While Justices Antonin Scalia, Clarence Thomas and Samuel Alito have generally aligned on the right, Roberts wrote both ObamaCare decisions and Kennedy has been a frequent swing voter.
Even Thomas broke with the other four conservatives last week in a ruling that said Texas could block people from putting the Confederate flag on license plates.
Given that Kennedy and Roberts were nominated to the court by GOP presidents, Ronald Reagan in the case of the former and George W. Bush in the latter, their surprise decisions have left a sour taste.
“They lied to the presidents who appointed them. Is there any doubt in anyone’s mind what Ronald Reagan wanted when he picked Anthony Kennedy?” said Matt Schlapp, president of the American Conservative Union. “I don’t trust the court. I don’t trust John Roberts to do the right thing. I definitely don’t trust Anthony Kennedy to do the right thing.”
Some legal experts say the court only appears more liberal because the big cases would have never come before the court if it weren’t so conservative.
“The only reason they heard the Obamacare case is because we have some really deeply conservative justices who thought this could be used as mechanism to strike it down,” said Kent Greenfield, a law professor and Dean’s Research Scholar at Boston College. “With same-sex marriage, they’ve been avoiding taking the case.”
But a ruling this week on fair housing shows it is not just the high-profile political cases where a conservative justice can surprise.