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.
This astonishing, anti-science, states’-rights court decision begs for a ban on abortion.
This week, a panel of the 8th U.S. Circuit Court of Appeals blocked North Dakota’s so-called fetal heartbeat bill. At first glance, this appears to be a clear victory for abortion rights. The statute—one of the strictest abortion bans in the nation—prohibited, with narrow exceptions, abortions as soon as a fetal heartbeat is detected, which is often six weeks post-fertilization, sometimes before a woman knows she is pregnant. The law had been pushed through by a Republican state legislature in 2013 but was almost immediately blocked by a federal district court, which found that it clearly violated the constitutional protections afforded in Roe v. Wade.
Roe established that abortions were permissible pre-viability (currently at about 24 weeks into a pregnancy). As the district court originally determined two years ago, “[a] woman’s constitutional right to terminate a pregnancy before viability has consistently been upheld by the United States Supreme Court for more than forty years since Roe v. Wade.” The district court also determined that “H.B. 1456 clearly prohibits pre-viability abortions in a very significant percentage of cases in North Dakota, thereby imposing an undue burden on women seeking to obtain an abortion.”
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.
The Supreme Court on Friday delivered a historic victory for gay rights, ruling 5 to 4 that the Constitution requires that same-sex couples be allowed to marry no matter where they live and that states may no longer reserve the right only for heterosexual couples.
The court’s action marks the culmination of an unprecedented upheaval in public opinion and the nation’s jurisprudence. Advocates called it the most pressing civil rights issue of modern times, while critics said the courts had sent the country into uncharted territory by changing the traditional definition of marriage.
“Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right,” Justice Anthony Kennedy wrote in the majority opinion. He was joined in the ruling by the court’s liberal justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
All four of the court’s most conservative members — Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — dissented and each wrote a separate opinion, saying the court had usurped a power that belongs to the people.
Reading a dissent from the bench for the first time in his tenure, Roberts said, “Just who do we think we are? I have no choice but to dissent.”
In his opinion, Roberts wrote: “Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening.”
Scalia called the decision a “threat to American democracy,” saying it was “constitutional revision by an unelected committee of nine.”
In a statement in the White House Rose Garden, President Obama hailed the decision: “This ruling is a victory for America. This decision affirms what millions of Americans already believe in their hearts. When all Americans are truly treated as equal, we are more free.”
Obama said change on social issues can seem slow sometimes, but “sometimes there are days like this when that slow and steady effort is rewarded with justice that arrives like a thunderbolt. This morning the Supreme Court recognized that the Constitution guarantees marriage equality. In doing so they’ve reaffirmed that all Americans are entitled to equal protection under the law. . . . Today we can say in no uncertain terms that we have made our union a little more perfect.”
Ron Johnson won his Senate seat in 2010 on an anti-Obamacare campaign, railing against the law as “the greatest assault on our freedoms in my lifetime.”
Now, the Supreme Court may give the conservative Wisconsin Republican more than he bargained for.
The justices will rule any day now in King v. Burwell, a case that could eliminate health insurance subsidies for 6.4 million Americans, including more than 166,000 Wisconsinites. And few Republicans have done more to prepare for the ensuing uproar than Johnson, just as he heads into a closely contested reelection race that could determine the next Senate majority.
Johnson is the lead author of legislation aimed at responding to the Supreme Court decision, a bill that has been embraced by 31 colleagues, including Senate Republican leaders. Yet, Democrats already are bashing his plan as nothing more than a political message that has no chance of becoming law — while conservatives believe it is too generous because it temporarily extends those subsidies for up to two years.
“Let’s face it, I’ve poked my neck out here,” Johnson said in an interview. “I’m getting attacked on both sides, but it’s the responsible thing to do. It’s the fair thing to do. My guess is the citizens of Wisconsin will take a look at that and say, ‘He’s being a responsible representative for us.’”
That Johnson now is in a pickle highlights the quandary for Republicans: While railing against the law is politically popular, they don’t want to be held responsible for eliminating a financial benefit that Americans have been getting for more than a year. And it showcases the challenges of running for office as an insurgent outsider, as Johnson did in 2010, versus as an incumbent who now needs to deliver results to voters.
What happens if the Supreme Court rules for the plaintiffs in King v. Burwell? The simplest answer is that Republican states get screwed.
You wouldn’t know that from the political debate, which pits Democrats who fear a ruling for the plaintiffs against Republicans who welcome one. But both sides are operating under an outdated model of the politics around Obamacare — one in which the law’s survival remains an open question.
It’s not. Obamacare is here to stay — as even congressional Republicans now realize. And the King v. Burwell case doesn’t threaten the law itself. It threatens Republican states that don’t want to implement the law. Residents in those states will end up paying a huge amount of money to fund a law that delivers no benefits to them and their state — and, in fact, turns their insurance market into a disaster zone.
More importantly, King v. Burwell threatens the 6.4 million people receiving insurance subsidies in states that don’t want to implement the law. For them, an adverse ruling by the Supreme Court won’t just be an interesting political story — it’ll be a genuine disaster that may leave them unable to afford care they badly need.
In the states that want to implement Obamacare, however, the law will be just fine — in fact, it will be entirely unaffected. And, over time, most or all states will decide to implement Obamacare.
King v. Burwell challenges a regulation, not Obamacare itself
The extremely smart Larry Levitt, a vice president at the Kaiser Family Foundation, told Vox that “this Court challenge is the last point at which it seems really like the law could completely go away.”
On this, I have a rare disagreement with Levitt: there is no plausible version of a King ruling in which Obamacare vanishes. Unlike the challenge to Obamacare’s individual mandate, the King case doesn’t contest the Patient Protection and Affordable Care Act itself. It contests a specific IRS regulation that interprets how subsidies flow through federally run exchanges.
As Jonathan Adler, one of the lawyers behind the case, told me, this is “a challenge to the lawfulness of this specific regulation. If the plaintiffs are successful, the court declares this regulation is unlawful.”
In the individual mandate case, there was a chance of the Supreme Court overturning Obamacare in its entirety. Here, the Court isn’t considering Obamacare in its entirety. The worst it will do is overturn the IRS’s regulation, shutting off subsidies in states that haven’t built their own insurance exchanges.
It’s common for reporters to say that SCOTUS might “gut” or “destroy” Obamacare — a shorthand for the very real, and truly devastating, consequences of cutting off insurance subsidies in 34 states. I’ve probably used the formulation myself. Those consequences are real, and for the newly insured, scary. But — in another divergence from the individual mandate case — states can choose whether to face them.
Major decisions are expected as soon as Monday, as the U.S. Supreme Court works its way through several cases still pending before it closes out its calendar for the 2014-2015 term.
Among the biggest issues hanging fire: the status of same-sex marriages, subsidies for health insurance under Obamacare and the drugs that states may use to administer the death penalty by lethal injection. But the court is also expected to weigh in on the drawing of lines for congressional elections, the right to put the Confederate flag on license plates and the right of a municipality to regulate outdoor signage.
“Decision days” are scheduled for each Monday this month, along with Thursday, the 18th — and there could be yet another day announced as well. The court has not gone beyond June in more than 20 years.
It is typical for the court to issue its most important and controversial rulings in the final days of its annual session. Many expect the same-sex marriage and Obamacare decisions to come later in the month. But many court observers are expecting the lethal-injection decision sooner, along with more than a dozen cases that carry considerable significance of their own.
The court meets at 10 a.m. Monday and on the other decision days of the month. NPR will be covering the proceedings and report on the decisions as soon as they become available, on our regular radio programs, on NPR.org, NPR One and other platforms.
Lethal Injection (Glossip v. Gross)
As traditional methods such as hanging, firing squad and electrocution have fallen from favor, states with the death penalty have been injecting a “protocol” or series of drugs to execute death-row prisoners. But pharmaceutical companies now refuse to provide sodium thiopental, the drug used at the beginning of the series to make the prisoner lose consciousness.
States have looked for substitutes, including midazolam, which is a sedative and not an anesthetic. Inmates, who have brought this case, say they may remain conscious after receiving this drug and when they receive the subsequent drugs. Some members of the court were clearly sympathetic to this viewpoint in the oral argument earlier this year. But some of the court’s conservatives seemed to regard it as a “back door” means to undermine the death penalty itself.
If the court sides with the inmates, states will have to scramble to find alternative means of execution, which may include a return to the more traditional methods.
Obamacare (King v. Burwell)
Plaintiffs have argued that only those states that have set up their own exchanges for the purchase of health care insurance are entitled to give subsidies to lower income people. States that let the federal government set up their exchanges for them, they contend, may not accept the federal tax credits that subsidize those eligible in state-run exchanges. The administration argues that the intent of the legislators was clear whatever the exact wording of the 2010 Affordable Care Act and that all exchanges are eligible for the subsidies.
If the court rules for the plaintiffs, subsidies could go away for more than six million current recipients, although the timetable for them losing their insurance is somewhat uncertain. Congress would be under pressure to act.
Taking this many people out of the system would also affect the private health-insurance market and the amount people pay in insurance premiums. The degree of impact would depend on how sweeping the justices’ ruling was. But it could affect individuals, small business, large business, the insurance industry, doctors and hospitals.
Same-Sex Marriage (Obergefell v. Hodges and related cases)
A series of recent rulings by the high court has led to the legalization of same-sex marriage in three dozen states that are home to more than 70 percent of the U.S. population. This has happened despite many states’ efforts to enact bans on such marriages, either by legislation or referenda.
These laws and state constitutional amendments have been consistently struck down by federal courts at the district and appellate levels — except for the Federal Court of Appeals for the Sixth Circuit. This one court, sitting in Cincinnati, Ohio, upheld the ban enacted in that state and several others and said states did not have to recognize marriages performed legally in other states. This “circuit split” between appeals judges brought the case before the U.S. Supreme Court earlier this year.
The court now has the opportunity to clarify the legal situation by legalizing same-sex marriage in all 50 states or to adopt any of several more complicated resolutions — leaving some states with legal same-sex marriage but others — perhaps most — without. The court is also deciding a related case regarding the right of a state to refuse to recognize a same-sex marriage that took place legally in another state.
Other cases to watch…
Arizona state legislature v. Arizona independent redistricting commission
Are state laws that put redistricting in the hands of independent commissions unconstitutional? Arizona voters created a commission by constitutional amendment, and some state legislators say that strips them of their redistricting power in violation of the federal constitution.
Walker v. Texas Division, Sons of the Confederacy
May states constitutionally ban the Sons of the Confederacy from displaying the confederate battle flag on vanity license plates?
Reed v. Town of Gilbert, Ariz.
What should be the constitutional rules for municipalities seeking to limit sign clutter? Here, a church had signs that the town wanted to regulate or remove.
Michigan v. EPA
Environmental case tests at what point the federal Clean Air Act requires the EPA to take into account the costs that factory owners face in complying with EPA regulation. Should it be before or after deciding to regulate hazardous pollutants?
Texas Department of Housing and Community Affairs v. The Inclusive Communities Project
The most significant race-related case of the term involves so called “disparate impact” in housing. Must plaintiffs have proof of someone’s intent to discriminate?