As the Court resumes oral arguments on Monday, February 22 after a month-long recess, many will miss the voice of Associate Justice Antonin Scalia. Justice Scalia passed away on the evening of Friday, February 11, 2016 while on a hunting trip in West Texas. The longest-sitting justice on the current Court, Justice Scalia led the court in a textual and originalism revolution, interpreting the Constitution as a static document. He succinctly summarized his views when speaking in 2005 at American University with Justice Breyer: “I think it is up to the judge to say what the Constitution provided, even if what it provided is not the best answer, even if you think it should be amended. If that’s what it says, that’s what it says.”
The space left by the conservative jurist will be felt through several cases during this upcoming round of oral arguments, beginning on the first day of the new sitting. Scalia’s absence will surely play a role in the second argument of the day, Utah v. Strieff. The case presents the Court with an opportunity to revise traditional conceptions of the Fourth Amendment’s exclusionary rule by adopting a subjective test based on the mens rea of the police officer who conducted the illegal search.
Scalia’s absence may be most pivotal, though, in the last case of the late February term, to be argued on March 2. Whole Woman’s Health v. Cole presents a challenge to abortion rights that is likely to result in a decision divided along lines of political affiliation and constitutional-interpretation. The case centers on a Texas law that imposes new regulation on abortion clinics and the doctors who perform the procedures. Proponents of the measure claim it is merely meant to increase the safety of the procedure, and the Fifth Circuit endorsed this interpretation by ruling against the abortion providers challenging the law. Critics attack the bill, however, arguing that it places an “undue burden” on the ability of women to obtain an abortion. The controversy garnered national media attention when Texas state-senator Wendy Davis held an eleven-hour filibuster attempting to block the legislation.
The New York Times has published an in-depth piece examining the effect Scalia’s passing may have on this term’s close cases. Whatever the outcome, it is clear that Justice Scalia’s voice will be missed during oral arguments, and his principled legal scholarship will influence the legal profession for generations to come.
Read on to find On the Docket’s preview of the Supreme Court’s February docket, and as always, don’t forget to check back for analysis and commentary from prominent legal scholars when opinions are announced!
February 22
Kingdomware Technologies Inc. v. United States
14-916, Fed. Cir.
Kingdomware Technologies Inc. v. United States marks another chapter in the story of the Obama administration’s embattled Department of Veteran Affairs (VA). At issue this time is the scope of a Congressional mandate to award government contracts to businesses owned by disabled veterans, particularly with respect to small dollar, repetitive purchases.
Government contracts are typically assigned through a procedure outlined in the government-wide Federal Acquisition Regulation, which requires agencies to publish invitations for bidding and provide a reasonable time to respond before awarding a contract. The process is considered too inefficient and cumbersome for small dollar and repetitive supply contracts, though. Instead, an agency called the General Services Administration manages the Federal Supply Schedule (FSS), which allows vendors to advertise generalized goods and services at a specified price. When a need arises, a contracting officer may simply go to the FSS website, check the listings, and place an order.
For years, the government has had a standing goal of awarding 3% of its contracts to small businesses that are owned by disabled veterans. After consistently falling short, Congress decided in 2006 to make the VA a model for other parts of the Government to emulate. It passed the Veterans Benefits, Health Care, and Information Technology Act, which, among other things, called upon the Secretary of Veteran Affairs to set an agency-wide target for contracting with veteran-owned businesses that equaled or exceeded the goal of the government as a whole. The Act requires the VA to follow the “Rule of Two” “for purposes of meeting the goals,” meaning that bidding for a contract should be restricted to only veteran-owned small businesses when the contracting officer believes from market research that two or more such companies will place reasonably priced bids.
Here, the controversy springs from the VA’s purchase of an emergency notification system through the FSS, which the agency has long held is not covered by the Rule of Two requirement. A protest was filed by Kingdomware Technologies, a D.C.-based IT company owned by a disabled Desert Storm veteran named Timothy Barton. Kingdomware argues that the statute gives the VA no choice but to apply the Rule of Two for every contract. A divided Federal Circuit disagreed, holding that the text of the statute unambiguously precluded this interpretation. The mandate prescribed the procedure only for purposes of meeting the Secretary’s established benchmark, the court explained, and because the VA regularly met or exceeded its annual goal for contracting with veteran-owned businesses, it was within the agency’s discretion to skip the Rule of Two analysis on specific, individual contracts.
Regardless of how the case is decided, the fact that it is being argued at all may be a defeat for the VA. The agency has repeatedly been the subject of scandals over veteran care in recent years, culminating in the 2014 resignation of Secretary Eric Shinseki. At a time when the VA is no doubt attempting to craft a new image for itself, arguing against contracting with a disabled veteran in a high profile venue like the Supreme Court is unlikely to improve public perception of the agency.
*This argument preview previously appeared in On the Docket’s November Previews, as the case’s oral arguments date was changed*
Utah v. Strieff
No. 14-1373; Utah
Edward Strieff happened to be in the wrong place at the wrong time. Strieff walked out of a house that police officer Doug Fackrell had been watching for three hours on the basis of an anonymous tip that it was being used to sell narcotics. After observing that the house had a decent amount of foot traffic, but nothing more, Officer Fackrell decided to stop the next person who came out of the house. That next person happened to be Edward Strieff.
Officer Fackrell asked for Strieff’s identification and ran a warrant check. Upon discovering that there was a small traffic warrant out on Strieff, Officer Fackrell arrested him and conducted a search incident to the arrest. This search revealed some meth and drug paraphernalia in Strieff’s pockets, and Strieff was later charged with drug-related offenses.
Strieff moved to suppress the evidence found on him using the exclusionary rule. The exclusionary rule provides that any evidence collected in violation of the U.S. Constitution, or an individual’s constitutional rights, may not be used by the U.S. Government. The government concedes that the initial stop was illegal; Officer Fackrell needed individualized suspicion to stop Strieff, and he had none. However, the government posits, the exclusionary rule shouldn’t apply here. The government contends that the chain of causation between the illegal stop and the discovery of incriminating evidence was broken by the existence of a valid warrant for Strieff’s arrest.
Whether the government or Strieff win the case will largely depend on whether the Court chooses to apply the traditional doctrine or chip away at the exclusionary rule, as it has done in recent cases. If the Court follows the traditional doctrine, Strieff has compelling argument. The traditional doctrine dictates that “fruit of a poisonous tree,” or evidence falling from an illegal stop, is suppressed; it is a proximate-cause test. If the search was the proximate cause of finding the evidence, it should be suppressed. Here, the illegal stop led to the warrant search which led to the discovery of drugs on Strieff. The discovery was fruit of the poisonous tree of an illegal search.
The Court has recently, however, called the exclusionary rule a “bitter pill” that should only be applied as a last resort. In its most recent cases, the Court held and reaffirmed that the application of the exclusionary rule hinges on the mens rea of the police officer. If the officer’s conduct was deliberate and excluding the evidence at issue will serve to deter future misconduct, only then will the exclusionary rule apply. If the Court applies this version of the exclusionary rule, the government could characterize Officer Fackrell’s behavior as a good faith stop on which deterrence would have no effect.
So, which version of the exclusionary rule will the Court apply? The justices’ questions during oral arguments might give us a clue.
February 23
Taylor v. United States
No. 14-6166; 4th Cir.
If you wanted to commit a crime without fear of it being reported, how would you do it? A group of robbers based in Roanoke, Virginia answered this question for us: rob a drug dealer. The “Southwest Goonz,” as they were known, focused their robberies on drug dealers, who keep large amounts of cash and illicit product on hand and are disinclined to report the crime because of the inherent illegality of their business.
One such “goon” is named David Anthony Taylor. Taylor was indicted under two counts of robbery under the Hobbs Act, a federal law prohibiting actual or attempted robbery affecting interstate or foreign commerce. During his second trial (his first resulted in a hung jury), Taylor attempted to introduce evidence that a drug dealer locally growing marijuana does not affect interstate commerce and he therefore could not have violated the Hobbs Act. The government moved to prevent Taylor from making such an argument, and the district court granted the motion. Taylor was subsequently convicted of both counts, and then moved to set aside the verdict on the grounds that the government did not sufficiently prove that his actions affected intestate commerce. The district court and the Fourth Circuit affirmed his conviction, but the issue is now before the Supreme Court.
Is the government in fact required to prove beyond a reasonable doubt that Taylor’s robbery of a drug dealer affects interstate commerce? Or is robbing a drug dealer an inherent economic enterprise that as a mater of law satisfies the interstate commerce component of the statute? Taylor may not be the most sympathetic of defendants, but the procedural question remains.
Stryker Corp. v. Zimmer w/ Halo Electronics v. Pulse Electronics
Nos. 14-1520, 14-1513; Fed. Cir.
Under the laws of intellectual property, the penalty for infringing on a valid patent can be quite harsh. Courts generally award damages adequate to compensate for the infringement plus costs and interest. But Congress has granted courts the discretion to hand down even greater punishment when appropriate, up to triple this amount. Courts have generally been loath to invoke this authority, reserving it for only the most blatantly wrongful of infringements. Some have argued that this reticence has given rise to a culture of “efficient infringement” within the business community, in which it is often more profitable for a company to infringe freely and settle complaints in court than to secure the proper licensing beforehand. The Supreme Court will settle this debate in Stryker Corp. v. Zimmer by determining whether the standard for imposing these punitive awards has been set too high.
Over sixty years ago, Congress reorganized the complex United States patent system by passing the Patent Act of 1952. Among other things, the Act consolidated the provisions governing damages for patent infringement into a single section, 35 U.S.C. § 284. The statute authorizes judges to award up to three times the compensation due to an aggrieved party, but it does not specify when or how a court should apply this enhancement. Over the years, the Supreme Court has clarified that the increase is warranted when infringement is willful, in bad-faith, or otherwise egregious in nature, and lower courts have devised a series of tests to determine when these conditions are met. The most recent of these was articulated by the Federal Circuit Court of Appeals in 2007’s In re Seagate Technology, LLC. In Seagate, the Federal Circuit held that enhanced damages may only be awarded when the infringer was both objectively and subjectively reckless, acting despite a high likelihood the she was infringing on a valid patent. Subsequent cases clarified that this test may never be satisfied when a defendant presents a reasonable (if ultimately unsuccessful) defense to infringement at trial.
The case before the Court consolidates two similar controversies challenging the Federal Circuit’s standard. In the first, the appeals court reversed a grant of enhanced damages to a company manufacturing surgical equipment whose competitor copied their patented design. In the second, the Federal Circuit upheld the denial of enhanced damages to an electronics company whose competitor infringed on its patent for surface-mounted electrical transformers. Both petitioners now urge the Supreme Court to strike down the strict Seagate standard and instead impose a more generalized “totality of the circumstances” test to determine when enhancement is appropriate. Further, they call for a much more deferential standard of review for lower court decisions on the matter, under which an appeals court would be required to affirm any decision that did not constitute an abuse of discretion.
In support of their argument, the petitioners point to 2014’s Octane Fitness v. ICON Health & Fitness, in which the Supreme Court struck down a similarly strict interpretation governing the award of attorney fees in frivolous patent suits. Octane Fitness was hailed as a victory by many in the business community for hampering the ability of “patent trolls” to bring baseless lawsuits in the hopes of forcing a settlement. Stryker Corp. may now represent the other side of that same coin, bringing bad-faith defendants to heel in much the same manner as Octane Fitness did for bad-faith plaintiffs.
February 24
Hughes v. Talen Energy Marketing w/ CPV Maryland, LLC v. Talen Energy Marketing
Nos. 14-614, 14-623; 4th Cir.
Like the FERC v. Electric Power Supply Association case decided last month, Hughes concerns the boundaries between state and federal regulatory jurisdiction in energy markets. (Be sure to check out the excellent response to FERC v. Electric Power Supply Association administrative law expert Professor Emily Hammond authored for On the Docket.) To briefly restate the central distinction, the Federal Power Act (“FPA”) grants the Federal Energy Regulatory Commission (“FERC”) the authority to regulate the interstate wholesale of electricity, but reserves the regulation of retail electric sales to the states. But while Electric Power Supply Association centered on potential overreach on the part of the federal government, in Hughes it is the states who are alleged to have overstepped their bounds.
As you may recall from our coverage of Electric Power Supply Association, FERC has encouraged the development of regional non-profit organizations that assist the Commission in fulfilling its mandate. These entities operate competitive auctions for wholesale electricity. Generators of power submit bids consisting of the lowest price at which they are willing to sell their power, and market operators purchase the lowest offers in order to meet the demand of auction buyers, who are primarily retail-level distributors. In this way, competitive forces encourage power to be sold cheaply and efficiently.
At issue in Hughes is a Maryland program designed to foster the development of new energy generators. Concluding that the unpredictable nature of the auction process discouraged new wholesalers from entering the market, the state introduced a regulatory scheme aimed at providing new producers with a more reliable source of income during the fledgling companies’ formative years. Under the arrangement, the state orders energy retailers to enter into flat-rate, 20 year contracts with new producers. The producers then sell their energy at auction, as is typical, but any difference between the auction price and the agreed upon rate is then accounted for by payments from the retailer to the producer or vice-versa. Thus producers are able to invest without fear that their expectations may be undermined by shifts in energy markets.
Several incumbent power generators challenged the Maryland Program, arguing that it impermissibly regulates wholesale markets and is thus preempted by the FPA. By divorcing the price paid at auction from the actual price paid for the power, they contend, the Maryland program introduces distortions in the model that undermine the “price signals” the auctions are designed to convey. The district court and the Court of Appeals for the Fourth Circuit agreed The courts held that the program was both “field preempted” and “conflict preempted”, meaning the program both fell within a general area of law that Congress had reserved to the federal government and specifically conflicted with federal regulation.
Although Hughes presents entirely different (and perhaps opposite) federalism considerations from those raised in Electric Power Supply Association, the identity and motivation of those challenging the regulation is very similar. In both cases, well established power wholesalers stand to lose business to those favored by the new rule. In the modern environment where politics tend to shape legal interpretation, it’s unclear what effect this overlap will have in the Court’s decision.
February 29
Voisine v. United States
No. 14-10154; 1st Cir.
Does it matter if a person has committed an act of domestic violence recklessly, instead of knowingly or intentionally? The defendants in the case of Voisine v. United States argue that it does. Specifically, they allege that a misdemeanor crime of assault for which a conviction could be obtained by reckless action shouldn’t qualify as a “misdemeanor act of domestic violence” for purposes of precluding gun ownership under a federal statute.
In keeping with this month’s trend of not-particularly-sympathetic defendants, both Stephen Voisine and William Armstrong were convicted of assault in violation of a Maine statute that prohibits “knowingly, intentionally, or recklessly caus[ing] bodily injury or offensive physical contact to another person.” Both offenders were later charged under the federal law prohibiting those convicted of domestic violence from owning firearms. Voisine was found to have a firearm during an investigation into his alleged killing of a federally-protected bald eagle; Armstrong was later determined to be transporting arms to friends’ houses to avoid detection.
Last year, the Court decided that the statutory requirement that the conviction involve “physical force” could be satisfied by a degree of force sufficient to render a conviction of battery, which sometimes is just “offensive touching.” The court explicitly declined to address if a reckless application of such force would be sufficient to meet this burden, though. That is the issue now before the justices in Voisine.
The U.S. Government urged the court not to hear the case. Although the justices took up the case despite these protests, they declined to hear the second issue raised by the defendants on appeal: whether the federal law violates the Second Amendment. That will remain a potential question for another day.
Williams v. Pennsylvania
No. 15-5040; Pennsylvania
Terrance Williams is able to have his day in court in part because of Pennsylvania Governor Tom Wolf. Last February, Wolf enacted a policy to prohibit the death penalty in the state of Pennsylvania in order to reassess its efficacy. The policy stayed Williams execution, which was scheduled for the following month.
In 1986, Williams was sentenced to death for killing a man two years prior, when Williams was just 18-years-old. Williams never stopped fighting his conviction, and on his fourth petition for relief under the Post-Conviction Relief Act, the state court found that there was governmental interference in Williams’s trial. The government appealed to the Pennsylvania Supreme Court.
At that time, the Pennsylvania Supreme Court’s Chief Justice was Ronald Castille. Judge Castille had served as the District Attorney throughout Williams’s case, and he had personally authorized his office to seek the death penalty. Williams sought to have the Chief Justice recuse himself from the case, but Judge Castille refused to do so. The Pennsylvania Supreme Court reversed the lower court and lifted the stay of execution, with the Chief Justice forming a part of the unanimous majority.
Williams made his way to the United States Supreme Court arguing that his Eighth and Fourteenth Amendment rights were violated by the potentially biased jurist’s participation in the capital case. The justices will have to decide if Chief Justice Castille, who was elected to the bench in part based on his tough-on-crime attitude, had a constitutional obligation to recuse himself from the panel deciding habeas relief for Terrance Williams.
March 1
Husky International Electronics v. Ritz
No. 15-145; 5th Cir.
Husky International presents an old question in a new context. The contours of fraud as a crime have been well defined by statute and countless criminal proceedings. But what precisely does the term mean when it appears in the Bankruptcy Code? The question may be more complicated than it first appears, and the fate of a significant liability shield may hang in the balance.
The federal bankruptcy system was created as a mechanism for an honest debtor to make a fresh start while simultaneously ensuring that existing creditors are repaid in the most equitable way possible. These competing interests have led Congress to make certain categories of debt non-dischargeable through bankruptcy. Among these provisions is a prohibition on the forgiveness of “any debt for money, property [or] services to the extent obtained by false pretenses, a false representation, or actual fraud.”
Between 2003 and 2007, Daniel Lee Ritz, Jr. operated a company called the Chrysalis Manufacturing Corporation. Ritz appears to have embezzled funds from Chrysalis by transferring over $1 million to other corporations he controlled, leaving the company unable to pay its debts. One of Chrysalis’s creditors, Husky International Electronics, sued Ritz in federal court, seeking to hold him personally liable for $164,000 in unpaid invoices. Under the Texas Business Organizations Code, a shareholder may be liable for a corporation’s contractual obligations in instances in which “an actual fraud… primarily for the direct personal benefit of the holder” has been committed. While this case was pending, Ritz filed for bankruptcy in the Southern District of Texas, and Husky intervened in the proceeding, arguing that the Federal Bankruptcy Code’s prohibition on discharging debt related to fraud prevented the court from releasing Ritz from his obligation.
The district court ultimately agreed that Ritz could be held liable under the Texas law, but found that precedent required an actual false representation to be made by the debtor to the creditor for the federal fraud exception to apply. Because there was no evidence in the record that Ritz had ever directly lied to or deceived Husky, the debt was able to be written off through bankruptcy just as with most other obligations. On appeal, the Fifth Circuit affirmed the district court’s narrow reading of the statute.
The case has garnered the attention of a number of academics in the field, and bankruptcy law professors have weighed in on both sides of the issue. An amicus brief filed by one group of educators encouraged the court to overturn the Fifth Circuit, arguing that its interpretation rewards “the dishonest ─ especially the more ingeniously dishonest ─ at the expense of the victims they intended to defraud.” In contrast, a separate second group found that the question was not properly presented by the case, contending instead that Congress intended the scenario to be controlled by a separate section of the Bankruptcy Code that governs the disposal of property for the purpose of hiding it from creditors.
Nichols v. United States
No. 15-5238; 10th Cir.
Nichols v. United States centers on the actions of one of the least sympathetic defendants imaginable. It is undisputed that Lester Nichols is a registered sex-offender who, while on supervised release abandoned his residence, disconnected his telephone, and moved to a hotel in the Philippines where he proceeded to make online arrangements for unspecified sexual activities. Yet he is now charged under a statute that by its plain text he does not appear to have violated. The case raises important policy considerations, and the Court’s decision will resolve a key question of statutory interpretation that has divided the courts of appeals.
In 2006, Congress passed the Sex Offender Registration and Notification Act (SORNA), repealing a previous framework that relied on a patchwork of state-run offender registries in favor of a comprehensive national system. SORNA contains a requirement that a registered sex offender “shall, not later than 3 business days after each change of… residence…appear in person in at least 1 jurisdiction” “where the offender resides, where the offender is an employee, [or] where the offender is a student” in order to inform authorities of the new residence. That jurisdiction is then tasked with disseminating the information to any other relevant jurisdictions. Elsewhere, the law expressly excludes foreign countries from the jurisdictions to which SORNA applies.
Lester Nichols was convicted in 2003 of traveling in interstate commerce with intent to have sex with a minor and sentenced to ten years in prison. He was released in 2011 and under federal supervision registered as a sex offender in the state of Kansas. In November of the following year, Nichols dropped his keys off in the front office of his apartment complex with a note indicating that he was moving out. He proceeded to purchase a one-way ticket to the Philippines and fled the country. After he failed to report to treatment, a warrant revoking his supervised release was issued. Police determined by his email and chat logs that he had taken up residence in a hotel in Manila, where he was using the internet to make arrangements for sexual rendezvous. The day after Christmas, Nichols was taken into custody by Philippine authorities, and he was extradited to the United States shortly thereafter.
Nichols was indicted for one count of knowingly failing to register and update a registration as required by SORNA. Before trial, he moved to dismiss the indictment, arguing that the statute requires only notification in the jurisdiction in which an offender currently resides, not the jurisdiction that an offender has left. Because his new residence was not in a jurisdiction governed by SORNA, he did not violate the reporting requirement. The district court denied the motion, and Nichols entered a conditional guilty plea.
On appeal, the Tenth Circuit affirmed the denial. The court held the text of the statute supported a departure notification requirement. Under the theory offered by the government and accepted by the court, “residing in” and “residence” are given two distinct meanings. An offender does not stop residing in a jurisdiction when they give up their residence, they contend, but only when they obtain a new residence. A change of residence, however, does occur when an offender abandons an existing residence, thus triggering the reporting requirement. The obligation may then be satisfied by notifying either the jurisdiction the offender is leaving (but is still “resides” in) or the jurisdiction to which the offender moves.
In a remarkably similar case arising in neighboring Missouri in 2013, the Eighth Circuit expressly disagreed with this reasoning, holding that an offender has no obligation to notify a former jurisdiction when he moves to a foreign country. This set up the circuit split that the Supreme Court is now called upon to resolve.
Nichols argues that Congress did not intend to impose a departure requirement, and indeed removed such a requirement that was contained in the law prior to SORNA’s passage. Further, the purpose of SORNA is not served by such a requirement because it was designed to create a database of offenders present in the United States for the safety of American citizens. The government counters that this information is nonetheless important for law-enforcement authorities to rule out potential suspects of sex crimes, to preserve confidence in the accuracy of the registry, and to minimize the time and resources expended on locating offenders who are no longer at their residences of record.
These policy arguments may be less likely to carry the day than the common law “rule of leniety”, which directs courts to resolve ambiguities in criminal statutes in favor of a defendant. It is more politically advantageous, the rule holds, for a legislature to pass tougher laws to correct a lax ruling than for law makers to relax laws in response to an overly strict ruling.
March 2
Whole Woman’s Health v. Cole
No. 15-274; 5th Cir.
Though the Supreme Court hears many politically charged cases, few subjects before the court generate the sort of visceral reaction as abortion rights. Since it first declared that the Due Process Clause of the Constitution guaranteed a woman’s fundamental right to terminate a pregnancy prior to viability in 1973’s Roe v. Wade, the Court’s decisions have continuously shaped abortion laws across the nation. Now, a Texas law that opponents claim is aimed at shutting down over 75% of the state’s abortion clinics has prompted the Court to take up a case on the topic for the first time in nearly a decade.
At issue is H.B. 2, a Texas law enacted in 2013 over a filibuster by state senator Wendy Davis that garnered national media attention. Two provisions of the law are challenged in Whole Woman’s Health v. Cole. The first requires abortion clinics to maintain standards equal to those of “ambulatory surgery centers” (“ASCs”), or outpatient facilities that perform surgery. The second mandates that physicians providing abortion have admitting privileges at a local hospital. Proponents of the law submit that these are reasonable restrictions designed to ensure the health and safety of women who undergo the procedure. Critics claim that this is a pretext, however, in light of the heavy regulation and low complication rate of abortions under the law previously in effect. The abortion providers challenging the law point to the small amount of regulation imposed on more invasive outpatient procedures as evidence that the law invidiously targets abortions, which are typically accomplished through medication or a short in-office process that does not require general anesthetic.
Despite its long history, the jurisprudence of abortion rights is checkered and vague. The modern standard was laid out in 1992’s Planned Parenthood of Southeastern Pennsylvania v. Casey, in which the Court reaffirmed Roe v. Wade’s central holding that a Constitutional right exists for a woman to terminate her pregnancy during its early stages. Instead of imposing the strict scrutiny implied by Roe’s “fundamental right” language, the Court articulated a new standard under which state restrictions are valid so long as they do not impose an “undue burden” or raise a “substantial obstacle” to a woman’s ability to obtain an abortion. The Court did not elaborate, though, on precisely what this undue burden standard entails. In the latest decision on the matter, 2007’s Gonzales v. Carhart, the Supreme Court ruled that a federal ban on partial-birth abortions did not impose such a burden. The Court made no reference to any Constitutional provisions to support the decision, though, and it remains unclear what degree of scrutiny abortion regulations warrant.
Here, Texas argues that the undue burden test should be equated to highly deferential rational basis scrutiny, in which laws are upheld so long as they have a logical connection to a legitimate government purpose. A federal District Court disagreed, finding upon examination that the regulations did not further the goal of patient safety, and in fact may harm the health of women who are unable to obtain safe and legal abortions. A panel of the Fifth Circuit Court of Appeals reversed, however, holding that the restrictions did not rise to the level of a substantial obstacle under Casey. On June 29, 2015, the Supreme Court issued a stay on the Fifth Circuit’s ruling, blocking the regulations from taking effect pending the Court’s final review of the case.
The challengers contend that the Fifth Circuit erred by taking Texas’s contention that the regulations advance women’s health at face value without considering whether they factually promote the interest. There’s some possibility that the Supreme Court will not reach the merits of this argument, however. The present case is actually the second attempt by the abortion providers to challenge the law. Prior to the release of the final regulations implementing H.B. 2 by the Texas Department of State Health Services, the plaintiffs brought an initial suit that similarly failed in the court of appeals. In issuing its ruling in the second case, the Fifth Circuit held that the plaintiffs were precluded from bringing their claim by the doctrine of res judicata, which requires that all claims related to an incident to be brought at once. An affirmance on these procedural grounds would allow the Supreme Court to dispense with the case without deciding the matter of undue burden, postponing the ultimate resolution of the central question for another day.
Post authored by On the Docket Fellows, Spencer McCandless and Talya Bobick.
