December 1
Dobbs v. Jackson Women’s Health Organization
No. 19-1392, 5th Cir.
Preview by Joshua Keyser, Senior Online Editor
In Dobbs v. Jackson Women’s Health Organization, the Supreme Court will consider what is already being called the “most important abortion case in a generation.” Edward Whelan, John Roberts and the Abortion Precedents, Wall Street J. (Nov. 30, 2021, at 12:26 PM), https://www.wsj.com/articles/two-generations-of-roe-is-enough-abortion-law-overturn-11638286403?mod=hp_opin_pos_2#cxrecs_s. The public’s anticipation for the Court’s ruling is at fever pitch: 141 amicus briefs were filed in the case, accompanying thousands of news articles and uncountable social media posts.
The attention is understandable; after all, the central legal issue of the case is nothing less than the most contentious political controversy in recent American history. The parties use the same phrasing for the succinct question they pose to the Court: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” Brief for Petitioners at i, Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (U.S. filed July 22, 2021); Brief for Respondents at i, Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (U.S. filed Sept. 13, 2021).
The case itself arises from Mississippi H.B. 1510, “An Act to . . . Prohibit Abortions After 15 Weeks’ Gestation,” which the Southern District of Mississippi dubbed “one of the most restrictive abortion laws in the country.” Jackson Women’s Health Org. v. Currier, 349 F. Supp. 3d 536, 537 (S.D. Miss. 2018). The statute, enacted in March 2018, prohibited any physician from performing an abortion after fifteen weeks’ gestation (except for those necessary to save the life of the mother or where severe fetal abnormality is detected) at the risk of that doctor facing license suspension, civil penalties, and fines. See id. at 538.
Jackson Women’s Health Organization, the only facility performing abortions in Mississippi, filed for injunctive relief to restrain the Mississippi Department of Health from enforcing H.B. 1510 on the day that it went into effect. Id. The District Court granted a temporary restraining order, and later permanent injunction, on grounds that the law was facially unconstitutional, id. at 545, which the Fifth Circuit affirmed in 2019. Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265 (5th Cir. 2019). On petition for cert, the Department of Health sustained for appeal solely the constitutionality of state regulations prohibiting pre-viability, elective abortion.
The parties’ arguments tread little new ground from those advanced by either faction in the roiling abortion debate since the last landmark Supreme Court case touching the issue, 1992’s Planned Parenthood v. Casey. Petitioners argue that nothing in the United States Constitution protects a right to elective abortion, thus Mississippi should not be required to meet a heightened standard to regulate abortions. Brief for Petitioners at 12–14. Respondents counter that there is no reason to disturb the stare decisis effect of nearly five decades of Supreme Court decisions affirming Fourteenth Amendment protection of the right to physical autonomy and body integrity. Brief for Respondents at 14–18.
What has changed, then, is not the law but the composition of the Supreme Court. President Trump campaigned on the promise to appoint justices who would overturn Roe v. Wade. Dan Mangan, Trump: I’ll Appoint Supreme Court Justices to Overturn Roe v. Wade Abortion Case, CNBC (last updated Oct. 19, 2016, at 10:00 PM), https://www.cnbc.com/2016/10/19/trump-ill-appoint-supreme-court-justices-to-overturn-roe-v-wade-abortion-case.html. With three Trump Administration nominees sitting on the Court, both sides of the political aisle are bracing for the scheme of constitutional protection articulated in Roe and Casey to fall. According to legal commentator Amy Howe, the mere fact that the Justices agreed to hear the case is indicative that they intend to break from precedent. Amy Howe, Roe v. Wade Hangs in Balance as Reshaped Court Prepares to Hear Biggest Abortion Case in Decades, SCOTUSblog (Nov. 29, 2021, at 8:00 AM), https://www.scotusblog.com/2021/11/roe-v-wade-hangs-in-balance-as-reshaped-court-prepares-to-hear-biggest-abortion-case-in-decades/.
It is entirely possible, of course, that Supreme Court-watchers eager for the overturning of Roe and Casey will be disappointed. The Court might easily strike a new balance within the framework of Roe without settling the question decisively. That has occurred before: In 1992, many observers were convinced that a 5-to-4 conservative majority in Casey would reject Roe v. Wade altogether, then were surprised when the Nine left the core of Roe intact. See Mark Joseph Stern, The Alternative to Overturning Roe That Terrifies Anti-Abortion Advocates, Slate (Nov. 30, 2021, at 12:04 PM), https://slate.com/news-and-politics/2021/11/dobbs-abortion-roe-casey-supreme-court.html.
But amid all the sound and fury surrounding Dobbs, the most anxious of all for the Court’s ruling must be the Mississippian women who stand to be directly affected by whether H.B. 1510 will be struck or go into effect. The course of their lives, and many millions like them, will be profoundly affected by the case’s outcome.
December 6
Hughes v. Northwestern University
No. 19-1401, 7th Cir.
Preview by Sarah Markallo, Member
All investment plans are not created equally. But does a retirement plan administrator breach its fiduciary duty by offering investors a range of options, some of which are more expensive for the employees than others? The Supreme Court will consider this question in Hughes v. Northwestern University, scheduled for oral argument on December 6, 2021.
Northwestern University offered its employees 403(b) investment options, which are similar to 401(k) plans but are only offered by government employers and nonprofit organizations. Within these plans, eligible participants could choose from among hundreds of investment options, with varying fees and returns.
Plaintiffs allege that Northwestern’s inclusion of expensive options with higher management fees violates the duty of prudence required by the Employee Retirement Income Security Act of 1974 (ERISA). Brief for Petitioners at 6, Hughes v. Northwestern Univ., No. 19-1401 (U.S. filed Sept. 3, 2021). ERISA requires that administrators like Northwestern University exercise “care, skill, prudence, and diligence” in the participants’ best interests. 29 U.S.C. § 1104(a)(1)(B). Plaintiffs argue that this includes a duty to monitor plan performance and remove investment options proven to be imprudent. See Brief for Petitioners at 2.
Respondents argue that Northwestern fulfilled its fiduciary duty by offering lower-cost plans. See Brief for Respondents at 1, Hughes v. Northwestern Univ., No. 19-1401 (U.S. filed Oct. 21, 2021). They contend that providing a wide range of investment options is consistent with ERISA, and employees are free to choose a plan they find acceptable. See Brief for Respondents at 5. In their view, allowing employees any control over their investments is bound to produce varying degrees of return on investment, but to deny them the choice is paternalistic. See Brief for Respondents at 2.
The United States District Court for the Northern District of Illinois Eastern Division dismissed the case for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). See Divane v. Norwestern Univ., No. 16 C 8157, 2018 U.S. Dist. LEXIS 87645 (N.D. Ill. May 25, 2018). The Seventh Circuit affirmed, noting that participants “could avoid what plaintiffs consider to be the problems with those products (excessive recordkeeping fees and underperformance) simply by choosing” another investment option. Divane v. Northwestern Univ., 953 F.3d 980, 988 (7th Cir. 2020).
The United States Solicitor General has weighed in on the case, agreeing with the Plaintiffs that offering prudent investments does not excuse administrators from “their obligations not to offer imprudent investments with unreasonably high fees.” Brief for the United States as amicus Curiae Supporting Petitioners at 9-10, Hughes v. Northwestern Univ., No. 19-1401 (U.S. filed Sept. 10, 2021). The Solicitor General notes that Northwestern’s fiduciary duty extends to all the retirement plans they offer, not just higher-performing options with lower expense ratios. See id.
Hughes v. Northwestern is one of many recent cases challenging investment managers’ practices. Circuit courts are currently split on the standard employees must meet to state a claim against their plan administrator. The Supreme Court’s decision is likely to resolve this split and provide clarity for fiduciaries and investors alike. If the Plaintiffs prevail, companies may be less willing to offer their employees a range of investment plans. Future plaintiffs’ claims may be more likely to reach the discovery stage, which Respondents argue will lead to a flood of litigation. If Northwestern prevails, companies will likely continue offering an array of plans, and the freedom (or burden) of choosing the best investment option will remain with the employee. Plaintiffs argue that this result would deprive employees of the chance to recover for losses they incur when a fiduciary duty is breached. Either way, the outcome will have a lasting impact on the rights and responsibilities of employers and their employees.
December 7
United States v. Taylor
No. 20-1459, 4th Cir.
Preview by Reid Ostrom, Online Editor
In 2003, Justin Eugene Taylor and a coconspirator planned to rob a marijuana dealer. When the dealer refused to hand over his money, Taylor’s coconspirator shot him with a pistol, killing him.
Taylor pleaded guilty to conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951, and use of a firearm in furtherance of a “crime of violence,” in violation of 18 U.S.C. § 924(c). 18 U.S.C. § 924(c)(3)(A) defines “crime of violence” as an offense that is a felony and “has as an element the use, attempted use, or threatened use of physical force.”
In 2016, the 4th Circuit granted Taylor permission to file a motion to vacate his sentence in light of Johnson v. United States, 576 U.S. 591 (2015), which substantially narrowed the definition of “violent felony” in the Armed Career Criminal Act (ACCA). Taylor argues that, after Johnson, attempted Hobbs Act robbery and conspiracy to commit Hobbs Act robbery no longer qualify as “crimes of violence” under § 924(c)(3).
The 4th Circuit vacated his conviction, holding that attempted Hobbs Act robbery does not qualify as a “crime of violence,” because it does not require the use or threat of physical force. Pursuant to the categorical approach, a court “focuses on the elements of the prior offense rather than the conduct underlying the conviction.” United States v. Taylor, 979 F.3d 203, 206 (4th Cir. 2020) (emphasis in original) (citation omitted).
As the 4th Circuit explained, “where a [hypothetical] defendant takes a nonviolent substantial step towards threatening to use physical force—conduct that undoubtedly satisfies the elements of attempted Hobbs Act robbery,” the defendant has “merely attempted to threaten to use physical force,” which does not satisfy § 924(c)(3). Id. at 209 (emphasis in original).
The United States, petitioning the Supreme Court, argues that attempted Hobbs Act robbery entails at least “threatened use” of force, and clearly counts as a crime of violence under § 924(c)(3) by following both common sense and Congressional intent. Brief for Petitioner at 12, United States v. Taylor, No. 20-1459 (U.S. filed Sept. 7, 2021).
Taylor, following the 4th Circuit’s reasoning, argues that attempted threats fall outside the statutory definition of a crime of violence because they satisfy the elements of attempted Hobbs Act robbery without the “use, attempted use, or threatened use of physical force.” Brief for Respondent at 11-12, United States v. Taylor, No. 20-1459 (U.S. filed Oct. 22, 2021). There also may be First Amendment free speech concerns if the government attempts to criminalize “attempted threats,” because only communicated “true threats” forfeit First Amendment protection. Brief for Amicus Curiae First Amendment Clinic in Support of Respondent at 4–8, United States v. Taylor, No. 20-1459 (U.S. filed Oct. 29, 2021).
This case largely turns on a question of statutory interpretation, presenting the Supreme Court an opportunity to clarify a frequently used, and heavily litigated, federal criminal statute. It will be interesting to see whether the Supreme Court chooses a strict literal interpretation, or a more common sense reading of the statute.
December 8
Carson v. Makin
20-1088, 1st Cir.
Preview by Erica Hackett, Member
The issue under consideration in this case is whether Maine’s school tuition assistance is constitutional under the First and Fourteenth Amendments. Maine is rural and sparsely populated, and it contains 260 School Administrative Units (SAUs). More than half of those SAUs do not operate public secondary schools, so the Maine Constitution allows those SAUs to either contract with a private school to provide its students’ secondary education, or the SAU can provide tuition assistance for students in its district to attend an approved private school of the family’s choosing. The key word here is approved. Maine contends that the goal of this program is to provide a “de facto” public education that is “roughly equivalent” of a public education for students whose SAU does not operate a secondary school—as such, religious schools are not among the approved providers. Brief for Respondent at 15, 23, Carson v. Makin, No. 20-1088, (U.S. filed Oct. 22, 2021).
David and Amy Carson, along with Troy and Angela Nelson and another family, brought suit as next friends of their children against the Commissioner of the Maine Department of Education. The families allege that they and their children are the victims of “religious discrimination” because their children would be barred from using the public tuition assistance to seek enrollment at Bangor Christian and Temple Academy. Brief for Petitioner at 1, Carson v. Makin, No. 20-1088, (U.S. filed Sept. 3, 2021).
It is worth nothing that the children did not actually receive admission to these schools, they are merely suing over having lost the opportunity to seek education at these institutions, which the Commissioner has utilized to raise an Article III standing question. Both the District Court and the First Circuit held that the possible injury was sufficient for Article III standing, and the Commissioner has again sought to bring this argument before the Supreme Court, arguing that there is not a sufficient injury here that the court could redress. Also noteworthy is the fact that both Bangor Christian and Temple Academy have not stated whether they would accept public money if it was offered, because each school has hiring and student admittance policies that do not permit the inclusion of LGBTQ+ students or teachers in the institutions, due to the strictly Biblical teachings the schools claim to follow. The schools have said that they would likely not take public money if it meant they had to adhere to the Maine Human Rights Act, which prohibits such discrimination on the basis of gender identity and sexuality.
The Maine state courts have upheld this Maine constitutional provision, finding that “each child will be entitled to the opportunity to receive a free public education, not to guarantee children a free private education at any public or private school of their choice.” Hallissey v. Sch. Admin. Dist. No. 77, 755 A.2d 1068, 1073 (Me. 2000) (emphasis in original). The District Court ruled in favor of the Maine Education Commissioner, and the First Circuit affirmed, holding that the law did not violate the Free Exercise Clause, the Free Speech Clause, the Equal Protection Clause of the Fourteenth Amendment, or the Establishment clause.
The recent Supreme Court decision Espinoza v. Montana Department of Revenue, 140 S.Ct. 2246 (2020), factors into the briefs of both parties. In Espinoza, the Court invalidated a Montana scholarship program provision that prohibited recipients of state tax-credit funded scholarship monies from using those scholarships to attend religious schools. In a 5–4 decision, the majority held that this “no-aid” provision violated the Free Exercise rights of families who would receive the scholarship and hoped to send their children to religious schools by upholding a greater barrier between church and state than required by the Constitution. The Carsons’ brief argues that the “discrimination” they face is directly analogous to the conduct by Montana in Espinoza, while the Commissioner argues in her brief that the Montana program is different because it was a scholarship program funded by tax credits from individuals and businesses who donated to the program, whereas the Maine program pays tuition directly to private schools. See Brief for Petitioners at 10.
This ruling has the potential for wide-ranging impacts on the school choice debate brewing in the US for many decades. A decision in favor of the Maine statute would allow the status quo to largely continue, allowing for states to restrict funding of private religious schools based on the Establishment Clause. A decision in favor of the petitioners would further blur the line between church and state, permitting state tax dollars to fund private religious schools in an even more direct fashion than what is already permitted (school vouchers, tax credits that fund scholarships as in Espinoza, etc.), because the student’s SAU directly pays the student’s tuition to the approved private school that the student attends. Depending on the scope of the Court’s ruling, it could have a narrow impact, such as the ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S.Ct. 2012 (2017). In that case, the Court emphasized that its ruling only pertained to the issue at bar, a question of funding for a religious preschool playground. See id. at 2024 n.3. However, the Court could rule much more broadly and provide yet another blow to the separation of church and state in the modern era.
