The latest US Supreme Court decisions on contraception, transgender discrimination, more
Abortion, contraception, gay and transgender discrimination, and the ACA (again!). Here’s what every ObGyn should know about the most recent decisions of the Supreme Court.
COVID-19 and the Court
Some of the biggest news of the term came not from the law, but from medicine in the form of COVID-19. The Court was in the process of preparing a final period of important arguments when, on March 16, it announced that it was postponing further arguments. The Court rescheduled 10 oral arguments that were held by telephone (other cases were held over to the next term). The phone arguments, during the first 2 weeks of May, necessitated a change in format. Each justice was called on (in order of seniority) by the Chief Justice to ask questions. This was in contrast to the free-for-all questions that usually characterize in-person arguments. These arguments were broadcast live—something that had never been done before. Public access was, on balance, a good thing. There were a couple failures to unmute, and there was “the flush heard round the world” in the middle of one argument, but otherwise the arguments went off with few hitches.31
Looking ahead
By the end of the term, no justice had announced an intention to retire from the Court. On September 18, however, Justice Ruth Bader Ginsburg passed away. In 2009, she had been diagnosed with early-stage pancreatic cancer. This term she had been hospitalized twice, and at the end of the term, she announced a recurrence of pancreatic cancer, which was being treated with chemotherapy. See “RBG: The woman, the legacy” for a tribute to this remarkable woman, lawyer, and justice.
Justice Ginsburg’s death, occurring in the middle of a presidential campaign, ignited a political firestorm concerning her successor. The outcome of selecting and confirming her successor and the political fallout were not immediately apparent. Justice Ginsburg was confirmed just 7 weeks after her nomination by President Clinton, by a vote of 96-3. But those days of Senate consensus are not the current norm.
The next term (called the “October 2020 Term”) will begin on October 5, 2020. The Court will begin with 8 justices and, depending on the nomination process, may operate with 8 justices for some time. When there is a “tie” vote in the Court, the lower court decision is upheld. The Court has been short-handed several times in the past and, with few exceptions, has managed the cases successfully.
The Court has announced that initial arguments will be telephonic. It already has taken a number of cases. The constitutionality of the individual mandate (coverage) in the ACA will once again be before the Court, and that already has produced a flood of amicus briefs from health-related organizations.32 Among other upcoming issues are cases related to state regulation of pharmacy benefit managers, gay rights and foster care, sentencing of juveniles to life in prison without the possibility of parole, a face-off between Google and Oracle on software copyrights, and arbitration. In addition, some of the issues we saw this term will reappear, with more on robocalls, religious freedom and Catholic charities, and immigration and removal cases.
Ruth Bader Ginsburg, as a law student, law professor, lawyer, judge, and justice, was a leading advocate for the rights of women. There were only a few women in law school when she attended, but she graduated tied for first in her class. Although she found it difficult to be hired as a lawyer, as a law professor and lawyer she helped map a strategy to expand legal rights for women, arguing 6 cases before the Supreme Court and winning 5 of them. She served as a federal appeals court judge and then was appointed to the Supreme Court in 1993. She was the second woman to serve on the Court.
As a justice, she was known during much of her tenure on the Court as the leader of the liberal justices, although her jurisprudence was more complex than that simple statement. She was always a strong advocate for the rights of women (and equal rights of men) during her time on the Court. She was a very clear writer; her opinions were direct and easy to understand. She was also fast—she routinely had the record of announcing opinions faster than any of the other current justices. She was 87 when she passed away, having served on the Court for 27 years.
Justice Ginsburg was also something of a cultural phenomenon. In later years she was sometimes known as “the Notorious RBG.” Books, movies, songs, and even workout videos were made about her. In groups she seemed almost shy, but she was thoughtful, kind, and funny (sometimes wickedly so). The outpouring of affection and sympathy at her death was a symbol of the place she held in America. She loved the opera, a passion she shared with her friend, Justice Antonin Scalia. Despite their considerable disagreements on legal matters, Justices Ginsburg and Scalia were close friends. They attended opera with one another, and their families usually spent New Year’s Eves together. They were the 2 most recent justices to pass away while serving on the Court.
The Court heard and ruled on a large number of other significant cases that will have consequences for many years to come. Highlights include:
- In 2 cases involving subpoenas for the President’s personal records, the Court suggested some balance between “nobody is above the law” and not unnecessarily hectoring or interfering with fulfilling the office of President. The Court held that Congress may subpoena a President’s personal and family records, while the President is still in office.1 It instructed lower courts to assess whether the papers are necessary, the subpoena is limited in scope, there is legitimate legislative purpose, whether the burden it imposes on the President is reasonable, and whether the subpoena would unduly interfere with the ability to do the work required as President.
- Similarly, local (state) grand juries may subpoena such personal records, but the President will have the opportunity to raise specific objections to the subpoenas—undue burden, bad faith, or overbreadth. In addition, the respect owed to the office should inform the conduct regarding the subpoena.2
- The Court upheld a federal law that prohibits most robocalls.3 It struck down an amendment that allowed robocalls made to collect debts owed to or guaranteed by the federal government.
- The Court held that a single-director federal agency, whose director cannot be removed by the President (at will), violates the Constitution.4 The Consumer Financial Protection Bureau (created by the Dodd-Frank law) has such a single, no-removal director and that will have to be modified.
- The Court held that the eastern half of Oklahoma (including Tulsa) is part of a Creek Nation reservation.5 This was a question of criminal law jurisdiction, not property ownership. The practical effect is that for crimes involving Native Americans, serious crimes will have to be tried in federal court, while lesser crimes may be tried in tribal courts.
- The Court determined that it was unconstitutional for a state program providing tuition assistance to parents who send their children to private schools, to prohibit students attending religious private schools from participating in the program. That is a burden on the “free exercise” of religion.6
- The Court considered whether there can be civil liability for damages caused by a federal official in the United States harming a foreign national in another country. In this case, a border patrol agent standing in the US shot and killed a Mexican juvenile who was just across the border in Mexico.7 The issue was whether the parents of the Mexican national could sue the US officials for damages. The Court declined to expand liability to include those injured outside the US. Ultimately, the Court was reluctant to impose liability because this liability is not authorized by Congress.
- In a COVID-19 religion case, the Court refused to stop the enforcement of a governor’s COVID-19 order that allowed churches to operate with <100 attendees or 25% occupancy (whichever was lower).8 Meanwhile, businesses, malls, and stores were allowed to reopen without these stringent limitations. The church objected that greater burdens were placed on religion than secular activity. The Court denied the church’s request for an injunction.
- The Court unanimously held that a state may punish or remove a “faithless elector.” Electors cast votes on behalf of their states in the Electoral College—where Presidents are technically selected. Electors are generally pledged to vote for the winner of a state’s vote for President. A few have violated that pledge and voted for someone else. As a practical matter, that could cause real disruption, and the Court upheld state laws that take action against these “faithless” electors.9
- Several days after the Court had officially adjourned for the term, it received several petitions to delay the execution of federal prisoners. One case was based on the method of execution (use of pentobarbital),10 and another was based on the claim that a prisoner had become so mentally incompetent that it was improper to execute him.11 The Court turned down these appeals, allowing the executions to proceed. These were the first federal government executions in 17 years.
References
- Trump v Mazars USA, LLP, 140 S. Ct. 2019 (2020).
- Trump v Vance, 140 S. Ct. 2412 (2020).
- Barr v American Association of Political Consultants, Inc, 140 S. Ct. 2335 (2020).
- Seila Law LLC v Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020).
- McGirt v Oklahoma, 140 S. Ct. 2452 (2020).
- Espinoza v Montana Department of Revenue, 140 S. Ct. 2246 (2020).
- Hernández v Mesa, 140 S. Ct. 735, 206 L. Ed. 2d 29 (2020).
- South Bay United Pentecostal Church v Newsom, 140 S. Ct. 1613, 207 L. Ed. 2d 154 (2020).
- Chiafalo v Washington, 140 S. Ct. 2316 (2020).
- Barr v Lee, ____ S. Ct. ____ (2020).
- Barr v Purkey, ____ S. Ct. ____ (2020).
