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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Friday, June 05, 2020

Kentucky Clinic Wins This Time

There will be Supreme Court orders and opinions on Monday with one reporter referencing ten minute spacing. This is curious since previously the turnaround was quicker though they did space the release even though not physically in session. I wonder therefore if major opinions will be dropped which would normally take time to release (perhaps with a dissent from the bench, which they still can have in theory if they wished) and here provide reporters time to process the opinions.  Or, maybe I'm reading too much into a single comment.  All the same, we are getting to the final opinions, including the most watched for of the term.

One reporter -- can't find it now -- noted that dissents from the bench provide a means for a justice strongly concerned with an opinion to make their opinion known.  If telephonic opinion announcements were provided alone with oral arguments -- after all reporters can normally listen to both in person -- this would still be possible.  A few times in the past, a justice gave reporters a statement that was not officially provided.  This also is a possible approach.  To belabor a hobbyhorse of mine, opinion announcements deserve more attention in discussions of more transparency and public availability.  Not having them AT ALL is worse than needing to wait a few days (with same day transcripts) to listen to oral arguments.

(For the sake completeness, Sotomayor handed down an order holding up a prisoner release plan pursuant to the government appealing.  This basically completed the opening left to the government to do so, which made the "win" earlier -- one three conservative justices still dissented from -- rather limited.  This action basically showed the truth of the matter.)

We have parochial school funding, GLBT rights, DACA and abortion rights cases pending, to name the top hot button cases left among the lingering opinions (putting aside the May set).  A 2-1 opinion that struck down a second trimester Kentucky D&E ban therefore is notable for that reason alone.  The dissent used standing (patients allegedly not on the same footing as the clinic) and dispute over facts of how burdensome the law would be (in the face of multiple court opinions) that will likely come up in the Supreme Court case in some fashion.

OTOH, the majority -- granting that concern for fetal life via a law regulating fetal pain -- noted the first is a red herring and the second compels overturning the law.  Post-Casey, it is difficult to think that the first part could be ignored -- the interest for potential life was not compelling only in the third trimester.  But, as the majority notes, it still cannot be used if there is an undue burden.  The facts suggest this is such a case given current medical technology and practices.  Furthermore, the facts here suggest there is no fetal pain in the second trimester. 

Last year, I briefly noted that reproductive rights proponents breathed  sigh of relief when the Supreme Court left stand a challenge by the same clinic (there only being one licensed clinic in Kentucky) to the forced ultrasound law.  This is not because it was a good decision.  The strong dissent* as well as past discussion on this very blog suggests the problems; plus there appears to be a circuit split on the issue too.  No. The general conclusion is that there was not likely five votes to overturn it, thus taking the case would if anything worsen the situation by settling the split the wrong way.  Also, the justices might hold up until the current abortion case is decided.

The Big V has led to multiple court battles with abortion rights as a whole doing fairly well from what I can tell (one or two troubling cases aside) though it's best not to be too relieved.  After all, this case shows that there is a continual attempt to treat this as different from normal medical practice even though abortion is surely not the only area where disputed moral and religious matters arise.  Let's see what Monday brings.

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* The dissent argues that the ultrasound law is not really a regulation of medicine using normal informed consent rules and thus on First Amendment grounds should not stand.  Other than a brief reference in Casey, which might help though it's hard to say if the approach here is compelled given the current Court in this underexamined area.  The crisis pregnancy case does not make for reassuring reading -- if one is consistent, yes, this sort of thing seems dubious. But, did the conservatives really have that in mind when writing that stupid opinion?

The Supreme Court broadly applied the funding cases in Rust v. Sullivan, which raised First Amendment issues.  But, tainted informed consent laws in the old days were disposed of using privacy arguments. The undue burden standard led to looser restrictions; the dissent here however relied on the 1A.  It ended strongly: "It should be subjected to heightened scrutiny and deemed unconstitutional, lest our constitution dissolve, and tyranny be erected on its ruins. I dissent!"  Tad overheated. The rest is good though.

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