Supreme Court

  • November 25, 2015
    Guest Post

    by B. Jessie Hill, Judge Ben C. Green Professor of Law, Case Western Reserve University School of Law

    What is at stake for reproductive rights in Whole Woman’s Health v. Cole, which will be heard by the U.S. Supreme Court this Term? In a word, everything. Whole Woman’s Health may well be the most significant abortion case in 24 years.

    The Supreme Court established the “undue burden” standard for evaluating the constitutionality of abortion restrictions in 1992 in Planned Parenthood v. Casey. The vagueness of that standard, combined with the Court’s apparent willingness to uphold numerous restrictions in that case, opened the door for states to continually pass new and ever more restrictive regulations on abortion in the decades since Casey was decided. Meanwhile, the Supreme Court has largely declined to speak further on the meaning or scope of the undue burden standard.

    What’s more, states began to try a new kind of restriction – restrictions adopted in the name of protecting women’s health but really aimed at reducing access to abortion. These differed from the sorts of restrictions at issue in Casey, which were primarily laws aimed at affecting the woman’s decision making process, such as waiting periods, parental consent requirements, and informed-consent requirements. Casey was relatively deferential toward measures intended to ensure the woman’s choice was fully informed, but it did not have occasion to consider the sort of pretextual health regulations at issue in Whole Woman’s Health.

    In Whole Woman’s Health, the Court will decide the constitutionality of a Texas law that imposes onerous requirements on abortion providers—namely, that doctors providing abortions have admitting privileges at a local hospital and that abortion clinics conform to the requirements for “ambulatory surgical centers,” including requirements pertaining to the physical plant, staffing, parking, and the like. These requirements are often impossible for older clinics to meet without spending enormous sums of money. Although other types of ambulatory surgery centers—clinics that provide minor surgery on an outpatient basis—are generally offered waivers or grandfathered from when new regulations are instituted, abortion providers are specifically denied grandfathering and waivers.

  • November 18, 2015
    Guest Post

    by Doron M. Kalir, Clinical Professor of Law, Cleveland-Marshall College of Law

    The fact that the Roberts Court is business-friendly is, by now, well documented. It is also no secret that the Court is generally hostile to the once-venerable institution of class actions. And most recently, as The New York Times ably demonstrated, the Court has moved to elevate arbitration as the preferred mode of dispute resolution. The accumulated effect of these three trends has been devastating: Millions of Americans – customers, employees, patients, and investors, among others – are routinely denied their fundamental right to have a day in court. Some call that the privatization of the justice system.

    DIRECTV, Inc. v. Imburgia, a case emerging out of an intermediate state court in California, is another case reflecting these trends. At first sight, it may not seem a likely candidate to become one of the Term’s blockbusters. Allegedly a typical state contract-interpretation case, it looks benign, almost boring to read. Yet it is anything but. It represents nothing short of a last-ditch effort by state courts to shield consumers from these emerging trends. Will it be successful or – as some predict – destined to fail? Only days will tell.

    The facts of the case are somewhat complicated. In 2007, Amy Imburgia contracted with DIRECTV to receive programming services. Predictably, her Customer Agreement contained an arbitration-only, no-class action clause. Unpredictably, it also contained language abolishing that clause should “the law of your state . . . find this agreement to dispense with class action procedures unenforceable.” And that is precisely what happened – the California Supreme Court held such provisions to be “unconscionable” and therefore unenforceable.

    Four years later, in AT&T Mobility v. Concepcion, the U.S. Supreme Court reversed the California rule. Class-action waivers in arbitration agreements, the 5-to-4 decision held, are enforceable, reasoning that the Federal Arbitration Act (FAA) preempts state law. Despite Concepcion, however, the California Court of Appeals ruled in this matter that the individual-only arbitration clause is still unenforceable. Why? The court reasoned that the term “the law of your state,” as included in this particular consumer contract, should not be interpreted to include federal interpretation of that law (the “Supremacy Clause” version), but rather only state law as interpreted by state courts.

  • November 18, 2015
    Guest Post

    by Craig L. Jackson, Professor of Law, Texas Southern University Thurgood Marshall School of Law

    Can Congress create standing for violation of a statutory right by identifying as injury the violation of that statutory right? What does that mean? What seems to be a relatively simple question from reading Supreme Court cases that appear to stand for the position that Congress can create standing apparently is more complex than the cases let on. In Spokeo v. Robins, which is before the Supreme Court this term, the Court is being asked to resolve the question of whether the credit reporting firm Spokeo’s misreporting of Robins’ personal information alone creates standing on Robins’ part to sue Spokeo under the  Fair Credit Reporting Act.

    The Act provides a cause of action for persons who are the subject of credit reporting where the reporting firm does not follow the Act’s procedural requirements. Does that alone create the kind of standing required by Article III’s case and controversies provision? This was alluded to in Warth v. Seldin, quoting Linda R. S. v. Richard D. (“[A]ctual or threatened injury required by Art. III may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing…’”), restated in Lujan v. Defenders of Wildlife (Nothing in this contradicts the principle that "[t]he . . . injury required by Art. III may exist solely by virtue of ‘statutes creating legal rights, the invasion of which creates standing.'"), and reiterated in Justice Kennedy’s Lujan concurrence (“In my view, Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before, and I do not read the Court's opinion to suggest a contrary view.”). What makes the question even more interesting is the fact that Robins’ actual injury may have been speculative, at best, as no specific harm to his credit rating or employment opportunities were alleged in his complaint against Spokeo.

    The language from Warth, Lujan, and Kennedy’s concurrence in Lujan may have given the impression that a congressional act can create injury (through the bestowal of statutory rights) where none had existed before. By that understanding, Congress can, for whatever purposes, green light suits against offending actors by virtue of a violation of an act by declaring that violation harm to the potential plaintiff. This was certainly the understanding of the Ninth Circuit, and it was apparently the understanding held by Justice Sotomayor as evidenced by this exchange during oral arguments earlier this month:

  • November 13, 2015
    Guest Post

    by Samuel A. Marcosson, Professor of Law, University of Louisville Louis D. Brandeis School of Law

    On November 6, the Supreme Court granted cert in seven cases (which it promptly consolidated for briefing and argument as Zubik v. Burwell) to resolve the issue it left open when it ruled in Burwell v. Hobby Lobby that private, for-profit companies are entitled to a religious exemption from the Affordable Care Act’s mandate to provide contraceptive coverage to their employees. At issue is whether the accommodation the government provides to nonprofit employers satisfies the requirements of the Religious Freedom Restoration Act (RFRA). If it doesn’t, employees of these nonprofits will, like their counterparts at Hobby Lobby, lose their contraceptive coverage. A decision exempting the nonprofits from the contraceptive mandate would make Zubik one of the landmarks of the Term, and a disaster in the Court’s religion jurisprudence.

    Zubik tests the limits of the dangerous path the Court began to walk in Hobby Lobby. The majority opinion there departed from the Court’s long-standing approach in religious accommodation cases of carefully considering the impact of a proposed accommodation on third parties who would be burdened by it. In Hobby Lobby, of course, those third parties were the employees who lost coverage for contraceptive care that, under the ACA, is an essential element of comprehensive health insurance and which, for many, avoids enormous expense and “helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening.” The Court gave almost no weight to the interests and needs of those employees who would be deprived of the essential coverage the ACA had mandated.

    The Court faces an even starker choice in Zubik because the claim on the other side of the scale, the burden claimed by the employers to their religious exercise, is more attenuated than it was in Hobby Lobby. A nonprofit that objects to providing contraceptive coverage receives an accommodation simply by certifying to HHS that it has a religious objection. As Justice Alito admitted in Hobby Lobby, a nonprofit which files the certification is “effectively exempted . . . from the contraceptive mandate.” In other words, to be accommodated under the ACA regulations, all the objecting nonprofits must do is tell HHS exactly what they are telling the Supreme Court: that they have a religious objection to providing contraceptive coverage.

  • October 29, 2015
    Guest Post

    by Leslie C. Griffin, Boyd Professor of Law, UNLV Boyd School of Law

    Should judges tell the Little Sisters of the Poor, a group of Roman Catholic nuns who devote their lives to caring for the elderly poor, how to analyze moral complicity?

    That’s a question the Supreme Court will consider on Friday, October 30, when the Justices decide whether to grant certiorari on cases brought by religious nonprofits challenging the contraceptive mandate of the Affordable Care Act (ACA). This particular question about nuns and moral complicity comes from the pen of Paul Clement, the seasoned Supreme Court litigator who represents the sisters. Clement and the Sisters are competing with the Archbishop of Washington for the attention of the Court.

    Background: Challenges to the Accommodation, not the Contraceptive Mandate

    The ACA requires employers to provide insurance coverage for preventive health services, which for women include reproductive care. The insurance regulations specifically require employer health care plans to cover twenty FDA-approved contraceptives as well as sterilization procedures and reproductive counseling.

    The Little Sisters are among 140 plaintiffs in 56 cases brought by religious nonprofits challenging, not the contraceptive mandate itself, but the accommodation that allows religious employers to opt out of the mandate. Under the opt-out mechanism, the employer merely has to inform the Department of Health and Human Services (HHS) of its objection to contraception, identify what kind of insurance plan it offers, and provide the name and contact information of the insurance plans’ third party administrators (TPAs) and health insurance issuers. Once HHS or the insurers receive the notification, the burden of coverage shifts completely to the TPAs and health insurance companies, who provide the contraceptive coverage in separate plans, with no financial input from the religious employers.

    The religious nonprofits argue that this accommodation violates the Religious Freedom Restoration Act (RFRA), which holds that [g]overnment may substantially burden a person’s exercise of religion . . . [only if it is] in furtherance of a compelling government interest; and it is the least restrictive means of furthering that government interest.”

    How Many Angels Can Dance on the Head of a Pin?

    A central debate in the cases is whether the “substantial burden” of RFRA is a theological term or a legal one. As Paul Clement’s question suggests, the moral casuistry of these cases would make a medieval monk proud. Unlike many of the non-Catholic plaintiffs, who oppose only four of the contraceptives that they believe to be abortifacient, all the Catholic plaintiffs believe that the use of artificial contraception is always immoral. The Sisters therefore believe that even signing the compliance form would “make them morally complicit in grave sin.” Their lawyer argues that the courts may not question that this moral belief is automatically a substantial burden under RFRA because it appears substantial to the sisters.

    The plaintiffs differ about just where the immorality occurs – in providing insurance, in signing the form, in authorizing the TPAs, in knowing that contraceptive access will occur, all of the above, or none of the above. Although the moral description varies from case to case, however, the plaintiffs uniformly want no judicial scrutiny of their moral analyses.