After a day off Monday for Columbus Day, the Supreme Court returns to the bench Tuesday with the first hearing focusing on abortion rights in Kentucky – the first of what are likely to be several cases this term on that abiding and now intensifying controversy. The second hearing Tuesday will be on the right to file a civil rights lawsuit over being charged with a crime but not convicted; it will be discussed briefly below. The hearings’ “live” audio can be heard at the Quick Links on the Court’s homepage – supremecourt.gov – on TV (no video) at c-span.org/supremecourt and on smartphones at C-Span Now App.
First case: Cameron v. EMW Women’s Surgical Center (The hearing begins at 10 a.m. and is scheduled for one hour.)
Background: When an area of the law keeps producing new test cases for the Supreme Court, the cases sometimes can seem quite different from each other. But they also can occur on a continuum, with one case foreshadowing another. Right now, the Court is being immersed in a series of disputes over the constitutional right to an abortion, and they do seem to be interlocking.
The Kentucky case is set for hearing Tuesday, a Mississippi case is set for a December 1 hearing, and between those two dates, more are likely to reach the Justices, especially the new controversy over the most restrictive anti-abortion law in the nation – that is, the Texas law that would ban all abortions after just six weeks of pregnancy. The laws in each case differ, but there are overlapping issues.
One thing that all abortion cases have in common is that a court must decide two questions at the very outset: (a) who can sue to challenge such a law, and (b) what test is to be used to determine if the law is constitutional? The right-to-sue issue can void a challenge before it proceeds at all or clear it to proceed; the constitutional standard can scuttle an otherwise compelling challenge, or help it succeed.
Both of those issues are in the background of this Kentucky case tomorrow, and will loom larger as the new conservative majority on the Court goes forward with abortion cases.
On the surface, though, the Kentucky case turns on another issue, which is rare in abortion cases: who can defend the law in court when it is challenged? That is rare because a state’s top legal officer, the attorney general, usually defends state laws, performing a basic and expected duty. In this case, however, the attorney general was rebuffed after trying to come in late in the case, after other officials gave up the defense.
How does this relate to the ongoing abortion controversy? If the Supreme Court were to let the attorney general reopen the Kentucky case, he wants to raise one or both of those other fundamental questions: who can sue, and what is the legal test of validity? Potentially, then, this case may set the stage for a future, and highly significant, test on both questions. Requiring pregnant women themselves to sue, instead of having doctors and clinics stand in for them, and widening the enforcement powers of state attorneys general, would make it more difficult for abortion rights advocates to counter the efforts of many state legislatures now to narrow abortion rights, in any way possible.
Who can sue? Early in the Supreme Court’s history with abortion rights, cases often were filed in the name of a specific pregnant women — such as “Jane Roe” in Roe v. Wade in 1973. (That fictitious name was given to protect the privacy of a Texas woman, later identified as Norma McCorvey.) But even in 1973, the Court was sympathetic to allowing doctors who performs abortions and their clinics to file the challenges, to protect patients’ anonymity and to spare them the emotional cost of going through a public trial.
That principle is now very well established. The new case from Kentucky was filed by the only remaining clinic in that state, EMW Women’s Surgical Center, in Louisville, and two of its doctors.
The Kentucky law at issue was enacted in 2018 to cut off access to abortion by the most common surgical method if it is performed after 13 weeks of pregnancy, provided that the fetus is still alive when the procedure begins. The state legislature’s aim was to prevent the dismemberment of a living fetus, described in the law as a “living unborn child.”
Ten other states have passed such laws, and every one that has been challenged has been struck down. That is what happened to the Kentucky case in a 2-to-1 decision in federal appeals court last year. A dissenting judge in that court argued that the clinic and two doctors who had sued should not have been allowed to do so. The judge noted that it is a basic legal principle in America that people should defend their own rights, not let outsiders (“third parties”) do it, and he contended that this should now apply in abortion cases, too.
That dissenting view is often raised by state officials defending abortion laws, hoping to get the Supreme Court to reconsider its long-standing view that the traditional bar to third-party lawsuits does not apply in abortion cases.
And, as recent cases have shown, a reconsideration of the right of doctors and clinics to sue now appears to be desired by four of the nine current Justices. They made clear their opposition or skepticism about that right in their dissents last year in a Louisiana abortion case. (It is possible, of course, that those four might be joined in their views – potentially creating a majority on the right-to-sue question — by the newest Justice, Amy Coney Barrett, who has been a skeptic about abortion rights.)
What is the legal test of constitutionality? Throughout the nearly five decades of the constitutional controversy over abortion, the test of validity of laws (most often, state rather than federal laws) has been whether the regulation puts out of reach or makes more difficult a woman’s choice to end a pregnancy. Since 1992, the test has been refined somewhat, into a question of whether the law puts an “undue burden” on exercise of that right.
In a Texas case five years ago, though, a five-Justice majority appeared to strengthen the “undue burden” test, in favor of abortion rights. A law restricting abortion, those Justices ruled, must be judged by a balancing test: if the restriction does impose a burden, but the state has not proved that the law will protect pregnant women’s health, the law is unconstitutional. Because few laws restricting abortion provide much protection for women, that test has worked well to thwart new laws.
However, only four Justices held to that interpretation last year in the Louisiana case, and one of those four, Justice Ruth Bader Ginsburg, has since died. Five Justices noted their opposition last year, stating views that would widen the leeway state legislatures would have to restrict abortions. Now it is possible that Justice Barrett, replacing Ginsburg, could make that a six-Justice bloc.
That changing judicial approach will play out in the future. However, it is possible that one or both of those preliminary questions will come up later this term, in December, when the Justices are scheduled to review a Mississippi law that would end abortion rights at 15 weeks of pregnancy, well before a fetus could survive outside the woman’s body – the only point at which the Supreme Court up to now has allowed states to ban abortions to protect potential fetal life.
Even before the Mississippi case is heard, the Court may be confronted with even more perplexing questions about abortion lawsuits in the wake of the new Texas law, which sets up a kind of bounty-hunter regime in which private individuals would enforce the law’s ban on abortion after six weeks of pregnancy. That law is now being tested in a case racing through lower courts.
In the Kentucky case now ready for a hearing, the Court might confine the decision to whether state Attorney General Daniel Cameron should be allowed to enter the case, and revive his defense. The Justices, though, have the authority to make their inquiry as wide ranging as they choose, perhaps reopening the disagreements expressed last year about the proper constitutional principles to be applied in abortion laws.
As the Kentucky case unfolded in lower courts, the state’s top health official had been defending the law in court. That defense was dropped after the appeals court nullified the law, with that official declining to seek further review or appealing to the Supreme Court.
Attorney General Cameron then tried to step in. He twice formally moved to enter the case to continue the defense, but was turned down. The appeal court first ruled that his filing was too late. When the attorney general tried again, that court would not even allow his renewed plea to be filed. The attorney general then appealed to the Supreme Court, arguing that the lower federal courts are split on allowing such intervention. The Justices voted to review the case.
The question before the Court: Does a state attorney general have a right, as a state’s usual defender of its laws, to enter a federal case to support state law when other state officials drop out? More broadly, does it intrude on a state’s sovereign right to defend its laws against challenge if a court shuts out the only defender?
Significance: Attorney General Cameron has made it clear, throughout his attempt to rescue the 2018 law, that his strategic aim has been to get the case before the Supreme Court. He has built his legal campaign around the Court’s Louisiana ruling last year, seeing it as a strong indication that the four Justices who are doubtful about letting doctors and clinics sue to challenge state abortion law and the group of five who question the prevailing test of constitutionality would now be prepared to rescue his state’s law.
In fact, the Louisiana ruling is one of the most frequently cited precedents in Cameron’s legal filings in the Supreme Court, keeping it on prominent display for the Justices.
Twenty other states, relying on a broad state sovereignty argument, promptly urged the Court to take on the case; they did so even before the Louisville clinic and doctors had filed their response opposing review. The Court seemed positively eager to take on the case, examining it only briefly before granting review, brushing aside the clinic’s argument that Cameron still had unused legal remedies he could have attempted in lower courts to defend the law.
When the state attorney general filed his full written brief in the Court, his strategy was dressed up in a lofty argument about state sovereignty. It thus fits into the lingering efforts by state governments to show, in a variety of cases, that they have retained a degree of sovereign authority over their own affairs even though they lost much of that when the Union was formed under the Constitution in 1787.
Second case: Thompson v. Clark (This hearing, scheduled for 65 minutes, is expected to start soon after 11 a.m.)
Background: This case, arising out of a New York man’s complaint against four local police officers, involves a long-standing legal principle that an individual charged with a crime cannot pursue a separate civil rights lawsuit about that prosecution until the criminal case is over. The idea behind that is that criminal and civil cases over the same controversy should not be going on at the same time, possibly resulting in conflicting outcomes.
That principle is now well established, primarily by a 1994 Supreme Court decision, in the case of Heck v. Humphrey. The Court ruled that a civil rights case cannot be filed until the criminal case has been “terminated in his favor.” This case seeks to clarify what that phrase means.
The incident that gave rise to Larry Thompson’s appeal to the Supreme Court, seeking to revive his civil rights lawsuit against the police, occurred one evening in January 2014. He and his fiancée were in their apartment in Brooklyn, with their week-old baby.
To their surprise, an emergency medical team, and then four police officers, showed up to check on the baby. They did not have a search warrant. Unknown to the couple, a family member who lived them (who has a mental disorder) had called 911 because she had seen a red rash on the baby’s bottom, and was worried. (That turned out to be only a mild diaper rash.)
Thompson was angry, and refused to cooperate with the officers. He was arrested, and jailed for two days. He was then charged with resisting arrest and refusing to cooperate with the medical team. Ultimately, prosecutors dismissed the charges.
He then filed a civil rights lawsuit against the four police officers, contending that their action led to a “malicious prosecution,” a civil law offense. An issue at the trial was whether Thompson’s criminal case had been “favorably terminated.” Ultimately, the trial judge and a federal appeals court threw out the civil rights case, concluding that the dismissal of the criminal case against Thompson had ended in a way that did not amount to a formal finding of innocence.
Thompson then appealed to the Supreme Court, arguing that lower courts are split on whether dismissal of criminal charges is, by itself, enough to clear the way for a civil rights lawsuit challenging the prosecution, or whether there also has to be a formal declaration of innocence in the criminal case. The Court, he contended, has never ruled on whether the “favorable termination” rule applies when the criminal case does not even result in a conviction. The Court granted review.
The Biden Administration has entered the case to support Thompson, arguing that there should not be a separate requirement in cases like this for a formal finding of innocence of the crime. The hearing will run for 65 minutes to make time for the Administration lawyer to join in.
On Wednesday, the Court will consider reinstating the death sentence for a man convicted of many crimes for the Boston Marathon bombing in 2013, and a separate case on pension rights for those who serve in the National Guard. Those will be reviewed here tomorrow.