Two new tests of the court’s abortion jurisprudence

Two new tests of the court's abortion jurisprudence

Petitions of the week

By James Romoser and Andrew Hamm

at 11.45 p.m.

This week we’re highlighting certification filings urging the Supreme Court to review the constitutionality of two controversial abortion laws – and, more generally, to clarify how lower courts analyzing abortion restrictions should apply last year’s broken ruling in June Medical Services against Russo . These two new petitions, along with Dobbs v. Jackson Women’s Health Organization (which has been pending before the judges for almost a year), call on the court to re-enter the abortion debate.

Box v. Indiana and Kentucky Planned Parenthood includes the constitutionality of an Indiana law that provides for notification to parents before a minor is given an abortion. Indiana generally requires minors to have parental consent in order to obtain an abortion, but the state also allows minors to petition a juvenile court to bypass the parental consent requirement. (This evasion of justice exception is required under Supreme Court precedent.) In 2017, Indiana lawmakers enacted law that requires their parents to get an abortion even if a minor is evaded justice must be given prior notice of the abortion unless the judge determines that such notification is not in the best interests of the minor.

Planned Parenthood challenged the Parental Notification Act, and a district court blocked its entry into force. In 2019, a split panel of the U.S. 7th Circuit Court of Appeals ruled that the law is likely to be unconstitutional in light of the 2016 Supreme Court ruling in Whole Woman’s Health v Hellerstedt. While the state petitioned the Supreme Court to review the 7th Circle ruling, judges issued their June Medical ruling in which the sole consent of Chief Justice John Roberts amended the test to assess the constitutionality of abortion restrictions. The Supreme Court then returned the Indiana case to that court with instructions to re-evaluate the Parental Notification Act in light of June Medical.

Last month, the Circuit 7th Panel decided – again split 2-1 – that June Medical had not changed its conclusion that the law is likely to be unconstitutional. Indiana is now back on the Supreme Court asking the judges to weigh the law again. The state, the state argues, would allow the court to resolve a breakdown of the circuit related to parent reporting and to clarify the broader implications of June Medical.

Rutledge v Little Rock Family Planning Services includes a 2019 Arkansas law prohibiting medical providers from performing abortions if the only reason for the abortion is a prenatal test that indicates the fetus has Down syndrome . A district court blocked the law from going into effect, and a U.S. Circuit 8th Circuit Court of Appeals panel, based on Robert’s June Medical approval, upheld the ruling in January. Two judges on the jury wrote separately to say they regret the result, despite believing binding precedent requires it.

In its motion for review, Arkansas argues that the 8th Circuit and other lower courts have misinterpreted Roberts’ approval of June Medical to mean that a state’s alleged interests in introducing abortion restrictions for legal analysis of whether those restrictions are constitutional did not are more relevant. Like Indiana, Arkansas says that filing its petition would provide the court with an ideal means of reviewing the current state of the court’s abortion jurisdiction.

These and other petitions of the week are listed below:

Recovery Innovations Inc. v Rawson
problem: Whether providing mental health services will make a private, nonprofit hospital and private health care provider government actors, subject to claims 42 USC § 1983if they provide psychosocial services to a person classified as “severely disabled” and “present”[ ] the likelihood of serious harm to others ”under the Involuntary Obligation of the State Act.

Threats v. Farrell
problem: Whether and to what extent a district court must take the lawyer’s guiding star into account when awarding “reasonable legal fees” Federal Code of Civil Procedure 23 (h).

City of Portland, Oregon v Federal Communications Commission
Problems: (1) Whether the US Court of Appeals for the 9th Circuit wrongly upheld the Federal Communications Commission’s interpretation of the “communications effect” in light of its clear meaning, the lack of a restrictive standard, and the US Appeals Commission National Cable & Telecommunications Association v Brand X Internet Services;; and (2) whether the 9th split circuit wrongly upheld the FCC’s interpretation 47 USC § 253 to commission paid access to public property for private commercial use.

Box v. Planned Parenthood of Indiana and Kentucky Inc.
problem: If a court permits an undischarged minor to have an abortion, whether a court may require that his parents be notified prior to the abortion unless such notification would be against their best interests.

Fox v. Summers
problem: Whether the right to information protection under the 14th Amendment protects information of a personal, sexual nature in connection with victimization from being disseminated by the government when there is no overriding state interest, an issue with which the appellate courts are in conflict.

Rutledge v Little Rock Family Planning Services
problem: Whether the 14th Amendment forbids banning abortions that are sought solely on the basis of a prenatal diagnosis of Down syndrome.