Abortion

In a 5-4 decision in National Institute of Family and Life Advocates v. Becerra, the Supreme Court ruled that a California law requiring licensed pregnancy clinics to disclose they don’t offer abortions and unlicensed pregnancy clinics to disclose the fact they are unlicensed likely violates the First Amendment. The State and Local Legal Center (SLLC) filed an amicus brief in this case asking the Court not to apply the highest level of scrutiny (strict scrutiny) to commercial speech or to every disclosure requirement adopted by states and local governments.

California law requires that “licensed covered facilities” that provide family planning or pregnancy-related services must disseminate a notice stating that publicly-funded family planning services, including contraception and abortion, are available. It also requires “unlicensed covered facilities” to disseminate a notice they are unlicensed. The author of the law noted there are nearly 200 licensed and unlicensed crisis pregnancy centers in California. These centers “aim to discourage and prevent women from seeking abortions.”

The National Institute of Family and Life Advocates (NIFLA) operates licensed and unlicensed covered facilities that don’t offer abortions. It argues these requirements violate its First Amendment right to free speech.

In Whole Women’s Health v. Hellerstedt the Supreme Court held 5-3 that Texas’s admitting privileges and ambulatory surgical center requirements create an unconstitutional undue burden on women seeking abortions.

The admitting privileges law requires abortion doctors to have admitting privileges at a nearby hospital. It can be difficult for abortion doctors to obtain admitting privileges because “hospitals often condition admitting privileges on...

Perhaps the Supreme Court’s midterm has come and gone. The Court will only hear argument in 10 more cases and the term will end June 30. But the Court has issued decisions in less than half of the cases of the term so far. So now might be just the time to take stock of the Supreme Court’s term as it relates to the states.

The Court has already decided two big cases and has four more left to go. Only one of the six big cases (involving the Affordable Care Act birth control mandate) will have no direct impact on the states.

Emotions ran high at the Supreme Court today in oral argument of what is considered to be the most important abortion cases in over 20 years. Chief Justice Roberts repeatedly tried to cut off Justice Sotomayor as she asked questions when time was up of one of the attorneys arguing. When she and Justice Ginsburg did it again he didn’t even try to stop them.

Perhaps more than any other issue all the Justices except Justice Kennedy are considered to have entrenched views on abortion. The questions for Justice Kennedy following oral argument appear to be whether he feels he has enough information to decide this case, and if he does, where he stands.  

So the million dollar question (other than who will fill Justice Scalia’s seat) is what will happen to undecided Supreme Court cases heard or to be heard this term.

The short answer is it depends and in all instances isn’t entirely clear.

If a case isn’t 4-4 it will be decided as usual with only eight Justices.

If a case is going to be decided 4-4 the Court has two choices:  wait for the ninth Justice to join the Court and rehear the case or issue a non-precedential 4-4 decision that affirms the lower court decision.

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