Supreme Court for States Preview II: What Else Might the Court Take?

It’s opening day at the Supreme Court!

With at least 20 cases more to accept between now and the end of January, what issues of interest to states is the Court likely to agree to hear in the near future?


For the first time since 2007 the Supreme Court is likely to take up an abortion case. The question in Whole Women’s Health v. Cole is whether Texas’s admitting privileges and ambulatory surgical center requirements create an undue burden on women seeking abortions. Proponents claim that women’s health is advanced if doctors performing abortions have admitting privileges at a nearby hospital and if abortion clinics must comply with standards set for ambulatory surgical centers. Opponents claim these requirements are a ruse to make it more difficult for women to get abortions.

While the Fifth Circuit struck down Mississippi’s similar laws, which would have closed the only abortion clinic in the state, it mostly upheld Texas’s law. In June the Supreme Court prevented the Fifth Circuit ruling from going into effect, signaling that it is likely to agree to hear the case when it is appealed. Over half of Texas’s 40 some abortion clinics have already closed; about 10 more would have closed had the Fifth Circuit ruling gone into effect.  NPR reports two dozen have adopted similar laws.    

Birth Control Mandate

While this issue does not directly states, it rivals the abortion cases for one-to-watch status. The Affordable Care Act requires employers to offer contraception coverage at no cost. Religious nonprofits may complete a form objecting to the coverage which requires their health insurance plan to “provide or arrange payments for contraceptive services.” Religious nonprofits claim that this accommodation process makes them complicit in providing coverage they object to and substantially burdens their exercise of religion in violation of the Religious Freedom Restoration Act. While six federal circuit courts have ruled in favor of the federal government, in mid-September the Eighth Circuit ruled in favor of the religious nonprofits creating a circuit split and making Supreme Court review almost inevitable.

Cell Phone Location Data

When a cell phone is in contact with a cell tower its interaction with the closest cell tower is recorded. Prosecutors rely on cell site location information (CSLI) to place defendants at crime scenes. The Supreme Court is likely to decide soon whether a warrant is needed to obtain CSLI. In United States v. Davis the Eleventh Circuit held no warrant was required applying the “third party doctrine”; cellphone users have no expectation of privacy in information third party service providers have access to. In United States v. Graham the Fourth Circuit refused to apply the third party doctrine reasoning that “a cell phone user does not ‘convey’ CSLI to her service provider at all – voluntarily or otherwise – and therefore does not assume any risk of disclosure to law enforcement.”

While a circuit split exists the plot thickens. First, it is possible the entire Fourth Circuit will rehear Graham and rule for the government, dissolving the split. Second, in both cases the courts held that CSLI could be admitted under the good faith exception to the exclusionary rule. In other words, CSLI wasn’t suppressed because police relied in good faith on court orders allowing them to seek CSLI from service providers. The Court may prefer to take a case where the lower courts did not affirm the conviction based on the exclusionary rule.

Solitary Confinement

In Davis v. Ayala (2015), not involving solitary confinement, Justice Kennedy wrote a concurring opinion suggesting that the Court hear a case challenging the constitutionality of solitary confinement. Alfredo Prieto filed a petition challenging Virginia’s practice of permanently assigning all death row inmates to solitary confinement. Prieto was executed on October 1, 2015.  Prieto’s case may not be moot; another Virginia death row inmate has filed a motion to intervene in the case.  

To learn more about what’s at stake for states this term, register for the State and Local Legal Center’s (SLLC) FREE Supreme Court Preview webinar, which will be held on October 14.

To learn more about the cases the Court has accepted so far affecting the states read the SLLC’s  Preview for the States.