November 5, 2013 — Although the Supreme Court on Monday dismissed an Oklahoma case involving medication abortion restrictions, ongoing challenges to other states' laws mean that abortion-rights issues could still come before the court soon, the AP/Atlanta Journal-Constitution reports (Sherman, AP/Atlanta Journal-Constitution, 11/4).
According to the Los Angeles Times, since 2010, a dozen states have enacted abortion restrictions that do not ban the procedure outright but aim to test whether the justices are "ready to pull back from Roe v. Wade and the right to legal abortion" (Savage/Hennessy-Fiske, Los Angeles Times, 11/4).
The AP/Journal-Constitution reports that it is only a "matter of time" before the high court steps in to decide exactly how far the states may go in regulating or restricting the procedure without violating standards established in Roe and the 1992 decision Planned Parenthood v. Casey.
The Supreme Court last heard a case on abortion in 2007, when a divided court upheld a federal law banning an abortion procedure that opponents call "partial-birth abortion." Justice Anthony Kennedy and four concurring justices suggested in that ruling that they would be open to further abortion restrictions (AP/Atlanta Journal-Constitution, 11/4).
Justice Scalia Considers Emergency-Stay Request in Texas Case
A Texas case is among those the high court could consider. Abortion providers in Texas on Monday asked Justice Antonin Scalia -- who hears all emergency-stay applications out of the 5th U.S. Circuit Court of Appeals, which last ruled on the case -- to reinstate a lower court's injunction that blocked the state from enforcing a requirement that physicians who perform abortions have admitting privileges at a hospital within 30 miles.
Scalia ordered the state to file a response by Nov. 12 (Wegman, "Taking Note," New York Times, 11/4).
According to the Texas Tribune, the plaintiffs believe that Scalia will issue an expedited decision after receiving the state's response. He also could refer the case to the entire Supreme Court. If he does not reverse the lower court's decision or refer the case to the whole Supreme Court, the plaintiffs could ask another justice to review the case. If the high court does not take up the case, it will proceed in the 5th Circuit, where it is scheduled to be heard in January (Aaronson, Texas Tribune, 11/4).
In addition to the Texas case and the rejected Oklahoma case, the Supreme Court has been asked to review another Oklahoma case in which the state Supreme Court struck down a law requiring women to undergo an ultrasound prior to an abortion.
Separately, Arizona -- backed by 16 other states -- has asked the Supreme Court to let it enforce a law that bans abortions after 20 weeks of pregnancy, unless there is a medical emergency (AP/Atlanta Journal-Constitution, 11/4).
Supreme Court To Consider Four Possible Contraceptive Coverage Suits
In related news, the Supreme Court on Monday said that on Nov. 26 it will examine four ongoing cases disputing the federal contraceptive coverage rules, SCOTUSblog reports. According to SCOTUSblog, if the court grants a review of any of the cases, the justices likely will hear and rule on the matter during the current term (Denniston, SCOTUSblog, 11/4).
The contraceptive coverage rules, which are being implemented under the Affordable Care Act (PL 111-148), require most employers to offer contraceptive coverage to their workers. Houses of worship are exempt from the requirement, and religiously affiliated not-for-profits are eligible for an accommodation that ensures they do not have to pay for or directly provide the coverage to their employees. Private companies are not eligible for an exemption or accommodation (Women's Health Policy Report, 11/4).
The cases being considered for review include the Department of Justice's appeal of the 10th U.S. Circuit Court of Appeals' ruling in a case filed by retail chain Hobby Lobby. The appeals court said Hobby Lobby as a corporation likely would prevail, although it did not rule on the issue of whether the company's owners could pursue a similar religion-based challenge themselves, according to SCOTUSblog.
Separately, the Pennsylvania cabinet-making company Conestoga Wood Specialties asked the high court to review a 3rd Circuit decision that a corporation does not have religious rights and that the company's owner cannot object to the mandate on his own.
The Conestoga ruling was echoed in the third case, in which the 6th Circuit ruled that two affiliated Michigan companies cannot exercise religion and therefore cannot challenge the mandate. The companies' owner also was barred from challenging the rules because they only apply to the company.
In the fourth case, Liberty University has appealed a decision by the 4th Circuit to reject its claim challenging the contraceptive coverage rules, as well as the ACA's insurance mandate and employer mandate.
According to SCOTUSblog, there is a "strong likelihood" that the high court will hear at least one of the cases because the federal appeals courts have issued conflicting rulings. DOJ expedited its responses in the Conestoga, Michigan and Liberty University cases to make it easier for the Supreme Court to take them up together, and it urged the court to either deny review or wait until it has ruled on the federal government's Hobby Lobby petition (SCOTUSblog, 11/4).