U.S. Supreme Court
Judges rule on state abortion restrictions, shape Roe impact
A Utah judge on Monday granted a request from Planned Parenthood to delay implementing the state’s trigger law banning most abortions, as implications of the U.S. Supreme Court overturning Roe v. Wade reverberate nationwide. With the decision, abortion remains legal up to 18 weeks in Utah, which is among a group of states where abortion rights have been thrown into limbo amid the legal and political challenges shaping the post-Roe landscape with states now holding the power to restrict abortion. “What I’m really doing is saying we have serious things to talk about,” Judge Andrew Stone said after granting an injunction delaying the trigger law. He said the status quo should remain in effect until a challenge from the state’s Planned Parenthood affiliate can be heard fully. Meanwhile, a Minnesota judge declared most of that state’s restrictions on abortion unconstitutional. In Michigan, a campaign turned in a record-breaking number of signatures so voters can be asked on the November ballot whether to enshrine abortion rights in the state constitution. Federally, the Biden administration’s Department of Health and Human Services said Monday that hospitals “must” provide abortion services if the life of the mother is at risk, saying federal law on emergency treatment guidelines preempts state laws in jurisdictions that now ban the procedure without any exceptions. Currently, even states with the most stringent abortion bans allow exceptions when the health of a mother is at risk, though the threat of prosecution has created confusion for some doctors. Last month’s Dobbs v. Jackson ruling overturned the 1973 Roe v. Wade ruling that found the right to abortion was protected by the U.S. Constitution. The issue reverted to the states, setting off new court battles and ballot initiatives as many states act to curtail or ban abortions. Utah is among more than a dozen states with trigger laws designed to limit abortion upon the overturning of Roe v. Wade. The decision on Monday comes two weeks after the court put a temporary hold on the law, which bans most abortions with exceptions for rape, incest or maternal health. Stone, who was appointed by a Republican governor, blocked its enforcement for 14 days after the state’s branch of Planned Parenthood sued. His decision effectively extends the temporarily hold placed on the law and allows Planned Parenthood clinics to continue providing abortions until the case is resolved. Attorneys for Utah argued language in the state constitution allowed for abortions to be banned and said delaying the implementation of the trigger law would amount to overruling the will of Legislature and Utah voters. Julie Murray, Planned Parenthood’s attorney, said not delaying the implementation of the law could open its staff to criminal charges and hurt roughly 200 patients with scheduled appointments in the month ahead. Stone granted a preliminary injunction, which would let Planned Parenthood clinics continue to provide abortion care — up to 18 weeks of pregnancy under another recently passed limit — until the court rules on the constitutional questions. Read: Post-Roe, states struggle with conflicting abortion bans The judge in Minnesota declared most of the state’s restrictions on abortion unconstitutional, including a 24-hour waiting period and a requirement that both parents be notified before a minor can get an abortion. Ramsey County District Judge Thomas Gilligan also struck down requirements that only physicians can perform abortions and that abortions after the first trimester must be performed in hospitals. His order took effect immediately, meaning the limits can’t be enforced. Gender Justice and other abortion rights groups argued the restrictions were unconstitutional under a 1995 Minnesota Supreme Court holding that the state constitution protects abortion rights. The judge called that case “significant and historic” and said it’s unaffected by the recent U.S. Supreme Court ruling. “These abortion laws violate the right to privacy because they infringe upon the fundamental right under the Minnesota Constitution to access abortion care and do not withstand strict scrutiny,” Gilligan wrote. The ruling is expected to benefit patients from restrictive states who could go to Minnesota for reproductive health care. Providers have been preparing for a surge in patients from neighboring upper Midwest states, and even farther away. Opponents of abortion rights condemned the decision. Minnesota Citizens Concerned for Life said the laws challenged in the case are “common sense measures that support and empower pregnant women” and striking them down blocks residents from “enacting reasonable protections for unborn children and their mothers.” A Republican attorney general candidate called on the Democratic attorney general to appeal. In a Louisiana state court Monday, legal efforts to stave off the permanent closure of the state’s three abortion clinics were renewed. A New Orleans judge refused last week to extend a temporary restraining order blocking enforcement of the state’s abortion ban, saying the case belonged in Baton Rouge. Attorneys for a north Louisiana clinic and an abortion rights group are now seeking a new restraining order from a Baton Rouge judge. Attorney General Jeff Landry’s office says a temporary restraining order cannot be renewed once it has expired. In Arizona, a federal judge on Monday blocked a 2021 “personhood” law that gives all legal rights to unborn children. Abortion providers argued the law can lead to criminal charges such as assault or child abuse and say it is unconstitutionally vague. Judge Douglas Rayes agreed in his ruling. All abortions in Arizona stopped last month, but they could restart in at least one county following the ruling. Alongside lawsuits to challenge bans, abortion rights supporters are trying to add ballot questions to enshrine abortion rights in state constitutions. More than 750,000 signatures were turned in by the campaign in Michigan on Monday — close to double the number needed. The Democratic governor and attorney general in the battleground state have both made abortion rights a centerpiece of their reelection campaigns. “The number of signatures showed that here in Michigan we trust women. We trust people. We trust doctors, not politicians, to make decisions about our body, our pregnancy and parenthood,” Reproductive Freedom for All spokesperson Shanay Watson-Whittaker said during a news conference in Lansing. The signatures still must be verified and validated. A judge has temporarily blocked a 1931 Michigan law that would make abortion a felony except when “necessary to preserve the life of such woman.” Gov. Gretchen Whitmer has said that the law is invalid under the due process and equal protection clauses of the state constitution. The injunction, which stems from a Planned Parenthood lawsuit, could be revoked at any time. Last week, backers of a last-minute effort to enshrine abortion rights in the Arizona Constitution failed to collect enough signatures to make the November ballot. In California, voters will decide in November whether to guarantee the right to an abortion in their constitution. Democrats who control the government in California fear the state’s abortion laws could be vulnerable to legal challenges.
Biden weighs appeal of 3 top candidates for high court
President Joe Biden first zeroed in on a pair of finalists for his first U.S. Supreme Court pick when there were rumors last year that Justice Stephen Breyer would retire. But since the upcoming retirement was actually announced late last month, it has come with the rise of a third candidate, one with ready-made bipartisan support that has complicated the decision. For Biden, it’s a tantalizing prospect. The president believes he was elected to try to bring the country together following the yawning and rancorous political divide that grew during the Trump administration and especially following the Capitol insurrection in January 2021. And a Supreme Court nominee with a raft of qualifications who has the vocal support of even one or two Republican senators could well attract the backing of other Republicans. That, in turn, could make for a smoother nomination process after some painfully partisan ones in recent years. This story is based on accounts from seven people familiar with Biden’s decision-making who spoke to The Associated Press on condition of anonymity to talk about private discussions. Two of the three judges now on Biden’s short list were evaluated last year by White House aides, although that early vetting did not include deep dives into their opinions or backgrounds, formal interviews or FBI background checks. Read:Justice Breyer to retire, giving Biden first court pick They are Ketanji Brown Jackson, 51, a recent appointee to the U.S. Court of Appeals for the District of Columbia Circuit, where she has served since June 2021, and Leondra Kruger, 45, a California Supreme Court judge since 2015 who would be the first person in more than 40 years to move from a state court to the Supreme Court if she were to be confirmed. Jackson is seen as the top candidate. And she, too, has a proven record of bipartisan support: She was confirmed to the appeals court on a 53-44 vote. Republican Sens. Lisa Murkowski of Alaska, Susan Collins of Maine and Lindsey Graham of South Carolina voted for her. But J. Michelle Childs has rapidly become a serious third candidate after House Majority Whip Jim Clyburn, D.-S.C., publicly announced his support for her, as did the state’s Republican senators, Graham and Tim Scott. Graham has made clear Childs is his preferred choice. The 55-year-old is a federal judge in South Carolina who has been nominated to serve on the U.S. Court of Appeals for the District of Columbia Circuit. That nomination is on hold while she’s under consideration for the high court. Childs lacks the elite law school credentials of many current Supreme Court justices — she attended the University of South Carolina School of Law. But that’s part of her appeal to Clyburn and others who question why Ivy League credentials are necessary. Eight of the court’s nine current members attended law school at Harvard or Yale. Childs also has a master’s degree from the school as well as a different legal degree from Duke. Among the three justices on Biden’s short list, Childs is considered the most moderate, and she has been criticized by progressives land labor groups who say her record is not sufficiently supportive of worker rights. She was previously a state court judge and has served as a federal trial court judge since 2010. Jackson did attend Harvard Law School and has expertise that would bring considerable professional diversity to the high court. She worked as a public defender and served on the U.S. Sentencing Commission before she was nominated to the federal bench by former President Barack Obama. She is the favorite of progressives. Kruger, 45, has been on the California Supreme Court since 2015. She was just 38 when chosen for the job by then-Gov. Jerry Brown. She’s seen as a moderate on the seven-member court. She used to wok for the Department of Justice. Breyer’s replacement won’t shift the ideological makeup of the court. So in some ways, that makes it easier for Republicans to back a candidate advanced by Biden. But Biden has also said bipartisan support is not a necessity; a razor-thin majority in the U.S. Senate means he doesn’t need it. Biden said earlier this week he was looking closely at “about four” candidates and was interested in selecting a nominee in the mold of Breyer who could be a ”persuasive” force with fellow justices. Although his votes tended to put him to the left of center on an increasingly conservative court, Breyer frequently saw the gray in situations that colleagues to his right and left were more likely to find black or white. Biden, who is spending the weekend at Camp David, is studying a range of cases and other materials about the candidates, White House press secretary Jen Psaki said Friday. His team, led by former Democratic Sen. Doug Jones, has compiled past writings, public remarks and decisions of the candidates, as well as learning their life stories. Psaki said Biden could begin meeting with top contenders as early as next week, noting that such interviews typically happen at the end of the vetting process. She said the president remains on track for an announcement by the end of the month. Going back as far as his campaign, Biden has pledged to nominate a Black woman for the slot. The Supreme Court was made up entirely of white men for almost two centuries. Justice Clarence Thomas and the late Thurgood Marshall are the only two Black men who have served on the court. There has never been a Black woman. Other possible candidates included U.S. District Court Judge Wilhelmina Wright from Minnesota; Melissa Murray, a New York University law professor who is an expert in family law and reproductive rights justice; and Leslie Abrams Gardner, a U.S. district judge for the Middle District of Georgia and the sister of Stacey Abrams, a powerful voting rights activist and nominee for Georgia governor.
Fighting Texas abortion law could be tough for federal gov’t
Foes of the new Texas law that bans most abortions have been looking to the Democratic-run federal government to swoop in and knock down the most restrictive abortion law in effect in the country. But it’s nowhere near that simple. President Joe Biden , who denounces the law as “almost un-American,” has directed the Justice Department to try to find a way to block its enforcement. And Attorney General Merrick Garland says his prosecutors are exploring all possible options. But legal experts warn that while the law may ultimately be found unconstitutional, the way it’s written means it’ll be an uphill legal battle. Known as SB8, the new state law prohibits abortions once medical professionals can detect cardiac activity — usually around six weeks, before some women know they’re pregnant. Courts have blocked other states from imposing similar restrictions, but Texas’ law differs significantly because it leaves enforcement to private citizens through civil lawsuits instead of criminal prosecutors. Pressure is mounting not only from the White House but also from Democrats in Congress, who want Garland to somehow take action. Nearly two dozen lawmakers wrote to him Tuesday calling for the “criminal prosecution of would-be vigilantes attempting to use the private right of action established by SB8.” But what action can the Justice Department take? How? So far, the attorney general has said only that federal officials will not tolerate violence against anyone who is trying to obtain an abortion in Texas. At the forefront of that plan is enforcement of the Freedom of Access to Clinic Entrances Act. That law, commonly known as the FACE Act, normally prohibits physically obstructing access to abortion clinics by blocking entrances or threatening to use force to intimidate or interfere with someone. It also prohibits damaging property at abortion clinics and other reproductive health centers. Garland says that while his department is still urgently exploring options to challenge the state law, Justice will enforce the federal law “in order to protect the constitutional rights of women and other persons, including access to an abortion.” However, that federal action could be limited by the fact that the act is geared more toward physical acts of intimidation or violence than lawsuits, said Mary Anne Franks, a constitutional scholar and professor at University of Miami School of Law. “The nefarious cleverness” of the Texas law is that “you can’t do anything until someone actually attempts to use this law,” she said. “And that’s really late in the game.” And even if an abortion provider — or people who help a woman get an abortion — should successfully defend a lawsuit, that wouldn’t block a stack of future suits. A Texas judge’s decision last week temporarily shielding some some abortion clinics from being sued by the state’s largest anti-abortion group, for example, didn’t affect any other groups. “That raises real concerns about any efficacy of any of the actions DOJ could take,” Franks said. Still, there are tools the federal government could use, she said. Prosecutors could bring criminal charges under civil rights measures originally written to root out the Ku Klux Klan. Those say that private citizens working with the state to deprive people of their constitutional rights could face criminal violations. There’s also a tool on the civil side, called a Section 1983 action, that allows people to sue someone else who is blocking them from exercising their constitutional rights. Those civil lawsuits must be filed by the person under attack rather than the government, but federal attorneys could join suits already filed, she said. Those actions, she said, could have their own chilling effect on abortion foes: People opposed to abortion who might want to sue providers might reconsider if they could potentially face federal criminal charges. As for more direct action against the Texas law, legal experts say the Justice Department will likely work to help overturn it with a so-called friend-of-the-court brief, which could help bolster an already existing lawsuit challenging the state law. Jonathan Turley, a constitutional law professor at George Washington University Law School, sees the law as likely to be eventually struck down in court, since it prohibits abortion long before the fetus is viable outside the womb. “It’s very likely it will be found unconstitutional. The framers, the drafters themselves understood that ... they have set a line well below existing case law for banning abortions,” he said. “Courts are likely to make fast work of the Texas law.” But if Democrats take action in Congress aimed at preserving access to abortion on the federal level, as some are calling for, he warned it could end up backfiring since there’s existing case law establishing that states can make laws related to the procedure. Such a federal law, if passed by Congress, would almost certainly end up in court and could ultimately lose ground for abortion-rights supporters if a ruling is made that strengthens the states’ ability, he said. Meanwhile, the Texas law’s citizen-enforcement mechanism is something Democrats may not want to see limited widely either, since the concept is also a key piece of enforcing environmental laws. Courts have limited people’s ability to file civil suits before, as in defamation suits that could run afoul of freedom of speech. The Supreme Court declined to block the Texas law in a 5-4 decision, though it did not rule on whether the law itself was constitutional. Turley argues a graver threat to abortion access is an upcoming case on the Supreme Court docket: Mississippi is asking to be allowed to enforce an abortion ban after 15 weeks of pregnancy. By taking up that single question, the justices will be considering whether states can impose limitations on abortion before the fetus is viable outside the womb. There are no other questions at play, no other ways the case could be more narrowly decided. If the high court sides with Mississippi, that would open the door to other states passing similar laws. “That is a more important threat,” he said.
Not on form, but brawl over citizenship question continues
The U.S. Supreme Court decided a citizenship question won't be on this spring's census form, but that doesn't mean the fight over it has ended in courtrooms across the country.