Over the dissent of one Justice, the Supreme Court on Monday silently added an implied measure of protection for the private choice of a woman to seek an abortion, sparing her doctor and her a state-mandated use of vivid fetal images to try to dissuade her. Without comment, it refused a plea by state officials in North Carolina to restore a law requiring ultrasound displays before an abortion could go ahead.
The denial of review in Walker-McGill v. Stuart, with Justice Antonin Scalia dissenting without writing an opinion, came as the Justices granted review of two more cases for decisions in the next Term, starting in October — cases on the authority of Indian tribal courts, and on the rights of prison inmates who lack funds to pay a lawyer to pursue court challenges to their convictions or sentences.
Because the Court, as usual, provided no explanation for its vote not to review of North Carolina’s 2011 ultrasound law, its action was not a reliable indicator of how the Justices would have ruled on the issue had they taken it on. But the order had the practical effect of leaving undisturbed a lower-court ruling striking down that law on the premise that it was “ideological in intent and in kind” and thus not a valid form of state regulation of medical practice.
The U.S. Court of Appeals for the Fourth Circuit ruled that the law violated the free-speech rights of doctors, because it compelled them to convey the state’s message to a pregnant woman along with an emotionally charged showing of the image of the fetus within her body — even if the woman tried not to look or hear, and even if her doctor believed that the message could harm her psychologically.
State officials, in asking the Supreme Court to review the appeals court decision, argued that the Justices had previously made clear that states could pass laws to try to discourage women from having abortions, and could do so in the course of regulating the actual medical processes of abortion. The 2011 law, the state contended, was nothing more than an “informed consent” law to test the sincerity and firmness of the woman’s decision to seek an abortion.
Although the state officials also argued that federal appeals courts have reached conflicting decisions on the validity of ultrasound laws in the abortion context, North Carolina doctors and clinics countered that there actually is not a specific conflict among the courts of appeals.
The two cases that the Court agreed on Monday to review involved these issues: in Dollar General Corp. v. Mississippi Band of Choctaw Indians, whether Indian tribal courts have authority to try cases against non-Indian businesses and individuals involved in commercial dealings with the tribe; and, in Bruce v. Samuels, what amount of a prison inmate’s personal funds must be used to pay the court filing fees when, because of poverty, he has not had to pay those fees up front. The Court granted review of the tribal court case over the objection of the U.S. Solicitor General, but the Solicitor General had agreed that the Court should hear the inmate fees cases because of a split among lower courts.
Among the more significant cases that the Justices opted not to review was a plea by the current government of Iraq to be allowed to go forward with a lawsuit against a long list of businesses on claims that those companies aided the dictatorial regime of Saddam Hussein in undermining a United Nations humanitarian aid program for Iraq in the 1990s. The lawsuit was based on claims under the RICO law, a broad U.S. civil liability provision. The U.S. Court of Appeals for the Second Circuit threw out the Iraq lawsuit, finding that the government of the country and the Hussein regime were one and the same entity. The case was Republic of Iraq v. ABB AG. Justice Samuel A. Alito, Jr., took no part in the order denying review, without giving a reason, but presumably because he has investments in one or more of the seventy-five U.S. and foreign companies sued in the case.
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in Dollar General. However, the author of this post is not affiliated with the firm.]
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