PETITIONS OF THE WEEK

Abortion restrictions and Ted Cruz’s campaign contributions

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, another case involving state abortion restrictions, as well as a constitutional challenge to limits placed on the repayment of “personal loans” made by political candidates to their own election campaigns.

The Supreme Court has received a series of abortion challenges in the 2020-21 term. Two petitions have been pending since the spring: One involves the rights of unemancipated minors and the other involves the constitutionality of an Arkansas law banning abortions sought on the basis of a prenatal test indicating Down syndrome. (Petitions of the Week previously covered both of those petitions here.) In May, the justices granted cert in Dobbs v. Jackson Women’s Health Organization to answer the broader question of whether all pre-viability prohibitions on elective abortions are unconstitutional. Now, Schmitt v. Planned Parenthood of the St. Louis Region, Inc. adds to the list of pending petitions on abortion laws. Filed on June 30, it asks the justices to consider another ban on abortions performed solely on the basis of a Down syndrome diagnosis, and it explicitly asks the court to consider whether the right to an abortion, recognized in Roe v. Wade, should be overruled.

In 2019, Missouri passed legislation imposing various abortion restrictions, including a prohibition on abortions performed solely because of a Down syndrome diagnosis. Planned Parenthood challenged the law, and the district court blocked it from taking effect. The U.S. Court of Appeals for the 8th Circuit affirmed, and Missouri petitioned the Supreme Court for review.

Missouri presents evidence that the abortion rate for children with Down syndrome in America is between 67% and 93%, representing what the state considers a “genocidal crisis” and prompting Missouri and at least 11 other states to enact laws restricting abortions performed on the basis of disability. Similar laws have been upheld in the 6th Circuit but invalidated in the 7th Circuit. Missouri urges the Supreme Court to grant cert and consider the Down syndrome provision alongside the Mississippi law being contested in Dobbs.

Next, in Federal Election Commission v. Ted Cruz for Senate, the justices are presented with a jurisdictional statement involving restrictions on the repayment of a candidate’s “personal loans” made to fund an election campaign. Federal law imposes three relevant restrictions on campaign funds: First, candidates shall not use contributions made after the election to repay personal loans in excess of $250,000; second, portions of a personal loan that exceed $250,0000 may be paid back to the candidate using pre-election contributions only if repayment is made within 20 days after the election; and third, if a loan in excess of $250,000 remains unpaid 20 days after the election, any portion over $250,000 must be recharacterized as a contribution rather than a loan.

In 2018, Sen. Ted Cruz, R-Tex., ran for re-election. One day before the general election, Ted Cruz loaned $260,000 to his committee. After the 20-day deadline following the election passed, $10,000 of the $260,000 loan was required to be recharacterized as a contribution. Cruz was then repaid the statutory maximum of $250,000. This series of events was done with “the sole and exclusive motivation” to establish the factual basis to challenge the loan-repayment restrictions. The district court determined that the senator had standing to sue based on the $10,000 “financial injury” he suffered and held that the loan-repayment limitation violated the First Amendment. The Federal Election Commission argues that such contributions made after an election, to repay personal loans made by the candidate, create a heightened risk of corruption, and the commission asks the court to remand for further consideration of standing or set the case for plenary consideration to decide the constitutional question.

These and other petitions of the week are below:

Schmitt v. Planned Parenthood of the St. Louis Region, Inc.
21-3
Issues: (1) Whether Missouri’s restriction on abortions performed solely because the unborn child may have Down syndrome is categorically invalid under Planned Parenthood of Southeastern Pennsylvania v. Casey and Roe v. Wade, or whether it is a valid, reasonable regulation of abortion that seeks to prevent the elimination of children with Down syndrome through eugenic abortion; (2) whether Missouri’s restrictions on abortions performed after eight, 14, 18, and 20 weeks of gestational age are categorically invalid, or whether they are valid, reasonable regulations of abortion that advance important state interests; and (3) whether the “penumbral” right to abortion recognized in Roe v. Wade, and partially reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey, should be overruled.

Federal Election Commission v. Ted Cruz for Senate
21-12
Issues: (1) Whether appellees have standing to challenge the statutory loan-repayment limit of 52 U.S.C. 30116(j); and (2) whether the loan-repayment limit violates the Free Speech Clause of the First Amendment.

Billetts v. Mentor Worldwide, LLC
21-26
Issue: Whether preemption under the Medical Device Amendments to the Food, Drug, and Cosmetic Act supports Rule 12(b)(6) dismissal of state common law claims alleging failure to warn by virtue of inaccurate post-approval, post-sale public reporting of adverse events, and claims alleging defective manufacture of medical devices.

Arrow Highway Steel v. Dubin
21-27
Issues: (1) Whether the dormant commerce clause may be used to invalidate the application of a state’s neutral, non-discriminatory tolling statute to defeat the enforcement of a former resident’s stipulated judgment where there is no showing of any burden on or discrimination against interstate commerce; and (2) whether the dormant commerce clause applies to a state statute with no intended or demonstrated effect on interstate commerce.