The U.S. Supreme Court heard fewer cases than usual this term due to the coronavirus outbreak, but as always, its decisions were of interest to the states. The court’s recent rulings on abortion, “faithless electors” and copyright of statutory annotations are discussed below.
In a 5-4 decision in June Medical Services v. Russo, the court struck down Louisiana’s admitting privileges law. Five justices agreed that the law created an unconstitutional obstacle to women obtaining abortions.
The Louisiana law requiring abortion providers to hold admitting privileges at a nearby hospital was nearly identical to a Texas law the Supreme Court struck down 5-4 in Whole Woman’s Health v. Hellerstedt (2016). Admitting privileges allow doctors to admit patients to a hospital and perform surgery.
The plurality opinion, written by Justice Stephen Breyer, agreed with the district court that Louisiana’s law created a “substantial obstacle” for women seeking abortions. Breyer reasoned that it was likely only one doctor in one location would continue to perform abortions in the state, where previously six total doctors working in three different locations performed the service. The one remaining full-time abortion doctor could likely meet no more than about 30% of the demand for abortions in Louisiana.
In Planned Parenthood of Southeastern Pa. v. Casey (1992), the court stated that “[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right” and are unconstitutional. In Whole Woman’s Health the court held that “[the substantial obstacle] standard requires courts independently to review the legislative findings upon which an abortion-related statute rests and to weigh the law’s ‘asserted benefits against the burdens’ it imposes on abortion access.” The court’s plurality agreed with the district court that Louisiana law does not protect women’s health.
Chief Justice John Roberts’ concurring opinion provided the fifth vote for the holding that the law was unconstitutional. According to Roberts, “[b]ecause Louisiana’s admitting privileges requirement would restrict women’s access to abortion to the same degree as Texas’s law, it also cannot stand under our precedent.”
However, Roberts and four other justices rejected the balancing test the court adopted in Whole Woman’s Health, writing “[n]othing about Casey suggested that a weighing of costs and benefits of an abortion regulation was a job for the courts.”
In Chiafalo v. Washington, the court upheld Washington state’s law fining “faithless electors”—that is, Electoral College delegates who refuse to cast their votes for the presidential candidate they were pledged to support. Likewise, the court reversed the 10th Circuit’s decision in Baca v. Colorado Dept. of State, which held that removing a faithless elector was unconstitutional.
Article II of the U.S. Constitution requires states to appoint electors. The 12th Amendment states that electors vote for president and vice president. A majority of states have enacted “pledge laws” requiring electors take a formal oath or pledge to cast their ballots for their parties’ candidates for president and vice president. The Supreme Court ruled that these pledge laws were constitutional in Ray v. Blair (1952).
Justice Elena Kagan’s opinion, joined by all the justices save for Justice Clarence Thomas, who wrote his own concurrence, extends this ruling to allow states to punish faithless electors. The Washington statute backs up its pledge with a $1,000 fine to prevent faithless electors.
Kagan noted that in Ray the court stated “‘neither the language of Art[icle] II ... nor that of the Twelfth Amendment’ prohibits a State from appointing electors committed to vote for a party’s candidate.” Based on this determination, Kagan concluded that nothing in Article II forbids a state from taking away an elector’s voting discretion, and that it grants states the power to do so by allowing them to appoint electors “in whatever way it likes.”
Copyright of Statutory Annotations
In Georgia v. Public.Rescource.Org, the court held 5-4 that nonbinding, explanatory legal materials created by state legislatures cannot be copyrighted.
The Official Code of Georgia Annotated contains various nonbinding supplementary materials, including summaries of judicial decisions, attorney general opinions and a list of law review articles related to current statutory provisions. The code is assembled by the Code Revision Commission, a state entity composed primarily of state legislators. The legal research corporation LexisNexis then prepares the annotations and the legislature approves them.
Georgia argued that it may copyright these annotations. The Supreme Court disagreed in an opinion written by Roberts.
The author of an original work receives copyright protection. According to the court, “[t]he animating principle behind [the government edicts doctrine] is that no one can own the law.” Per this doctrine, judges “may not be considered the ‘authors’ of the works they produce in the course of their official duties as judges,” regardless of whether the material carries the force of law.
The court extended this rule to legislators acting in the course of their legislative duties, because “[c]ourts have thus long understood the government edicts doctrine to apply to legislative materials.” The court held that Georgia’s annotations are not copyrightable because the author is the Code Revision Commission, which “qualifies as a legislator.”
The Supreme Court moved 10 cases it was supposed to hear in its 2019-20 term to next term. Two of those cases are of interest to the states. Oral argument has been scheduled in October for both cases. The main question before the court in Carney v. Adams* is whether Delaware’s Constitution may require that three state courts be balanced between the two major political parties. In Rutledge v. Pharmaceutical Care Management Association, the court will decide whether states’ attempts to regulate pharmacy benefit managers’ drug reimbursement rates are preempted by the Employee Retirement Income Security Act.
Lisa Soronen is the executive director of the State and Local Legal Center, which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments. Story copyright SLLC. This article is reprinted with permission.
*Indicates cases for which the SLLC has filed or will file an amicus brief.
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