With the Supreme Court ending its term Monday without a decision on whether to hear the case of the last abortion clinic in Mississippi, and narrowly agreeing to keep nearly a dozen Texas abortion clinics open for the time being, the justices put off by a few months what seems all but inevitable: reproductive rights are poised to be on the court's agenda next year.
By October, the highest court will have to say whether it will consider clinic regulations that effectively put abortion providers out of business, either in Texas or Mississippi. It may also decide to take a sequel to Burwell v. Hobby Lobby, the 2013 case in which the court struck down a regulation requiring employers to cover certain contraceptives and ruled that closely held for-profit corporations can opt out of certain laws with which they have religious objections. Religious nonprofits say the Obama administration's opt-out form itself violates their religious consciences, although without disagreement in the lower courts, there is arguably less urgency there.
About 10,000 cases are appealed to the Supreme Court every year, and the court hears less than 80. Generally, it will give word about whether it is taking a case after a private meeting known as a "conference," when at least four of the nine agree that the appeal deserves their attention. Since May, the Mississippi abortion case has been conferenced six times, including this week, without any word from the justices. The law in question requires all abortion providers to have admitting privileges at a local hospital, which has proved an impossible task for the last clinic in the state. The 5th Circuit Court of Appeals agreed with the clinics that the law was likely unconstitutional, which is when the state turned to the highest court.
The court may have been waiting for an emergency petition from Texas abortion clinics on a separate but related law. At issue is a clinic regulation that would halve the number of clinics in the state by requiring that abortions take place in mini-hospitals. Five justices voted Monday to keep the clinics open at least until the plaintiffs challenging the law formally file a petition asking the court to hear their case. A spokeswoman for the Center for Reproductive Rights, which is representing the clinics in both the Mississippi and Texas cases, said they have 90 days from the June 9 ruling on the Texas case, and that news on the case's future was likely to come this fall.
On Monday, the court also issued an order that seemed to find a middle ground between the Affordable Care Act's requirement that all insurance plans cover birth control and nonprofit organizations that say even the Obama administration's opt-out form notifying insurers they object to birth control violates their religious beliefs. The brief order from all of the justices said that the court was not yet ruling on the merits of the case, but that the Catholic-affiliated nonprofits could simply inform the Secretary of Health and Human Services of their objection.
"Nothing in this interim order affects the ability of the applicants’ or their organizations’ employees to obtain, without cost, the full range of FDA approved contraceptives," the justices wrote, somewhat ambiguously. "Nor does this order preclude the Government from relying on the information provided by the applicants, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act." The order echoes one issued a year ago to Wheaton College, which objected to the same form as violating its religious conscience. Justice Sonia Sotomayor dissented from the Wheaton College order last year, and in the case on Monday, in Zubik v. Burwell, Sotomayor said she would have denied the application from the plaintiffs altogether.
Another non-profit that objects to the opt-out form, Priests for Life, asked the court to hear its case on June 9.
“The Supreme Court might decide to sit this issue out," said Greg Lipper, senior litigation counsel at Americans United for Separation of Church and State, which represents a student that intervened in Notre Dame's case against the opt-out form. "Five federal appeals courts have heard arguments that filling out routine paperwork violates the freedom of religion; all five of those federal appeals courts have rejected this argument. If the Courts of Appeals remain unanimous that filling out a form isn’t a substantial burden on religious exercise, there would be no reason for the Supreme Court to get involved."
On the abortion cases, pro-choice advocates hope the Supreme Court picks the Texas case and leaves alone the Mississippi lower court ruling, which kept the clinic open.