Coming Supreme Court term could prove historic
The most important and high-profile case the U.S. Supreme Court will hear in the upcoming 2021-2022 term that begins in October revisits Roe v. Wade. There’s no way to overstate how important Dobbs v. Jackson Women’s Health Organization is, as this case has the potential to fundamentally rewrite the law of the land regarding abortion.
Aside from Dobbs, which I examine in more detail here, there are several other key cases to watch.
In CVS Pharmacy, Inc. v. Doe, HIV-AIDS patients are suing CVS pharmacies that provide them with HIV medication. The issue here is that CVS refuses to sell their medication at their locations within the community, forcing patients to acquire their medication only via mail-order or through specialized CVS locations. The court will decide whether CVS is violating the disability portions of the Affordable Care Act.
In Gallardo v. Marstiller, a 13-year-old living in Florida in 2008 was hit by a truck. After Florida’s Medicaid program paid over $862,000 for her care, they came after the family for $300,000 of the settlement they had won. The Court needs to determine whether under Medicaid law states are allowed to seek reimbursement from legal settlements.
Aside from cases the court has already agreed to hear, given that it is still early, they are expected to agree to hear more. One case that was decided at the state court level recently that might be interesting for the Supreme Court regards Washington state’s limited license to practice law.
Its technical name is the Limited License Legal Technician and the Washington Supreme Court decided in 2020 to “sunset” the program, which allowed non-lawyers to perform some legal tasks. While the program officially ends on the last day of July, there has been word on the legal street of at least one strong upcoming challenge to ending the program. Why the court might be interested in the right case dealing with the LLLT is because ending the program tightens the legal profession’s hold on having only lawyers perform legal tasks in an environment that is re-examining fundamental industry questions, such as who is allowed to own a law firm.
There is one other case that isn’t yet a case but could very well become one fast. The Texas special legislative session legislature this month will deal with several important issues, one of which is antiabortion legislation. What makes the legislation unique, and may make it perfect for review from the highest court in the land, is how bizarre its enforcement mechanism is.
The Texas law is one of approximately 100 new restrictive abortion laws coming in across the country. What makes the Texas law unique is the fact that this heartbeat law won’t be enforced by the state but can be enforced by anyone.
That’s right, anyone.
If you’re picturing roving bands of anti-abortion activists visiting clinics and providers to stop any abortions that violate Texas’ heartbeat law (or any abortion at all) you’re probably on the right track. While this issue is far too early at the moment for Supreme Court review, one could imagine that with the right plaintiff and set of facts as to how the heartbeat bill in Texas is enforced, this could move reasonably quickly up the courts.
Adriana Gonzalez, a civil rights lawyer, points out that any abortion law that essentially invites activists to enforce it has the potential for disaster; “While each one of these state abortion ‘heartbeat laws’ poses its own difficulties, any heartbeat law where the state allows and actually encourages the general public to enforce it is an invitation to violence.“
A final thing to watch between now and October is what Justice Stephen Breyer is going to do. There is a general expectation that he plans to soon resign, and the fact that he has yet to make his decision is concerning to a lot of people who fall ideologically at or to the left of center. The longer Breyer waits to announce his retirement, the lower the percentage chance that President Joe Biden will be able to nominate a replacement who is ideologically aligned.
With a court that has been remarkably unpredictable to date, yet does indeed have a 6-3 conservative majority, any risk of losing one of those three liberal seats is a danger no liberal president or jurist should take lightly.
Aron Solomon is the senior digital strategist for NextLevel.com and an adjunct professor at the Desautels Faculty of Management at McGill University in Montreal. He wrote this for InsideSources.com.
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