Happy May, readers! I hope that you’re celebrating May Day appropriately, and that you’ve been keeping up with your judicial news. There are several cases that I’d like to call to your attention—they haven’t received as much media coverage as the same-sex marriage cases (United States v. Windsor and Hollingsworth v. Perry) or the Section 5 of the Voting Rights Act case (Shelby County v. Holder), but are still worth exploring.
The first case, Tummino v. Hamburg, isn’t even at the Supreme Court (in fact, it’s only at the District Court level), but it is politically salient and has caused a fair bit of backlash. On April 4, at the Federal District Court in Brooklyn, Judge Edward R. Korman ruled that the Obama administration had to “lift age restrictions on the over-the-counter availability of emergency contraception” (from the New York Times). In 2011, Secretary of Health and Human Services Kathleen Sebelius decided to keep over-the-counter access to the morning-after pill (commonly known as Plan B) restricted to young women aged seventeen and older. In the Tummino decision, Judge Korman overturned this restriction with solid reasoning based on the fact that the Plan B pill is not an “abortion pill” but a form of contraception.
According to a “Government Accountability office report that collected scientific articles on the mechanism of levonorgestrel, the synthetic hormone that is the drug’s active ingredient,” Plan B is “not about abortion” (from the New York Times). Instead, the active ingredient “immobilizes sperm and prevents or delays ovulation,” making Plan B comparable to birth control (such as Loestrin or Junel) and not abortion procedures. As such, Judge Korman saw no reason why over-the-counter access to Plan B was age-restricted. When, Secretary Sebelius restricted access to Plan B, she ignored the Food and Drug Administration’s 2011 findings that Plan B could be approved “for all females of child-bearing potential.” In the opinion, Judge Korman calls Sebelius’ choice “obviously political” and says that she “failed to offer a coherent justification” for rejecting the FDA’s recommendation. Lastly, Korman says that Plan B “would be probably among the safest drugs approved for over-the-counter sale for the pediatric population,” as opposed to other over-the-counter drugs that are often abused by teenagers (e.g. cough syrup). It seems that Korman’s justification is sound—it seems that Sebelius had no reason to age-restrict Plan B access, especially if the FDA told her it was safe for women of all ages.
However, as you can imagine, there has been an outcry from anti-abortion groups in the wake of the Tummino decision. It is worth keeping an eye on the case, as abortion has once again become one of the most prominent and divisive social issues in America (due to a lessened focus on same-sex marriage as cases have reached the Supreme Court). Roe v. Wade is ripe for scrutiny, and legal challenges to contraceptive and abortion access are well on their way to the courts. For example, North Dakota recently passed a law banning all abortions after only six weeks of pregnancy, and many policy scholars think the law is “get this issue to the court” bait. Now, Justice Korman’s decision fans the flames of the debate over abortion access and birth control for young people, and Tummino could easily be appealed and sent on a path to the Supreme Court.
Another opinion of note that was recently released was the Supreme Court’s decision in McBurney v. Young, a case that asked whether Virginia’s Freedom of Information Act violated the Privileges and Immunities Clause of the U.S. Constitution. The Freedom of Information Act “grants Virginia citizens access to all public records, but grants no such right to non-Virginians;” according to Justice Alito’s opinion in the unanimously-decided case, the act violates neither the Privileges and Immunities Clause nor the “dormant Commerce Clause.” The “dormant Commerce Clause” is an interpretation of the Commerce Clause that holds that the clause “sets parameters for state regulation when Congress has not regulated an area within [its] Commerce power.” In plain English, the dormant Commerce Clause interpretation maintains that states are restricted from passing legislation that hinders interstate commerce.
Justice Alito argues that Virginia’s act does not violate this view of the Commerce Clause because “it neither prohibits access to an interstate market nor imposes burdensome regulation on that market” (from SCOTUSblog) even though it does not allow non-Virginians access to all Virginian public records. The Privileges and Immunities Clause was not violated because, in Alito’s interpretation, said clause “protects only those privileges and immunities that are “fundamental”,” and, to him, access to a state’s public records is not a fundamental privilege and immunity to out-of-staters. As the decision was unanimous, it’s clear that this case isn’t controversial, and is in fact more procedural. However, it should be recognized that the upholding of this law will make it difficult for out-of-staters, like “a Rhode Islander caught up in a child support case in Virginia and a Californian whose business depended on access to tax records” (from SCOTUSblog’s Lyle Denniston), to conduct business or legal proceedings in Virginia in the future.
Lastly, on Monday, April 29, eight of the nine Supreme Court justices decided to hear Burrage v. United States. Justice Breyer was in the hospital after breaking his shoulder while biking on April 27 and therefore was not present in Court. Burrage is an interesting case because it addresses heroin dealing, and it asks “whether the death-by-heroin crime exists if heroin only contributed to the death, but was not the cause” (from SCOTUSblog’s Lyle Denniston). Briefly, the background of the case is as follows: in April 2010, following the usage of “a combination of drugs, including heroin,” an Iowa man was found dead by his wife.. At the trial of his dealer, Marcus Andrew Burrage, the judge “told the jury it could find Burrage guilty [of a death-by-heroin crime] if the heroin was “a contributing cause” of the death.” Burrage was subsequently convicted of a twenty-year sentence on one count of distributing heroin, and then a separate twenty-year sentence on a count of distributing heroin that resulted in death. Burrage challenged the convictions, and after failing in the Eight Circuit Court, got his case to the Supreme Court. The case will be heard next October, when the Court’s 2013-2014 session begins.It is important because, if the Court rules that a “death-by-heroin” conviction cannot be used when someone dies after using heroin and other drugs, the ruling might affect similar drug-related convictions and change the way sentencing for dealers is carried out.
I hope that you’re all caught up now, and keep informed in the coming weeks. By the end of the Court’s 2012-2013 term we’ll have a decision on same-sex marriage, but remember to check in with both the Supreme Court and other federal courts in the meantime!