Month: July 2023

In Members of the Medical Licensing Board of Indiana v. Planned Parenthood, decided Friday, the Indiana Supreme Court (in an opinion by Justice Derek Molter, joined by Chief Justice Loretta Rush and Justice Mark Massa) concluded that the Indiana Constitution’s protection of “life, liberty, and the pursuit of happiness” “protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk”:

Plaintiffs emphasize that abortion procedures are sometimes their only means to save their patients’ lives. That is undisputed, and we agree the Constitution—including Article 1, Section 1—does not permit the General Assembly to prohibit abortion in those circumstances. But that is not a basis for enjoining the entirety of Senate Bill 1 in all circumstances, including when abortion is unnecessary to protect a woman’s life or to protect her from a serious health risk.

Article 1, Section 1 expressly protects an “inalienable” right to “life,” which was a firmly established right long before Indiana became a state. That right to protect one’s own life extends beyond just protecting against imminent death, and it includes protecting against “great bodily harm.” Although the State disputes that Article 1, Section 1 is judicially enforceable, it recognizes that governmental authority is limited to the police power, and it acknowledges “grave doubt” that the police power would permit the State to prohibit an abortion that was necessary to save a woman’s life.

Because this fundamental right of self-protection—whether considered as an exercise of the right to life, an exercise of the right to liberty, a limitation on the scope of the police power, or as a matter of equal treatment—is so firmly rooted in Indiana’s history and traditions, it is a relatively uncontroversial legal proposition that the General Assembly cannot prohibit an abortion procedure that is necessary to protect a woman’s life or to protect her from a serious health risk.

Reflecting that understanding, all of Indiana’s abortion statutes since 1851 have recognized an exception for abortions that are required to protect a woman’s life…. And now that the United States Supreme Court has returned broad discretion to the states to determine the legality of abortion, Senate Bill 1’s general abortion ban continues to recognize an exception for “when reasonable medical judgment dictates that performing the abortion is necessary to prevent any serious health risk to the pregnant woman or to save the pregnant woman’s life.”

Accordingly, Article 1, Section 1 protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk. Yet, this holding does not support Plaintiffs’ claim for a preliminary injunction. That is because they framed their claim as a facial challenge to the entire statute in all conceivable circumstances rather than an as-applied challenge to the law’s application in any particular set of circumstances where a pregnancy endangers a woman’s life or health. So this appeal does not present an opportunity to establish the precise contours of a constitutionally required life or health exception and the extent to which that exception may be broader than the current statutory exceptions. For purposes of this appeal, all we can say is that Senate Bill 1 is not facially invalid as interfering with a woman’s access to care that is necessary to protect her life or health….

But the court concluded, on originalist grounds, that Article 1, Section 1 doesn’t extend to “abortions that are unnecessary to protect a woman’s life or to protect her from a serious health risk”:

Plaintiffs argue abortion is a fundamental right necessarily implied in the protection of liberty. To recognize an unenumerated, implied right, we must conclude the right is “of such a quality that the founding generation would have considered it fundamental or ‘natural.'”That is because what gives our Constitution force is that it reflects an agreement reached through the constitutional framing, ratifying, and amendment processes. So we cannot supplant what the framers and ratifiers believed they were agreeing to with our own notions of which aspects of liberty ought to be off limits for the legislative process, or our notions of which aspects of liberty we suspect voters today might embrace as worthy of heightened constitutional protections if asked.

This also means we do not analyze whether liberty, privacy, autonomy, self-determination, and abortion relate to each other in a colloquial sense. Rather, our task is to discern the contours of constitutionally protected liberty as Section 1’s framers and ratifiers understood them, and then to decide whether that common understanding of liberty leaves the General Assembly discretion to generally prohibit abortions that are unnecessary to protect a woman’s life or health.

Indiana’s long history of generally prohibiting abortion as a criminal act—coupled with Plaintiffs’ acknowledgment that protecting prenatal life falls within the State’s broad authority to protect the public’s health, welfare, and safety—suggests that the common understanding among Article 1, Section 1’s framers and ratifiers was that the provision left the General Assembly with legislative discretion to regulate or limit abortion. Even before statehood, Indiana’s territorial law prohibited abortions after quickening, and for the entire period between the ratification of the 1851 Constitution and the passage of Senate Bill 1, Indiana prohibited abortions at all stages of the pregnancy to the extent the federal courts interpreting the Federal Constitution permitted. [Further historical details omitted. -EV]

Justice Geoffrey Slaughter concurred in the judgment, concluding that it was unnecessary for the court to reach whether the Indiana Constitution protects a right to abortion when the woman’s life or health is in danger.

Justice Christopher Goff concurred as to the life/health exception, but dissented as to the right to abortion more broadly:

Within [the] “bundle of liberty rights” stands the fundamental “right to be let alone.” In my view, even those who abhor abortion in all circumstances should be wary of unfettered government power over the most personal, private aspects of a person’s life.

When, like here, a longstanding right is stripped from the United States Constitution, the only remaining restraint on the Indiana General Assembly’s lawmaking power is our state constitution. That document guarantees “liberty” to all, an idea that means different things to different people. And when those ideas stand in tension, the state is responsible for protecting the minority interests against those of the majority. Otherwise, no one’s liberty is secure. In addressing this case, therefore, we decide how much power the legislature has to restrict many of the freedoms that Hoosiers have come to depend on. And we resolve whether our Court will require the legislature to balance those freedoms meaningfully against its legitimate policy goals….

In my view, there is a reasonable likelihood that Article 1, Section 1’s guarantee of “liberty” includes a qualified right to bodily autonomy, one which the General Assembly must accord some weight in the legislative balance. More importantly, I believe that the abortion question is fundamentally a matter of constitutional dimension that should be decided directly by the sovereign people of Indiana. I would thus urge my colleagues in the General Assembly to put before Hoosier voters the question whether the term “liberty” in Article 1, Section 1 of the Indiana Constitution protects a qualified right to bodily autonomy….

Rather than hold a constitutional referendum (like some other states), our colleagues in the General Assembly used a special legislative session (called for a wholly unrelated purpose) to implement a moment-of-conception abortion ban with only narrow exceptions. From first reading to the Governor’s desk, Senate Bill 1 took just eleven days to become law.⁵ In fairness to our colleagues in the General Assembly, the United States Supreme Court left the abortion issue “to the people and their elected representatives.” The Dobbs decision, moreover, was unprecedented in our nation’s history; it simply could not have been predicted a generation ago. Still, Dobbs highlights an important principle in the preservation of our constitutional order: The people’s rights cannot be “only as secure” as the United States Supreme Court “wishes to make them.” …

Of course, any action we take to fill the void risks criticism as violating the separation of powers. On the other hand, prudential concerns counsel in favor of searching judicial review of legislation. Our constitution aims to prevent the concentration of authority in one branch of government. This Court, then, must supply a balance to the political branches and check any legislative overreach. We forsake that duty by simply deferring to the General Assembly’s decision on how to weigh the people’s liberty. To be sure, line-drawing on this issue is generally beyond the judicial purview. As we’ve emphasized before, such “classification,” is largely “a question for the legislature.”¹³ Yet there are “certain preserves of human endeavor” on “which the State must tread lightly, if at all”—”core values” that the legislature “may qualify but not alienate.” In these areas, this Court must ensure that statutes leave sufficient scope for Hoosiers to exercise their freedom.

Ultimately, however, legislatures and courts are not the ultimate authority on questions of constitutional dimension. The people of Indiana should speak directly to the issue before us today through the constitutional amendment process. As the Dobbs Court itself instructed, the “permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” I would therefore urge my colleagues in the General Assembly to put to the people the issue of whether the guarantee of “liberty” in Article 1, Section 1 of the Indiana Constitution includes a qualified right to bodily autonomy.

Until that opportunity comes, and taking the constitution as it stands today, I would find a qualified right to bodily autonomy … I consider the Court’s analysis flawed for two reasons. First, it fails to account for the absence of women in framing our 1851 constitution and unjustifiably diminishes the significance of the 1984 amendment to Article 1, Section 1. Second, it relies on a simplified historical narrative of what the framing generations of both 1851 and 1984 thought about abortion. [Details omitted. -EV]

For more on the broader protection of unenumerated rights under the Indiana Constitution, see here.

The post Indiana Constitution Protects Right to Abortion When Necessary to Protect Woman’s Life or Health, But Not Otherwise appeared first on Reason.com.

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Article 1, Section 1 of the Indiana Constitution (the first section of the Indiana Bill of Rights) provides,

WE DECLARE, That all people are created equal; that they are endowed by their CREATOR with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that all power is inherent in the people; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being. For the advancement of these ends, the people have, at all times, an indefeasible right to alter and reform their government.

Members of the Medical Licensing Board of Indiana v. Planned Parenthood, decided Friday by the Indiana Supreme Court, in an opinion by Justice Derek Molter, joined by Chief Justice Loretta Rush and Justice Mark Massa, concludes that this is a judicially enforceable provision that protects long-established unenumerated rights:

Interpreting Article 1, Section 1 requires us to uncover “the common understanding of both those who framed” our Constitution “and those who ratified it.” … The first state constitutional document to include [the guarantees listed in Article 1, Section 1] was the Virginia Declaration of Rights in 1776, which was the first bill of rights adopted through a popularly elected convention. Steven G. Calabresi & Sofía M. Vickery, On Liberty and the Fourteenth Amendment: The Original Understanding of the Lockean Natural Rights Guarantees, 93 Tex. L. Rev. 1299 (2015). A month after Virginia adopted its Declaration of Rights, Pennsylvania adopted a similar provision in its constitution. Around the same time, Thomas Jefferson used the Virginia provision as a model for expressing these same ideas in the Declaration of Independence.

These provisions, known as “Lockean Natural Rights Guarantees,” quickly became standard in state constitutions, and they are generally understood as constitutionalizing the social contract theory of the English political philosopher John Locke. Locke believed that before forming a civil society we were in a state of nature where we all had equal freedom to do as we pleased so long as we did not “take away or impair the life, or what tends to the preservation of life, the liberty, health, limb, or goods of another.” That freedom included natural rights: “every [person] has a property in [their] own person,” the “labour of [their] body,” and “the work of [their] hands.” But we left the state of nature and entered a civil society, giving up some of our natural rights in exchange for better protection of the remaining natural rights and for the enjoyment of new positive rights (e.g., the right to a jury trial). See generally Michael W. McConnell, Natural Rights and the Ninth Amendment: How Does Lockean Legal Theory Assist in Interpretation?, 5 N.Y.U. J.L. & Liberty 1 (2010).

The only reason for giving up some natural rights is to better secure the remainder, so citizens do not relinquish natural rights beyond what is reasonably necessary to secure the natural rights of the broader community. For that reason, civil laws can “be directed to no other end but the peace, safety, and public good of the people,” or what we call the “police power.” As George Mason, the author of the first Lockean Natural Rights Guarantee, explained:

To protect the weaker from the injuries and insults of the stronger were societies first formed; when men entered into compacts to give up some of their natural rights, that by union and mutual assistance they might secure the rest; but they gave up no more than the nature of the thing required. Every society, all government, and every kind of civil compact therefore, is or ought to be, calculated for the general good and safety of the community. Every power, every authority vested in particular men is, or ought to be, ultimately directed to this sole end; and whenever any power or authority whatever extends further, or is of longer duration than is in its nature necessary for these purposes, it may be called government, but it is in fact oppression.

Article 1, Section 1 implements this theory for our State, and it protects Hoosiers’ rights in at least two key respects.

First, it guarantees certain fundamental rights … [including] unenumerated rights under the umbrella of “life, liberty, and the pursuit of happiness.” … Those rights protect any interest “of such a quality that the founding generation would have considered it fundamental or ‘natural'”—in other words, beyond the reach of government. It is impossible to catalogue Section 1’s implicit fundamental rights, but a few examples include having and raising children, pursuing a vocation that does not harm others, and patient self-determination [citing precedents].

Of course, the precise contours of all rights, including unenumerated rights, must be established through individual cases in which each right is described with the appropriate level of particularity to consider whether the founding generation would have considered the right fundamental. And “[a]s a matter of state constitutional law, Indiana courts have used a number of different standards of review, depending upon the particular constitutional right alleged to be infringed and the magnitude of it.”

Second, Article 1, Section 1 limits governmental authority to the police power. Unlike the Federal Constitution, our Indiana Constitution does not “establish a system of expressly enumerated powers.” Instead, “power is generally vested in the legislature, and the outer boundary of that general power is marked by the requirement that it be exercised to advance ‘peace, safety, and well-being.'”

When evaluating whether state action is an appropriate exercise of the police power, we “confine [ourselves] to the question, not of legislative policy, but of legislative power.” To fall within the police power, a “law must not be arbitrary, unreasonable or patently beyond the necessities of the case.” “If the law prohibits that which is harmless in itself, or if it is unreasonable and purely arbitrary, or requires that to be done which does not tend to promote” the police power, “it is an unauthorized exercise of power.”

So, for example, we have held the General Assembly cannot prohibit people from advertising their lawful business [citing a case that was decided before the U.S. Supreme Court concluded that the Free Speech Clause generally protects advertising -EV], or require insurance agents to work on commission rather than salary, because those restrictions were not rationally related to protecting the public’s peace, safety, and well-being. In contrast, the General Assembly may impose professional licensure requirements when they are rationally related to protecting consumers even though such laws may limit someone’s ability to profit off their labor.

There is symmetry here. While the State worries judicial enforcement of unenumerated rights may overreach, most of the State’s police powers are unenumerated too, so there should be equal concern that the State might view its own powers too generously. After all, our Constitution’s language in delegating authority to the State for promoting the “peace, safety, and well-being” of Hoosiers is no less capacious than its language guaranteeing Hoosiers’ rights to “life, liberty, and the pursuit of happiness.” So, Article 1, Section 1 strikes a balance: it allows the State broad authority to promote the peace, safety, and well-being of Hoosiers, but that authority goes no farther than reasonably necessary to advance the police power, and not at the expense of alienating what Hoosiers have commonly understood to be certain fundamental rights….

The State …. worries that reading Section 1 as judicially enforceable will “wreak havoc on the constitutional structure” because it “would permit litigants to circumvent the framers’ deliberate choices about which rights to include in Article 1 and how to frame them,” allowing litigants to evade the limits of other provisions in the Bill of Rights by simply invoking Section 1’s “capacious reference to ‘life, liberty, and the pursuit of happiness.'”But the State has things backwards.

The more particular guarantees of liberty throughout the Bill of Rights “are but concrete manifestations” of Article 1’s more general limiting principle that state power is limited to the police power and that Hoosiers have retained certain fundamental rights. Contrary to the State’s framing, the “Indiana Constitution does not grant government an absolute, limitless state power and then withdraw discrete portions of it by specific excision.” So the structure and purpose of our Constitution bolster our conclusion that Article 1, Section 1 is judicially enforceable….

More on the abortion question in a separate post.

The post Indiana Constitution Protects Long-Established Unenumerated Rights, Including Personal and Economic Rights appeared first on Reason.com.

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The Supreme Court has scarcely filled its docket for the 2023-24 term, but it is already shaping up to a major term for administrative law.

Among the cases accepted for next term with potentially significant implications for administrative law are the following:

• Consumer Financial Protection Bureau v. Community Financial Services Association of America—Whether the court of appeals erred in holding that the statute providing funding to the CFPB violates the appropriations clause in Article I, Section 9 of the Constitution, and in vacating a regulation promulgated at a time when the Bureau was receiving such funding. (I wrote about the cert petition here.)
• Acheson Hotels v. Laufer—Whether a self-appointed Americans with Disabilities Act “tester” has Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even if she lacks any intention of visiting that place of public accommodation. (Josh B. wrote about the cert grant here.)
• Loper Bright Enterprises v. Raimondo – Whether the court should overrule Chevron v. NRDC, or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency. (I wrote about the cert grant here.)
• Securities and Exchange Commission v. Jarkesy—Three questions: (1) Whether statutory provisions that empower the Securities and Exchange Commission to initiate and adjudicate administrative enforcement proceedings seeking civil penalties violate the Seventh Amendment; (2) whether statutory provisions that authorize the SEC to choose to enforce the securities laws through an agency adjudication instead of filing a district court action violate the nondelegation doctrine; and (3) whether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection. (I wrote about the Jarkesy decision here.)

That’s quite a bit of administrative law for a single year, and there will be more to come. The Court has not even granted certiorari on two-dozen cases yet. Additional cases concerning standing, the Biden Administration’s environmental regulations, vaping regulation, and the FDA’s treatment of mifepristone could still end up before the justices.

Note to Administrative Law professors: Be prepared to revise your syllabi!

The post Lots of Administrative Law On Tap for Next Supreme Court Term appeared first on Reason.com.

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After a slow start, and many opinions that confounded expectations, the Supreme Court closed the term with several decisions that split the justices along ideological lines. Yet overall, the 6-3 Court only decided twelve of fifty-seven cases by that margin, and in only five of those cases was the Court split along ideological lines (the two affirmative action cases, Biden v. Nebraska on student loans, 303 Creative v. Elenis on whether a web designer could be required to make websites celebrating same-sex marraige, and Jones v. Hendrix concerning habeas claims).

Several cases previewed as likely to split the justices along ideological lines produced unanticipated agreement (as in Groff v. DeJoy on religious accommodation in employment, Axon & Cochran on challenges to agency adjudication, Glacier NW on labor disputes, and (to some degree), Sackett v. EPA on the scope of federal regulation under the Clean Water Act), while others did not produce the conservative result we were told to expect (Allen v. Milligan on the Voting Rights Act and Brackeen v. Haaland on the Indian Child Welfare Act), and still others splintered the Court in truly unexpected ways (Mallory v. Norfolk Souther Railway on personal jurisdiction and National Pork Producers Council on the dormant commerce clause).

Over at EmpiricalSCOTUS, Adam Feldman and Jake Truscott have compiled some other statistics for the term. Of note, Justice Brett Kavanaugh was in the majority in 96 percent of the Court’s cases, more than any other justice, followed closely by the Chief Justice. Interestingly, the Justice least likely to be in the majority was another conservative: Justice Thomas. The overall ranking on this score, as compiled by Feldman and Truscott, is quite unexpected, as shown below.

Also worth noting, three pairs of justices voted together in 95 percent of the term’s cases (Roberts-Kavanaugh, Sotomayor-Jackson, and Sotomayor-Kagan).

As for the Court’s final cases, here’s a quick round-up of my end-of-term predictions and how they fared.

• Harvard/UNC Affirmative Action Cases—I correctly predicted Chief Justice Roberts would write and hold schools’ use of race unlawful. I did not anticipate the relative degree of unanimity among the conservatives, largely because I though the Chief’s opinion would be narrower than it turned out to be.
• Mallory v. Norfolk Southern – I got neither the decision’s author (Justice Gorsuch) nor the outcome correct (and, like others, I am still unpacking what the decision’s splintered line-up actually means).
• 303 Creative v. Elenis – I correctly predicted Justice Gorsuch would write an opinion concluding the state cannot compel a web designer to make websites contrary to her deeply held beliefs.
• Moore v. Harper – I correctly predicted the author (Chief Justice Roberts), but not the outcome, as I thought the Court would avoid the merits.
• Student Loan Cases—I correctly predicted Chief Justice Roberts would write an opinion finding that Missouri had standing and that the student loan forgiveness plan was unlawful, but I did not anticipate a separate opinion in the second case rejecting standing for those plaintiffs.
• Abitron Austria GmbH v. Hetronic International – My guess as to the author was wrong. (It was Justice Alito and I had predicted Justice Sotomayor.) I dared not venture a substantive prediction as the case concerned a subject I know little about.
• Groff v. DeJoy – I correctly predicted that Justice Alito would write an opinion siding with the employee who sought religious accommodation. I did not predict that it would be unanimous.
• Counterman v. Colorado – I correctly predicted that Justice Kagan would write an opinion rejecting the objective “reasonable person” standard for determining what is a “true threat” and remanding back to the Colorado courts.

Overall, I think I did pretty well with these predictions, and definitely gave readers their money’s worth.

I am not about to make any sweeping predictions about next term, other than to note that it is likely to be quite significant for administrative law, particularly given some of the Court’s most recent cert grants. I discuss the administrative law cases on tap for next term here.

The post Looking Back on the Supreme Court’s 2022-23 Term appeared first on Reason.com.

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