July | August 2017







Supreme Court Decides Cases Affecting the States

By Lisa Soronen
The U.S. Supreme Court decided, arguably, six big cases this term. Five of them affected the states directly. Three of those five cases were decided at the end of June.
In Whole Woman’s Health v. Hellerstedt, the court held 5-3 that Texas’s admitting privileges and ambulatory surgical center, or ASC, requirements create an unconstitutional undue burden on women seeking abortions.
A Texas law required doctors at abortion clinics to obtain admitting privileges at a hospital located within 30 miles. It also required clinics to meet the same standards as hospital-style surgical centers.
Texas argued that these two requirements would “protect the health of women who experience complications from abortions.” According to the court, nothing in the record indicated that the admitting privileges requirement advanced women’s health because very few women who receive abortions need to be hospitalized. The admitting privileges requirement placed a “substantial burden” on a woman’s ability to get an abortion because about half of Texas’s clinics closed as a result. These closures meant the “number of women of reproductive age living in a county…more than 150 miles from a provider increased from approximately 86,000 to 400,000…and the number of women living in a county more than 200 miles from a provider from approximately 10,000 to 290,000.”
Regarding the ASC requirement, the court concluded that it does not benefit patients. For those who have abortions via medication, complications almost always arise only after the patient has left the facility. Also, Texas does not require that much riskier procedures like childbirth and colonoscopies be performed in an ASC.
The ASC requirement places a substantial obstacle in the path of women seeking an abortion, the court concluded, because it will further reduce the number of abortion clinics (initially about 40) to seven or eight. “Common sense” suggests the remaining clinics will not be able to keep up with demand.
Affirmative Action
In Fisher v. University of Texas at Austin, the court ruled 4-3 that the University of Texas at Austin’s race-conscious admissions program is constitutional—at least as of 2008, when this case was first filed.
Per Texas’s Top Ten Percent Plan, the top 10 percent of Texas high school graduates are automatically admitted to UT Austin, filling up to 75 percent of the class. Other students are admitted based on a combination of their grades and test scores and “personal achievement index.” Race is considered as one factor in one of the two components of an applicant’s “personal achievement index.”
UT Austin denied Abigail Fisher, a white Texan who did not graduate in the top 10 percent of her class, admission. She sued claiming the university’s use of race in admissions violates the 14th Amendment’s Equal Protection Clause.
The court rejected Fisher’s four arguments that UT Austin’s admissions policy isn’t narrowly tailored.
Fisher first claimed the university should have specified more precisely what level of minority enrollment would constitute a “critical mass.” The court responded that critical mass isn’t a number and that the university articulated “concrete and precise goals” about the “educational values it [sought] to realize” through its race-conscious admissions process.
Second, the court rejected the argument that the university already achieved a critical mass of minority students using the Top Ten Percent Plan. Between 1996 and 2002, when race wasn’t a factor in admissions, minority enrollment stagnated.
The court disagreed with Fisher’s argument that the use of race had only a minimal impact on minority enrollment. Between 2003 and 2007, when race was considered, Hispanic and African-American enrollment increased 54 percent and 94 percent, respectively.
Finally the court rejected Fisher’s argument that UT Austin could have used numerous race-neutral means of achieving more diversity. The court noted that the university tried many of her suggestions but they didn’t increase diversity.
The court split 4-4 in United States v. Texas on whether the president’s deferred action immigration program violates federal law.
As a result, the Fifth Circuit Court of Appeals’ nationwide temporary stay of the program remains in effect.
The Deferred Action for Parents of Americans, or DAPA, program allows certain undocumented immigrants who have lived in the United States for five years and either came here as children or already have children who are U.S. citizens or permanent residents to lawfully stay and work temporarily in the United States.
The states challenged DAPA before the Fifth Circuit for violating the Administrative Procedures Act, or APA, notice-and-comment requirement and called it arbitrary and capricious in violation of the APA. The Fifth Circuit concluded the states were likely to succeed on both claims.
It reasoned DAPA is a substantive rule, requiring the public to have the opportunity to offer comments (which did not occur), not a policy statement. DAPA is likely arbitrary and capricious, the Fifth Circuit concluded, because it is “foreclosed by Congress’s careful plan.” The Immigration and Nationality Act describes “how parents may derive an immigration classification on the basis of their child’s status and which classes of aliens can achieve deferred action and eligibility for work authorization.”
The United States argued that the states lack “standing” to challenge DAPA. The Fifth Circuit disagreed, reasoning that the cost of issuing drivers’ licenses to DAPA program participants is a particular harm states will face, which provides the basis for standing.



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