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The Supreme Court Just Punted On Its First Abortion Case Since RBG Died

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The Supreme Court refused Thursday refused to reinstate restrictions on a pill used to induce abortions, in a 6-2 decision that both denied the Trump administration a win on abortion and let the nation’s highest court largely avoid a controversial case just weeks ahead of the presidential election. 

The Trump administration has spent the summer and fall locked in a legal battle over mifepristone, one of two drugs typically used to induce a medication abortion. For years, the Food and Drug Administration has required that people undergoing a medication abortion pick up mifepristone pick it up in person from a provider’s office, even if they’ve already seen a doctor about getting an abortion.

But in May, the ACLU teamed up with the American College of Obstetricians and Gynecologists, as well as a handful of other groups, to challenge that restriction. The lawsuit accused the FDA and the Department of Health and Human Services of jeopardizing public health by forcing people who want abortions to travel in the middle of the coronavirus pandemic, even as providers who perform other kinds of medical care were encouraged to use telehealth.

Medication abortion, which can be used to end pregnancies that are less than 10 weeks along, is extremely popular: it accounted for 39% of all U.S. abortions in 2017, according to the Guttmacher Institute, which studies abortion restrictions. In 2018, a landmark report from the National Academies of Sciences, Engineering, and Medicine concluded that the procedure is overwhelmingly safe, even when providers prescribe patients abortion-inducing pills remotely. The risk of undergoing a medication abortion remotely, the report found, is akin to taking “commonly used prescription and over-the-counter medications.”

In July, U.S. District Judge Theodore Chuang sided with the ACLU and ACOG. Ruling that the FDA restrictions likely created an unconstitutional barrier on people who were trying to get abortions, Chuang issued a nationwide injunction that suspended the restrictions throughout the pandemic.

That’s when the Trump administration asked the Supreme Court to weigh in and stay the injunction. In its brief to the justices, the administration argued that the FDA restrictions were fine because people can just get surgical abortions instead. (In the first few months of the pandemic, even that option was in question: officials in several states cited the coronavirus as a reason to force abortion clinics to stop offering the procedure.)

The ACLU was less than convinced by the administration’s logic. In its responding brief, the civil rights organization pointed out that invasive surgical abortions would likely amplify patients’ chances of catching COVID-19. 

Many abortion patients are also already at higher risk of COVID-19, the brief pointed out. They tend to be low-income, which means they’d likely have to rely on public transportation to travel to an abortion clinic—which could be located hours away and, thanks to the pandemic, have diminished operating hours. Most abortion patients also already have one child, so they’d likely need to invite someone into their home to provide child care. Abortion rates are also higher among women of color; people of color are more likely to have preexisting health conditions and face a greater risk of becoming seriously ill or dying of COVID-19. Both low-income people and people of color are also more likely to live in intergenerational households with elderly people, who are especially vulnerable to COVID-19, according to the brief.

In a one-paragraph, unsigned order Thursday evening, the justices told the Trump administration that it would not lift Chuang’s injunction—for now. Instead, they instructed Chuang to consider the administration’s request that he “dissolve, modify, or stay the injunction,” and to issue a new ruling within 40 days.

“A more comprehensive record would aid this court’s review,” the justices wrote, adding that they were not making a decision on the merits of the case. 

Justices Samuel Alito and Clarence Thomas both dissented from that order. In an opinion joined by Thomas, Alito wrote that he saw no meaningful difference between the Supreme Court’s new order and the injunction issued by Chuang, because the FDA restrictions are still on pause. 

Alito also suggested that Chuang was taking advantage of the coronavirus crisis to push a political agenda. Chuang, Alito wrote, “saw the pandemic as a ground for expanding the abortion right recognized in Roe v. Wade.”

The case marks the first time the justices have touched abortion rights since Justice Ruth Bader Ginsburg, the trailblazing feminist and de facto leader of the court’s liberal wing, died in mid-September. Her death has stoked fear among abortion rights supporters that Roe, which legalized abortion nationwide in 1973, may soon be overturned.

Republicans are now attempting to rapidly replace Ginsburg with Judge Amy Coney Barrett, a judge on the U.S. Court of Appeals for the 7th Circuit, ahead of the election. Barrett has repeatedly suggested that she does not personally support abortion.

A hearing on her confirmation is set to begin in the Senate Judiciary Committee on Monday.

Cover: In this Wednesday, March 4, 2020 file photo, abortion rights demonstrators rally outside the Supreme Court in Washington. (AP Photo/Jacquelyn Martin File)

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Muted microphones for Thursday’s final US presidential debate

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Organisers say the move will avoid the chaos of last month’s first encounter, when Trump repeatedly interrupted Biden.

US President Donald Trump and Democratic challenger Joe Biden will have their microphones muted for parts of their final debate on Thursday to allow each candidate a block of uninterrupted time to speak and avoid the rancour of the two candidates’ first encounter.

The Commission on Presidential Debates, the sponsor of the televised debate in Nashville, said changes were necessary after the bad-tempered first debate.

Trump repeatedly interrupted Biden during the encounter in Cleveland on September 29, and the discussion ended up in name-calling and insults.

“We realize, after discussions with both campaigns, that neither campaign may be totally satisfied with the measures announced today,” the commission said in a statement. “We are comfortable that these actions strike the right balance and that they are in the interest of the American people, for whom these debates are held.”

For this week’s 90-minute debate, the organisers will give each candidate two minutes of uninterrupted time at the beginning of each 15-minute segment of the debate. NBC News correspondent Kristen Welker will moderate.

“The only candidate whose microphone will be open during these two-minute periods is the candidate who has the floor under the rules,” the commission said.

US President Donald Trump frequently interrupted rival Joe Biden in the first debate on September 29 [File: Brian Snyder/Reuters]

Trump’s campaign objected to the change, but said he would still take part.

“President Trump is committed to debating Joe Biden regardless of last-minute rule changes from the biased commission in their latest attempt to provide advantage to their favoured candidate,” campaign manager Bill Stepien said.

The commission is a non-partisan body.

The Biden campaign did not immediately respond to a Reuters’ request for comment on the latest developments.

Uninterrupted time

Trump’s camp is also unhappy with Thursday’s proposed topics, which include families, climate change and race, arguing that the discussion should focus more on foreign policy.

Biden’s campaign said both sides has previously agreed to let the moderators choose the subjects. It said Trump wanted to avoid discussing his stewardship of the coronavirus pandemic, which surveys show is the top issue for voters.

“As usual, the president is more concerned with the rules of a debate than he is getting a nation in crisis the help it needs,” Biden spokesman TJ Ducklo said.

Trump, who was admitted to hospital with COVID-19 in early October, backed out of the second scheduled debate, which was supposed to take place last Thursday, because it would have been in a virtual format. Instead, the two men broadcast rival town-hall sessions.

With just two weeks before the presidential election on November 3, Biden has a strong lead nationwide, although the race is closer in some key states.

More than 30 million people have already cast their ballot through early voting.

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More than 220,000 people have died from Covid-19 in the US

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President Donald Trump speaks to reporters at Phoenix Sky Harbor International Airport on Monday, October 19 in Phoenix, Arizona.
President Donald Trump speaks to reporters at Phoenix Sky Harbor International Airport on Monday, October 19 in Phoenix, Arizona. Alex Brandon/AP

President Trump’s attacks on Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, won’t help the United States battle the coronavirus pandemic, said Dr. Ashish Jha, the dean of Brown University School of Public Health.

It’s “disturbing and “upsetting” to hear the President say such things, Jha told CNN’s Jake Tapper.

“We’re in the middle of the worst pandemic in a century and Dr. Fauci is America’s most respected infectious disease expert for good reason,” Jha said. 

“He is the best there is and to attack him personally is very unfortunate and it is not going to help the country out,” Jha added. 

“I mean, right now we’re heading into a difficult fall and winter. Attacking your best experts is not what you want to be doing if you’re President of the United States.”

It could also have dire health consequences, Jha said.

“Dr. Fauci isn’t just somebody that the public respects. All of us in the medical field who study these things look up to him as the best there is,” Jha noted.

“And so undermining him and undermining his message really makes it so much harder to control this virus, so much harder to control this pandemic. I think the President’s doing a great disservice to Dr. Fauci, but really to the country.”

Trump called Fauci a “disaster” and referred to him and other health experts as “idiots” in a campaign phone call on Monday.

Dr. Richard Besser, the former acting director of the Centers for Disease Control and Prevention, told CNN’s Anderson Cooper on “Full Circle” if political leaders aren’t working with scientists to pull the nation together in their coronavirus response, they’re likely going to fail.

“The only way response works is when you have a unity of message between the political leaders and the science leaders because the science leaders are never going to be asking people to do things that are easy. They’re asking people to change their lifestyle, to take action, to reduce the spread of an infectious agent and that requires sacrifice and when you don’t have your political leaders pulling the nation together and making it a national effort, you’re going to fail,” he said.

“Infectious agents don’t care what political party you support. They don’t care where you live. They will infect everybody and anybody,” he said.

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Democrats are cheering a Supreme Court ruling on mail-in ballots. Here’s why it’s worse than it looks.

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The Supreme Court handed down a brief, unsigned order on Monday, which effectively rejected radical arguments by the Republican Party of Pennsylvania that sought to make it harder to vote in that state. This order, in other words, is a victory for voting rights — but that victory may only last a matter of days.

Republican Party of Pennsylvania v. Boockvar involves a state Supreme Court order holding that many ballots received up to three days after Election Day must be counted. Monday’s order means that this state Supreme Court decision will stand, for now.

The Court’s decision not to grant relief to the GOP in Republican Party is not especially surprising. What is surprising is the vote breakdown in this case. The Court voted 4-4, with Chief Justice John Roberts crossing over to vote with the three liberal justices.

So in the almost certain event that Trump Supreme Court nominee Amy Coney Barrett is confirmed to join the Supreme Court, there could be five votes on the Supreme Court who support the GOP’s effort to toss out many ballots in the state of Pennsylvania. Indeed, it is possible that Republicans will attempt to raise the same issue before the justices after Barrett is confirmed.

The dissenting justices did not explain why they dissented

The Supreme Court’s order in Republican Party is only two sentences long. The first sentence states that the GOP’s request to stay the state Supreme Court decision is denied. The second merely states that “Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would grant the application.” None of the four justices in dissent explained why they dissented.

In its brief asking the Supreme Court to block the state court’s decision, however, the GOP advanced two legally dubious theories.

The first is that a federal law providing that the election shall take place “on the Tuesday next after the first Monday in November.” Republicans argue that federal law requires “the 2020 general election to be consummated on Election Day (November 3, 2020).” So any ballots that may have been mailed after this date must be tossed.

One serious problem with this argument, however, is that the provisions of federal law setting an election date should not be enforceable in federal court. As I’ve previously explained, private parties are only allowed to bring a lawsuit seeking to enforce a federal statute if that statute contains particular language. And the federal law setting the date of the election does not contain such language.

The GOP’s other argument is potentially breathtaking in its implications. The Constitution provides that “each State shall appoint, in such Manner as the Legislature thereof may direct,” members of the Electoral College. In their brief, the GOP hones in on the word “Legislature,” arguing that only the Pennsylvania state legislature may set the state’s rules for choosing presidential electors — not the state Supreme Court.

But there’s a glaring problem with this argument. As the Supreme Court held in Marbury v. Madison (1803), “it is emphatically the province and duty of the Judicial Department to say what the law is.” In Republican Party, two parties had a disagreement about what Pennsylvania law says about how ballots should be counted. Ultimately, the state supreme court resolved that disagreement in a manner that the GOP disagrees with.

The GOP argues in its brief that the state Supreme Court’s decision relied on reasoning that is “tortured at best.” But so what? There was a disagreement between two parties. Someone had to resolve that dispute. And, in questions of state law, the state Supreme Court is supposed to be the final word on such disputes.

One of the most basic principles of American law is that the Supreme Court of the United States has the final word on questions of federal law, but state supreme courts have the final word on how to interpret the law of their own state.

Indeed, if state supreme courts cannot interpret their state’s own election law, it’s unclear how that law is supposed to function. There will inevitably be legal disagreements between candidates, parties, and election officials during an election. Perhaps the Democratic Party believes that a particular ballot should be counted, and the Republican Party disagrees.

But someone has to have the power to resolve such disagreements, and, in this country, disputes about the proper meaning of an existing law are resolved by the judiciary. If the judiciary cannot perform this function, we have no way of knowing what the law is — and we may have no way of knowing who won a disputed election.

In any event, because the four dissenting justices did not explain their reasoning, we do not know whether they voted with the GOP because they were moved by one or both of the GOP’s arguments — or maybe because they came up with their own reason to back their own political party in this case.

What we do know is that four plus one equals five. Thus, in the likely event that Judge Barrett becomes Justice Barrett, there will probably be a majority on the Supreme Court to hand a victory to the GOP in cases like this one.

Indeed, the GOP may be able to raise this issue again after Barrett is confirmed, potentially securing a Court order requiring states like Pennsylvania to toss out an unknown number of ballots that arrive after Election Day. If the election is close, that could be enough to change the result.


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