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Supreme Court vacancy impacts CMA court cases

By Jonathan Imbody | February 25, 2016

Excerpted from "Supreme Court Minus Scalia Has Healthcare Cases to Decide," Medscape, February 16, 2016 - The death of Supreme Court Associate Justice Antonin Scalia last week leaves the high court potentially deadlocked on a clutch of hot button healthcare cases that matter to physicians. The issues do not get any hotter than abortion, contraception, fraud, and the Affordable Care Act. Then again, the demand by congressional Republicans that President Barack Obama should let the next president nominate Scalia's successor has triggered a fiery debate of its own.

With the number of justices down to eight, four-to-four votes are possible, and even likely, given the court's liberal–conservative split. Associate Justice Anthony Kennedy remains a swing vote, and if he sides with his three decidedly conservative colleagues, as he often does, the stage is set for a standoff with the court's four liberal justices.

In the case of a tie, the lower court ruling that had been appealed to the Supreme Court stands, but only in that appellate circuit. The absence of a national precedent could lead to judicial confusion, legal scholars warn. To avoid that problem, the court could postpone rulings on current cases until it is at full strength, but when a Scalia replacement may get nominated and confirmed is any pundit's guess. The American Association of Physicians and Surgeons and the Christian Medical Association filed amicus briefs in favor of the Texas law. Given the medical risks of abortion, they argued, the restrictions on abortion clinics are reasonable.

The other reproductive rights case, Zubik v. Burwell , centers on the mandate in the Affordable Care Act that health plans cover contraception. A group of religious organizations suing the government, which includes a nursing home chain operated by the Little Sisters of the Poor, does not want to do anything that makes them complicit in offering contraception coverage. The only medical societies to weigh in on this case so far are the American Association of Physicians and Surgeons and other groups opposed to abortion that say some forms of contraceptive amounted to abortion, given that life begins at conception.


Jonathan ImbodyCMA VP for Government Relations Jonathan Imbody: “I recently attended a religious freedom meeting chaired by Edwin Meese, III, the former Attorney General under Ronald Reagan. General Meese related a story that captures Justice Scalia's commitment to the rule of law and the U.S. Constitution. At a party, Scalia's wife lamented to Meese her husband's ‘horrible’ decision in a flag-burning case, in which her husband had upheld the constitutional free speech rights of flag burners. Justice Scalia then told Meese that his wife had rubbed in her disagreement the morning after the decision by launching into a rousing rendition of the song, ‘It's a Grand Old Flag.’

“The story illustrates how Scalia would brook any criticism while steadfastly maintaining fidelity not to his personal ideology, but to the original intent of the Constitution. The void left by Scalia's death now impacts the two cases above in which CMA has weighed in on the side of life and faith freedom.

“In Whole Woman's Health v. TX Dept. Health, CMA's brief (written by our friends at Alliance Defending Freedom) argues that Texas' law regulating health and safety at abortion clinics ‘appropriately expresses Texas's constitutional interest in safeguarding women's health and maintaining medical standards.’ The brief maintains that the ambulatory surgical center requirements and the admitting privileges requirement rationally relate to Texas's legitimate interest in regulating outpatient abortion.

“In Zubik [Little Sisters of the Poor, et. al.] v. HHS, CMA's brief (written by our friends at Americans United for Life) argues, ‘It is undisputed as a matter of science that a new, distinct human organism comes into existence during the process of fertilization – at the moment of sperm-egg fusion – and before implantation of the already-developing embryo into the uterine wall. Many drugs and devices labeled by the U.S. Food and Drug Administration as 'emergency contraception,' however, have post-fertilization mechanisms of action which destroy the life of a human organism. The HHS contraception and sterilization mandate violates sincerely held religious beliefs and freedom of conscience.’”


Read CMA's brief urging health and safety regulation at abortion clinics, in Whole Woman's Health v. TX Dept. Health

Read CMA's brief advocating for faith and conscience rights, in Zubik [Little Sisters of the Poor, et. al.] v. HHS

Resources - CMA-led coalition on freedom of faith, conscience and speech
CMDA’s Abortion Ethics Statement
Human Life: It’s Moral Worth Ethics Statement
Remember to Remember: The Modern Implications of Abortion by John Patrick, MD

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