The Week Ahead

June 23, 2024

Monday is the two-year anniversary of the Supreme Court’s regrettable decision in Dobbs to sack 50-years of precedent and take away the right to get an abortion from American women. Last month, while campaigning in Wildwood, New Jersey, the former president took a victory lap, telling the crowd, “I want to thank the six Supreme Court justices, Clarence Thomas, Samuel Alito, John Roberts, Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett for having the wisdom and courage to end Roe v. Wade.”

It’s a bizarre statement by any measure. Presidents don’t usually thank the Justices for a ruling, as though they’ve done them a favor or returned the favor of their appointment to the bench. But here, given that more than 70% of Americans favor some form of abortion rights, it seems to be a calculated gamble that the 30% who don’t are far more likely to turn out to vote and have their votes counted. However you look at it, the Biden campaign is wise to make sure that Americans understand precisely what happened here (especially since, as we noted the other night, 17% of Americans apparently believe that Biden, not Trump, is responsible for the loss of abortion rights).

Few, if any, issues are more likely to impact the outcome of the election this November than the loss of rights by American women under Trump administration policies. On Monday, the administration will try to draw attention to that fact by sending several people, including Vice President Kamala Harris, out across the country to underscore the current administration’s efforts to protect women.

While some of the most important pieces of that work will have to await the hoped-for return of Democratic majorities in Congress and a Biden victory, which would permit Democrats to make Roe the law of the land, other pieces are already in play. It’s likely we’ll learn the fate of one of them in the week ahead.

That’s because this week is possibly, but not definitely, the last week of the 2023-2024 Supreme Court term. Much of our focus will be on the Court’s remaining cases and decisions. Currently, the Court’s next scheduled day to announce opinions is Wednesday, and with, by my count (which is approximate), 12 cases left to go, it’s possible they’ll be in session Thursday and Friday as well if they want to get everything done without spilling over into July.

SCOTUS: What Happened, What's Left.

Except for Rahimi, the firearms case that we discussed on Friday (click here if you missed it), the cases we’ve been waiting on did not get decided last week. One of the chief cases among them is Moyle v. U.S., where the issue is whether a 1986 statute, the Emergency Medical Treatment & Labor Act (EMTALA), preempts state laws that protect human life and prohibit abortions, like Idaho’s Defense of Life Act. The Justice Department argues that it does and that Idaho hospitals are required to provide emergency stabilizing care, including abortion procedures, when necessary to protect a patient’s life. EMTALA was enacted to prevent the practice of “patient dumping” that often left uninsured or low-income people in precarious medical conditions as hospital ERs transferred them to other facilities that would care for them without stabilizing their condition first.

Although Moyle is limited to Idaho’s near-total abortion ban, the decision will impact emergency room care across the country, whichever way the case is decided. DOJ filed the lawsuit after Idaho’s Republican supermajority legislature passed one of the strictest anti-abortion bills in the country. It makes it a crime to perform an abortion. Other states have done that too. But in Idaho, the exceptions that permit abortion in cases where necessary to protect a pregnant person’s life don’t exist. Instead, a doctor must wait until after they have been indicted and the prosecution is underway to raise necessity as a defense to the criminal charges brought against them. So, doctors can be arrested and charged even though the medical procedure was necessary. They face 2 to 5 years in prison, while nurses and staff who support procedures risk losing their licenses.

After Moyle was argued in April, I shared this assessment, and unfortunately, it has held up pretty well so far: “When it comes to this term’s abortion cases, there has always been reason to believe that although the Court probably won’t go so far as to ban medication abortion completely in the mifepristone case, the EMTALA case is likely to go in favor of Idaho. The hope is that the loss in EMTALA will be the narrowest one possible, one that avoids further devastation of women’s access to care and the medical risks we’re now seeing them face. Justice Barrett will play an important role here. Uncertainty will continue until the decision is made and likely after that, as doctors continue to worry about prosecutors second-guessing their treatment decisions. A decision will likely come down late in the Court’s term, which ends the last week of June/first week of July.”

If the Supreme Court rules in Idaho’s favor, care will become less accessible, if not inaccessible, as doctors weigh the risks they face. Women will suffer, and it’s likely some of them will lose their fertility or die as a result.

Among the other key cases we’re waiting on are the two cases impacting Trump prosecutions:

• Trump v. United States. The presidential immunity case where the issue is whether, and if so, to what extent, a former President enjoys presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office; and

• Fischer v. United States. The obstruction of an official proceeding case, where the issue is whether the Court of Appeals in Washington, D.C., erroneously concluded that a statute used to indict January 6 rioters, (and which Donald Trump has also been charged under), 18 U.S.C. § 1512(c), which prohibits obstruction of congressional inquiries and investigations, applies to the January 6 attack on the Capitol.

Beyond those two, there are still a number of significant cases remaining on the Court’s docket, including:

• Harrington v. Purdue Pharma, which will determine whether the Sackler family can avoid responsibility for their role in the opioid epidemic by declaring bankruptcy. I wrote briefly about the background of the case here.

• Loper Bright Enterprises v. Raimondo and Relentless v. Dept. of Commerce involve whether the Court will radically change the authority of executive branch agencies to do their jobs. At stake is the “Chevron deference” doctrine, which is the test courts use to determine when they should defer to an agency’s answer or interpretation of statutes it administers. At stake is whether courts will cease their practice of deferring to agency interpretations that are not unreasonable, so long as Congress hasn’t weighed in on the question. That’s a lot of legalese that comes down to a very important decision about whether courts will insert their own decision instead of permitting subject matter experts to decide these matters on behalf of the American people. The mifepristone case was decided on standing. Had it not been, it could have come down to whether experts at the FDA or an anti-abortion judge in Amarillo, Texas, would be making the call about whether it was safe to keep an abortion drug on the market. The Court could overrule Chevron, explain it, or affirm it as is.

• In NetChoice v. Paxton (Texas) and Moody v. NetChoice (Florida), the Court will have the opportunity to address whether Florida and Texas can enact laws prohibiting social media platforms from moderating content posted by their users. This could be a major First Amendment decision. The Texas law, which is the more extreme of the two, was approved by the Fifth Circuit, while the Eleventh Circuit rejected Texas’ version. The cases raise the issue of whether a state law restricting social media platforms’ content moderation violates the First Amendment.

• Relatedly, in Murthy v. Missouri, the Court will decide whether the government’s communications with large social media companies asking them to consider preventing the dissemination of what the government views as misinformation is so coercive that it compelled the companies to act as though they were the government itself, and in doing so, violated users’ First Amendment rights to be free from prior restraints on speech by the government.

• Ohio v. EPA is part of a consolidated set of cases that went straight to oral argument in front of the Court off of its shadow docket. The case involves whether states that are downwind from major producers of ozone pollution will be protected while litigation proceeds, or whether the Supreme Court will prevent the Federal “Good Neighbor Plan” that continues Ozone National Ambient Air Quality Standards from being in effect while litigation is underway, which would result in the release of massive amounts of pollutants to be released into the air. We looked at this case earlier in the term.

• Snyder v. United States involves a statute often used for public corruption cases where state officials engage in fraud using federal dollars. The statute clearly criminalizes taking a bribe. The issue is whether it also criminalizes taking a “gratuity,” a payment made after the corrupt official has already taken or committed to take an action desired by the party handing over the “gratuity.” When you think about a bribe, the classic example is the bad guy handing a politician bags of money, after which the politician does the bad thing requested of him. But what happens when the politician does the bad thing and then gets the bag of cash, a gratuity as it were? That’s the question posed by Snyder. There is more on the facts and the law underlying this case here. It doesn’t take much imagination to understand how corrupt politicians could exploit a decision that permitted them to accept payment after the fact for corrupt actions.

There are a few other things going on this week. Notably, Judge Aileen Cannon continues her marathon hearing on non-meritorious issues in Fort Pierce, Florida, on Monday and Tuesday. She spent Friday speculating about whether the Special Counsel’s appointment might be unconstitutional. This week she’ll turn to consideration of the Special Counsel’s request to amend Trump’s terms of pretrial release to prevent him from continuing to lie about the execution of the search warrant at Mar-a-Lago and, specifically, the claim he has now made repeatedly that it was an effort to “take him out.” The government argues this puts agents at risk. You can read their reply brief in support of the change in conditions, which Trump is arguing amounts to a gag order, here.

Judge Cannon will also consider Trump’s request to prevent the government from using notes taken by Trump lawyer Evan Corcoran at trial as evidence. A judge in the District of Columbia previously ruled that prosecutors could use then under the crime-fraud exception to the attorney-client privilege. Corcoran’s notes include highly incriminating evidence of obstruction of justice by Donald Trump. They appear to confirm that Trump conspired with his co-defendants to keep boxes of classified documents at Mar-a-Lago hidden from Corcoran, so he could not coordinate their return to the government. Here’s our primer on the crime-fraud exception in the context of former Trump lawyer John Eastman’s situation.

Imagine being a former president, and the best argument you can muster is: “Please keep prosecutors from using all this good evidence against me because it’s really, really damaging.”

Finally, in the wake of the fake Biden robocalls in New Hampshire during that state’s primary, we’re now seeing widespread manipulation of videos of Joe Biden on the campaign trail, trying to show that he is mentally and physically unfit for office. The “cheap fakes” are edited so you can’t see all of the action (Biden appearing to wander off when, in fact, he’s the sole G7 leader walking over to congratulate parachutists on a maneuver) or other types of selective editing on an absence of context are used to convey misinformation. A “cheap fake” is a video that is taken out of context or manually edited, with easily accessible tools like cropping.

Politifact did an assessment of videos of Biden being circulated by Trump adjacent accounts and concluded that “cheap fakes have become a common tactic to undermine Biden’s fitness for office.” It’s only June, and there is undoubtedly a lot more misinformation and disinformation from multiple sources coming our way. Be ready.

We’re in this together,

Joyce