Legal Docket - Abortion intervention

NICK EICHER, HOST: It’s The World and Everything in It for the first day of November, 2021. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time now for Legal Docket.

Today, the Supreme Court hears two abortion-related oral arguments. Just a few weeks ago, these weren’t even on the calendar—that’s how quickly these have come. The court expedited the cases, yet decided not to place a temporary block on the law under challenge.

EICHER: Just to be clear: do not confuse these arguments with the pivotal abortion case this term out of Mississippi. That one is known as Dobbs v Jackson Women’s Health Organization. And the court is set to hear oral arguments in Dobbs on December 1st—a month from today.

REICHARD: It is. The cases argued today are disputes over procedure. They don’t directly confront Roe v Wade.

Case one is about the way the state legislature in Texas structured the law. Instead of the usual enforcement by officials from the state, the law places enforcement power into the hands of private citizens. Anyone can sue anyone else who aids and abets abortion after 6 weeks’ gestation.

Case two asks whether the government has standing to bring the lawsuit in the first place. “Standing” is an important legal concept—really the threshold legal concept—because it means the right to bring the litigation in the first place.

I’ll cover those arguments next week.

EICHER: Alright. Well, on to three oral arguments heard last month, and one of those also deals with the procedural aspect of an abortion law.

The case out of Kentucky asks: who can defend a state abortion law after an appeals court invalidates a state abortion law?

REICHARD: Here are the facts—and we’re talking abortion here, so a warning is in order. I’m sorry to have to go into detail, but it’s pertinent to the legal argument. So I’ll pause a moment so you can hit pause if you feel you need to.

Alright, three years ago, Kentucky criminalized the most common abortion procedure used in the second trimester. The method is called dilation and evacuation. That’s really cleaned up. What it means is—again, my apologies for having to say this—what it means is, the dismembering of an unborn child, while he or she is still alive. Kentucky law required that the unborn child be killed prior to being dismembered, literally pulled limb from limb.

EICHER: An abortion business filed a challenge to this law on the grounds that it amounted to an unconstitutional burden on a woman’s access to abortion.

Lower courts agreed that it was and invalidated the law.

At that point in the litigation, appeal to the U.S. Supreme Court was an option. But the state’s health secretary who’d defended the law in the lower courts decided that he would not file that appeal. That person is a Democrat.

REICHARD: But a Republican state official wants to step in and make the appeal: Kentucky’s Attorney General, Daniel Cameron.

Chief Justice John Roberts found an obvious conflict in this case, and he pointed it out to the lawyer for the abortion business, Alexa Kolbi-Molinas.

ROBERTS: You don’t want the state speaking through two different voices.

Kolbi-Molinas pounded on the need to follow procedure. She said Attorney General Cameron failed in that:

KOLBI-MOLINAS: ...he had a right to appeal, but he had to do so within the 30-day timeframe set by statute. He cannot now avoid his jurisdictional failure by seeking to intervene instead.

Intervene, meaning to obtain a court’s permission to enter into the lawsuit that’s already started between other named parties.

On the other side, Attorney General Cameron’s lawyer Matthew Kuhn. He pointed out practicalities:

KUHN: Two days after learning that another state official had stopped defending Kentucky’s House Bill 454, the attorney general moved to intervene so that the commonwealth could exhaust all appeals in defense of its law. This court’s case law instructs that acting for a state is a distinct capacity. Because everyone agrees that the attorney general did not participate in that capacity in district court, he is not jurisdictionally barred from doing so now.

You can hear how I think most justices are leaning in this from Justice Stephen Breyer:

BREYER: Look, there have been a lot of party changes. First, the Republicans are in, then the Democrats are in, and they have different views on an abortion statute. And so, if there’s no prejudice to anybody, and I can’t see where there is, why can’t he just come in and defend the law? If Kentucky law allows him to make the argument, why can’t he make the argument?

I think it’s likely Cameron will get his day in court to defend the abortion law.

Okay, on to case two. This deals with the meaning of a single word found within the federal law known as the Armed Career Criminal Act.

That law adds years to the sentence of a felon with three prior convictions who is found in possession of a firearm. It’s a separate crime.

The questionable language in this case is about those prior convictions. Offenses “committed on occasions different from one another…”

Justice Samuel Alito lays out the problem:

ALITO: This seems to me to be a nearly impossible question of statutory interpretation because the term ‘occasion’ does not have a very precise meaning.

First, the facts: One night nearly 25 years ago in Georgia, William Wooden broke into a storage facility and stole items from ten separate storage units.

He got caught and pleaded guilty to ten counts of burglary.

Years later, a law enforcement officer observed that Wooden had a rifle in his home. A no-no for a man with more than three felony convictions.

For that, Wooden received a federal indictment as a felon in possession of a firearm. The lower courts found that Wooden did qualify as an armed career criminal under that federal law. So he received several additional years in prison as a result.

But Wooden now argues that those 10 burglaries he pleaded guilty to? Those should only count as one crime, for purposes of the Armed Career Criminal Act.

You’d think this detail would be worked out by now. But no! The circuits are split on how to divide up crimes like this one. That’s why the Supreme Court took the case.

The justices came up with creative hypotheticals to figure out where one crime ends and the next one begins.

Listen to three of them, from Justices Alito, Elena Kagan, and Stephen Breyer in turn:

ALITO: A street light goes out, and a mugger says: Aha, this is a criminal opportunity, I can now mug people who walk by here at night. And he -- and that person does that at 10:00 at night, 11:00 at night, midnight. Is that one criminal opportunity or three?

BREYER: Jesse James gets on the train and he goes to one person and then the next person and then the next person and takes their stuff.

ROSS: In the next car, and the next car, and the next car.

BREYER: Correct. Moreover, you’re going to put him in jail for 15 years, where maybe he deserves it, but his cousin Harry James only robbed one car in one train once, but there were four people in it. And then he gave up his life of crime.

BREYER: Suppose that there was a crime boss and he was a good multitasking crime boss, and he had a few phones in front of him, he's sitting in his office one day, and on one phone he's arranging a sale of illegal drugs and on another phone he's ordering the killing of a competing crime boss and on another phone he's involved in an illegal gambling operation, and they're all going on very close in time to each other. Single occasion or three occasions?

Wooden’s lawyer argued the court should just follow plain English. Remember, the law says crimes “committed on occasions different from each other.” So, he argued the court should make the government show the crimes are different from each other. Enough to justify saying Wooden did ten crimes instead of just one. Here, burglarizing the same storage facility on the same night is one occasion.

I discerned no clear-cut principle arising from the argument.

Justice Kagan put it this way to Wooden’s lawyer:

KAGAN: That this is a very loosey-goosey test, you know, that it’s an all things considered, totality of the circumstances. We don’t even really quite know what we’re supposed to look at to decide whether something is an occasion or, take your synonym, an episode.

Wooden is set to be released in 2028; if not for that minimum mandatory sentence, he’d have been released in 2016.

The Armed Career Criminal Act confounds the court every year, and there’s no end in sight. Congress ought to fix it.

OK, quick treatment of our final case today. It’s about pension payments.

David Babcock worked as a federal civilian employee at the same time he was part of the National Guard as an enlisted soldier. So he earned civilian pay and paid social security taxes. And he also participated in the Civil Service Retirement System. That’s a public pension fund that provides benefits for most civilian employees in the federal government.

The legal question is how to figure his pension payment. And that hinges on what the phrase “uniformed service” means under the Social Security Act.

The courts need legal clarity here, as thousands of people are affected by how the government interprets this special rule under the Social Security Act.

And that’s this week’s Legal Docket!

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