All posts by Eli Ewing

Civil Rights

Interesting note on abortions and admitting privileges

A doctor who had previously lost his ability to perform abortions in an Allen County clinic has now been informed he can no longer practice them in his Gary clinic, either. Although reasonable people may disagree whether admitting privilege laws are medically helpful or not, the real debate isn’t about the medical necessity of these types of regulations. In a News-Sentinel article from December, Cathie Humbarger, Executive Director for Allen County Right to Life, made it clear what the real goal of these types of regulations is: “Our goal has been to make Allen County abortion-free.” In other words, support for abortion restrictions is part of a broader strategy of outlawing them without really outlawing them, so to speak.

This strategy may not work, according to the Fifth Circuit. In a 2-1 decision, a three-judge panel has affirmed a decision of the district court to issue a preliminary injunction preventing Mississippi’s last abortion clinic from shutting down. The clinic had argued that closing the doors of the only clinic in the state would put an undue burden on women in the state. Mississippi argued that they could just go to another state, as there are a number of clinics within a short drive from Mississippi’s borders.

The district court ruled that the clinic had a substantial likelihood of winning that argument, and therefore a preliminary injunction – preventing the law from being enforced temporarily while the court case moves forward – was appropriate. The panel of appellate judges agreed.

This doesn’t mean the clinic will win in the end, but it does signal that states hoping to stop abortion within their own borders may not be able to rely on the availability of abortions in neighboring states to defend restrictions. If that’s the case, then the entire strategy of keeping abortion legal, but simply making it too burdensome to perform, is fatally flawed.

Regulation

Some thoughts on the smoking ban

A Marion County judge has upheld Indianapolis’ smoking ban. The folks over at ILB have a copy of the order. The primary issue was whether or not exemptions for certain locations (i.e., tobacco stores, OTB parlors and private clubs) violate the Indiana Constitution. The judge ruled that they do not.

The exemptions are similar to those found in Allen County and Fort Wayne ordinances.

Since the Indiana Supreme Court has already overturned an Evansville ordinance that exempted a riverboat casino, there is a legitimate question as to whether or not the Marion County court was correct to distinguish OTB parlors from riverboat casinos. The guess here: the Supreme Court will be deciding this case eventually.

Civil Rights

Another marraige ban dumped

The Fourth Circuit Court of Appeals overturned Virginia’s same-sex marriage ban, becoming the second circuit to do so (along with the Tenth).

It’s starting to look more and more like the Indiana/Wisconsin appeal (along with ten other states who joined) is set to be a potential game-breaker. If the Seventh Circuit determines the bans are unconstitutional, it’s going to be near impossible – if it’s not already – for states to justify the expense of arguing positions that have been repeatedly rejected in different courts.

That still leaves the Supreme Court, of course, and I’m sure Virginia, Indiana, et al., will file for certiorari in due time, but smart states will sit on the sideline and watch what happens on another state’s dime.

Civil Rights

Same-sex marriage movement today

The excellent Indiana Law Blog has distilled today’s developments on the challenges to Indiana and Wisconsin’s same-sex marriage bans in the 7th Circuit today.

Long story short, the Appellants (in this case, the states) had requested a hearing en banc, which has now been denied. Instead, the appeals from both states will be heard together before a three-judge panel on August 26th, 2014.

As things move along, there doesn’t seem to be anything to be done about the people who have already been married during the “window” in which same-sex marriages were briefly legal. Governor Pence has instructed the state to treat those marriages as invalid. The ACLU doesn’t feel like they can do much about it at the moment.

Health Care

New health care decisisions and Hoosiers

Yesterday, the Court of Appeals for the D.C. Circuit ruled that the language of the Affordable Care Act clearly states the IRS may only allow tax credits for those who sign up for “state-run” exchanges. In other words, if you are unlucky enough to live in one of the thirty-six states who decided to let the federal government run the exchange for them, you won’t be eligible for the tax subsidies. It also means, however, that you are less likely to be penalized for not being insured.

Just two hours later, however, the Fourth Circuit issued a contradictory ruling, virtually guaranteeing that this will eventually make it to the Supreme Court.

Indiana is one of those unlucky thirty-six. Under the D.C. ruling, then, Hoosiers would not be eligible for any subsidies. However, it will likely take a while for that to be determined. The ruling came from a three-judge panel, and the federal government has the opportunity to ask for an en banc review from the entire D.C. Court of Appeals before requesting review from the Supreme Court.

The wording of the D.C. panel’s order seems to suggest that our tax returns will be affected this very year. The Fourth Circuit’s ruling only controls Maryland, both Virginias and both Carolinas. We’ll have to see how the administration and IRS respond, but Hoosiers would be smart to keep an eye on this.