Justices Take Rare Step in Prenatal Substance Abuse Case

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By Kimberly Strawbridge Robinson

The U.S. Supreme Court took an extremely rare step in an order that flew under most court watchers’ radars.

The court July 7 reinstated a Wisconsin prenatal substance abuse law while a federal circuit court considered the law’s constitutionality ( Anderson v. Loertscher , U.S., No. 16A1224, stay granted 7/7/17 ).

The Supreme Court often stays lower court decisions while it considers the case itself. That’s what the court did when it reinstated part of President Donald Trump’s travel ban until the justices could hear the case next term.

But when a party requests the stay pending a lower court’s review, it has long been the Supreme Court’s practice to grant the stay only “‘upon the weightiest considerations,’” Justice Sandra Day O’Connor wrote in a 1993 order.

To necessitate such a stay, “the district court decision would probably have to raise a red flag,” Richard Re, of the UCLA School of Law, told Bloomberg BNA in a July 11 email.

Wisconsin may have convinced a majority of the justices the “‘epidemic crisis’ of prenatal substance abuse” was important enough to warrant this extraordinary action. The Wisconsin law reinstated by the justices permits state officials to detain a pregnant mother suspected of consuming drugs or alcohol.

Re cautioned, though, that such stays might not be predictive of the ultimate outcome. The “Court has recently been fuzzing up its standards for issuing stays and so it’s not entirely clear that a vote for the stay necessarily implies a tentative view of the merits, as opposed to a desire for orderly adjudication,” Re, who teaches federal courts, said.

Predictive Force

However, in cases where the Supreme Court stays a lower court ruling while it considers the case itself, such stays are often predictive of the ultimate outcome, Josh Blackman, of the South Texas College of Law Houston, said in a July 10 blog post.

Notably, it takes five justices to agree to stay a case, and typically the same number to prevail on the merits.

Therefore, in almost every case in which the Roberts Court has granted a stay and later agreed to hear the case, “the ultimate disposition was a reversal, at least in part,” Blackman said. He pointed to 20 cases since 2006 in which the court reversed or vacated a decision after granting a stay to consider the case.

Those statistics are neither “surprising” nor “nefarious,” Douglas Laycock, of the University of Virginia School of Law, Charlottesville, Va., told Bloomberg BNA in a July 11 email.

“A stay (or an injunction) pending appeal is a form of preliminary relief, and probability of success on the merits is one of the key factors,” Laycock, who has argued several cases before the Supreme Court, said. “Probability of success on appeal generally equates to probability of reversal.”

The more likely the justices “are to reverse, the more likely they should be to grant a stay,” Laycock said.

Hesitant Court

“Granting a stay pending review in the court of appeals is less common,” Laycock said.

Indeed, over the past decade, there have only been a handful of such stays, research by Bloomberg BNA shows.

In addition to the action taken on July 7, the Supreme Court has issued the following stays pending appeal:

  •  No. 16A460, Ariz. Sec. of State’s Office v. Feldman (2016), staying an injunction prohibiting enforcement of statute regulating who can pick up valid ballots for delivery to voting locations;
  •  No. 14A65, Herbert v. Evans (2014), staying order requiring Utah to recognize certain same-sex marriages;
  •  No. 13A687, Herbert v. Kitchen (2014), staying injunction prohibiting Utah from enforcing same-sex marriage ban;
  •  No. 08A794, HHS v. Alley (2009), staying injunction requiring HHS to turn over Medicare documents under FOIA request; and
  •  No. 07A304, Emmett v. Johnson (2007), staying execution.
The dearth of such stays could be due to the “speculative” nature of determining “whether they stay standards are satisfied so early in a case,” Re said.

Moreover, “because both the district court and the court of appeals have already exercised their discretion not to grant a stay pending appeal,” the Supreme Court may be more hesitant to act, Laycock said.

If the justices were to get involved in every such case, their “workload would increase notably,” he said.

No Fair Notice

In Anderson v. Loertscher, though, a majority of the justices thought such extraordinary action was necessary.

At issue in the case is a Wisconsin law that allows the state to take into custody any expectant mother who shows a “lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs,” such that it poses a substantial risk of harm to her unborn child.

Tamara M. Loertscher was jailed for 18 days after she refused to comply with a court order to submit to an inpatient drug and alcohol program. The order had come about after she tested positive while pregnant for methamphetamines and marijuana while seeking treatment at an emergency room.

The law implicated two constitutional rights, the district court found. First, it implicated “the right to be free from physical restraint.” Further, it encroached on “the right to be free from coerced medical treatment,” the court said.

Given the severity of the rights at issue, the legislature must “establish minimal guidelines to govern” the enforcement of the law, the district court said, citing to previous Supreme Court cases. The law here, though, didn’t meet those requirements, it said.

The law impermissibly delegated “basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis,” risking “arbitrary and discriminatory application,” the district court said. As such, the law was unconstitutionally vague because it failed “to provide either fair notice or standards for fair enforcement.”

Likely Harm

The state sought a stay from both the district court and the U.S. Court of Appeals for the Seventh Circuit so that it could continue to enforce the law while seeking to overturn the district court’s decision. Both courts, however, refused to stay the judgment.

So the state turned to the Supreme Court.

“The ‘epidemic crisis’ of prenatal substance abuse poses a substantial challenge for the States as they seek to carry out their sovereign responsibility of protecting children from either dying prematurely of being born with addictions, birth defects, or long-term health problems,” the state said in the Supreme Court stay request.

Absent a stay from the Supreme Court, “pregnant Wisconsin mothers and their unborn children are likely to suffer severe harms during the pendency of this appeal, with consequences ranging from needless death to being born with substance addiction and birth defects,” the state said.

It pointed to a couple of extreme examples of Wisconsin women abusing drugs or alcohol while pregnant. Recently, “a Milwaukee-area woman, who was 23 weeks pregnant, ‘repeatedly le[ft] her hospital bed to use heroin in the hospital parking lot.’” The state was able to save the baby’s life by enforcing the law’s provisions, the state said.

Pending Appeal

Loertscher countered that the lower courts had already considered the state’s arguments and determined that they hadn’t shown a necessity for a stay.

The “evidence showed that fear of coercive treatment and detention discourages women from seeking prenatal care, while the vague statute ‘poses a severe risk of inconsistent and unwarranted enforcement against expectant mothers with only modest substance abuse issues’ and ensures '[e]rratic enforcement, driven by the stigma attached to drug and alcohol use by expectant mothers,’” Loertscher said in opposing the stay request.

The Supreme Court sided with the state and stayed the distinct court’s judgment “pending final disposition of the appeal by the United States Court of Appeals for the Seventh Circuit.”

Outcome Unclear

The court’s decision to stay the case, however, might not be predictive of the eventual outcome.

In contrast to stays pending Supreme Court review, stays pending lower appellate court review have led to inconsistent results.

In fact, only one of the cases subject to such a stay even came back to the Supreme Court. After temporarily reinstating Utah’s ban on same-sex marriage in Herbert v. Kitchen, the Tenth Circuit agreed with the district court that the ban couldn’t be squared with the Constitution.

Court watchers predicted that the stay indicated that the Supreme Court didn’t agree that the bans ran afoul of the Constitution.

But on October 14, 2014, the Supreme Court refused to hear Utah’s appeal, along with those of other states whose bans were similarly struck down.

Of course, the Supreme Court did eventually weigh in on the issue once the Sixth Circuit upheld several same-sex marriage bans, creating a split among the circuit courts. In Obergefell v. Hodges, the Supreme Court invalidated state same-sex marriage bans and affirmed the right of same-sex couples to marry.

Court Compromise

Granting “a stay in this posture could be viewed as a strong signal to the court of appeals that it should view the district court ruling with skepticism,” Re said. But it isn’t a sure sign.

Blackman noted that the order in Anderson was quite “strange.”

“If the Seventh Circuit rules against Wisconsin, the parties will have to go right back to the [Supreme] Court for another stay, while it petitions for certiorari,” Blackman told Bloomberg BNA in a July 10 email.

Rather than conveying the views of the seven justices who presumably joined the stay order—both Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented from the court’s order—perhaps “this was a compromise,” Blackman said. A temporary stay to let the Seventh Circuit “handle the case affords temporary relief, but the full [Supreme] Court can revisit the issue in the future.”

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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