Eighth Circuit tees up the ACA contraception mandate (and accommodation) for another SCOTUS review

By: Administrator on September 18th, 2015

By Frank Harty

The stage is set for the United States Supreme Court to rule on the contraception opt-out of the Affordable Care Act.  Yesterday, the Eight Circuit Court of Appeals in Sharpe Holdings, Inc. v. U.S. Dept. of Health and Human Services ruled that the district court was correct to enjoin the government from enforcing the law’s contraceptive provision against a number of religiously affiliated employers. 

The Affordable Care Act requires private health insurance plans to provide coverage for preventive care and screenings for women.  The Administration’s regulatory mandate implementing that provision required health plans to fully cover, without copay, all drugs and devices labeled by the Food and Drug Administration as “contraception.”  The FDA’s definition of contraception is broad enough to include “emergency contraception” drugs and devices with post-fertilization or life ending mechanisms. 

The plaintiffs in Sharpe (and the companion case, Dort College v. Burwell) argued that forcing employers to provide coverage of life ending drugs violates their conscientious belief.  The regulations do allow religiously affiliated organizations to opt-out of that requirement, but the insurers must still provide the coverage, and the plaintiffs argued that this process still makes them complicit in providing contraceptives.  Thus, the plaintiffs argued that the opt-out provision violates the Religious Freedom Restoration Act. 

Judge Roger Wollman, joined by Judges Benton and Colloton, wrote that the court had to defer to the plaintiffs’ “sincere religious belief that their participation in the accommodation process makes them morally and spiritually complicit in providing abortifacient coverage.” Relying upon the substantial burden test set forth in the Supreme Court’s Hobby Lobby decision, the Eighth Circuit ruled that the plaintiffs established they were likely to succeed on the merits of the Religious Freedom Restoration Act argument and, therefore, affirmed the issuance of orders enjoining the government from imposing the mandate and opt out on the plaintiffs pending the final outcome of the litigation. 

There is now a clear split in Circuit court decisions, which substantially increases the likelihood that the Supreme Court will take the matter up in the term that begins in October.

Eighth Circuit reverses “novel” limitation on a defendant’s procreation

By: Ryan Leemkuil on July 21st, 2015

Today, the Eighth Circuit ruled that a district court goes too far when it attempts to limit a defendant’s ability to procreate.  

Christopher Harris, a convicted felon, fathered ten children out of wedlock with seven different women.  After Harris was caught illegally possessing firearms, the district court took it upon itself to curtail Harris’s procreation, which the court viewed as a “very serious social problem.”  So the court crafted a special condition of supervised release that the Eighth Circuit accurately described as “novel.”  The court ordered that Harris not engage in “unprotected sex activities without probation office approval.”  Harris, apparently not wanting to run these things by his probation officer when he’s released in 2029 (he got a fifteen year sentence), appealed.

The Eighth Circuit, Judge Colloton writing, held that the district court lacked authority to impose the special condition:

For one thing, the special condition as pronounced is even broader than the novel restriction on fathering children that the court seemed to contemplate during the hearing.  By restricting “unprotected sex activities,” without limitation, the condition purports to regulate conduct that could not result in pregnancy.  The condition is not even reasonably related to the purposes that motivated the condition.

There were other problems with the restriction.  There was no showing, for example, that Harris’s sexual activity was “related to his unlawful possession of a firearm.”  The restriction also involved a greater deprivation of liberty than was necessary to provide deterrence and protect the public from future crimes.  In short, the district court “sought to address a perceived social problem that does not have the required nexus to factors that guide sentencing in a federal criminal case.”

Deja Deja Vu at the Iowa Supreme Court

By: Ryan Koopmans on June 24th, 2015

The Iowa Supreme Court’s 2014-2015 term ends on June 30, meaning that the justices will issue decisions in all remaining cases by that date or shortly after.  Of the 105 cases submitted this year, two were dismissed (one voluntarily and one by the Supreme Court) and ten remain outstanding (and really only nine, as two cases involve the same criminal case).  Of those ten, two involve the Iowa Constitution’s search-and-seizure clause (King and Gaskins) and two involve the constitutionality of  juvenile sentencing (Louisell and Seats).  That means that this year will end a lot like the last two years.  And it probably won’t be harmonious.  Those two issues–search and seizure and juvenile sentencing–have sharply divided the Cady Court and will almost surely do so again this year.

A list of the outstanding cases, prepared by Nyemaster Goode summer associates Amella Viso and Brad Novreske, is below the jump. 

Can the US Supreme Court hear the telemed-abortion case? [UPDATE: No!]

By: Ryan Koopmans on June 19th, 2015

UPDATE:  I was wrong! In a footnote in their appeal brief, Planned Parenthood dropped its US Constitution claim and stated that it was now, on appeal, “rely[ing] solely on the Iowa Constitution.”  The Iowa Supreme Court’s decision does not mention the withdrawal of the federal claim, and thus I assumed that the case had proceeded as it did in the district court–under both the Iowa and US Constitutions.  But upon rereading the Court’s decision, there is no mention of a federal claim (as opposed to the federal standards).

That changes everything.  The Iowa Supreme Court did conclude that the telemed-abortion ban violates the US Constitution  (and thus violates the Iowa Constitution), but since there is no federal claim, the US Supreme Court would not have jurisdiction to hear the case.  And that may have been the point of dismissing the federal claim. 

So what’s said below about cases that involve federal and state constitutional claims is correct, but it doesn’t apply to this case.  


The Iowa Supreme Court ruled today that the Iowa Board of Medicine’s ban on so-called telemed-abortion violates the United States and Iowa Constitutions.  According to this Des Moines Register article by Tony Leys, there are “conflicting theories” over over whether the State can appeal that ruling to the United States Supreme Court.  It can, but the reason is complicated. 

The conflict comes up because the US Supreme Court has jurisdiction over federal questions (Does the law violate the US Constitution?), but not state questions (Does the law violate the Iowa Constitution?), and the Iowa Supreme Court’s decision includes both. That is, the Court ruled that the Board of Medicine’s rules violate the US Constitution and the Iowa Constitution.  In cases where the the state issue is an “adequate and independent” basis for the state supreme court’s decision, the US Supreme Court can’t take the case.  And why would it?  The outcome  won’t change; even if the US Supreme Court says that the state supreme court got it wrong–that there was no violation of the US Constitution–the state constitutional ruling would remain the same.

In this case, though, the state ruling (that the telemed-abortion ban violated the Iowa Constitution) was completely dependent on the federal ruling.  Planned Parenthood asked the Iowa Supreme Court to rule that the right to an abortion is broader under the Iowa Constitution than it is under the US Constitution.  The Court declined to decide that issue–saving it for another day–and thus assumed that the Iowa Constitution and the US Constitution are exactly the same on the subject. As a result, the justices only analyzed the telemed-abortion ban under the federal “undue burden” standard “as defined by the United States Supreme Court in its federal constitutional precedents.”  In other words, the only reason that the telemed-abortion ban violates the Iowa Constitution is because the Iowa Supreme Court believes that it violates the US Constitution.  If it doesn’t–if the Iowa Supreme Court is wrong–then the Iowa Supreme Court would have to face the question whether the Iowa Constitution and the US Constitution differ on the subject.

For that reason, the US Supreme Court can take the case.  (Of course, it doesn’t have to, and the chance of getting the Supreme Court to take any case is slim.)

Iowa has been here before.   In 2002, the Iowa Supreme Court ruled in Fitzgerald v. Racing Association of Central Iowa that Iowa’s differing tax treatment of racetracks and riverboat casinos violated the equal protection clause of the US Constitution and the Iowa Constitution.  The State asked the US Supreme Court to take the case–and it did. 

Once it got there, the casinos argued that Supreme Court didn’t have jurisdiction, because the Iowa Supreme Court decided the case under both the state and federal constitution.  The US Supreme Court didn’t buy it: because the Iowa Supreme Court treated the state constitutional claim as dependent upon the federal constitutional claim, the justices ruled that there was no adequate and independent state ground.  So they had jurisdiction. 

The Supreme Court ultimately reversed the Iowa Supreme Court, unanimously holding that Iowa’s tax scheme did not violate the US Constitution. 

But that wasn’t the end of the matter.  The Iowa Supreme Court reconsidered the issue under the Iowa Constitution and decided, after all, that it wasn’t going to follow the US Supreme Court.  

This case is no different than Fitzgerald.  The US Supreme Court could take the case; it could reverse the Iowa Supreme Court; and the Iowa Supreme Court could decide that the Iowa Constitution is indeed more broad on the subject of abortion.  

Or the Supreme Court won’t take the case at all. But it certainly can.  And it has before.

Happy Friday: Iowa Supreme Court says that it’s not illegal to drink on your front steps.

By: Ryan Koopmans on June 12th, 2015

The Iowa Supreme Court ruled today that Iowa’s public-intoxication law does not cover the front porch or front steps of a single-family house.  You probably didn’t think that was subject to debate.  It was, but it’s now settled.  Let summer begin.

On June 22, 2013, just before midnight, Waterloo police officers were responding to a domestic-dispute call at a single-family residence and were met at the front steps by Patience Paye, the woman who had reported the incident.  After investigating, the officers decided that Paye was actually the aggressor, so they arrested her for domestic assault and public intoxication. (Paye had failed a breath test.) 

The State dropped the domestic-assuault charge, but Paye was convicted of public intoxication.  She appealed, arguing that Iowa’s public-intoxication law can’t cover front-step drunkenness, because the front steps aren’t “public.” 

The Iowa Supreme Court agreed.  Justice Hecht, writing for a unanimous court, summed it up this way:

[I]f the front stairs of a single-family residence are always a public place, it would be a crime to sit there calmly on a breezy summer day and sip a mojito, celebrate a professional achievement with a mixed drink of choice, or even baste meat on the grill with a bourbon-infused barbeque sauce—unless one first obtained a liquor license. We do not think the legislature intended Iowa law to be so heavy-handed.

Read the entire opinion here.

ISBA annual meeting will feature presentations by the Supreme Court and Court of Appeals

By: Ryan Koopmans on June 4th, 2015

On Thursday, June 18, the Iowa State Bar Association appellate practice committee will put on a morning CLE as part of the ISBA’s annual meeting.  For anyone who practices before Iowa’s appellate courts–or for anyone who wants an insight into how Iowa’s case law is made–it will be a program worth attending.

There are three one-hour sessions. First, a Court of Appeals panel consisting of Chief Judge Danilson and Judges Doyle, Tabor, McDonald, and Miller will talk about the size of the court’s docket (it’s big), how they select cases for oral argument, what persuades them, what doesn’t, and what mistakes attorneys frequently make (hint: see here).  

Next, Clerk of Court Donna Humpal will give an update on the appellate courts’ transition to EDMS and talk about how the Court operates behind the scenes.

The session will conclude with a Supreme Court panel consisting of Justices Hecht, Appel, and Mansfield.  Since 2011, the Court has made several significant changes, including the implementation of the term system and the amendments to the rules that govern further review.  The justices will talk about those changes, and others, and will tell the audience how the court operates.  For instance: What do the justices consider when reviewing applications for interlocutory appeal? How many votes are required to grant further review? How are opinions assigned?

All three panels will take questions, time permitting.  To register for the event, and the other activities at the annual meeting, go to the ISBA’s website.

Recent shave moots Eighth Circuit beard appeal

By: Ryan Leemkuil on April 8th, 2015

The beard saga brewing in Arkansas prisons may have drawn to a close. As we mentioned a couple months ago, the latest beard case, Deaton v. Arkansas Dep’t of Corrections, was headed for an Eighth Circuit RLUIPA showdown after the Supreme Court’s pro-beard ruling in Holt v. Hobbs. But it looks like Mr. Deaton and the prison officials have decided to let sleeping dogs lie. According to today’s Eighth Circuit decision, Arkansas has changed its grooming policy—presumably in response to Holt—to allow inmates to grow beards of any length. Mr. Deaton, for his part, is going beardless as spring settles in. He recently advised the Eighth Circuit that “he has shaved his beard and has no present intent to re-grow it.” As a result, the Eighth Circuit dismissed the appeal as moot.

Does Iowa’s public-intox law apply to your front steps?

By: Ryan Koopmans on April 7th, 2015

Tomorrow night in Decorah, the Iowa Supreme Court will hear competing arguments over whether Iowa’s public-intoxication statute applies to the front steps of a house.  

On June 22, 2013, just before midnight, Waterloo police officers were responding to a domestic-dispute call at a single-family residence and were met at the front steps by Patience Paye, the woman who had reported the incident.  After investigating, the officers decided that Paye was actually the aggressor, so they arrested her for domestic assault and public intoxication. (Paye had failed a breath test.) 

Paye was convicted of both charges, but is now arguing on appeal that she can’t be punished for being drunk on the front steps, because the front steps aren’t “public.”

The State disagrees.  Iowa law says that it’s illegal to be “intoxicated in a public place,” and it defines “public place” as “any place, building or conveyance to which the public has or is permitted access.”  Because the public is generally given access to a house’s front steps (think salesmen), the State says that those steps must be dry. 

The issue isn’t totally new for the Iowa Supreme Court.  In 2003, the justices decided, on a 5-2 vote, that the front steps of an apartment complex were “public” for purposes of the public-intoxication statute.  But the justices also recognized that the steps of a single-family home might be different.  “While the the front steps of a single-family home permit regular access for the homeowners and their guests,” then-Justice Cady wrote, “the front steps of the apartment house are a common thoroughfare through which each tenant and their guests must pass.”  “Moreover,” Justice Cady continued, “while a single individual or family may bar access to the front steps of a single-family home, no single tenant holds the right to bar access to the apartment house.”

Because of these differences, the Court left “for another day any other questions related to the character of the front steps of a single-family home.”

That day is tomorrow.  The argument will take place at the Decorah High School auditorium at 7:00 p.m.  The public is encouraged to attend.

What does it mean when a justice concurs “in result only”?

By: Ryan Koopmans on April 3rd, 2015

That’s the question that many lawyers and district court judges will be asking themselves after the Iowa Supreme Court’s decision today in Fagen v. Iddingswhere no opinion received a majority of votes and Justice Zager concurred “in result only.” 

A patient’s medical records are privileged under Iowa law, but the patient waives that privilege if he files a lawsuit and puts his medical condition at issue. The plaintiff in this case, Cameron Fagen, filed a lawsuit against his college dormmates for injuries that Fagen suffered when he fell to the ground while wrapped in carpet. (Fagen’s dormmates did the wrapping.)  Because Fagen alleged that he suffers from mental pain and mental disability as a result of the accident, the defendants asked Fagen for his mental health records.   Fagen resisted, saying that his allegations of mental pain and disability were just “garden variety” emotional distress, and thus he had not waived the patient-physician privilege by bringing the lawsuit.

The district court disagreed, ruling that there is no “garden-variety” exception under Iowa law, and thus the defendants could have access to the medical records.  Fagen asked the Iowa Supreme Court to review that decision on interlocutory appeal, and the Supreme Court granted that request.

This morning, the Iowa Supreme Court issued its decision.  At first glance, it looks like Fagen won.  But that’s not clear, and it’s less clear what the law is going forward.

Justice Wiggins, joined by Justices Hecht and Appel, reversed the district court’s decision (which required Fagen to sign the patient waiver).  The three justices didn’t adopt the garden-variety exception, but instead adopted a new “protocol,” under which a party does not waive the patient-physician privilege unless the person requesting the records makes a “showing that he or she has a reasonable basis to believe the specific records are likely to contain information relevant to an element or factor of the claim or defense of the person or of any party claiming through or under the privilege.”  The defendants had not made that showing in the district court (because the standard didn’t exist at the time), so Justices Wiggins, Hecht, and Appel voted to send the case back for a redo.  The concluding paragraph of Justice Wiggins’s opinion states in full:

We reverse the district court’s order requiring Fagen to sign a patient’s waiver for his mental health records concerning his anger-management counseling and remand this case to the district court to follow the protocol contained in this opinion pertaining to the release of a party’s mental health records in a civil action.

Three other justices–Chief Justice Cady and Justices Waterman and Mansfield–dissented.  They disagree with the new protocol and don’t think it should be applied in this case.  The dissenters, through an opinion by Justice Mansfield, accused the plurality of “disregarding the question we are supposed to answer”–i.e., whether there is a garden-variety exception under Iowa law–“and instead answering a question nobody asked us to answer.”  This new protocol, Justice Mansfield wrote, “may force a defendant to spend time on extra depositions trying to find indirect evidence of the plaintiff’s mental health condition ” and “may cause trial dates to be postponed because the district court will be unable to rule on whether mental health records should be produced until fact discovery is largely complete—i.e., on the eve of trial.”  Because Fagen pleaded that he suffered damages for mental anguish and mental disability, they voted to affirm the district court.

That left Justice Zager.  He concurred with the first three justices (Wiggins, Hecht, and Appel), but “in result only. ”  And he didn’t say anything else. He didn’t explain what part of Justice Wiggins’s opinion he disagreed with.  And he didn’t say what test he would apply.  

So three justices voted in favor of using Justice Wiggins’s protocol; three justices voted against using Justice Wiggins’s protocol; and one justice concurred in result only.  What’s the law?

That depends, it seems, on what the “result” is–since that’s what Justice Zager is concurring in.  At its highest level, the result is that the court is reversing the district court’s decision and remanding the case.  But what happens on remand?  What test is the district court supposed to apply? If Justice Zager isn’t signing onto Justice Wiggins’s protocol, then that protocol didn’t get a majority vote.  It’s not the law.  Of course, neither is the dissent’s position, and we don’t know what Justice Zager thinks, so we have no majority rule. Just a 3-3 split. 

At the same time, the “result”–as framed by Justice Wiggins–was to reverse and “remand this case to the district court to follow the protocol contained in this opinion pertaining to the release of a party’s mental health records.” But if that’s the result that Justice Zager was concurring in–meaning that Justice Zager is on board with Justice Wiggins’s new test–then what part of the opinion does he disagree with? 

Those are the questions that district court judges will have to answer in dozens of cases to come.  It’ll be interesting to see if the answers are consistent. 

[Disclosure: I submitted an amicus brief in this case on behalf of the Iowa Association of Business and Industry and the Iowa Defense Counsel.  The brief is here.]

Telemed abortion case could have broad implications

By: Ryan Koopmans on March 10th, 2015

Tomorrow, the Iowa Supreme Court will hear argument in one of the most closely watched cases of the term: Planned Parenthood of the Heartland v. Iowa Board of Medicine.  The case involves the Board of Medicine’s 2013 rule that bans so-called “telemed abortions,” a process in which a doctor talks with a patient by video conference and then dispenses an abortion-inducing medication through a remote-controlled drawer.  Planned Parenthood claims that the Board’s rule doesn’t comply with Iowa’s Administrative Procedures Act (a statute that governs the process under which an agency can enact regulations) or the Iowa Constitution. Both legal issues–administrative and constitutional–could have effects beyond this case.

Yesterday, Tony Leys of the Des Moines Register reported on the constitutional issue.  Planned Parenthood claims that a ban on telemed abortion violates the right to due process and equal protection.  That’s a common argument in cases involving abortion restrictions, but this argument differs from the norm in that Planned Parenthood is making its claim under the Iowa Constitution as opposed to the U.S. Constitution.  The U.S. Supreme Court ruled in Roe v. Wade  that the U.S. Constitution places certain restrictions on the government’s ability to restrict abortion procedures, but the Court later clarified in Planned Parenthood v. Casey that such restrictions are okay as long as they don’t place an “undue burden” on a woman’s ability to get an abortion. Planned Parenthood is making its claim under the Iowa Constitution in hopes that the justices will adopt a more stringent standard known as “strict scrutiny.”  That strategy–of asking the Iowa Supreme Court to interpret rights under the Iowa Constitution more broadly than the U.S. Supreme Court interprets similar rights under the U.S. Constitution–has succeeded several times in the last four years, most notably in the areas of search and seizure and the cruel-and-unusual-punishment clause.  This column by the Gazette’s Todd Dorman provides a good summary of the ongoing debate.

Planned Parenthood’s administrative-law arguments aren’t as attention-grabbing (even most lawyers find administrative law to be a bore), but they could have significant repercussions because of the increasing role that agencies play in our government.  Planned Parenthood is asking the Supreme Court to overturn the Board of Medicine’s telemed-abortion rule because, according to Planned Parenthood, the Board’s decision to adopt the rule was “rushed and inadequate,” the Board overlooked evidence that suggests requiring in-person visits could create greater health concerns, and the Board was motivated by an improper purpose (disagreement with abortion rather than concern over medical safety).  These types of arguments aren’t usually successful because courts are hesitant to second guess administrative agencies when they’re exercising rule-making power.  When it comes to the question of “what’s good policy?,” for instance, courts (including the Iowa Supreme Court) generally defer to the agency, so long as there is some factual support for the agency’s decision; it doesn’t matter that the justices would have come to a different decision if they were the head of the agency.   And when it comes to a claim that an agency’s purported reasons aren’t the real reasons, courts generally won’t infer wrongful motives and they won’t attempt to get inside the decision-makers’ minds.

The Iowa Supreme Court touched on some of these general administrative-law principles last year in Iowa Farm Bureau Federation v. Environmental Protection Commission.  The specific issue in that case–whether one of the Commission members should have abstained from voting on a water-quality rule–is different from the issues in this case.  But the Court’s broader statements on the deference that the Judicial Branch should give to agencies could be telling of the outcome here.  “The subjects of regulation are justifiably numerous and complex,” Chief Justice Cady wrote, “and the importance of an administrator’s legal, technical, and scientific expertise cannot be understated.”

For the (relatively) few lawyers who pay attention to administrative-law matters, that will be the big issue come Wednesday morning: How much deference do agencies get in setting public policy, and how much is the Court willing to second guess those policy decisions?  That issue goes well beyond abortion and the Board of Medicine.

The Court’s argument session begins at 9:00 a.m., and this case is second on the schedule (which means a start time of about 9:35).  As always, you can watch the argument live on the Court’s website.  And if you’re really paying attention, the briefs are linked below.  (Note the high number of amicus (“friend-of-the-court”) briefs.)

Planned Parenthood’s opening brief

Board of Medicine’s brief

Planned Parenthood’s reply brief

Brief of amicus curiae American College of Obstetricians and Gynecologists

Brief of amici curiae Iowa Coalition Against Sexual Assault, Iowa Coalition Against Domestic Violence, and National Women’s Law Center

Brief of amicus curiae American Civil Liberties Union of Iowa

Brief of amici curiae Physicians for Life, National Association of Pro Life Nurses, Christian Medical Association, National Association of Catholic Nurses, and The National Catholic Bioethics Center

Brief of amici curiae American Association of Pro-Life Obstetricians & Gynecologists, Donna Harrison, M.D., Iowa Right to Life, and Susan Thayer

Brief of amici curiae Catholic Medical Association, Catholic Medical Association—Des Moines Guild, Catholic Medical Association—St. Thomas Aquinas Guild of the Quad Cities, Iowans for Life, and Women’s Choice Center of the Quad Cities

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