My thanks to a commenter who pointed out a few things about my July 4 post on Cline, found here, that deserve correction or further comment.
First, the Supreme Court apparently does not need to grant cert to certify questions to state courts. There’s not exactly a lot of clear, written rules on this stuff, but apparently they have certified questions before without granting cert. Furthermore, the language “Further proceedings in this case are reserved pending receipt of a response” are not unusual in orders where the Supreme Court certifies questions – possibly ubiquitous but at least common.
These points are important because it makes it at least somewhat more likely the Court (or four of its members) really will decide the Oklahoma case. After receiving the answers from the Oklahoma Supreme Court, the Court could dismiss as improvidently granted, affirm summarily, reverse summarily, or set the case for full briefing and hearing. The information about the Court’s practice in certification cases makes me lower, somewhat, my guess about the odds of a DIG.
My commenter took issue with my statement that the Oklahoma court will, in light of the statutory language, inevitably say the act banned even the on-label use of mifepristol because it bans the use off-label use of mifepristone, which is necessary to the on-label use of mifepristol, as well as my statement that the Supreme Court posing the questions “recognized” that the statute was poorly drafted.
After looking again at the State’s reply to the plaintiffs’ response to the petition for certiorari (available through SCOTUS blog), i still would be quite surprised if the Oklahoma Supreme Court doesn’t take the statute at its word and say that its workings effectively ban on-label use of mifepristol. The state makes a very good effort with arguments from the canons of statutory construction to say that such a silly reading of the statute should be avoided. I think those pretty good arguments won’t work, though, against a statute whose express language – banning all uses of any abortifacients off-label and expressly calling mifepristone an abortifacient – compels such a result. Besides, the rest of the statute could still be meaningful if the FDA changed the labeling indications for either drug.
So, “inevitable” was too strong – I (and all of you) should know that nothing is inevitable in judicial construction of statutes, cases, constitutions, etc. But I still think the Oklahoma Supreme Court is highly likely to construe the statute to ban entirely an FDA approved drug. That, it seems to me, means the statute will fall as an undue burden, and probably on DIG. It is conceivable that the U.S. Supreme Court might vacate and remand to the Oklahoma Supreme Court on the ground that its very cursory opinion did not perform the analysis required by Casey, On the other hand, the trial court was more thorough.
So I’d still bet on the Oklahoma Supreme Court decision not being reversed and probably being DIG’d, but I won’t give quite as high odds.
One last point on timing. The Oklahoma court has set a briefing schedule that points to an October hearing on the certified questions. The Oklahoma court probably needs to answer the Supreme Court’s questions no later than early January for this case to be briefed and argued in OT 2013. It could, of course, DIG it or affirm or reverse summarily in OT 2013 as long as it gets the answers by June.