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Contraceptive Coverage Requirement and Legal Challenges Five Years After 'Hobby Lobby' [September 23, 2019]
From the Document: "When Congress enacted the Patient Protection and Affordable Care Act (ACA) in 2010, it required employment-based health plans and health insurance issuers to cover certain preventive health services without cost sharing. Those services, because of agency guidelines and rules, would soon include contraception for women. The 'contraceptive coverage requirement,' or 'contraceptive mandate' as it came to be known, was heavily litigated in the years to follow. These challenges primarily concerned (1) what types of employers and institutions should be exempt from the requirement based on their religious or moral objections to contraception; (2) what procedures the government can require for an entity to invoke a religious-based accommodation; and (3) how much authority federal agencies have to create exceptions to the coverage requirement. As originally formulated, only houses of worship and similar entities were exempt from the requirement, but the government later added an accommodation process for certain religious nonprofit organizations."
Library of Congress. Congressional Research Service
Killion, Victoria L.
2019-09-23
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Supreme Court Agrees to Hear Constitutional Challenge to SEC Administrative Law Judges [January 16, 2018]
"On Friday, the Supreme Court granted certiorari in 'Lucia v. Securities and Exchange Commission (SEC)' to decide whether administrative law judges (ALJs) within the SEC are 'Officers of the United States' (officers) who must be appointed in accordance with the Appointments Clause of Article II of the Constitution. If the Supreme Court holds that SEC ALJs are officers, its conclusion could call into question the validity of prior decisions rendered by SEC ALJs (whose initial hiring did not comport with the Appointments Clause) and may have broader implications for ALJs in other federal agencies. This Sidebar provides an overview of the case by first discussing the Appointments Clause and the key decisions leading up to the Court's review, and then highlighting the relevant arguments and considerations before the Supreme Court."
Library of Congress. Congressional Research Service
Killion, Victoria L.
2018-01-16
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Facing the FACT Act: Abortion and Free Speech (Part I) [Janurary 10, 2018]
"On November 13, 2017, the Supreme Court granted a petition to review 'National Institute of Family and Life Advocates (NIFLA) v. Becerra', a case that implicates several distinct and complex First Amendment doctrines. Specifically, the Court will consider whether a California law providing information that certain pregnancy centers must disseminate to clients violates the Free Speech Clause. The Ninth Circuit previously upheld the California law, deepening a circuit split that raises questions beyond the highly charged context of family planning and pregnancy-related services. Part I of this two-part Sidebar provides an overview of the challenged law, followed by an analysis of how the Supreme Court might categorize the speech at issue. Part II discusses the potential implications of any Supreme Court decision in 'NIFLA' for First Amendment jurisprudence and legislatures seeking to regulate in this area."
Library of Congress. Congressional Research Service
Killion, Victoria L.
2018-01-10
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Facing the FACT Act: Abortion and Free Speech (Part II) [January 10, 2018]
"As explained in Part I of this Sidebar, the parties in National Institute of Family and Life Advocates (NIFLA) v. Becerra dispute whether California's Reproductive FACT Act is a viewpoint- or content-based restriction on speech subject to strict scrutiny (and thus presumptively invalid) or a professional or commercial regulation subject to less exacting scrutiny. The path the Court chooses could have implications for lawmakers both in the context of family planning or pregnancy-related services and, more broadly, in the regulation of professional and commercial activities."
Library of Congress. Congressional Research Service
Killion, Victoria L.
2018-01-10
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Terrorism, Violent Extremism, and the Internet: Free Speech Considerations [May 6, 2019]
From the Document: "Recent acts of terrorism and hate crimes have prompted a renewed focus on the possible links between internet content and offline violence. While some have focused on the role that social media companies play in moderating user-generated content, others have called for Congress to pass laws regulating online content promoting terrorism or violence. Proposals related to government action of this nature raise significant free speech questions, including (1) the reach of the First Amendment's protections when it comes to foreign nationals posting online content from abroad; (2) the scope of so-called 'unprotected' categories of speech developed long before the advent of the internet; and (3) the judicial standards that limit how the government can craft or enforce laws to preserve national security and prevent violence."
Library of Congress. Congressional Research Service
Killion, Victoria L.
2019-05-06
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Public Sector Union Dues: Grappling with Fixed Stars and Stare Decisis (Part I) [December 4, 2017]
"Agency shop arrangements (sometimes called 'fair share' provisions) require employees to pay a fee to the union designated to represent their bargaining unit even if the employees are not members of that union. The 'Abood' Court [Abood v. Detroit Board of Education, 1977], held that these arrangements do not violate the First Amendment insofar as the union uses the fees for 'collective bargaining activities' and not 'ideological activities unrelated to collective bargaining.' In its October 2015 Term, the full Court heard oral argument on whether to overrule 'Abood', but ultimately divided four-to-four on this question following the death of Justice Scalia. Now that Justice Gorsuch has joined the bench, it remains to be seen whether a majority of the Court will reaffirm Abood or chart a new course. Part I of this two-part Sidebar provides general background on 'Abood' and the case law leading up to 'Janus' [Janus v. American Federation of State, County, and Municipal Employees, Council 31]. Part II then discusses the perspectives Justice Gorsuch may bring to 'Janus' and the potential implications of the decision for public sector collective bargaining and compulsory fees more broadly."
Library of Congress. Congressional Research Service
Killion, Victoria L.
2017-12-04
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Public Sector Union Dues: Grappling with Fixed Stars and Stare Decisis (Part II) [December 4, 2017]
"As discussed in Part I of this two-part Sidebar, on March 29, 2016, an eight-member Supreme Court divided equally over whether to overrule its 1977 decision in 'Abood v. Detroit Board of Education' and hold that public sector agency fees violate core First Amendment principles (the Court's 'fixed star'). Earlier this Term, the Court agreed to consider the question again in the case of 'Janus v. American Federation of State, County, and Municipal Employees, Council 31'. Part II of this Sidebar begins with a brief summary of the parties' arguments in 'Janus'. It then highlights some key statements from the prior decisions of Justice Gorsuch, who is likely to be a critical voice in deciding whether to overturn 'Abood'. The post concludes by exploring the potential implications of the 'Janus' decision."
Library of Congress. Congressional Research Service
Killion, Victoria L.
2017-12-04
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Supreme Court Invalidates Public-Sector Union Agency Fees: Considerations for Congress in the Wake of Janus [July 20, 2018]
"On June 27, 2018, the Supreme Court held that 'agency fee' arrangements between a union and a government employer necessarily violate the First Amendment, overruling its 1977 decision in Abood v. Detroit Board of Education. Agency fee arrangements (sometimes called 'fair share' provisions) require employees to pay a fee to the union designated to represent their bargaining unit (i.e., an exclusive union representative) even if the employees are not members of that union. The Abood Court had held that these arrangements are constitutional insofar as the union uses the fees for 'collective bargaining activities' and not 'ideological activities unrelated to collective bargaining'--described in later cases as 'chargeable' versus 'nonchargeable' expenditures. But this term, in Janus v. American Federation of State, County, and Municipal Employees, Council 31 (AFSCME), a five-member majority of the Court reversed course, holding that Abood was 'wrongly decided' and that public-sector agency fee arrangements 'violate[] the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.' The case has potential implications not only for public-sector employers and workers, including those in more than twenty states that authorize public-sector agency fees, but also for other forms of compulsory fee arrangements required or authorized by Congress, the states, or other governmental entities."
Library of Congress. Congressional Research Service
Killion, Victoria L.
2018-07-20
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Freedom of Association in the Wake of Coronavirus [April 16, 2020]
From the Document: "At least 42 U.S. states have issued emergency orders directing residents to 'stay at home,' with many states prohibiting gatherings of various sizes to control the spread of Coronavirus Disease 2019 (COVID-19). California's March 19th stay-at-home order effectively banned public gatherings outside of 'critical' sectors and 'essential' services. New York's March 23rd order 'canceled or postponed' 'non-essential gatherings of individuals of any size for any reason (e.g. parties, celebrations or other social events),' with a maximum penalty of $1,000 for violations added in a later order. Maryland's March 30th order prohibited '[s]ocial, community, spiritual, religious, recreational, leisure, and sporting gatherings and events . . . of more than 10 people,' with willful violators facing up to a year imprisonment and/or a maximum fine of $5,000. Texas's March 31st order directed residents to 'minimize social gatherings' except 'where necessary to provide or obtain' designated 'essential services.' In late March, some lawmakers called on the President to issue a temporary, nationwide shelter-in-place order."
Library of Congress. Congressional Research Service
Killion, Victoria L.
2020-04-16
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