Cultivated Compendium

SCOTUSBlog's Lyle Denniston reports that the justices will take up a new round of same-sex marriage cases at their conference January 9: "At issue in the Sixth Circuit cases is a ruling by the appeals court for that region, upholding all of the bans on same-sex marriage licensing or recognition in the four states. At issue in the Louisiana case is a decision by a federal trial judge in New Orleans upholding that state’s ban on licensing and recognition."

The Fourth Circuit struck down North Carolina's requirement that doctors and ultrasound technicians perform an ultrasound at least four hours but not more than 72 hours before the abortion is to take place, display an image of the sonogram and "and specifically describe the fetus to any pregnant woman seeking an abortion, even if the woman actively 'averts her eyes' and 'refuses to hear,'" Slate's Dahlia Lithwick reports. The court ruled the requirement violates the First Amendment rights of healthcare providers. Doctors who did not follow the law could face damages and lose their licenses to practice, Lithwick also notes.

Judge J. Harvie Wilkinson III, who authored the opinion for the panel, is a conservative jurist and was shortlisted for John Roberts' seat as chief justice of the Supreme Court, Lithwick notes.

The ruling presents a circuit split with the Fifth and Eighth Circuits, which have upheld similar laws.

Elected state attorneys general are playing a new role: refusing to enforce their state's laws, "raising questions about where the line lies between discretion and derelicition of duty," the Pittsburgh Post-Gazette's Tracie Mauriello reports. For example, Pennsylvania Attorney General Kathleen Kane refused to defend a new state law allowing the National Rifle Association to sue over local gun regulations and she refused to defend the state's ban on same-sex marriage. Mauriello cites examples in Indiana, New Jersey and Virginia where attorneys general did not enforce law regarding immigration, guns and failing schools. Professor John C. Harrison of the University of Virginia School of Law told Mauriello, “'It’s probably true that the judgments that executive enforcement officers make about constitutionality of statutes they’re called on to enforce are somewhat influenced by their policy views.”'

When the Federal Aviation Administration granted waivers for Hollywood filmmakers to fly drones on movie sets, federal regulators did so despite warnings from safety inspectors that the plans were too risky and should not be authorized, The Washington Post's Craig Whitlock reports: "The warning turned out to be prescient. On Wednesday, a camera-toting drone operated by one of the filmmakers, Pictorvision, flew off a set in California and disappeared, according to an FAA report." 

The agency is facing 167 applications to be permitted to use drones in commercial applications and is not keeping up with the technological advances in the drone industry, Whitlock further reports. The agency is expected to miss the September 2015 deadline on integrating drones into the American airspace by two years.

Whitlock has a delayed investigative report into how the FAA is functioning right now amid a lot of pressure to get drones going safely but quickly. One problem, Whitlock writes, is that a consultant was hired to help streamline the FAA's review process, but the company was also an advocate for the Hollywood filmmakers seeking approval for drone use. The relationship has since ended.

Legislators in Utah have rejected Governor Gary Herbert's alternative plan to providing Medicaid expansion to low-income Utah residents in favor of two even more limited proposals, The Salt Lake Tribune's Kristen Moulton reports. The Legislature’s Health Reform Task Force "proposed recommending options that would cover between 12.5 percent and 20 percent of those below the federal poverty line — but only those who are mentally ill, addicted, disabled or too sick to work," Moulton reports. The governor's plan would cover 46,000 people.

David Patton, executive director of the Utah Department of Health, told Moulton he is still hopeful that the full Legislature will pass Medicaid expansion.

Alabama Governor Robert Bentley, who "campaigned as an opponent of expanding Medicaid under the Affordable Care Act," now supports expanding Medicaid block-grant funding to more low-income Alabamans, Media Group's Mike Cason reports: Bentley said "he would support an Alabama-designed plan that required recipients to be working or in a work training program. ... Bentley [also] said with a block grant the state could request proposals from private insurers to provide the expanded coverage."

Bentley also suggested that President Barack Obama's administration might be more receptive to his version of a Medicaid expansion because the U.S. Supreme Court has taken up a case posing an existential threat to Obamacare: can the federal government provide tax credits and subsidies to low-income and moderate-income consumers shopping for insurance on the federally-run insurance exchange, instead of state-run exchanges?

The Centers for Medicare and Medicaid Services has proposed a rule that would require long-term care facilities to extend spousal rights to same-sex married couples, McKnight's Tim Mullaney reports. CMS said in the proposed rule "'our goal is to provide equal treatment to spouses, regardless of their sex, whenever the marriage was valid in the jurisdiction in which it was entered into, without regard to whether the marriage is also recognized in the state of residence or the jurisdiction in which the healthcare provider or supplier is located.'"

Even in states that don't recognize same-sex marriage, the stick to make facilities follow the rule would be that their funding from Medicare and Medicaid would be contigent on their obedience to the regulation.

The Hawai'i Supreme Court heard arguments Thursday on a challenge to a law authorizing same-sex marriage, the Associated Press' Jennifer Sinco Kelleher reports. The challengers to the law argue that legislators did not have the authority to pass the law because of a constitutional amendment.

Sabrina McKenna, the first openly gay Supreme Court justice in Hawai'i, recused herself.

New York City Councilman Dan Garodnick has introduced a bill to ban the use of all drones in the Big Apple except by law enforcement officers who have warrants, Ars Technica reports. Councilman Paul Vallone introduced a separate bill that would restrict drones, among other limitations, to not being flown at night, out of the operator's eyesight or above 400 feet.

Barrett Brown, a freelance journalist who also has been portrayed as an Anonymous hacktivist, has had his sentencing delayed until January 22, The Intercept's Michelle Garcia reports.

Before taking a plea deal, Brown faced more than 100 years in prison for posting links to stolen credit-card information hacked by others from the servers of security intelligence firms HBGary and Stratfor: "The HBGary hack revealed a coordinated campaign to target and smear advocates for WikiLeaks and the Chamber of Commerce, while the Stratfor hack provided a rare window into the shadowy world of defense contractors," Garcia reports.

Brown's defense attorneys objected to much of the evidence presented by prosecutors in a hearing this week, arguing it is not relevant to the charges he pled guilty to: threatening an FBI agent on a YouTube video while he was on withdrawal from Suboxone, trying to hide his laptops during the execution of a search warrant and "an offer Brown made to the hacker Jeremy Hammond, to contact Stratfor to see if the firm wanted redactions of the hacked materials." 

Most troubling, Garcia reports, prosecutors revived the claim that Brown's posting the link to the stolen credit-card information constituted complicity with the hack, even though First Amendment concerns were raised by that prosecutorial argument. Defense attorney Ahmed Ghappour told Garcia that “'looking at that as criminal conduct would probably bring an end to all digital journalism, period. There would be no reporting on leaks.”'