Use of controversial execution drug upheld

A deeply divided court upheld the use of a controversial drug in lethal-injection executions, even as two dissenting justices said for the first time they think it's "highly likely" the death penalty itself is unconstitutional.

Trading sharp words on their last day together until the fall, the justices voted 5-4 that the sedative midazolam can be used in executions without violating the Eighth Amendment prohibition on cruel and unusual punishment.

The drug was used in executions in Arizona, Ohio and Oklahoma in 2014 that took longer than usual and raised concerns that it did not perform its intended task of putting inmates into a coma-like sleep.

Justice Samuel Alito said for a conservative majority that arguments the drug could not be used effectively as a sedative in executions are speculative and he dismissed problems in executions in Arizona and Oklahoma as "having little probative value for present purposes."

In dissent, Justice Sonia Sotomayor said, "Under the court's new rule, it would not matter whether the state intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake."

Alito responded, saying "the dissent's resort to this outlandish rhetoric reveals the weakness of its legal arguments."

In a separate dissent, Justice Stephen Breyer said the time has come for the court to debate whether the death penalty itself is constitutional. Justice Ruth Bader Ginsburg joined Breyer's opinion.

The justices upheld the power of independent commissions used by 13 states to draw congressional districts, in a ruling that could spur efforts in other states to reduce partisan influence in the creation of electoral districts.

The justices voted 5-4 to reject a constitutional challenge from Arizona's Republican lawmakers to the commission that the state's voters created in 2000. Among the other states affected is California, which uses an independent commission to draw electoral boundaries for its largest-in-the-nation congressional delegation.

"Arizona voters sought to restore the core principle that the voters should choose their representatives, not the other way around," Ginsburg said in her opinion.

Ginsburg said that there is "no constitutional barrier to a state's empowerment of its people by embracing that form of lawmaking." Justice Anthony Kennedy and Ginsburg's three liberal colleagues joined her opinion.

In dissent, Chief Justice John Roberts accused the majority of approving a "deliberate constitutional evasion."

The Arizona case stemmed from voters' action in 2000. The legislature's Republican leaders filed their lawsuit after the commission's U.S. House map in 2012 produced four safe districts for Republicans, two for Democrats and made the other three seats competitive. Democrats won all three in 2012, but the Republicans recaptured one last year.

The court allowed nine Texas abortion clinics to remain open while the justices consider whether to hear an appeal from a decision effectively ordering them to close. The vote was 5-4, with Roberts, Scalia, Thomas and Alito voting to deny the stay.

The case concerns two parts of a state law that imposes strict requirements on abortion providers. One requires all abortion clinics in the state to meet the standards for "ambulatory surgical centers," including regulations concerning buildings, equipment and staffing. The other requires doctors performing abortions to have admitting privileges at a nearby hospital.

Other parts of the law took effect in 2013, causing about half the state's 41 abortion clinics to close. If the contested provisions take effect, abortion rights advocates said, the number of clinics will again be halved.

"This would amount to a more than 75 percent reduction in Texas abortion facilities in just a two-year period, creating a severe shortage of safe and legal abortion services in a state that is home to more than 5 million reproductive-age women," lawyers for abortion providers told the justices in an emergency application for a stay.

The order bars the Obama administration from enforcing the rules against the religious groups and church officials until the court decides whether to hear an appeal they filed this year.

The Affordable Care Act generally requires insurers and health plans to cover preventive services without copayments or deductibles, and the administration has said that those services include all approved forms of contraception for women.

In February, the 3rd U.S. Circuit Court of Appeals rejected challenges to the contraceptive coverage requirement filed by Zubik and a number of nonprofit organizations. The court said that the nonprofit groups were "eligible for an accommodation to the contraceptive coverage requirement."

Under the accommodation the nonprofit religious groups can refuse to pay for contraceptive services and "coverage for those services will be independently provided" by an insurance company or by a third party.

But the plaintiffs said the accommodation violated the Religious Freedom Restoration Act of 1993 because it forced them to "facilitate" the provision of coverage for contraceptives.