Abortion care, gun safety, church-state separation at risk in 6-3 conservative Court
Washington, D.C — The Supreme Court on Monday begins its first full term with a 6-3 ultra-conservative bench dominated by three Trump-appointed justices, Amy Coney Barrett (who joined the Court partway through its last term), Neil Gorsuch and Brett Kavanaugh. In its annual SCOTUS preview report, “The Supreme Court’s 2021-22 Term: The Far Right’s Goals Within Reach,” People For the American Way notes that with this newly constituted Court and a high number of cases impacting critical rights and freedoms, “we have never started a Supreme Court term with the Far Right so close to achieving so many of its key goals.”
“We are deeply concerned about the real possibility that Americans next June will find themselves stripped of essential rights, following this upcoming term of the Supreme Court,” said Ben Jealous, president of People For the American Way. “Donald Trump, Mitch McConnell and Senate Republicans schemed, lied and broke rules to get far-right ideologues onto the Court. Now we face the job of remedying those wrongs and protecting the rights the Court threatens. We have to enshrine reproductive rights in federal law. And we also have to reform the Court – with term limits, more seats, more transparency, or all of the ab0ve. Otherwise, our democracy could soon be unrecognizable.”
“Obliterating the right to abortion care, blurring lines between church and state and putting more guns on the streets of America have been on the Far Right’s agenda for a long time, and now those goals are within reach,” said Paul Gordon, People For the American Way senior legislative counsel and the author of the report. “Make no mistake: this is a very scary time and real people’s lives and safety are at risk with this docket and this Court. We can’t overstate how critical this term will be.”
The PFAW report summarizes the following cases:
Dobbs v. Jackson Women’s Health (Mississippi Abortion Ban) (oral arguments Dec. 1): At issue is a Mississippi law that bans abortion after 15 weeks “except in a medical emergency or in the case of a severe fetal abnormality.” Fifteen weeks is before fetal viability. The law being challenged was based on model legislation promoted by the religious-right legal group Alliance Defending Freedom as part of its plan to “eradicate” Roe v. Wade, and a ruling that upholds Mississippi’s ban would essentially end the constitutional right to abortion as we have known it.
Whole Woman’s Health v. Jackson (Texas “Bounty Hunter” Abortion Ban) (oral arguments not yet scheduled): In a “shadow docket” ruling, the Supreme Court allowed Texas’s indisputably unconstitutional abortion ban to go into effect. The law prohibits abortion after about the sixth week of pregnancy, and deputizes private citizens to sue anyone who performs an abortion – or who helps someone access abortion care. Individuals and organizations in Texas continue their litigation efforts against the law. A number have already asked the Supreme Court to consider the Texas case on an expedited schedule that would allow oral argument before the end of the year. In addition, the Justice Department has sued Texas for depriving people in the state of their constitutional rights. One way or another, this law will be before the justices again.
Cameron v. EMW Women’s Surgical Center (state AG’s effort to appeal even after the state accepts its loss in court) (oral arguments Oct. 12): This case comes in the context of an unconstitutional abortion restriction, but the issue before the Court is who can appeal the state’s loss in the lower court. When the Kentucky official defending the law decided not to appeal the state’s loss at the Sixth Circuit, the state attorney general unsuccessfully sought to intervene and continue the litigation. The Supreme Court will now consider whether the Kentucky AG has a right to intervene, but the justices are not expected to address the abortion restriction that the litigation was about.
Carson v. Makin (State Funding of Religious Education) (oral arguments Dec. 8): For many decades, the Far Right has shown great hostility to one of the cornerstone protections of the U.S. Constitution: the wall of separation between church and state that helps safeguard true religious freedom. As the Supreme Court has moved increasingly rightward, its cases have reflected the same hostility, with longstanding protections set aside. In Carson v. Makin, parties encouraged by this shift are asking the justices to take another step away from the longtime understanding of the First Amendment and force the state of Maine to subsidize private religious education.
Ramirez v. Collier (Restrictions on Clergy During Executions) (oral arguments Nov. 1): An inmate, John Ramirez, asked Texas prison officials to allow his spiritual advisor to be present in the execution chamber during the execution, a request that officials granted. However, officials denied his request that the pastor be allowed to pray audibly while Ramirez is being executed, and to physically touch him while he is dying. The Supreme Court has issued several rulings on the presence of clergy during an execution, but it has done so through its so-called shadow docket, without benefit of oral argument or full explanations. This has left lower courts guessing. Depending on how the Court rules in this case, it may provide some better guidance.
Brown v. Davenport (Man Convicted After Being Forced to Wear Shackles in the Courtroom): (oral arguments Oct. 5): Ervine Lee Davenport was convicted in Michigan state court of the murder of Annette White. However, the fairness and constitutionality of the proceeding was severely compromised by the prosecution’s forcing him to wear shackles visible to jurors during the trial. The federal district court upheld the conviction, but the Sixth Circuit reversed the lower court. Michigan asked the Supreme Court to stay the Sixth Circuit’s decision, which the justices did without explanation (and over Justice Sonia Sotomayor’s objection) until they can fully consider the state’s appeal.
FBI v. Fazaga (State Secret Doctrine) (oral arguments Nov. 8): American Muslims sued the FBI for illegally spying on them because of their religion. The district court judge dismissed almost all of the claims without a trial, on the basis of the government’s claim that moving forward could reveal classified information and threaten national security. In 2019, however, a unanimous three-judge Ninth Circuit panel reversed the lower court. The question in the case is whether it should be dismissed upon the federal government’s invocation of “state secrets” that would allegedly be revealed if the case is allowed to proceed.
New York State Rifle & Pistol Association Inc. v. Bruen (Carrying Guns Outside the Home) (oral arguments Nov. 3): The Court that more than a decade ago in the Heller and McDonald cases transformed the Second Amendment into a personal right to own a gun unrelated to military service is poised to increase the damage this term. In New York State Rifle & Pistol Association v. Bruen, the Court will consider a New York law that requires an individual to show “proper cause” in order to get a license to carry a concealed firearm. In the years since Heller, the Court has gained new justices who are hostile to reasonable regulations to prevent gun violence. There is great concern that the Court may not only rule against New York’s law but invalidate even more accepted gun safety laws in the future.
Patel v. Garland (Insulating Immigration Officials’ Decisions from Judicial Review) (oral arguments Dec. 6): This is an appeal of an Eleventh Circuit opinion made possible by Trump judges significantly curtailing courts’ ability to review the decisions of immigration officials, even when those officials’ decisions are based on conclusions unsupported by the record. The abuse of power this would allow is so extreme that the United States urged the Court to hear the appeal and correct the circuit court’s misinterpretation of the law.
CVS Pharmacy v. Doe (Disparate Impact in Disability Discrimination) (oral arguments Dec. 7): This case involves people living with HIV/AIDS who claim that their employer-provided prescription drug insurance plan provides a benefit that is unavailable to them because of their disability. Under the plan, the only way for anyone to enjoy in-network prices for prescription drugs is to get them through Caremark, which either mails them to the patient or to a local CVS for pickup. Several individuals living with HIV/AIDS claim that this system deprives them of vital one-on-one counseling with pharmacists who can review all of their prescriptions for potential side effects and adverse interactions with the many (and frequently changing) assortment of medications needed to treat HIV/AIDS.
Cummings v. Premier Rehab Keller (Damages for Emotional Distress in Disability Discrimination Cases) (oral arguments Nov. 10): Jane Cummings has been deaf from birth, and her primary language is American Sign Language. She went to Premier Rehab Keller to treat her chronic back pain. The company did not provide her with an ASL interpreter when requested, and they sent her to another facility. Alleging discrimination on the basis of her disability, she sued under the Rehabilitation Act and Affordable Care Act. Among other things, she sued to collect damages for emotional distress. Damages for emotional distress are an important remedy and help give force to the congressional prohibition against discrimination. But the district court, affirmed by the Fifth Circuit, ruled that such damages are unavailable under the two statutes.
United States v. Vaello-Madero (Social Security Disability Benefits) (oral arguments Nov. 9): This case poses the question of whether it is constitutional to exclude people in Puerto Rico from eligibility for federal Supplemental Security Income (SSI) benefits. SSI payments help support low-income individuals who are older than sixty-five, blind, or disabled. Under the Social Security Act, SSI benefits are available to residents of any of the 50 states, the District of Columbia, and the Northern Mariana Islands—but not to people living in Puerto Rico. When José Luis Vaello-Madero moved from New York to Puerto Rico, his SSI benefits were cut off, and he sued, citing a violation of his rights under the Equal Protection Clause. The Supreme Court’s decision could not just resolve the specific question about the SSI program but could also affect the extent to which Puerto Ricans can be treated worse than other U.S. citizens.
About People For the American Way
People For the American Way is a progressive advocacy organization founded to fight right-wing extremism and build a democratic society that implements the ideals of freedom, equality, opportunity and justice for all. We encourage civic participation, defend fundamental rights, and fight to dismantle systemic barriers to equitable opportunity. Learn more: https://www.pfaw.org.