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U.S. Federal Courts

Roe v. Wade effectively dead in Texas after Supreme Court fails to act

“The harm this law will cause will be insurmountable for too many Texans, particularly Black, Latino, Indigenous people & low income people.”

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U.S. Supreme Court (Blade file photo by Michael Key)

WASHINGTON – A Texas law that is considered the most restrictive in the nation banning abortion procedures after six weeks of pregnancy- a period when many women are unaware that they are pregnant, went into effect after midnight when the U.S. Supreme Court failed to step in and issue an injunction halting it from taking effect.

Attorneys for Texas abortion providers had filed a last-minute emergency plea to the Supreme Court on Monday, after the Fifth U.S. Circuit Court of Appeals Sunday had denied a request to block the law and then canceled a hearing scheduled for Monday in Austin, Texas before a U.S. District Court, where at least 20 abortion providers had hoped to testify against the law.

The Washington Post reported that lawyers for abortion providers told the Supreme Court that the statute, known as Texas Senate Bill 8, would “immediately and catastrophically reduce abortion access” in Texas and probably force more clinics to close. The law is unconstitutional, they say, because it conflicts with the court precedents that prevent states from banning abortion before a fetus would be viable outside the womb, usually around 22 to 24 weeks.

In addition to preventing abortions after detection of an unborn child’s heartbeat; the bill further authorizes a ‘private civil right of action,’ that would allow members of the general public to sue those who might have violated the restrictions, which providers call a bounty hunting scheme, the Texas Tribune noted.

Individuals who are sued under the ban could be required to pay the person who brought the lawsuit at least $10,000 for each abortion the defendant was involved in the Post noted.

“In less than two days, Texas politicians will have effectively overturned Roe v. Wade,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement Monday. “We have filed an emergency motion in the Supreme Court to block this law before clinics are forced to turn patients away. Patients will have to travel out of state – in the middle of a pandemic – to receive constitutionally guaranteed healthcare. And many will not have the means to do so. It’s cruel, unconscionable, and unlawful.”

The High Court could still grant a request from abortion providers to halt the law. The law effectively eliminates the guarantee in Roe v. Wade and subsequent Supreme Court decisions that women have a right to end their pregnancies before viability, abortion providers said, and that states may not impose undue burdens on that decision, according to the Post.

“The harm this law will cause will be insurmountable for far too many Texans, particularly Black, Latino, Indigenous people, those with low incomes, and Texans in rural areas who already face significant barriers to care,” Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America said in a statement. “We are asking the Supreme Court to uphold fifty years of precedent and ensure Texans won’t be denied their constitutional right to abortion.”

The White House issued a statement by President Joe Biden Wednesday;

Today, Texas law SB8 went into effect. This extreme Texas law blatantly violates the constitutional right established under Roe v. Wade and upheld as precedent for nearly half a century.
 
The Texas law will significantly impair women’s access to the health care they need, particularly for communities of color and individuals with low incomes. And, outrageously, it deputizes private citizens to bring lawsuits against anyone who they believe has helped another person get an abortion, which might even include family members, health care workers, front desk staff at a health care clinic, or strangers with no connection to the individual.
 
My administration is deeply committed to the constitutional right established in Roe v. Wade nearly five decades ago and will protect and defend that right
.” 

In a brief filed on July 30 by 12 Republican Governors, that was joined by 228 Republican members of the U.S. House in a separate brief, all asked the U.S. Supreme Court to overturn the 1973 ruling of Roe v. Wade, 410 U.S. 113, which protects women’s reproductive rights to have an abortion without excessive government restriction.

This most recent push by Republicans comes as the high court is set to hear Mississippi’s Dobbs v. Jackson Women’s Health Organization case, based on the Mississippi law that bars most abortions after 15 weeks of pregnancy. There are no provisions for rape or incest either. 

The Governors from Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Iowa, Missouri, Montana, Oklahoma, Texas and South Carolina signed the brief.

The arguments made are chilling and pose a direct threat to the many members of the LGBTQ community who have a vital interest in reproductive freedom and choice.  Substantial research has documented that lesbian youth, in particular, are at high risk of unwanted pregnancy due to sexual coercion and attempts to hide their sexual orientation,” Shannon Minter, the Legal Director of the National Center for Lesbian Rights (NCLR), told the Blade on July 30.

“And more broadly, the same groups and officials who are attempting to turn back the clock on women’s freedom are also seeking to roll back equality for our communities. Every LGBTQ person in this country has a stake in this case and in the ongoing battle for the fundamental right to make personal decisions free of government intrusion and control,” he added. 

An openly gay member of the U.S. House, Congressman Mondaire Jones, (D NY-17) who is an attorney and social justice activist tweeted about the SCOTUS lack of action:

California Governor Newsom weighed in also issuing a statement Wednesday:

I am outraged that the U.S. Supreme Court has allowed Texas’ ban on most abortions to take effect. Silently, in the dead of night, the Supreme Court has eviscerated the fundamental protection of a woman’s right to choose that Roe v. Wade has protected for the last 50 years. In California, we will ensure that women continue to have access to critical health care services, including abortion, and California will continue to lead the nation in expanding access to reproductive and sexual health care. And I will continue to appoint judges and justices who will faithfully follow the Constitution and precedent to uphold people’s rights, unlike this disappointing inaction from the high court.

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U.S. Federal Courts

5th U.S. Circuit Court of Appeals punts on anti-abortion Texas SB-8

Abortion opponents said such an extensive delay is exactly what they wanted

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5th U.S. Circuit Court of Appeals, New Orleans (Photo Credit: Library of Congress)

NEW ORLEANS – In a ruling issued Monday, the 5th U.S. Circuit Court of Appeals returned the legal challenge to the restrictive anti-abortion Texas law, colloquially referred to as SB8, to the Texas State Supreme Court.

Legal experts say that even though the law remains in effect, this decision could significantly delay the case moving forward. Abortion opponents said such an extensive delay is exactly what they wanted.

The Texas Tribune reported; “state supreme courts do not have to take up cases that are sent to them by federal courts, but it’s likely Texas will this time. Lawyers said it’s unusual to ask the Texas Supreme Court to make this decision after the U.S. Supreme Court has already weighed in.”

The Tribune noted that the three-judge 5th U.S. Circuit Court of Appeals panel wrote in their 2-1 decision Monday that the Texas Supreme Court must certify the case and decide whether the U.S. Supreme Court was correct in allowing a challenge to proceed against the licensing officials.

“This further, second-guessing redundancy, without time limit, deepens my concern that justice delayed is justice denied, here impeding relief ordered by the Supreme Court,” Judge Stephen A. Higginson wrote in his dissent.

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U.S. Federal Courts

High Court to hear case of school prayer but not anti-LGBTQ web designer

The Justices added five new cases including the case of a fired former Bremerton, Washington assistant high school football coach

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The Justices of the United States Supreme Court (Photo Credit: U.S. Supreme Court)

WASHINGTON – After their private conference on Friday, the Justices of the U.S. Supreme Court added five new cases to this term including the case of a former Bremerton, Washington assistant high school football coach removed for refusing to halt his practice of praying at mid-field after games.

The court however declined to hear the case of a website designer who refused to create custom sites for same-sex weddings.

SCOTUSblog senior reporter Amy Howe reportedthe case of the football coach involves Joseph Kennedy, a practicing Christian whose religious beliefs require him to “give thanks through prayer, at the end of each game.” When he began his job as an assistant coach at Bremerton High School, a public school in Washington state, he initially prayed alone after games, but over time some of his players – and eventually a majority of the team – joined him. One parent complained that his son, a player on the team, felt like he had to join in the prayer, even though he was an atheist, or face a loss of playing time.”

Bremerton School District officials had attempted to accommodate Kennedy after warning him to stop the prayers as District officials clarified that they did not want to violate the Constitution’s establishment clause, which prohibits the government from favoring one religion over another.

The district offered Kennedy the ability to pray after the crowd had left the stadium or in a private space both options that he refused. Kennedy had retained counsel and the legal team indicated that they would pursue father legal action.

According to media accounts he then prayed publicly with his players at two more games after which he was placed on administrative leave. After a review which included a recommendation by the head football coach that he be terminated, Kennedy was let go and then filed a federal lawsuit alleging that Bremerton School District had violated his First Amendment rights and federal civil rights laws.

Joseph Kennedy being interviewed by NBC News affiliate KING-TV 5, Seattle, Washington

Kennedy came to the Supreme Court in 2018 seeking to get his job back while litigation continued. The court turned him down, but Justice Samuel Alito penned a statement regarding that denial that was joined by Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh. Alito wrote that Kennedy’s free-speech claim raised important issues, and he suggested the case may warrant review in the future,” SCOTUSblog reported.

Ultimately, the U.S. District Court rejected Kennedy’s argument ruling against him and the case was then heard by a 3 judge panel of the U.S. Court of Appeals for the 9th Circuit, which upheld that decision. The 9th Circuit turned down a petition for an En banc (full) review by the entire 9th Circuit.

Kennedy returned to the Supreme Court in September 2021, telling the justices that the 9th Circuit’s ruling used “imagined Establishment Clause concerns to inflict real Free Exercise Clause damage,” he argued adding; “The religious expression of hundreds of thousands of teachers in the Ninth Circuit is now on the verge of extinction,” he contended. Moreover, Kennedy added, the ruling’s “chilling effects elsewhere around the country are palpable, as the Ninth Circuit essentially held” Kennedy’s “efforts to publicize the denial of his constitutional rights against him.”

The school district countered that whether Kennedy has the right to a “brief, quiet prayer by himself while at school” “is entirely beside the point” – particularly when, the district insisted, “every word of that description is wrong.” The dispute before the court, it stressed, is “about a school district’s authority to protect students when its employee does not work with it to find a reasonable accommodation.” A ruling for Kennedy, the school district warned, would require the Supreme Court “to overturn decades of settled law under both the Free Speech and Establishment Clauses,” SCOTUSblog reported.

The Justices declined to take up a case on appeal from the U.S. Court of Appeals for the 10th Circuit, 303 Creative LLC v. Elenis, brought by The Alliance Defending Freedom, (ADF)- listed by the Southern Poverty Law Center as an anti-LGBTQ extremist hate group.

The case stemmed from a Lakewood, Colorado based web designer, who sued to challenge Colorado’s anti-discrimination law. ADF filed its appeal last Fall asking the U.S. Supreme Court to review that ruling.

Lorie Smith, claimed in court filings that the Colorado law violated Smith’s freedom of speech and freedom of religious expression, citing that it would force her to design wedding websites for same-sex couples which violated her ‘Christian’ beliefs.

In its 2-1 ruling, the 10th Circuit panel said Colorado had a compelling interest in protecting the “dignity interests” of members of marginalized groups through its law.

In a statement issued by ADF, the Arizona based firm claimed; “The 10th Circuit issued an unprecedented decision in the case, 303 Creative v. Elenis, holding that Colorado’s Anti-Discrimination Act both forced Lorie “to create websites—and thus, speech—that [she] would otherwise refuse,” and also created a “substantial risk” of removing “certain ideas or viewpoints from the public dialogue,” including Lorie’s beliefs about marriage.”

ADF added; “The lawsuit contends that Colorado Revised Statute § 24-34-601(2)(a) violates the First Amendment’s Free Speech and Free Exercise clauses. The state law is the same one the commission twice used against Masterpiece Cakeshop cake artist Jack Phillips, who is currently being harassed by an activist attorney in a third lawsuit that also attempts to use Colorado’s law against him. After a trial resulted in a decision against Phillips, ADF attorneys representing him and his shop have appealed that case to the Colorado Court of Appeals.”

Colorado Solicitor General Eric Olson questioned whether Smith should even be allowed to challenge the law since she had not started offering wedding websites yet, the Associated Press reported.

But if she did, Olson said, her argument would mean she would refuse to create a website for a hypothetical same-sex couple named Alex and Taylor but agree to make the same one for an opposite-sex couple with the same names. He said that would be discrimination under the Colorado Anti-Discrimination Act, which prohibits discrimination on the basis of sexual orientation.

Judge Mark Beck Briscoe wrote in the majority opinion (303 Creative, et al. v. Elenis, et al.) that “we must also consider the grave harms caused when public accommodations discriminate on the basis of race, religion, sex, or sexual orientation. Combatting such discrimination is, like individual autonomy, `essential’ to our democratic ideals.”

In his dissent, Chief Judge Timothy Tymkovich wrote that “this case illustrates exactly why we have a First Amendment. Properly applied, the Constitution protects Ms. Smith from the government telling her what to say or do.

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U.S. Federal Courts

Anti-LGBTQ legal group appeals ruling against anti-LGBTQ photographer

ADF’s attorneys in their appeal argued the New York state laws go against the First and Fourteenth Amendments

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Thurgood Marshall United States Courthouse, New York City (Photo Credit: U.S. Courts/GSA)

NEW YORK – The Alliance Defending Freedom (ADF), filed an appeal Wednesday with the United States Circuit Court of Appeals for the Second Circuit asking the court to overturn a lower Federal court ruling that dismissed a suit brought by a New York photographer asking to gain an exemption from state law regarding same-sex marriages.

Emilee Carpenter, an Elmira-based wedding photographer had filed a lawsuit Federal lawsuit claiming that New York’s anti-discrimination laws violated her right to refuse photographing same-sex marriages.

She was represented by ADF which is listed by the Southern Poverty Law Center as a hate group because it has supported the idea that being LGBTQ+ should be a crime in the U.S. and abroad and believes that is OK to put LGBTQ+ people in prison for engaging in consensual sex. It has also supported laws that required the forced sterilization of transgender Europeans.

ADF has spread lies about the LGBTQ+ community. It has, for example, linked being LGBTQ+ to pedophilia and claimed that a “homosexual agenda” will destroy society.

U.S. District Judge Frank P. Geraci Jr. ruled that Emilee Carpenter’s suit “would relegate [same-sex couples] to an inferior market than that enjoyed by the public at large,” under New York State statutes. He then dismissed the case.

ADF’s attorneys in their appeal with the 2nd Circuit Court of Appeals, argued the New York state laws go against the First and Fourteenth Amendments, restricting their client’s rights to freedom of speech and the free exercise of religion. 

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