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U.S. Supreme Court refuses to block Texas anti-abortion law in 5-4 ruling

The Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors

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Front row, left to right: Associate Justice Samuel A. Alito, Jr., Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Stephen G. Breyer, and Associate Justice Sonia Sotomayor. Back row, left to right: Associate Justice Brett M. Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil M. Gorsuch, and Associate Justice Amy Coney Barrett. Photo Credit: Fred Schilling, Collection of the Supreme Court of the United States

WASHINGTON – Late Wednesday night the United States Supreme Court issued a ruling in the Texas anti-abortion law case which the court had earlier in the day let take effect. By a 5–4 vote, with U.S. Chief Justice John Roberts joining the liberal justices, the High Court will let stand Texas Senate Bill 8, a law that prohibits abortions after six weeks, with no exception for rape or incest.

“Roe v. Wade is, functionally, overturned.”

Constitutional lawyer and journalist Mark Joseph Stern.

The Texas law 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.

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 schemethe 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.

In her strongly worded dissent, Associate Supreme Court Justice Sonia M. Sotomayor, joined by Associate Justices Elena Kagan and Stephen Breyer, wrote a scathing takedown accusing her fellow Court members of “burying their heads in the sand.”

In his dissent, Chief Justice John Roberts took pains to explain; “Although the Court denies the applicants’ request for emergency relief today, the Court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue. But although the Court does not address the constitutionality of this law, it can of course promptly do so when that question is properly presented.”

Justice Sotomayor also notes, “The Act is a breathtaking act of defiance … The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.”

Justice Breyer taking aim at the law’s provisions that allows for third party interference and also be paid what amounts to a bounty to stop providers or women writes; “I agree with the Chief Justice, Justice Sotomayor and Justices Kagan. Texas’s law delegates to private individuals the power to prevent a woman from obtaining an abortion during the first stage of pregnancy. But a woman has a federal constitutional right to obtain an abortion during that first stage.”

The National Center for Lesbian Rights, (NCLR) Legal Director Shannon Minter decried the High Court’s decision telling the Blade in an email late Wednesday evening;

Tonight’s decision by a majority of the Supreme Court to greenlight a blatantly unconstitutional Texas abortion ban should be a wakeup call to every LGBTQ person in this country. We cannot count on this Court to protect our freedom. Every day that goes by without the passage of a federal anti-discrimination law for LGBTQ people brings us closer to being stripped of the hard won rights and protections we have struggled for decades to secure, and that still do not exist in many states.

The Court’s decision will inspire copycat abortion bans in other states and accelerate the already overwhelming tsunami of anti-LGBTQ state laws. We are in a full blown red-state backlash against equality for women, Black and brown people, and LGBTQ communities, and our Supreme Court has abandoned any pretense of protecting vulnerable minorities. We must turn to Congress for protection and do everything in our power to enact federal protections for reproductive autonomy and a federal law prohibiting discrimination based on sexual orientation or gender identity.” 

In measured tones but with unmistakable underlying anger Justice Kagan in her dissent wrote “The majority’s decision is emblematic of too much of this Court’s shadow-docket decision making—which every day becomes more unreasoned, inconsistent, and impossible to defend.”

She added; “The majority “barely bothers to explain its conclusion” and “rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the state’s behalf.”

Justice Sotomayor, offered; “In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.”

In his analysis, Stern writes; “It is simply impossible to say that Roe v. Wade is still the law of the land. The Supreme Court just allowed Texas to enforce a six-week abortion ban—giving other states a roadmap to do the same. Roe is no longer good law. The right to abortion has been functionally overturned.”

The White House Thursday morning released a statement by President Joe Biden on Supreme Court Ruling on Texas Law SB8:

The Supreme Court’s ruling overnight is an unprecedented assault on a woman’s constitutional rights under Roe v. Wade, which has been the law of the land for almost fifty years. By allowing a law to go into effect that empowers private citizens in Texas to sue health care providers, family members supporting a woman exercising her right to choose after six weeks, or even a friend who drives her to a hospital or clinic, it unleashes unconstitutional chaos and empowers self-anointed enforcers to have devastating impacts. Complete strangers will now be empowered to inject themselves in the most private and personal health decisions faced by women. This law is so extreme it does not even allow for exceptions in the case of rape or incest. And it not only empowers complete strangers to inject themselves into the most private of decisions made by a woman—it actually incentivizes them to do so with the prospect of $10,000 if they win their case. For the majority to do this without a hearing, without the benefit of an opinion from a court below, and without due consideration of the issues, insults the rule of law and the rights of all Americans to seek redress from our courts. Rather than use its supreme authority to ensure justice could be fairly sought, the highest Court of our land will allow millions of women in Texas in need of critical reproductive care to suffer while courts sift through procedural complexities. The dissents by Chief Justice Roberts, and Justices Breyer, Sotomayor, and Kagan all demonstrate the error of the Court’s action here powerfully.
 
While the Chief Justice was clear to stress that the action by the Supreme Court is not a final ruling on the future of Roe, the impact of last night’s decision will be immediate and requires an immediate response. One reason I became the first president in history to create a Gender Policy Council was to be prepared to react to such assaults on women’s rights. Hence, I am directing that Council and the Office of the White House Counsel to launch a whole-of-government effort to respond to this decision, looking specifically to the Department of Health and Human Services and the Department of Justice to see what steps the Federal Government can take to ensure that women in Texas have access to safe and legal abortions as protected by Roe, and what legal tools we have to insulate women and providers from the impact of Texas’ bizarre scheme of outsourced enforcement to private parties.

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U.S. Federal Courts

ACLU sues school district over bathroom denial for Trans students

Both students have been diagnosed with gender dysphoria, are under a physician’s care, and have been prescribed hormone therapy

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Terre Haute North High School (Photo Credit: Vigo County School Corporation)

TERRA HAUTE, In. – The American Civil Liberties Union of Indiana and Indiana Legal Services filed a lawsuit in U.S. District Court for the Southern District of Indiana this week against the Vigo County School Corp, after employees denied two Terre Haute North High School students their right to use the restrooms consistent with their gender identity.  

“Denying these students access to the correct restrooms violates both the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681(a),” the ACLU stated in a press release.

Both students represented in the case have been diagnosed with gender dysphoria, are under a physician’s care, and have been prescribed hormone therapy. Despite the fact that these students have long identified as male, they have been informed by school administrators that they are not allowed to use the male restrooms. 

“Denying a student their right to use the correct restroom is discrimination, plain and simple,” said Ken Falk, ACLU of Indiana Legal Director. “Schools should be a safe place for kids and the refusal to allow a student to use the correct restroom can be extremely damaging” 

“There are a lot of transgender kids in Indiana,” Falk told Terra Haute CBS News affiliate WTHI. “There are a lot of schools systems refusing to recognize them as having gender dysphoria. There are a lot of kids who are suffering. I think it’s the hope of these two young men that not only can they get some remedy for themselves but they can help educate schools to do not just the right thing but do what is required by the law.” 

“The law gives transgender students the same opportunities as their peers to learn, grow, and succeed at school,” said Kathleen Bensberg, Staff Attorney with the LGBT Project at Indiana Legal Services. “We look forward to working with ACLU to represent these students in this case.”  

Students who are denied access to the correct restroom, may confront increased bullying and may avoid using the restroom altogether while in school. 

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U.S. Federal Courts

Teen sues Tennessee over anti-Trans youth sports bill

“To have the legislature pass a law that singled out me and kids like me to keep us from being part of a team, that crushed me, it hurt”

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Luc Esquivel by Shawn Poynter/ACLU

NASHVILLE — Luc Esquivel, a 14-year-old boy from Knoxville, Tennessee, is suing the state over an anti-trans youth sports law. 

The American Civil Liberties Union (ACLU), the ACLU of Tennessee and Lambda Legal filed the lawsuit on behalf of Esquivel in the U.S. District Court for the Middle District of Tennessee, arguing that the law is discriminatory and unconstitutional.  

The law, S.B. 228, bans trans children from participating on middle and high school sports teams that match their gender by requiring student athletes to prove the sex they were assigned at birth with an “original” birth certificate or other forms of proof. Tennessee Republican Gov. Bill Lee signed the bill in March. 

Esquivel, a freshman at Farragut High School in Knoxville, was looking forward to trying out for the school’s golf team before Lee signed the bill. 

“I was really looking forward to trying out for the boys’ golf team and, if I made it, training and competing with and learning from other boys and improving my game,” said Esquivel, an avid golfer. “Then, to have the legislature pass a law that singled out me and kids like me to keep us from being part of a team, that crushed me, it hurt very much. I just want to play, like any other kid.”

Luc Esquivel’s mother, Shelley, said the situation still makes her “so angry.”

“A mother wants to see their kid happy, thriving, enjoying being a kid,” she said. “High school sports are an important part of that. I know how much Luc was looking forward to playing on the boys’ golf team. It’s heartbreaking to see him miss out on this high school experience, and it is painful for a parent to see their child subjected to discrimination because of who they are. I’m proud Luc is taking this step, and his father and I are with him all the way.”

Portrait of Luc Esquivel, joined by his mother, Shelley, at his home in Knoxville, TN.
Photo by Shawn Poynter/ACLU

According to the ACLU, the Tennessee law is one of hundreds of anti-LGBTQ+ bills pushed in state legislatures across the country in 2021. 

As the bill made its way through the state legislature, it garnered no endorsements from mainstream sporting or health organizations. Many such organizations — like the American Academy of Pediatrics and the NCAA — don’t support legislation like Tennessee’s.

 The NCAA issued a message in support of trans athletes earlier this year. 

“The NCAA Board of Governors firmly and unequivocally supports the opportunity for transgender student-athletes to compete in college sports,” wrote the NCAA. “This commitment is grounded in our values of inclusion and fair competition.”

Lee defended the bill in February, saying trans girls would “destroy women’s sports” if they weren’t banned.

Hedy Weinberg, the executive director of the ACLU of Tennessee, said, “When Tennessee lawmakers passed this discriminatory law, they could not identify a single instance of a Tennessee student facing any harm from a transgender athlete playing sports. However, the emotional cost of this law to transgender student athletes is tremendous.” 

Sasha Buchert, senior attorney at Lambda Legal, adds that an “endless” amount of research shows the short-term and long-term benefits for kids who participate in school sports. 

“For trans kids, who often experience alienation and stigmatization, participating on teams with their peers is especially important,” said Buchert. “Luc just wants to play golf with other boys, to be part of the team, and to improve his game. Like all kids, he just wants to play.”

Federal courts in Idaho and West Virginia have blocked anti-trans bills. A federal court in Connecticut dismissed a challenge to policies that allow trans girls to participate on girls’ sports teams. 
In addition to the anti-trans sports bill, Lee has also signed an anti-LGBTQ+ education bill, an anti-trans bathroom bill and a law banning gender-affirming care for trans youth this year.

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U.S. Federal Courts

Federal judge opens door to discriminate against LGBTQ+ people

The case has experts wondering if it will end up at the Supreme Court, too early to say whether the high court would consider the issue

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The Earle Cabell Federal Building & Courthouse, Dallas, Texas (Photo Credit: U.S. Courts/GSA)

DALLAS — A federal judge in Texas issued a ruling opening the door for private employers to use religion to shield against anti-LGBTQ+ discrimination claims. Attorneys and academics question whether the ruling will survive appellate review, according to Bloomberg Law.

Reed O’Connor, a U.S. district court judge for the Northern District of Texas, found that Christian-run businesses can legally discriminate against LGBTQ+ people, using the Religious Freedom Restoration Act (RFRA) and the First Amendment as the basis for the October 31, 2021, opinion. 

The ruling weighs questions left from the U.S. Supreme Court’s landmark decision in Bostock v. Clayton County, Ga — which extended Title VII of the Civil Rights Act of 1964 protections to LGBTQ+ people, guaranteeing an employer cannot fire an employee because of their sexuality or gender identity. 

Bear Creek Bible Church and Braidwood Management Inc. brought the challenge against the Equal Employment Opportunity Commission, seeking to “protect their ability to require their employees to live by the teachings of the Bible on matters of sexuality and gender.”

The EEOC told the Los Angeles Blade that they are reviewing the decision and have no comment at this time. 

According to Bloomberg Law, the decision is likely to be challenged in the U.S. Court of Appeals for the Fifth Circuit — which is dominated by Republican-appointed judges.

“While I firmly believe that the decision is so bad and contains so many errors that even the Fifth Circuit will reverse at least in part, what exactly they do, and the calculations thereafter are an unknown,” Gregory Nevins, senior counsel for Lambda Legal, told the news outlet. 

Nevins said one of the many flaws in O’Connor’s ruling was how it defined a class of “Religious Business-Type Employers.” O’Connor described the employers as being motivated by faith, though their incorporating documents lacked a religious purpose. According to Nevins, that classification could open the floodgates for businesses claiming to fall under that category. 

“This will be a rich vein to tap for civil procedure professors for decades to come,” Nevins told Bloomberg Law. 

The case has experts wondering if it will end up at the Supreme Court, but it is difficult to predict. David Lopez, co-dean at Rutgers University and former general counsel at the EEOC, told Bloomberg Law it’s too early to say whether the Supreme Court would consider the issue.

“I thought it was too dismissive of the public interest, compelling interest, in terms of eradicating discrimination,” he said. “That’s not a remarkable proposition—the court treated it as a remarkable proposition that needed to be defended.”

“I think it creates a pretty big carveout that certainly wasn’t contemplated,” he said.

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