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U.S. Federal Courts

U.S. Justice Dept. seeks Supreme Court review on Texas abortion ban

“Women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution”

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

WASHINGTON – U.S. Justice Department lawyers filed an emergency appeal Monday with the U.S. Supreme Court after the U.S. Fifth Circuit Court of Appeals enjoined a lower court ruling that blocked enforcement of the Texas anti-abortion law.

The Justice Department is seeking the high court’s review in order to block the law while legal litigation continues over the controversial law that bans abortion after six weeks, a point at which many women are unaware they are pregnant.

The Biden administration wants to block the law’s enforcement while a lower Federal court in Austin, Texas, addresses the underlying constitutional questions raised in the challenge to the law.

Last week in a late night filing the Justice Department petitioned the U.S. 5th Circuit Court of Appeals to reverse its ruling that allows the controversial Texas abortion ban law known as SB8 temporarily reinstated.

In its brief Justice Department attorneys argued that if the law is upheld, states could violate any right provided they left enforcement up to private citizens and not the state itself. “If Texas’s scheme is permissible, no constitutional right is safe from state-sanctioned sabotage of this kind,” the Justice Department stated then added, “A stay would prolong [the law’s] substantial harm to the United States’ sovereign interests and would disserve the public interest.”

In a late Friday evening ruling two weeks ago, a three Judge panel of the U. S. Fifth Circuit Court of Appeals temporarily overturned an injunction issued by U.S. District Court Judge Robert Pitman that had blocked Senate Bill 8, the Texas abortion ban, from being enforced.

A three-judge panel of the 5th Circuit released a one-paragraph order last Thursday allowing the law to remain in effect after the appeal by the Justice Department.

In its appeal the lawyers for the Justice Department argued that the law “is plainly unconstitutional under this court’s precedents […] And Texas’s insistence that no party can bring a suit challenging S.B. 8 amounts to an assertion that the federal courts are powerless to halt the state’s ongoing nullification of federal law. That proposition is as breathtaking as it is dangerous.”

Because the case was filed on the high court’s emergency docket, the justices are likely to move swiftly legal experts say – possibly within a matter of days – to take it up. 

Writing in his 113 page order, U.S. District Court Judge Robert Pitman, who blocked enforcement of S.B. 8 labeled the law an “offensive deprivation of such an important right” referring to women’s reproductive rights then added;

“A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established,” Pitman wrote. “Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, (Texas) contrived an unprecedented and transparent statutory scheme to do just that.”

Pitman also took aim at the provisions in the law that allows any private individual to sue abortion providers or those who aid and abet procedures that violate the law. Successful litigants can collect $10,000 under the law’s provisions.

“The State created a private cause of action by which individuals with no personal interest in, or connection to, a person seeking an abortion would be incentivized to use the state’s judicial system, judges, and court officials to interfere with the right to an abortion,” he wrote.

Pitman then called out the Republican lawmakers who drafted the measure: “There can be no doubt that S.B. 8 was a deliberate attempt by lawmakers, notably its author, State Senator Bryan Hughes, to “find another way” around resistance to enforcement of laws criminalizing abortion.”

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U.S. Federal Courts

Methodist children’s home sues HHS citing religious freedom violations

Federal rules ban discrimination on the basis of sex, religion, sexual orientation and gender identity and recognize same-sex marriage

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James H. Quillen United States Courthouse, Greenville, TN (Photo Credit: GSA/US Courts)

GREENVILLE, Tn. – The Holston Home, which is affiliated with the Holston Conference of the United Methodist Church and operates as an orphanage, foster agency and adoption agency, filed a federal lawsuit Thursday alleging that its religious beliefs were violated by federal rules that it must place children with same-sex couples.

The organization based in Greeneville, located an hour West of Johnson City in Eastern Tennessee, claimed in the suit against the U.S. Department of Health and Human Services (HHS) that “It would substantially burden Holston Home’s exercise of its religious beliefs to knowingly engage in child placing activities in connection with couples who may be romantically cohabitating but not married, or who are couples of the same biological sex.”

The DHS Federal rules in place were first implemented under the Obama Administration, requiring social service agencies which receive federal monies refrain from discrimination on the basis of sex, religion, sexual orientation and gender identity and recognize same-sex marriages as legally valid.

Under the former Trump administration, that rule was reversed to read; “Given the careful balancing of rights, obligations, and goals in the public-private partnerships in federal grant programs, the Department believes it appropriate to impose only those nondiscrimination requirements required by the Constitution and federal statutes.”

The Biden administration reversed religious exemptions that the Trump administration granted.

The Holston suit also claims; “The messages Holston Home recites in its child placing activities are consistent with Holston Home’s religious beliefs about cohabitation, and about
marriage being between a biological male and a biological female.”

The anti-LGBTQ extremist hate group Alliance Defending Freedom, a Scottsdale, Arizona far-right legal group is representing Holston in this case.

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U.S. Federal Courts

Anti-LGBTQ hate group asks Supreme Court to reverse 11th Circuit ruling

“No one is trying to suppress anyone’s right to believe in their own faith- They’re making it look like we’re attacking religious freedom”

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Screenshot via Fort Lauderdale Sun-Sentinel video 2017

WASHINGTON – The D. James Kennedy Ministries (DJKM), the Coral Ridge, Florida based anti-LGBTQ+ Christian group petitioned the U.S. Supreme Court to overturn a ruling by a lower Federal court that dismissed DJKM’s defamation lawsuit against the Southern Poverty Law Center (SPLC).

DJKM, which has been defined as an extremist hate group on by the Southern Poverty Law Center for lies and propaganda smearing LGBTQ+ people on its hate-watch map and list, filed a brief with the High Court on November 24.

In its appeal brief, DJKM, represented by the National Center for Law and Liberty (NCLL), asks the Court to reconsider its 1964 decision in New York Times v. Sullivan, a ruling which created a high bar for “public figures” to win defamation suits.

The 11th Circuit Court of Appeals rejected DJKM’s defamation suit based on the Times v. Sullivan standard.

Sullivan requires “public figures” to demonstrate “actual malice” on the part of defendants in defamation suits.

In so doing, bringing a civil suit that seeks damages for defamation brought by a person in the public eye becomes an almost impossible task, depriving that individual of the opportunity to defend their reputation, the legal brief claims.

“That gives reputational terrorists like the SPLC carte blanche to attack and destroy its ideological enemies,” said Dr. Frank Wright, President and CEO of DJKM.

“We are asking the Court to give us and similarly situated ministries and individuals the ability to bring a claim for reputational harm that is currently denied under Sullivan.”

Founded by D. James Kennedy who spent nearly 50 years at Coral Ridge Presbyterian, which the group was originally called. Kennedy was known nationally for the “Coral Ridge Hour,” which was one of the highest rated syndicated religious programs on broadcast TV — and for his opposition to same-sex marriage, abortion, pornography, fetal stem cell research and the teaching of evolution. Kennedy died in September 2007 at age 76.

In a 2017 interview with the Sun-Sentinel in Fort Lauderdale as the news broke that DJKM had sued the SPLC, the ministries’ arguments against SPLC in the suit aren’t as simple as it portrays, Fort Lauderdale Commissioner Dean Trantalis told the paper.

Before he became the city’s first openly gay commissioner, he was a community activist who tangled with Kennedy and his organization over its stand on LGBT issues.

Trantalis said the Kennedy Ministries isn’t being persecuted for its religious views. “No one is trying to suppress anyone’s right to believe in their own faith,” he said. “This is a continuation of an effort to make Christian as much of America as possible. … They’re just rebranding their message and making it look like we’re attacking their religious freedom.”

“Let’s not forget the legacy of D. James Kennedy,” Trantalis said, recalling the environment in the late 1990s and early 2000s. He said Kennedy stood with people opposed to LGBT rights “and supported everything that they said to denigrate the LGBT community at that time.” Trantalis pointed to his support for “reparative therapy in which he strongly advocated trying to ‘pray away the gay,’ and to force young kids into trying to deny their sexual orientation.”

“They may not want to bring up those episodes of the past. They perhaps remember him in a different way. But this community will never forget the legacy that he leaves behind,” he said.

Labeling the SPLC as a “watchdog/Left-wing advocacy group” the suit alleges that the SPLC classified DJKM as a “hate group” for teaching the traditional, Biblical position on marriage and sexuality.

The lawsuit also claims that because of SPLC’s false and defamatory label, DJKM has suffered reputational injury and financial harm from both increased security expenses and decreased donations.

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U.S. Federal Courts

Supreme Court justices appear to lean towards overturn of Roe v. Wade

If the justices overturn Roe and Casey, the Guttmacher Institute estimates that 26 states will implement complete bans on abortion

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The justices of the U.S. Supreme Court (Photo Credit: US Supreme Court)

WASHINGTON – The justices of the U.S. Supreme Court heard oral arguments Wednesday, in Dobbs v. Jackson Women’s Health Organization, a case involving a Mississippi law that bans nearly all abortions after 15 weeks of pregnancy. 

Mississippi Solicitor General Scott Stewart began by arguing the court’s abortion rulings have “poisoned the law.”

“Roe vs. Wade and Planned Parenthood versus Casey haunt our country,” Stewart said. “They have no basis in the Constitution. They have no home in our history or traditions. They’ve damaged the democratic process. They poison the law. They’ve choked off compromise. For 50 years they’ve kept this court at the center of a political battle that it can never resolve and 50 years on, they stand alone. Nowhere else does this court recognize a right to end a human life.”

According to observers in the courtroom, most of the six conservative justices appeared to agree. “The Constitution is neither pro-life nor pro-choice on abortion,” Justice Brett M. Kavanaugh said.

NBC News Chief Justice Correspondent Pete Williams noted; “It’s pretty clear that Miss. law is going to survive and that the standard that the Supreme Court has used for 50 years to decide when states are violating its rules on banning abortion, of viability, banning it before the fetus is viable, is dead.”

Mississippi’s Gestational Age Act, passed in 2018 but has been blocked by two lower federal courts, allows abortion after 15 weeks “only in medical emergencies or for severe fetal abnormality” and has no exception for rape or incest. If doctors perform abortions outside the parameters of the law, they will have their medical licenses suspended or revoked and may be subject to additional penalties and fines.

Jackson Women’s Health Organization, the only licensed abortion provider in the state, went immediately to federal court to challenge the law, arguing that it is unconstitutional under the Supreme Court’s previous rulings including Roe v. Wade, which was decided in 1973.

Solicitor General Elizabeth Prelogar urged the justices to uphold precedent and avoid a ruling that would disproportionally harm women who have come to depend upon the decision, CNN reported.

“For a half century, this Court has correctly recognized that the Constitution protects a woman’s fundamental right to decide whether to end a pregnancy before viability,” she argued. “That guarantee, that the state cannot force a woman to carry a pregnancy to term and give birth, has engendered substantial individual and societal reliance. The real-world effects of overruling Roe and Casey would be severe and swift,” Prelogar told the justices.

She added: “The court has never revoked a right that is so fundamental to so many Americans and so central to their ability to participate fully and equally in society.”

A U.S. District Court had blocked the Mississippi law, holding that it is in direct violation of Roe v. Wade, the precedent legalizing abortion nationwide prior to viability, which can occur at around 23-24 weeks of pregnancy.

A panel of judges on the 5th US Circuit Court of Appeals agreed ruling that “unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed and re-affirmed) a woman’s right to choose an abortion before viability.”

The Circuit Court said states may “regulate abortion procedures prior to viability” so long as they do not ban abortion. “The law at issue is a ban,” the court stated.

In an analysis published by SCOTUS blog, Amy Howe noted;

If the justices overturn Roe and Casey, the Guttmacher Institute estimates that 26 states (including Mississippi) will implement complete bans on abortion. Although the stakes in the case are thus obviously high, Mississippi takes pains to assure the justices that overruling Roe and Casey would not have ripple effects beyond abortion rights. It distinguishes abortion from other constitutionalized privacy interests, such as interracial marriage and same-sex marriage, saying that those interests – unlike abortion – do not involve the “purposeful termination of a potential life.”

But a “friend of the court” brief supporting the state argues that the effects would be much more expansive than Mississippi suggests. The brief filed by Texas Right to Life (whose counsel of record, Jonathan Mitchell, was the architect of Texas’ six-week abortion ban) tells the justices that the court’s decision in Loving v. Virginia, establishing the right to interracial marriage, would survive if Roe were overruled because the Civil Rights Act of 1866 “provides all the authority needed” to strike down a state law banning interracial marriage. However, the group adds, the court’s decisions in Lawrence v. Texas, striking down a Texas law prohibiting gay sex, and Obergefell v. Hodges, holding that the Constitution guarantees a right to same-sex marriage, would necessarily fall because they are “as lawless as Roe.”

In a statement to the Blade after the arguments had concluded, Shannon Minter, the Legal Director for the National Center for Lesbian Rights (NCLR) warned;

Today’s arguments should be a wakeup call for LGBTQ people. We must face the reality of a Supreme Court packed by one of the most reactionary presidents of our time, and we must get serious about passing a federal law that protects basic rights and liberties for our community. If you care about LGBTQ equality, it is essential as never before to do everything within your power to elect fair-minded local, state, and federal officials and to engage in real dialogue with those who do not yet fully understand or support LGBTQ people. We do not have the luxury of disengagement or passivity. If you are not actively involved in supporting a federal civil rights law for LGBTQ people, you are part of the problem.”

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