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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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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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U.S. Federal Courts

Feds must evaluate Trans prisoner for gender-affirming care, judge rules

“Denied basic medical care to treat her gender dysphoria & housed in men’s prisons where she experienced severe physical and sexual violence” 

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Photo credit: U.S. Federal Bureau of Prisons

CHICAGO – A federal judge in Illinois ruled that the U.S. Federal Bureau of Prisons (BOP) must evaluate a trans woman incarcerated in Texas for gender-affirming surgery – a first of its kind ruling that could improve the treatment of trans prisoners across the country. 

In the ruling issued on Dec. 27 in the U.S. District Court for the Southern District of Illinois, Chief Judge Nancy Rosenstengel ruled that the Transgender Executive Council (TEC) within the BOP must evaluate a request from Cristina Nichole Iglesias – a 47-year-old trans woman who has been in custody for more than 27 years – for gender-affirming care by Jan. 24. 

If the TEC recommends Iglesias for gender-affirming care, the BOP’s medical director must assess Iglesias within 30 days and report to the court about progress on locating a surgeon. 

If the TEC decides not to recommend Iglesias for surgery, they must provide a detailed explanation to the court. 

“For years, Cristina has suffered greatly from the denial of appropriate healthcare and the constant threats to her life while in BOP detention,” said John Knight, LGBTQ Project director at the American Civil Liberties Union (ACLU) of Illinois. “Cristina has fought for years to get the treatment the Constitution requires. The court’s order removes the unnecessary hurdles and delays BOP has repeatedly constructed to prevent her from getting the care that she urgently needs.”

Iglesias has been seeking gender-affirming care since at least January 2016.

According to the ACLU of Illinois, the BOP has known Iglesias is a trans woman since she first arrived in prison in 1994. Yet, she was “denied basic medical care to treat her gender dysphoria and was housed in men’s prisons for more than two decades, where she experienced severe physical and sexual violence.” 

The ruling adds that BOP staff has “failed to protect her.”

In her ruling, Rosenstengel writes: “Iglesias has been on suicide watch multiple times while in BOP custody and has attempted self-harm. Iglesias has and will continue to endure mental and physical harms because of the BOP’s mistreatment of her gender dysphoria.”

Previously, the lawsuit resulted in Iglesias being transferred to a federal prison that aligns with her gender. According to the ACLU of Illinois, she is one of the few transgender prisoners ever moved to the correct prison. 

The court also found that the BOP’s unwritten criteria for delaying Iglesias’ transfer to a female facility and its denial of gender-affirming care were “forbidden post hoc justification[s] created in response to litigation.”

In an email to the Los Angeles Blade, the BOP declined to comment on the specifics of the ruling. However, a spokesperson did say, “The BOP’s team of subject-matter-experts provide a wide range of gender-affirming accommodations based on comprehensive and individualized assessments. These accommodations can include gender affirming surgical referral when deemed appropriate.”

“We hope that the order directing BOP to move forward will result in medically necessary and long overdue healthcare for Cristina—and, in time, for the many other transgender people in BOP’s custody who have also been denied surgery and other much-needed gender-affirming care,” Knight said. 

According to the ACLU of Illinois, there are currently 1,200 transgender prisoners in federal custody. To date, no prisoner has ever received gender-affirming surgery from the BOP.

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