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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

Federal Court rules against Tennessee’s anti-Trans restroom sign law

“Today’s decision ensures that the businesses who welcome them are not forced to become instruments for politicians’ discrimination”

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Estes Kefauver Federal Building and Courthouse Annex Nashville, TN (Photo Credit: GSA/U.S. Courts)

NASHVILLE – A U.S. District Court on Tuesday struck down the Tennessee law that required businesses and other entities that allow transgender people to use the public restroom that matches their gender to post a government-prescribed warning sign.

The measure known as House Bill 1182 (SB 1224), requires businesses or government facilities open to the public to post a sign if they let transgender people use multi-person bathrooms.

On July 9, 2021, the court granted a preliminary injunction blocking the law from going into effect, and today’s ruling strikes down the law permanently.

According to the text of the law, language would be required to be included on the signs reading: “This facility maintains a policy of allowing the use of restrooms [or another type of accommodation] by either biological sex, regardless of the designation on the restroom.”

“We applaud the court for recognizing that this law violates the First Amendment and harms transgender people,” said Hedy Weinberg, ACLU of Tennessee executive director. “Transgender individuals should be able to live their lives free of harassment and discrimination. Today’s decision ensures that the businesses who welcome them are not forced to become instruments for politicians’ discrimination.”

Screenshot via WVLT CBS 8 Knoxville

In the U.S. District Court for the Middle District of Tennessee ruling, U.S. District Court Judge Aleta A. Trauger noted; “It would do a disservice to the First Amendment to judge the Act for anything other than what it is: a brazen attempt to single out trans-inclusive establishments and force them to parrot a message that they reasonably believe would sow fear and misunderstanding about the very transgender Tennesseans whom those establishments are trying to provide with some semblance of a safe and welcoming environment.”

“Transgender Tennesseans are real. The businesses and establishments that wish to welcome them are real. And the viewpoints that those individuals and businesses hold are real, even if they differ from the views of some legislators or government officials,” Judge Trauger added.

The lawsuit was filed on behalf of Bob Bernstein and his restaurant Fido, who objected to the stigmatizing message that would have been required by this law. Fido has informal policies that allow customers to determine which restroom is appropriate for them and has not had any complaints or concerns about their restroom policies.

“As a former journalist, I believe strongly in free speech,” said Bob Bernstein, owner of Fido, a restaurant in Nashville. “The government can’t just force people to post discriminatory, inaccurate, and divisive signs in their places of business. I am glad that the court recognized that this law violates the First Amendment.”

“We’re thrilled to see the court rule in support of transgender and non-binary lives today. This signage law was simple cruelty – and cruelty is unjust,” said Henry Seaton, ACLU of Tennessee transgender justice advocate. “We’ll continue our pursuit of trans justice to its fullest extent, and hope that the trans and non-binary community feels relief and hope from this ruling.”

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U.S. Federal Courts

Federal court blocks part of Alabama trans medical treatment law

“Kids in Alabama can now continue to receive this lifesaving care, & doctors cannot be prosecuted simply for doing their jobs”

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Hugo L. Black United States Courthouse, Birmingham, Alabama (Photo Credit: US Courts/DXR)

BIRMINGHAM, Ala. — In a 32 page ruling released Friday evening, U.S. District Judge Liles Burke preliminarily enjoined the state from enforcing the law criminalizing medical care for transgender minors in Alabama.

The law made it a felony for Doctors and licensed healthcare providers to give gender-affirming puberty blockers and hormones to transgender minors.

Burke, who was nominated to the bench by former President Donald Trump to serve on the U.S. District Court for the Northern District of Alabama, wrote that the section of the Alabama Vulnerable Child Compassion and Protection Act that makes treatment of trans minor children a felony; “the Court finds that there is a substantial likelihood that Section 4(a)(1)–(3) of the Act is unconstitutional and, thus, enjoins Defendants from enforcing that portion of the Act pending trial.”

Judge Burke however ruled that all other provisions of the Act remain in effect, specifically: (1) the provision that bans sex-altering surgeries on minors; (2) the provision prohibiting school officials from keeping certain gender-identity information of children secret from their parents; and (3) the provision that prohibits school officials from encouraging or compelling children to keep certain gender-identity information secret from their parents.

The U.S. Department of Justice had challenged the state’s  SB 184 – a bill that would criminalize doctors for providing best-practice, gender-affirming care to transgender and nonbinary youth.

In the filing by the Justice Department, the complaint alleges that the new law’s felony ban on providing certain medically necessary care to transgender minors violates the Fourteenth Amendment’s Equal Protection Clause. The department is also asking the court to issue an immediate order to prevent the law from going into effect.

S.B. 184 makes it a felony for any person to “engage in or cause” specified types of medical care for transgender minors. S.B. 184 thus discriminates against transgender youth by denying them access to certain forms of medically necessary care.

It further discriminates against transgender youth by barring them from accessing particular procedures while allowing non-transgender minors to access the same or similar procedures. The penalties for violating the law include up to 10 years of imprisonment and a fine of up to $15,000. S.B. 184 would force parents of transgender minors, medical professionals, and others to choose between forgoing medically necessary procedures and treatments, or facing criminal prosecution.

The United States’ complaint alleges that S.B. 184 violates the Equal Protection Clause by discriminating on the basis of sex and transgender status.

LGBTQ legal rights advocates SPLC, GLAD, NCLR, and HRC, joined by co-counsel King & Spalding LLP and Lightfoot, Franklin & White LLC, had previously filed a legal challenge in federal district court against Alabama SB 184.

Shannon Minter, the Legal Director for the National Center for Lesbian Rights, one of the legal rights advocacy groups who had sued Alabama told the Blade late Friday night:

“We are thrilled by this outcome, which will provide enormous relief to transgender children and their families. As the court recognizes, this is well established medical care that has been endorsed by 22 major medical associations. Thanks to this decision, kids in Alabama can now continue to receive this lifesaving care, and their doctors cannot be prosecuted simply for doing their jobs. This is a huge victory for compassion and common sense and a much needed antidote to the tidal wave of hostile legislation targeting these youth.”

In addition to the U.S. Justice Department,  the doctors challenging SB 184 in Ladinsky v. Ivey are Dr. Morissa J. Ladinsky and Dr. Hussein D. Abdul-Latif, both providers at the Children’s Hospital of Alabama and members of the medical staff at the University of Alabama at Birmingham Hospital and the teaching staff at UAB School of Medicine. Dr. Ladinsky and Dr. Abdul-Latif have long-term expertise in caring for transgender children of Alabama families. Under SB 184, they both face criminal penalties including up to 10 years in prison if they continue to provide that support to their patients.

The Alabama family plaintiffs are proceeding anonymously to protect their children. They include Robert Roe, and his 13-year-old transgender daughter Mary, of Jefferson County; and Jane Doe and her 17-year-old-transgender son John, of Shelby County. These families have deep ties to Alabama. If SB 184 is allowed to go into effect both families will be forced to choose between leaving the state, breaking the law, or facing devastating consequences to their children’s health.

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U.S. Federal Courts

Federal court overturns asylum ruling demanding man prove he’s gay

The initial ruling was the asylum bid was frivolous because he fabricated a key element of his application & failed to establish he’s gay

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Courtroom, 9th U.S. Circuit Court of Appeals (Photo Credit: Library of Congress/GSA)

SAN FRANCISCO – A three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously ruled against a U.S. Immigration judge’s finding that denied an asylum bid by a Nigerian man who says he is gay.

The court documents filed by Peter Udo asserted a fear of persecution or torture in Nigeria based on his status as a gay man and the harm he suffered after being discovered having sex with his boyfriend in a hotel.

According to Reuters, the U.S. Board of Immigration Appeals had affirmed an immigration judge’s ruling that Udo’s asylum bid was frivolous because he deliberately fabricated a key element of his application and failed to establish that he is gay.

Udo initially gave an asylum officer the name of a hotel that did not exist, later saying that he was afraid to identify the actual hotel, according to court filings.

But the location of the hotel is at best ancillary to Udo’s claims, the 9th Circuit said, “and is certainly not a material element.”

Udo fled Nigeria after being beaten and detained by Nigerian authorities filing a claim for political asylum in part based on the 2014 Nigerian law that criminalizes homosexuality, same-sex marriage, and same-sex relationships.

The 9th Circuit returned the case Wednesday to the U.S. Board of Immigration Appeals to reconsider Udo’s case.

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