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In a narrow ruling Supreme Court says abortion providers can sue Texas

The opinion stresses the ultimate merits question of whether the Texas law is constitutional “is not before the Court”

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

WASHINGTON – In a narrow ruling issued Friday, the U.S. Supreme Court said that abortion providers in Texas may sue the state over its nearly complete ban on the procedure, however the justices will let the law remain in effect while it continues to be challenged in the lower courts.

The 8-1 ruling comes more than a month after the high court heard arguments over the law colloquially referred to as Senate Bill 8, which bans abortion after six weeks of pregnancy and at a point when most women are still unaware they are pregnant.

The opinion written by Associate U.S. Supreme Court Justice Neil Gorsuch stresses the ultimate point merits question of whether the Texas law is constitutional “is not before the Court.”

The court’s ruling also stated that abortion providers can challenge the Texas law, but only Texas licensing officials can be sued, not anyone else like the state’s Attorney General.

The Court granted certiorari before judgment in this case to determine whether, under our precedents, certain abortion providers can pursue a pre-enforcement challenge to a recently enacted Texas statute. We conclude that such an action is permissible against some of the named defendants but not others.”

Legal experts are saying that today’s ruling is “at best only a partial victory for abortion providers.” They point out that the same U.S. District Court judge in Dallas who already has once blocked the law is almost certainly going to be asked to do so again.

Reacting to the ruling, the White House issued a statement by President Joe Biden:

I am very concerned by the Supreme Court’s decision to allow SB8 to remain in effect in light of the significant consequences that law has for women in Texas and around the country, and for the rule of law. As I have made clear from Day One, I am deeply committed to the constitutional right recognized in Roe v. Wade nearly five decades ago.
 
While it is encouraging that the Court ruled that part of the providers’ lawsuit may continue, this ruling reinforces that there is so much more work to be done—in Texas, in Mississippi, and in many states around the country where women’s rights are currently under attack. I will continue to work with Congress to pass the Women’s Health Protection Act. We have more work to do, but I will always stand with women to protect and defend their long-recognized, constitutional right under Roe v. Wade.”

Kierra Johnson, Executive Director, of the National LGBTQ Task Force reacted saying in a statement;

Today, the Supreme Court upheld the restrictive and discriminatory abortion ban in Texas to continue, which will harm women and pregnant people, especially in communities of color. People in Texas and states considering similar bans across the country will continue living in fear and a state of on-going legal battles to access constitutionally protected medical care.

The high court’s allowing abortion providers to file federal lawsuits against laws like Texas’ may seem like a step forward, but we know the truth: it can take years for cases to make their way through the courts. This decision creates a long road of more litigation, challenges and worst of all, obstacles for individuals seeing access to abortion and related reproductive healthcare.”

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U.S. Federal Courts

Justice Breyer announces his retirement from high court sets up new battle

President Joe Biden told reporters that he would have “more to say later” about Justice Breyer’s retirement

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U.S. Supreme Court Associate Justice Stephen Breyer (Photo Credit: SCOTUS official portrait)

WASHINGTON – U.S. Supreme Court Associate Justice Stephen Breyer, who had joined landmark decisions from the Court in support of LGBTQ rights, announced on Wednesday he’d retire, opening up a new battle over the judiciary and the potential for President Biden to add his first nominee to the high court.

First reported by NBC News, the retirement of Breyer, appointed by former Bill Clinton and confirmed in 1994, fulfills a wish among progressives for him to step down for him to step down to ensure a replacement would be named with Biden in the White House and Democrats in control of the U.S. Senate.

President Joe Biden told reporters that he would have “more to say later” about Justice Breyer’s retirement, but said that he was waiting for the justice’s own statement.

“There has been no announcement from Justice Breyer — let him make whatever statement he wants to make, and I’m happy to talk about it later,” the president remarked.

LGBTQ advocates immediately hailed Breyer upon his departure as they called on Biden to name a choice who would fulfill that same approach to the law for generations to come.

Sharon McGowan, chief strategy director and legal director for Lambda Legal, said in a statement Breyer “has been a reliable defender of the civil rights of LGBTQ+ people.”

“We strongly urge President Biden to select a nominee whose commitment to equal justice under law is beyond question, and whose record demonstrates their understanding that LGBTQ+ people are entitled to the full protection of the Constitution’s guarantees of equality and liberty,” McGowan said.

Breyer had joined each of the major decisions from the Supreme Court in favor of LGBTQ rights, which are all handed down during his tenure on the bench. Among them are earlier decisions in Romer v. Evans and Lawrence v. Texas as well as decision in favor in marriage equality in Windsor v. United States and Obergefell v. Hodges.

In Bostock v. Clayton County, which affirmed last year anti-LGBTQ discrimination is illegal under federal law, Breyer made the case during oral arguments Congress intended the Title VII of the Civil Rights Act of 1964 to help all vulnerable communities, which include include LGBTQ people.

“In the ’60s, we were only 10 years away from where people who were real slaves and discriminated against obtained a degree of freedom,” Breyer said. “And these statutes were all part of a civil rights movement that was designed to include in our society people who had been truly discriminated against for the worst of reasons. And at that time, this civil rights statute, when it was passed, would have put in the category gay people, transgender people as people who were suffering terrible discrimination.”

Biden, who during his presidential campaign said he’d appoint a Black woman to the Supreme Court, now has the opportunity to act on that commitment in the wake of Breyer’s retirement.

Ruben Gonzales, executive director of LGBTQ Victory Institute, said Biden should go a step further in that diversity and choose for the high court a Black LGBTQ woman.

“We urge President Biden to make history and appoint a Black LGBTQ woman to the U.S. Supreme Court,” Gonzales said. “With his previous commitment to nominate a Black woman, President Biden affirmed the important role diverse perspectives have on the bench and on the health of our democracy and society. There is a powerful pipeline of Black LGBTQ judges, officials and leaders who are more than qualified to fulfill this promise.

One possibility, named by Gonzales in his statement, Washington State Supreme Court Justice G. Helen Whitener. Another potential choice would be U.S. District Judge Staci Michelle Yandle, who was nominated by former President Obama and confirmed in 2014.

California Governor Gavin Newsom issued the following statement on the news that U.S. Supreme Court Justice Stephen Breyer is retiring:

“A San Francisco native and Stanford graduate, U.S. Supreme Court Justice Stephen Breyer has brought core California values to our nation’s highest court throughout his distinguished tenure, shaping impactful decisions to strengthen our democracy and change lives for the better.

“His critical contributions over nearly three decades serving on the court include landmark opinions upholding reproductive rights, safeguarding access under the Affordable Care Act and expounding on the need for greater control of tobacco products to protect public health.

“A hallmark of his legacy, Justice Breyer’s powerful critiques of the flawed and discriminatory death penalty system have bolstered California’s reforms and helped build nationwide momentum for a more just criminal justice system.

“California and the nation owe Justice Breyer a deep debt of gratitude for his tireless work to defend our highest constitutional values. At this pivotal moment, it’s imperative that the next Supreme Cout justice continue his work to create a brighter future for all.”

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U.S. Federal Courts

Supreme Court will hear challenges to affirmative action at Harvard & UNC

Six years ago, a divided court upheld the University of Texas’ consideration of race in its undergraduate admissions process

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

By Amy Howe | WASHINGTON – The Supreme Court on Monday agreed to reconsider the role of race in college admissions. In a brief order, the justices agreed to take up two cases asking them to overrule their landmark 2003 decision in Grutter v. Bollinger, holding that the University of Michigan could consider race as part of its efforts to assemble a diverse student body. The decision to grant review in the two new cases suggests that the court’s conservative majority is poised to do just that.

The cases are Students for Fair Admissions v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina. The court consolidated them for oral argument, and they likely will be argued early in the 2022-23 term, which begins in October.

Six years ago, a divided court upheld the University of Texas’ consideration of race in its undergraduate admissions process. Justice Anthony Kennedy wrote for the 4-3 majority in Fisher v. University of Texas, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. The composition of the court has changed significantly since then: Although Justice Elena was recused from the Texas case because she had been involved in it as the solicitor general of the United States, Kennedy retired in 2018 and was replaced by Justice Brett Kavanaugh, while Justice Amy Coney Barrett succeeded Ginsburg, who died in 2020.

It was therefore a much more conservative court that considered the latest petitions asking the justices to revisit the issue. Both petitions arose from long-running lawsuits filed by a group called Students for Fair Admissions. Founded by Edward Blum, a former stockbroker who also backed the challenger in Fisher (as well as the challengers in Shelby County v. Holder, the 2013 case that narrowed the Voting Rights Act), the group describes its mission as helping to “restore colorblind principles to our nation’s schools, colleges and universities.”

The first case, filed against Harvard University, contends that the university’s race-conscious admissions policy discriminates against Asian American applicants. According to the group, Asian Americans are significantly less likely to be admitted than similarly qualified white, Black, or Hispanic applicants. Both the district court and the U.S. Court of Appeals for the 1st Circuit upheld Harvard’s policy, prompting SFFA to come to the Supreme Court in February 2021. The group urged the justices to take up the case and overrule Grutter, describing the 2003 ruling as a decision that was “grievously wrong” and now “sustains admissions programs that intentionally discriminate against historically oppressed minorities” – in the past, Jewish students, and now Asian Americans. The group also asked the justices to weigh in on whether Harvard’s policy violates Title VI of the federal Civil Rights Act, which bans racial discrimination by entities receiving federal funding.

Harvard told the justices that there is no reason for them to intervene in the dispute. Its policy is consistent with the Supreme Court’s precedents, the university stressed, and SFFA’s allegations to the contrary rely on a “thoroughly distorted presentation of” the facts in the case. Harvard takes race into account “in a flexible and nonmechanical way” for the benefit of “highly qualified candidates.” And there is certainly no reason for the court to “overrule more than 40 years of decisions regarding the limited consideration of race in university admissions,” Harvard concluded.

The justices did not act on SFFA’s petition immediately. Instead, in June they sought the federal government’s views – a maneuver that had the effect  of delaying the case’s progression. In a brief filed in December, the Biden administration acknowledged that the Trump administration had supported SFFA in the lower courts, but it explained that it had “reexamined the case” and now recommended that the justices deny review.

The second case, filed against the University of North Carolina at Chapel Hill, the state’s flagship public university, argues that the university’s consideration of race in its undergraduate admissions process violates both Title VI and the Constitution. (Unlike Harvard, UNC is a public university and is therefore covered by the 14th Amendment’s guarantee of equal protection.) After a federal district court in North Carolina rejected SFFA’s arguments, the group came straight to the Supreme Court, asking the justices to take up the case, alongside the Harvard case, before the U.S. Court of Appeals for the 4th Circuit could rule.

UNC defended its admissions policy in the Supreme Court, telling the justices that it has also implemented programs to increase diversity without considering race – for example, by actively recruiting low-income and first-generation college students. But it concluded, it wrote, that there is no alternative that would create a student body “about as diverse and academically qualified as its holistic, race-conscious admissions process.” And although it acknowledged that the question at the center of the case is “indisputably important,” it stressed that there was no reason for the Supreme Court to take the “extremely rare” step of bypassing the court of appeals.

The justices considered both cases together at three consecutive conferences – on Jan. 7, Jan. 14, and Jan. 22 – before granting review on Monday and consolidating them.

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Amy Howe is the former editor and a reporter for SCOTUSblog and still is a contributor. She primarily writes for her eponymous blog, Howe on the Court.

Before turning to full-time blogging, she served as counsel in over two dozen merits cases at the Supreme Court and argued two cases there.

Amy is a graduate of the University of North Carolina at Chapel Hill and holds a master’s degree in Arab Studies and a law degree from Georgetown University.

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The preceding article was previously published by SCOTUSBlog and is republished by permission.

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U.S. Federal Courts

Supreme Court sends North Carolina healthcare discrimination suit back

NC State Health Plan appealed to the Fourth Circuit claiming it could not be sued because the state is protected by “sovereign immunity”

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Trans flag at U.S. Supreme Court by Michael Key, the Washington Blade

WASHINGTON – The U.S. Supreme Court denied the North Carolina State Health Plan’s petition this past week on Tuesday asking the Court to review a lower court ruling that the plan, a state entity, could be sued for denying comprehensive gender-affirming health care coverage to transgender state employees or their transgender dependents.

Lambda Legal and the Transgender Legal Defense & Education Fund (TLDEF) are suing the health plan, the North Carolina State Health Plan for Teachers and State Employees, for its blanket exclusion of coverage for gender-affirming health care services.

In September 2021, the U.S. Court of Appeals for the Fourth Circuit upheld a lower court ruling in Lambda Legal’s and TLDEF’s lawsuit, Kadel v. Folwell, rejecting the State’s claims that a state entity – in this case the state employee health plan – is protected by sovereign immunity, the legal doctrine that precludes bringing a lawsuit against the state without its consent. Lambda Legal and TLDEF sued the state health plan for violating the health care nondiscrimination law, enacted as Section 1557 of the Affordable Care Act.

In 2020, the U.S. District Court for the Middle District of North Carolina ruled that the North Carolina State Health Plan, a state entity, could be sued under claims that its actions violated the health care nondiscrimination law that is part of the Affordable Care Act, finding that by accepting federal financial assistance the state entity had waived its sovereign immunity. Unsatisfied and determined to continue denying health care coverage for transgender state employees, the State Health Plan appealed to the Fourth Circuit claiming it could not be sued because the state is protected by “sovereign immunity,” and arguing the text of Section 1557 of the ACA is not clear.

The Fourth Circuit decision from 2021 marked the first time that a federal appellate court in the United States has ruled that claims of ‘sovereign immunity’ do not protect state entities from liability under the Affordable Care Act if they receive federal funding.

Lambda Legal TLDEF filed Kadel v. Folwell in 2019 against North Carolina officials for discrimination in the state employee health care plan on behalf of several current and former state employees and their children who were denied coverage under the North Carolina State Health Plan (NCSHP) for medically necessary care.

“We are pleased that the Supreme Court decided not to review this case and that we can now focus on holding North Carolina’s State Health Plan accountable for its discriminatory and harmful refusal to provide comprehensive health care coverage – including for gender-affirming care – to all its state employees and their dependents,” said Lambda Legal Senior Attorney and Health Care Strategist Omar Gonzalez-Pagan.

“The Court’s denial leaves in place a court of appeals decision strongly affirming that it is unlawful and dangerous for state entities receiving federal funding to engage in discrimination in health care and that they are not immune from accountability in court. Entities, like The State Health Plan, must be held accountable when they discriminate and violate people’s rights. Today’s decision protects the rights of marginalized people, including LGBTQ people and people living with HIV, to seek justice and obtain relief in court if they are subjected to health care discrimination,” Gonzalez-Pagan added.

Plaintiffs Max Kadel and Julia McKeown courtesy Lambda Legal/TLDEF

“I am pleased with today’s decision, and I look forward for our case to prevail in court moving forward. Transgender state employees, like myself, deserve the same access to benefits and equal treatment as any other employee. We dedicate our time and talent to improve the wellbeing of the state and our neighbors, yet we are deprived of medically necessary and often life-saving health care services. This is an injustice,” Julia McKeown, assistant professor at North Carolina State University and a plaintiff said.

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