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Draft of Supreme Court opinion overturning Roe leaked

“This draft opinion is an appalling attack on the rights of women across this country & it will destroy lives & put countless women in danger”

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The Justices of the Supreme Court of the United States (Photo Credit: Supreme Court of the United States)

WASHINGTON – In a stunning revelation published Monday evening in Politico, an initial draft majority opinion written by Justice Samuel Alito disclosed that the U.S. Supreme Court is poised to strike down the landmark 1973 Roe v. Wade decision.

According to Politico’s reporting; “The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision – Planned Parenthood v. Casey – that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.”

The unprecedented disclosure marks the first time in the modern history of the Court that an opinion has leaked while a case is still pending. If issued, the ruling would pave the way for a majority of states to criminalize abortion — a devastating reality for millions of American women and transgender and nonbinary people, who rely on safe, legal abortion care.

Senior legal writer for Slate magazine, Mark Joseph Stern noted that Justice Alito’s draft opinion explicitly criticizes Lawrence v. Texas (legalizing sodomy) and Obergefell v. Hodges (legalizing same-sex marriage). He says that, like abortion, these decisions protect phony rights that are not “deeply rooted in history.”

A lawyer contacted by the Blade who asked to speak on background said that the greater issue for the LGBTQ+ community and Americans in general is that should the court proceed with the draft in present form, which although may seem unlikely, it sends a clear signal that the high court cannot be trusted to protect and preserve the rights of minority citizens.

In the draft Alito writes; “We hold that Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” With the current political climate leaning against LGBTQ+ Americans as evidenced by passage of a litany of anti-Trans laws, Don’t Say Gay measures, and book bans, “this points to the immediate need to raise the alarm,” the lawyer continued.

Equality California, the nation’s largest statewide LGBTQ+ civil rights organization released the following statement from Executive Director Tony Hoang in reaction to POLITICO’s reporting and the draft opinion:

“Abortion is healthcare. Abortion is essential. Abortion is a fundamental human right.

“There is nothing the Supreme Court can do to change that. There is nothing five or six justices can do to stop people from needing and seeking abortion care. What they can do — and what overturning Roe will do — is cost people their lives and livelihoods. Women. Transgender and nonbinary people. Our mothers and sisters and friends and neighbors and colleagues.

“Shame on us if we let this stand. We must organize, mobilize and vote like our lives depend on it. Because they do.”

Reaction to the leaked document from politicians and others came swiftly as word spread of the Politico report.

New York Governor Kathy Hochul released a statement saying;

“I am horrified by the apparent draft Supreme Court opinion leaked this evening that would overturn the right to abortion guaranteed by Roe v. Wade. For the sake of women across the country, this should not be the Supreme Court’s final opinion when it comes to abortion rights.

“We have been fighting this battle for too long. I refuse to go backwards. I refuse to let my new granddaughter have to fight for the rights generations have fought for and won, rights that she should be guaranteed.

“For anyone who needs access to care, our state will welcome you with open arms. New York will always be a place where abortion rights are protected and where abortion is safe and accessible. Just as the Statue of Liberty lifts her lamp tall in our harbor, New York will never stop fighting for what’s right — unafraid and undeterred.”

Politico did point out that deliberations on controversial cases have in the past been fluid. Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled. The court’s holding will not be final until it is published, likely in the next two months.

The court is expected to rule on the case before its term is up in late June or early July.

The Los Angeles Blade spoke with Shannon Minter, the Legal Director of the National Center for Lesbian Rights (NCLR) who told the Blade;

“That someone leaked this opinion–violating the Court’s most sacrosanct rule of confidentiality–speaks volumes about how extreme and dangerous much of the Court’s jurisprudence has become. We don’t know if this will be the final decision, but it is shocking to read this assault on an established fundamental right. A court that would issue an opinion like this–if it does–is a court that has abandoned any pretense of protecting individual freedom.

It would be harder for the court to hold that there is no fundamental right to marry or to sexual privacy, as any such decision would apply to both gay and straight people, but it would be foolhardy to predict how extreme this court may become. LGBTQ people should recognize that we are once again in the crosshairs and that all of our hard-won protections are under serious threat.

We have become too accustomed to counting on the courts for protection, and we must realize the days when we could safely do so are past. Our hope lies in joining forces with others who are fighting to protect democracy and the rule of law and to prevent our country from sliding into the same authoritarianism that is rising across the globe.”  

In Sacramento Monday evening, Governor Gavin Newsom issued a statement regarding a draft U.S. Supreme Court opinion that would overturn Roe v. Wade:

“This draft opinion is an appalling attack on the rights of women across this country and if it stands, it will destroy lives and put countless women in danger. It will be the end of fundamental constitutional rights that American women have had for nearly 50 years.

“This is not an isolated incident, and it is not the end. We have a Supreme Court that does not value the rights of women, and a political minority that will stop at nothing to take those rights away. This won’t stop with choice and the right to privacy. They are undermining progress, and erasing the civil protections and rights so many have fought for over the last half century.

“I’m furious that my own daughters and sons could grow up in an America that is less free than the one they were born into. We have to wake up. We have to fight like hell. We will not be silenced.”

Calif. State Senator Scott Wiener (D-SF) noted; “California unequivocally stands for the right to an abortion, no matter what the right-wing zealots on the Supreme Court say. We will fight hard to expand abortion access, here and in other states.”

A senior Democratic Senator, Tammy Baldwin, (WI) who is openly Out tweeted her disgust at the leaked draft.

Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”

Justice Samuel Alito in an initial draft majority opinion

POLITICO received a copy of the draft opinion from a person familiar with the court’s proceedings in the Mississippi case along with other details supporting the authenticity of the document. The draft opinion runs 98 pages, including a 31-page appendix of historical state abortion laws. The document is replete with citations to previous court decisions, books and other authorities, and includes 118 footnotes. The appearances and timing of this draft are consistent with court practice.

Link to full Politico article and the draft document here: https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473

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U.S. Federal Courts

Ketanji Brown Jackson sworn in as 116th justice of the U.S. Supreme Court

“It has taken 232 years and 115 prior appointments for a black woman to be selected to serve on the Supreme Court of the United States”

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Screenshot/YouTube SCOTUS TV via the Associated Press

WASHINGTON – In oaths administered by the Chief Justice John Roberts and outgoing Associate U.S. Supreme Court Justice Stephen Breyer, Judge Ketanji Brown Jackson was sworn in as the 116th justice of the U.S. Supreme Court.

The 51 year-old Justice Jackson made history as the first-ever black woman sworn in as a justice on the U.S. Supreme Court. She replaces Justice Breyer, whose resignation from the Supreme Court becomes effective at noon Thursday (Eastern) after his nearly 28 years of service on the nation’s high court.

In the simple ceremony held at the Court, Jackson in the constitutional oath, given by Chief Justice Roberts, solemnly swore to defend the Constitution “against all enemies, foreign and domestic,” and “bear true faith and allegiance to the same.”

Justice Breyer gave her the statutory oath, in which Jackson swore to “administer justice without respect to persons, and do equal right to the poor and to the rich.”

The newly sworn-in Associate Justice was joined by her husband, Dr. Patrick Jackson, and their two daughters, Talia and Leila.

The court will hold another formal inaugurating ceremony, called an investiture, in the fall, Roberts said. But Thursday’s ceremony allows her to immediately begin work as the newest member of the nine-seat Supreme Court.

Nominated by President Biden and confirmed by the Senate, in April at a ceremony on the South Lawn of the White House, addressing the audience of members of Congress, the Biden Cabinet, and White House staff along with family and invited guests, Justice Jackson noted;

“As I take on this new role, I strongly believe that this is a moment in which all Americans can take great pride. We have come a long way towards perfecting our union. In my family, it took just one generation to go from segregation to the Supreme Court of the United States.” 

As the first Black woman to be nominated to serve on the nation’s highest court which she noted in her remarks:

“It has taken 232 years and 115 prior appointments for a black woman to be selected to serve on the Supreme Court of the United States. But we’ve made it,” she said, to applause from the crowd. “We’ve made it, all of us, all of us. And our children are telling me that they see now, more than ever, that here in America anything is possible.“

Quoting Maya Angelou, an American author, poet and civil rights activist, “I am the hope and the dream of the slave,” Jackson said.

In statement issued by the White House, President Biden traveling back from the NATO conference in Madrid aboard Air Force One said:

“I am honored that the very first judicial nominee I selected as President – the brilliant lawyer who became “Judge Jackson” – has now become “Justice Jackson.” 

Her historic swearing in today represents a profound step forward for our nation, for all the young, Black girls who now see themselves reflected on our highest court, and for all of us as Americans. 

The Supreme Court just gained a colleague with a world-class intellect, the dignified temperament the American people expect of a justice, and the strongest credentials imaginable.  

Justice Jackson is a former public defender who served for almost a decade as a district and circuit judge.  Her nomination was endorsed by top legal experts across the political spectrum, as well as our country’s leading law enforcement organizations.  In her career, she has been confirmed four times by the U.S. Senate with bipartisan support.

She is the daughter of educators and the niece of a police chief—and she too has devoted her life to public service. 

She is also the embodiment of hard work, grace, and perseverance.

Justice Jackson’s wisdom and experience, will make all of us proud for so many years to come.

Like I said after her confirmation, Justice Jackson’s ascension to the highest court in the land makes the sun shine on so many of us in a new way.

Justice Jackson succeeds another extraordinarily brilliant jurist who has also devoted their life to their country, including in the U.S. Army as a teenager and on the Watergate Committee  – Justice Steven Breyer. Justice Breyer’s integrity and his commitment to ensuring our nation’s laws worked for the people have made him beloved by his colleagues and deeply respected across our country. I thank him again for his many years of exemplary service.”    

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U.S. Supreme Court upholds Biden’s ability to enforce immigration laws

In its 5-4 ruling the high court said that the president may repeal the Trump-era ‘remain in Mexico’ policy

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Screenshot/YouTube NBC News

WASHINGTON – The U.S. Supreme Court on Thursday in a 5-4 ruling said the Biden administration can end a policy that forced asylum seekers to pursue their cases in Mexico.

The previous White House’s Migrant Protection Protocols program, which became known as the “Remain in Mexico” policy, took effect in 2019.

The Biden administration suspended MPP enrollment shortly after it took office in January 2021. The program was to have ended six months later, but a federal judge in Texas ordered MPP’s reinstatement after the state and Missouri filed suit against the Biden administration.

Thursday’s ruling sends the Texas and Missouri case back to lower courts.

“As Secretary Mayorkas concluded in October 2021 after a thorough review, the prior administration’s Migrant Protection Protocols (MPP) has endemic flaws, imposes unjustifiable human costs and pulls resources and personnel away from other priority efforts to secure our border,” said the Department of Homeland Security in a statement. “We welcome the Supreme Court’s decision affirming that the Secretary has the discretionary authority to terminate the program, and we will continue our efforts to terminate the program as soon as legally permissible.” 

U.S. Sen. Alex Padilla (D-Calif.) also welcomed the ruling.

“Today’s Supreme Court decision correctly acknowledges the Biden administration’s authority to end the unlawful and cruel ‘Remain in Mexico’ program,” he said in a statement. “For more than three years, this horrifying policy has denied asylum seekers their right to due process and subjected them to crimes like rape, kidnapping and torture in northern Mexican border cities while they await their court hearings.”

Advocates sharply criticized MPP, in part, because it made LGBTQ+ and intersex asylum seekers who were forced to live in Tijuana, Ciudad Juárez, Reynosa, Matamoros and other Mexican border cities even more vulnerable to violence and persecution based on their sexual orientation and gender identity.

[email protected] Coalition President Bamby Salcedo on Thursday told the Los Angeles Blade the Supreme Court ruling “will certainly impact our community in a positive way.”

“We know that people who have to remain in Mexico to wait continue to be victims of violence,” said Salcedo. “This is definitely a step in the right direction and we’re grateful that this happened in this way.”

Emilio Vicente, communications and policy director of Familia: TQLM, an organization that advocates on behalf of Transgender and gender non-conforming immigrants, echoed Salcedo.

“We’re glad to finally have some good news from the Supreme Court after horrible rulings on abortions, climate change, Native American rights,” said Vicente. “Ending ‘Remain in Mexico’ will allow LGBTQ+ asylum seekers who face increased discrimination and abuse during the journey to the U.S., to be able to seek asylum here.” 

Abdiel Echevarría-Cabán is a South Texas-based immigration attorney and human rights law and policy expert who the LGBTQ+ Bar in 2021 recognized as one of its 40 best LGBTQ+ lawyers who are under 40.

He told the Blade on Thursday the Supreme Court ruling is “a victory we must celebrate.” Echevarría-Cabán also said MPP placed LGBTQ+ and intersex asylum seekers at increased risk. 

“Refugees in general, but especially LGBT refugees, are extremely vulnerable to other type of harms such as kidnappings by cartel members, extortion, physical and psychological abuses from Mexican law enforcement authorities and third parties given the high levels of discrimination for LGBT refugees in Mexico,” said Echevarría-Cabán.

The Supreme Court issued its ruling a day after the Justice Department filed charges against four people in connection with the deaths of 53 migrants who were found in the back of a tractor trailer truck in San Antonio.

The Biden administration in April announced its plans to terminate Title 42, a Centers for Disease Control and Prevention rule that closed the Southern border to most asylum seekers and migrants because of the pandemic. Title 42 was to have ended on May 23, but a federal judge ruled against the White House.

“This decision isn’t the end of the fight for ensuring that people seeking asylum get asylum but it’s an important step in protecting vulnerable people,” Vicente told the Blade after Thursday’s ruling. “President Biden must follow through on his commitment to end MPP and protect all asylum seekers.”

Salcedo noted to the Blade the “system, as it is, particularly when it comes to trans women, needs to be completely changed so that we can be at a better place as a community.” Padilla in his statement urged the Biden administration “to do everything in its power to swiftly end ‘Remain in Mexico’ once and for all.”

“Misguided and inhumane Trump-era policies like ‘Remain in Mexico’ and Title 42 have only decimated an already broken immigration system,” he said. “We must keep working to restore the lawful processing of asylum seekers at the border, in keeping with America’s most deeply held values as a nation of immigrants.”

The Department of Homeland Security in its statement notes Title 42 remains in place.

“The department also continues to enforce our immigration laws at the border and administer consequences for those who enter unlawfully, and will continue the court-mandated enforcement of the Centers for Disease Control and Prevention’s Title 42 public health order,” it reads.

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U.S. Federal Courts

Supreme Court sides with ex-football coach who led prayers at school

“Justice Gorsuch’s majority opinion is yet another dangerous example of this Court overturning decades of precedent”

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The Justices of the United States Supreme Court (Photo Credit: U.S. Supreme Court)

WASHINGTON – The U.S. Supreme Court on Monday in a 6-3 ruling sided with the former Bremerton, Washington assistant high school football coach removed for refusing to halt his practice of praying at mid-field after games on school property.

The ruling is a victory for Joseph Kennedy, who in court documents described himself as 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.

The case eventually ended up at the high court which agreed to hear it at the beginning of this last term in January.

Joseph Kennedy being interviewed by NBC News affiliate KING-TV 5, Seattle, Washington

Reaction from groups advocating for greater safeguards in separation of ‘church and state’ decried the majority decision written by Trump nominated Associate Justice Neil Gorsuch.

Equality California noted that the Court’s ruling in Kennedy v. Bremerton School District effectively was overturning decades of established legal precedent.

“Justice Gorsuch’s majority opinion is yet another dangerous example of this Court overturning decades of precedent to impose the personal religious beliefs of some on the rest of the country — whether that be a public school football coach’s religious beliefs on his team, a legislator’s views on people in their state seeking abortion care or the views of a religious private school on taxpayers now forced to fund them.

“Parents have always been free to send their children to schools that align with their religious beliefs, and coaches who want to lead their players in prayer have always been free to work at private schools where that is encouraged. But students — of any religion or none at all — attending public schools funded by taxpayers should not be coerced into school-sponsored prayer,” Equality California’s Executive Director, Tony Hoang, said in an emailed statement.

“Every public school student deserves to feel safe, supported and welcome at school. Today’s decision undermines that fundamental idea at a particularly dangerous time for our LGBTQ+ students.”

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