What’s At Stake: US Supreme Court 2021-2022 Term

The 2021-2022 Supreme Court term begins on October 4, and will return to in-person arguments after a pause during the pandemic. On the docket are cases central to the issues National Council of Jewish Women (NCJW) cares about, including abortion rights, religion-state separation, and gun violence prevention. The term kicks off amid controversy over the Court’s increased use of the ‘shadow docket,’ in which they take cases on an emergency basis without oral arguments and transparency. However, the cases below, which NCJW is watching closely this term, will be on the ‘merits docket,’ where the Court receives full briefings, hears oral arguments, and delivers lengthy, signed opinions. The Court will continue to add cases throughout the term.

Reproductive Rights

Dobbs v. Jackson Women’s Health Organization

In 2018, the Jackson Women’s Health Organization, the only licensed abortion facility in Mississippi, challenged a newly-passed Mississippi law called the “Gestational Age Act,” which banned abortions after 15 weeks of pregnancy with exceptions for fetal abnormalities or medical emergencies. In direct contradiction to Roe v. Wade, this law barred abortions pre-viability. The district court first granted the clinic’s request for a temporary order blocking enforcement of the law and then granted a permanent injunction (or block) because it deemed the law unconstitutional for banning abortion before viability (set at 24 weeks). On appeal, the Fifth Circuit upheld the district court’s 2019 decision invalidating the law, but Thomas Dobbs, Mississippi State Health Officer, appealed to the Supreme Court. Given clear precedent set by Roe v. Wade and other abortion-related cases, it was troubling that the Supreme Court agreed to hear the case at all, and noteworthy that they decided to hear the case after Justice Amy Coney Barrett joined the court. The Court will decide whether all pre-viability bans are unconstitutional — a key holding in Roe that was upheld in subsequent Supreme Court decisions.

Oral Argument: December 1, 2021

Why We’re Watching: NCJW has long supported the protection of every person’s right to reproductive freedom, including safe and legal abortion. This case has potential to undo nearly 50 years of constitutional protection for abortion. NCJW co-authored an amicus brief joined by more than 50 faith organizations in support of Jackson Women’s Health Organization.

 

Cameron v. EMW Women’s Surgical Center

Although this case arose as a result of a challenge to a 2018 Kentucky anti-abortion law, the question raised in this case is a procedural one, specifically, whether Kentucky Attorney General Daniel Cameron could step in to defend the anti-abortion law after the state’s health secretary declined. In April 2018, EMW Women’s Surgical Center and two of its physicians — Drs. Tanya Franklin and Ashlee Bergin — sued Kentucky officials to block enforcement of a newly enacted ban on a standard abortion procedure, dilation and evacuation (or “D&E”), which would have prevented some patients from accessing abortion care altogether. Prior to the trial, the Attorney General (at the time, Andy Beshear) who was originally a party to the case, asked to be dismissed; after that request was granted, the Attorney General sat on the sidelines as the case went to trial. The district court issued a permanent injunction against the law going into effect, and after the case was appealed to the Sixth Circuit but before it was argued, Kentucky held elections. Then-Attorney General Andy Beshear was elected Governor, and Daniel Cameron was elected to be the new Attorney General. The Sixth Circuit struck down the ban and the new Democratic Governor and his Health Secretary refused to defend the law on further appeal. The Republican Attorney General, Daniel Cameron, asked the Sixth Circuit for permission to step in to defend the law and was refused. The question before the Court is whether the Kentucky Attorney General, after having asked to be dismissed from the case and sitting on the sidelines throughout, can step into the case at the last minute to try to reinstate the restriction after two lower courts struck it down.

Oral Argument: October 12, 2021

Why We’re Watching: The outcome of this case could allow Attorney General Cameron to pursue his goal of overturning the lower courts’ decisions and enforcing Kentucky’s abortion ban. The case indicates the extent to which abortion opponents will go to attempt to enforce unconstitutional abortion bans.

Religion-State Separation and Religious Liberty

Carson v. Makin

If a school administrative unit (SAU) in Maine is too small to establish their own public secondary school, they are allowed to pay the tuition for a student who has been accepted at a public school outside the area or an approved private school which, among other requirements, must be non-sectarian. Two families, including the Carsons, who live in an SAU that does not have its own secondary school have sued to be able to recoup tuition from a religiously-affiliated school attended by their children, claiming that it violates the free exercise clause of the First Amendment. The district court decision, affirmed by the First Circuit Court of Appeals, ruled in favor of the state’s exclusion of religiously affiliated schools from the program. The families appealed, and the question before the Court is whether Maine or any state violates the Constitution’s religion clauses or the equal protection clause by prohibiting students from using generally available student aid at religious or sectarian schools. Last year, the Supreme Court in a 5-4 decision ruled that the Montana state constitution violated the free exercise clause by barring religious schools and students from receiving public funding.

Oral Argument: December 8, 2021

Why We’re Watching: NCJW supports the use of public funds for public education only and believes that the separation of religion and state is a constitutional principle that must be preserved and protected to maintain our democratic society. If public funds are allowed to go to religious schools, they may be supporting schools that discriminate against LGBTQ individuals and others.

 

Shurtleff v. Boston

Although the city of Boston allows private organizations to temporarily raise their flags on one of the flagpoles outside of city hall, they turned down a request from Harold Shurtleff on behalf of Camp Constitution, an event that takes place at city hall, to run his group’s flag. The city contended that flying the flag—a Christian flag that features a Latin cross—would convey an endorsement of a particular religion in violation of the First Amendment’s establishment clause. Camp Constitution sued on the basis that the city’s refusal was a violation of free speech rights. Both the district court and the First Circuit Court of Appeals agreed with the city of Boston. On appeal, the Supreme Court will decide whether the city’s refusal is consistent with the First Amendment’s establishment clause or constitutes censorship of religious views in a public forum.

Oral Argument: TBD

Why We’re Watching: NCJW believes that the separation of religion and state are constitutional principles that must be protected and preserved in order to maintain our democratic society.

 

Ramirez v. Collier

John Ramirez was sentenced to death in Texas in 2004 for the murder of a store clerk. Ramirez sought an emergency stay because his request to have his pastor put his hands on him and pray aloud as he was executed was denied by Texas. Ramirez appealed to the federal courts and both the district court and Fifth Circuit denied his request. On appeal to the Supreme Court, on its shadow docket on September 8, 2021, his execution was stayed and a full hearing was scheduled by the Court. This case is one of several in recent years involving whether spiritual advisors could be present at executions. This case is different because it involves the nature of the spiritual aid that is allowed. Texas is arguing that, among other things, they are not violating Ramirez’s religion by failing to accommodate all of his religious needs. This case will decide whether the action by Texas violates Ramirez’s free exercise of religion as well as the Religious Land Use and Institutionalized Persons Act (RLUIPA) because, although the state is allowing the pastor to be present in the execution chamber, they are forbidding the pastor from touching Ramirez and praying aloud.

Oral Argument: November 1, 2021

Why We’re Watching: NCJW worked to pass RLUIPA and supports religious freedom for incarcerated persons.

Gun Violence Prevention

New York State Rifle and Pistol Association v. Bruen

Eight years ago, in the District of Columbia v. Heller case, the Supreme Court decided that Constitution protects the right of individuals to have guns in their homes. In this case, two individuals applied for concealed-carry licenses for their handguns for the purpose of self-defense. Their applications were denied because neither could “demonstrate a special need for self-protection distinguishable from that of the general community.” Both men sued on the basis of their Second Amendment rights, and both the district and Second Circuit dismissed their suit. The Supreme Court will decide whether the right that they have recognized for an individual to have a gun at home applies to carrying that firearm outside of the home for self-defense.

Oral Argument: November 3, 2021

Why We’re Watching: NCJW supports laws, policies, and programs that regulate firearms and prevent gun violence and promote gun safety. This case could jeopardize state and local efforts to enforce an/or enact commonsense gun violence prevention laws.