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.
Updated March 2022
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.
Decision: In a decision very similar to the one leaked to the public in May, the Court ruled on June 24, 2022 6-3 in favor of Mississippi’s severe abortion ban. Five justices joined Justice Alito in explicitly reversing Roe v. Wade and Planned Parenthood of SE Pennsylvania v. Casey, ending constitutional protection for abortion rights and ignoring 50 years of legal precedent. (Chief Justice Roberts supported a narrower ruling.) Justice Thomas called for the reconsideration of other decisions such as marriage equality, access to contraception, and protection of same-sex intimacy. This devastating decision immediately threw the issue to state legislatures. Thirteen states have trigger laws designed to ban abortion now that Roe is gone, and a majority of states already have abortion restrictions or bans on the books. In a jointly written dissent, Justices Breyer, Kagan, and Sotomayor decried the “curtailment of women’s rights, and of their status as free and equal citizens.”
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.
Decision: On March 3, 2022, in an 8-1 decision, the court ruled that Attorney General Cameron should have been allowed to intervene in the challenge to Kentucky’s anti-abortion law even after it was struck down by the Sixth Circuit Court of Appeals. The decision was solely about the process and did not involve the substance of the law. In her dissent, Justice Sonya Sotomayor warned that the decision would make it easier for officials to undo litigation decisions previously made by officials of another party.
Whole Woman’s Health v. Jackson
United States v. Texas
On September 1, Texas’ extreme abortion ban, SB 8, went into effect, preventing people from exercising their constitutional right to abortion. The law creates a bounty-hunting scheme offering a $10,000 reward — paid by the person who has been sued — for bringing a lawsuit against anyone who assists someone in obtaining an abortion after six weeks of pregnancy, usually before a person knows they are pregnant. The range of those who may be sued is broad, including not only doctors who provide the abortion, but anyone who transports a patient to get an abortion, abortion funds providing assistance, health center staff, and even a family member or clergyperson who advises the patient. In Whole Women’s Health v. Jackson, a coalition of abortion providers and advocates are challenging the enforcement mechanism of the law, which was designed to avoid review by the courts. The plaintiff’s request to temporarily block SB 8 was denied, but the Supreme Court expedited the review of the case.
United States v. Texas, the case brought by the US Department of Justice (DOJ), asks whether the federal government can challenge the law in federal court. As litigation around SB 8 was ongoing, DOJ went into district court requesting an injunction to stop Texas and any state employees from enforcing the law while litigation was underway. The district court granted the injunction on October 6 but, on appeal, the Fifth Circuit Court of Appeals paused the injunction on October 14, leading DOJ to appeal to the Supreme Court. The high court turned down DOJ’s request to vacate the Fifth Circuit’s ruling but agreed to expedite review of the case.
Neither case challenges the underlying constitutionality of the state’s six-week abortion ban, but address the procedural barriers that must first be cleared in order to proceed to the merits of the case and obtain a preliminary injunction stopping the harmful law.
Oral Argument: November 1, 2021
Why We’re Watching: NCJW believes the Texas law is a clear violation of the constitutional right to abortion granted by Roe v. Wade. The law puts lives in danger, and most harms people of color, immigrants, and low-income people who already face barriers to accessing health care. The bounty-hunting enforcement mechanism, should it be upheld, would set a precedent that would jeopardize other constitutional rights and lead to a proliferation of similar bans in other states.
Decision: On December 10, the Court issued a decision in Whole Women’s Health v. Jackson that blocked some of the most promising ways to challenge and potentially block the Texas law. They did send the case back to the Fifth Circuit, allowing a narrow way forward which would not guard against bounty-hunter lawsuits. The Court dismissed US v. Texas.
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.
Decision: On June 21, in a 6-3 decision authored by Chief Justice Roberts, the Supreme Court ruled that the state of Maine must give public funds for private religious schools and, in fact, violated the First Amendment’s free exercise clause by barring state education funding from sectarian schools. Justice Stephen Breyer wrote the broadly worded dissent, joined by Justices Kagan and Sotomayor, pointing out that the Court had never ruled that a “State must (not may) use state funds to pay for religious education” which might be construed as requiring all states to do so. Justice Sotomayor wrote her own strong dissent.
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: January 18, 2022
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.
Decision: On May 2, 2022 in a 9-0 decision, the Supreme Court ruled that Boston’s flag-raising practice was not government speech and therefore the city’s refusal to fly the Christian group’s flag constituted a violation of the First Amendment’s Free Speech clause. Justice Breyer wrote the opinion with concurring opinions by Justices Alito, Kavanaugh, and Gorsuch.
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.
Decision: On March 24, 2022, in an 8-1 decision, the Court reversed the Fifth Circuit’s ruling against Ramirez and remanded the case to a lower court, stating that he filed his grievance in a timely manner and was likely to win his case under RLUIPA. Justice Thomas dissented.
Kennedy v. Bremerton School District
An assistant coach at a public high school in Washington state offered prayers regularly on the fifty-yard line after football games. In 2015, the Bremerton School District took action to stop the practice to protect the religious freedom rights of students in compliance with the First Amendment to the Constitution. This was consistent with past rulings by the Supreme Court and other courts that said that teachers, coaches, and other public school employees could not pressure students into participating in prayer. The district offered the coach other options that would not compel students to participate. The coach ignored the district and made public his intention to pray on the field at the next game, causing the media and others in attendance to rush the field to join—knocking over students in the process. The coach was placed on administrative leave and then chose to leave his job when his contract expired whereupon he sued claiming a violation of his right to pray. Lower courts and the Ninth Circuit ruled repeatedly against the coach. The Supreme Court ageed to hear the case despite the fact that in 2018 it declined to take it.
Oral Argument: April 25, 2022
Why We’re Watching: NCJW believes that religious liberty and the separation of religion and state are constitutional principles that must be protected and preserved in order to maintain our democratic society.
Decision: On June 27, in a 6-3 decision written by Justice Gorsuch, the Supreme Court rejected the Bremerton School District’s argument. The majority opinion joined in full or part by the Court’s conservatives called the coach’s prayer ‘private speech.’ Further the ruling abandoned the 1971 Lemon test — named for the Lemon v. Kurtzman case — that set up criteria for determining violations of the Establishment Clause, instead, urging courts to look to history and the understanding of the intent of the drafters of the Constitution. The dissent, written by all three liberal justices, chastised Justice Gorsuch for misrepresenting the facts of the case. Justice Sotomayor wrote that the decision, “… elevates one individual’s interest in personal religious exercise, over society’s interest in protecting the separation between church and state, eroding the protections for religious liberty for all.”
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.
Decision: In a 6-3 decision, Justice Thomas writing for the Court’s conservatives, found that New York state’s law requiring that individual’s have a ‘proper cause’ for carrying a gun outside the home was unconstitutional because it prevented law-abiding citizens with a need for self-defense from exercising their Second Amendment right to bear arms. In his dissent, joined by the Court’s liberals, Justice Breyer cited the staggering toll of gun violence in lamenting that the ruling would “severely burden” states from efforts to address this problem. With this decision, the Court set a new framework for lower courts to use in analyzing any new gun restrictions.
Arizona et al v. San Francisco, CA et al
In 2019, the Trump Administration greatly expanded the definition of a provision of immigration law concerning public charge. For years, that provision had denied green cards or even visas to immigrants who were deemed likely to be primarily dependent on the government as their main source of support in the future. Under the Trump rule, an immigrant who might use public benefits such as SNAP, housing assistance, or the children’s health insurance program became less likely to obtain a visa or permanent status. Several states sued the Trump Administration in opposition to the rule, and the Biden Administration opted not to defend the law when President Biden took office. As a result, an injunction from a federal judge in Illinois blocking the rule nationwide went unchallenged. A group of states led by Arizona has asked the Supreme Court if they could defend the Trump rule in lieu of the federal government. The Ninth Circuit Court of Appeals said that they could not. Now the Supreme Court will hear the case, which focuses only on whether states should be permitted to intervene to defend a rule when the federal government ceases to do so.
Oral Argument: February 23, 2022
Why We’re Watching: Similar in nature to the Cameron case explained above, the outcome of this case could allow the states to pursue their goal of keeping the Trump administration’s harmful public charge rule in place.
Decision: On June 15, the Court dismissed the case saying that it was ‘inprovidently granted’ which means that it should not have been granted in the first place.
West Virginia v. Environmental Protection Agency
In 2015, the Obama Administration’s Environmental Protection Agency (EPA) issued the Clean Power Plan, a rule aimed at cutting carbon dioxide emissions consistent goals set by the Paris Climate Accord. In response to a suit brought by several states and coal companies, the Supreme Court stayed the rule. The Trump Administration repealed the program, putting into place a less aggressive rule. Several states along with health and environmental groups challenged the Trump plan. The DC Circuit Court revived the Obama plan although the Biden Administration has no plans to reinstate it. Even though the Clean Power Plan will not be implemented, the group that opposed it in court initially has brought suit urging a more restrictive interpretation of the Clean Air Act. Some of the parties are arguing that it is unconstitutional for the EPA to aggressively address climate change. The Supreme Court has agreed to hear this case.
Oral Argument: February 28, 2022
Why We’re Watching: This case could well have ramifications for the government’s ability to regulate other non-environmental issues, such as: access to birth control, workplace safety, and overtime pay.
CVS Pharmacy, Inc. v. Doe
CVS Caremark changed their policy to require that all health plan enrollees get specialty medications through in-network specialty pharmacies that provide drugs only by mail or drop shipments. Five individuals living with HIV who get their prescription drugs through employer-sponsored health care at community pharmacies requested to opt-out of the program but were denied. These individuals preferred seeing pharmacists who were familiar with their medical histories and were concerned that the new system would violate their privacy and that drugs sent in the mail could get lost or damaged. They sued, alleging that the CVS Caremark program violates the anti-discrimination provisions of the Affordable Care Act and the Americans with Disabilities Act, as well as California state laws. CVS argued that if they could not use “common cost-containment strategies” that prices would go up and benefits would be reduced for everyone. A federal district court ruled in favor of CVS, but the Ninth Circuit Court of Appeals vacated part and affirmed part of the district court’s ruling. CVS appealed to the Supreme Court which has agreed to hear the case.
Why We’re Watching: NCJW was active in achieving passage of both the Affordable Care Act and the Americans with Disabilities Act and is concerned about any infringements that would weaken those laws.
*Case dismissed by CVS “to pursue policy solutions in collaboration with the disability community to help protect access to affordable health plan programs that apply equally to all members;” case removed from the calendar.