The Cases Everyone is Talking About, But Few Understand

The Supreme Court got into some very sticky wickets in 2022. It decided a major 2nd Amendment case, reversing Roe v. Wade and Planned Parenthood of Pennsylvania v. Casey, and deciding two significant First Amendment cases. No doubt you’ve heard a lot of punditry on all sides of these issues, but what happened here?

Dobbs v. Jackson Women’s Health Organization, 597 U.S. _ (2022)

Primary Holding: “Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each state from regulating or prohibiting abortion.” This decision overrules Roe v. Wade and Planned Parenthood of Pennsylvania v. Casey.

Dobbs is probably the most significant case of the 2022 session. Abortion is one of those issues on which everyone has an opinion. Despite what some people say, this decision does not outlaw abortion. It does allow states to do so. It does not reverse Griswold v. Connecticut, Brown v. Board of Ed., or Obergefell v. Hodges. It does not even lay the groundwork for doing so. The Court emphasized that nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.

So what did happen here? The case arises from a Mississippi law called the Gestational Age Act. Mississippi enacted a law that provides “e]xcept in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.” This law, interestingly enough, is based on European laws in force in Spain, Italy, and Greece, among other places.

The Fifth Circuit affirmed an injunction prohibiting enforcement of the Act under the Casy standard prohibiting any “undue burden” on abortion rights. This “undue burden” standard is the most controversial part of the prior rule; the Court held no other constitutional right to that standard. Express rights like freedom of religion, speech, assembly, the right to keep and bear arms, to be secure in one’s person and papers, and so on need to conform to a much lower standard of “rational basis.” One’s right to speak freely or enjoy equal protection of the law can be abridged if there is a rational basis for the government to do so, but not so with abortion. 

The Court rejected the “undue burden” test as unworkable in defining a line between permissible and unconstitutional restrictions. Traditional reliance interests do not enter into the issue because getting an abortion is generally an “unplanned activity.” Additionally, “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.”

Could the Court have kept Roe in place and expanded the undue burden standard? Most likely. The majority did not because “[a]ttempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’… could license fundamental rights to illicit drug use, prostitution, and the like.” The Court rejected the unique undue burden standard for abortion, finding “regulations and prohibitions of abortion fall under the same ‘rational basis’ standard of review as other health and safety measures.”

Could the Court have upheld the Mississippi law and left Roe undisturbed? Probably. Roe held that before ‘viability,’ States had no police power interest in regulating abortion or protecting a child in utero, but post’ viability’ they had such rights. The Court could have upheld the law on that grounds. The Court declined to do so because the “undue burden” standard would ensure this issue returned whenever a State invoked medical technological advances to justify a change in the definition of viability. The majority notes a “glaring deficiency” because the Roe court did not justify the distinction between pre-viability and post-viability abortions.

Instead, the Court held abortion is not deeply rooted in the nation’s history and tradition. Like other medical regulations, the authority to regulate abortion belongs to state representatives.

The Court addressed “the critical moral question posed by abortion” by comparing their decision to Brown v. Board of Education (reversing Plessy v. Ferguson, which was precedent longer than Roe.) The Court held Plessy was “egregiously wrong,” and Roe was also.

The Court also rejected the expansion of the privacy right found in Griswold to abortion, holding Roe conflated privacy rights and the right to make and implement critical personal decisions without governmental interference. The schema created by Roe and Casey “looked like legislation.” 

So what happens now? Some states, like Arizona, will return to their pre-1972 laws on abortion. Thirteen states have so-called “Trigger Laws” that place restrictions on abortion immediately when the Court reversed Roe or within 30-days of such reversal. Missouri, for example, has a ‘trigger law’ that bans abortion for any reason in the state. Several other states are considering restrictions on abortion, while others are considering expanding abortion rights.

California, for example, is considering a law legalizing ‘perinatal’ or ‘post-birth’ abortion that will allow a doctor or mother to terminate a child’s life up to seven (7) days after birth. Some have called for expanding this window to ten (10) months. Virginia, New York, and several other states are considering similar legislation. When it all shakes out, about 18 states will severely limit abortion, another 18 will not limit abortion much at all, and 14 states will leave things more or less where they are now.

Should California legalize ‘perinatal’ abortion, it is a certainty the issue will end up before the High Court as a 14th Amendment challenge. If it is a crime to kill a 20-year-old, why is it not a crime to kill a 3-day-old? Does this create unequal protection of the laws?

I doubt Dobbs is the last the High Court has heard of the abortion issue.

New York State Rifle & Pistol Association., Inc. v. Bruen, 597 U.S. _ (2022)

Primary Holding: The New York law requiring an applicant for an unrestricted carry license for a concealed pistol or revolver must prove “a special need for self-protection distinguishable from that of the general community” is unconstitutional.

In New York, possessing a firearm without a license is criminal. One desiring to carry a firearm outside one’s home must obtain an unrestricted license to “have and carry” a concealed “pistol or revolver” and must prove that “proper cause exists.” The “proper cause” requirement means one demonstrates a “special need for self-protection distinguishable from that of the general community.” New Yorkers denied unrestricted licenses to carry a handgun in public based on their generalized interest in self-defense challenged the “proper cause” requirement. The Second Circuit dismissed the lawsuit.

The Supreme Court overruled the dismissal and found New York’s “proper cause” requirement violates the Fourteenth Amendment. The Second Amendment protects individuals’ right to keep and bear arms in public for self-defense. The “historical evidence from antebellum America does demonstrate that the manner of public carry was subject to reasonable regulation, but none of these limitations on the right to bear arms operated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose.”

The Court held that the “constitutional right to bear arms in public for self-defense is not a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.” The Court noted that exercising other constitutional rights does not require showing particular need, and Second Amendment rights are not different in this regard.

This decision does not strike down the right of States to require permits or licenses for firearms or to restrict where firearms may be carried. It does not prevent States from requiring training or demonstrations of proficiency, but it does prevent them from requiring any showing of a special need to exercise a constitutional right.

Carson v. Makin, 596 U.S. ___ (2022)

Primary Holding: Maine’s “nonsectarian” requirement for otherwise generally available secondary school tuition assistance payments violates the Free Exercise Clause.

Religion cases are always interesting because there is an inherent tension between non-establishment and free exercise that requires courts to thread a needle when they collide. In Carson, the Court found that where a public benefit ‘follows the recipient,’ religious providers are not excluded from participation in a generally available program. This ruling is a final nail in the coffin of the so-called ‘Blaine Amendments.’

A state does not have to subsidize private education, but it cannot disqualify a private school from such subsidies solely because they are religious. A law that does so falls under a “strict scrutiny” standard of review. A neutral benefit program in which public funds flow to religious organizations through the independent choices of private beneficiaries does not offend the Establishment Clause; a state’s anti-establishment interest does not justify the exclusion of some community members from an otherwise generally available public benefit solely because of their religious exercise.

Maine offers tuition assistance to parents living in school districts that either lack a secondary school or do not contract with a school in another district. Parents designate the secondary school their child(ren) will attend, and the school district pays tuition costs. Eligible private schools needed accreditation by the New England Association of Schools and Colleges or approval by the Maine Department of Education. Since 1981, Maine has limited the tuition assistance program to “nonsectarian” schools. The First Circuit affirmed the rejection of constitutional challenges to the “nonsectarian” requirement.

The Supreme Court held Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. The Court held the First Amendment does more than ban outright prohibitions of religion but also bans “indirect coercion or penalties on the free exercise of religion.”

Kennedy v. Bremerton School District, 597 U.S. ___ (2022)

Primary Holding: A government entity may not sanction an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. The Constitution protects religious observances as well as comparable secular speech. The Court reversed the “Lemon” and “endorsement” tests in favor of a review of “historical practices and understandings.” A rule that the only acceptable government role models for students eschew any visible religious expression undermines a long constitutional tradition of tolerating diverse expressive activities.

This one is a very narrow decision and turns largely on the district’s failure to raise all possible defenses at trial. Government justification for interfering with First Amendment rights “must be genuine, not hypothesized or invented post hoc in response to litigation.” (See United States v. Virginia, 518 U.S. 515, 533 (1996).) Protected speech or religious exercise do not readily give way to a “heckler’s veto.” See Good News Club v. Milford Central School, 533 U.S. 98, 119 (2001); supra, at 22–23.

Plaintiff lost his job as a high school football coach after he knelt at midfield after games to offer a quiet personal prayer. The Ninth Circuit affirmed the summary judgment rejection of Plaintiff’s claims against the school district.

The Supreme Court held that the Constitution neither mandates nor permits the government to suppress such religious expression. The district acted on a mistaken view that it has a duty to suppress religious observances even as it allows comparable secular speech.

A plaintiff may demonstrate a free exercise violation by showing that a government entity has burdened his sincere religious practice pursuant to a policy that is not “neutral” or “generally applicable,” triggering strict scrutiny. Plaintiff engaged in a sincerely motivated religious exercise that did not involve students; the district’s policies were neither neutral nor generally applicable. The district restricted Plaintiff’s actions, at least in part because of their religious character.

When a public employee “speaks as a citizen addressing a matter of public concern,” courts should engage in “a delicate balancing of the competing interests surrounding the speech and its consequences.” Plaintiff was not engaged in speech “ordinarily within the scope” of his coaching duties. His prayers occurred during the postgame period when coaches were free to attend to personal matters and students were engaged in other activities.

The Court rejected the district’s claim of coercion by the Plaintiff against students, not as a legitimate state interest but as a factual matter limited to this case. The district confronted Plaintiff with the allegation that some of his practices were coercive, and Plaintiff willingly abandoned those practices. Furthermore, none of the coercive practices formed the basis for Plaintiff’s suspension, nor has Plaintiff sought to claim First Amendment protection for them. Plaintiff repeatedly expressed a willingness to conduct his prayer without students and after students head to the locker room or bus.

The district contended a rational basis to limit Plaintiff’s religious activity to ensure order at football games, but the district never raised these concerns during its disciplinary proceeding against Plaintiff. Neither the District Court nor the Ninth Circuit invoked a ‘maintenance of order’ rationale to justify the school district’s actions.

This case turned primarily on the facts. The Court found no protection for Kennedy’s prior practice of evangelizing students or predicating access to the sports program on the degree to which they agreed with Kennedy’s religious opinions. The Court instead found, at the time of his suspension, that Kennedy was praying privately and not involving students – and that the students in question were either entirely absent or engaged in other, unrelated activities.

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