October, 22 2021, 01:57pm EDT
Supreme Court Will Hear Texas Abortion Ban Cases
SCOTUS did not grant a request to immediately block the ban, but will hear two cases against the ban on November 1.
WASHINGTON
Today, the U.S. Supreme Court announced it will hear two cases challenging Texas' ban on abortion after six weeks of pregnancy (S.B. 8). The court declined to rule on a request to block the ban until it hears the cases on November 1. Since Sept. 1, when the ban took effect and the Supreme Court initially declined to block the law, nearly all Texans have been unable to access abortion in the state.
The two cases the court will weigh in on include:
* United States v. Texas: a lawsuit challenging S.B. 8 filed by the U.S. Department of Justice. Earlier this month, a federal district court granted the DOJ's request to temporarily block the law, but an appellate court let the law take effect again less than 48 hours later. The Supreme Court will decide whether to block the law again and whether the DOJ has the authority to bring this case
* Whole Woman's Health v. Jackson: a case filed against S.B. 8 by a broad coalition of plaintiffs, including Texas abortion providers, abortion funds, and doctors. In this case, the Supreme Court will decide whether federal courts have the power to block Texas' abortion ban. The ban was specifically designed to evade court review. In August, plaintiffs asked the Supreme Court to block the ban before it took effect on Sept. 1, but the court refused, citing "complex and novel" procedural questions about whether it has the authority to do so. Today's order means that the Supreme Court has agreed to hear arguments on those procedural questions.
In a dissent to today's order, Justice Sonia Sotomayor commented on the Court's decision to not block the law immediately, writing: "I cannot capture the totality of this harm in these pages. But as these excerpts illustrate, the State (empowered by this Court's inaction) has so thoroughly chilled the exercise of the right recognized in Roe as to nearly suspend it within its borders and strain access to it in other States. The State's gambit has worked. The impact is catastrophic."
In another case being heard this term, the state of Mississippi is asking the court to overturn Roe v. Wade and uphold the state's ban on abortion after 15 weeks of pregnancy. The court will also determine this term whether Kentucky Attorney General Daniel Cameron will be able to attempt to revive an abortion ban that two courts have held is unconstitutional.
Clinics in neighboring states have reported huge upticks in patients traveling from Texas. For instance, an Oklahoma clinic reported that two-thirds of the phone calls they've received since S.B. 8 took effect are from Texas patients. U.S. Attorney General Merrick Garland called the ban a "scheme to nullify the Constitution."
S.B. 8 bans abortion after six weeks into a pregnancy--before many people even know they're pregnant--and creates a bounty-hunting scheme that encourages the general public to bring costly and harassing lawsuits against anyone who they believe has violated the ban. Anyone who successfully sues a health center worker, an abortion provider, or any person who helps someone access an abortion after six weeks in Texas will be rewarded with at least $10,000, to be paid by the person sued. Lawsuits may be filed against a broad range of people, including: a physician who provides an abortion; a person who drives their friend to obtain an abortion; abortion funds providing financial assistance to patients; health center staff; and even a member of the clergy who assists an abortion patient.
The plaintiffs in Whole Woman's Health v. Jackson are represented by the Center for Reproductive Rights, Planned Parenthood Federation of America, the Lawyering Project, the American Civil Liberties Union (ACLU), the ACLU of Texas, and Morrison & Foerster LLP. The defendants include a class of state court trial judges and county clerks in Texas, the Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, the Texas attorney general, and the Director of Right to Life East Texas, who has already openly called for people to sue their local abortion providers under S.B. 8.
PRESS CALL INFORMATION:
When: Today, October 22 at 3:30pm EST
Where: Call will be held via Zoom. RSVP here for a link.
Speakers will include representatives from Whole Woman's Health, the Center for Reproductive Rights, Planned Parenthood and the ACLU.
Timeline of Whole Woman's Health v. Jackson:
* May 19: Texas Gov. Greg Abbott signed Senate Bill 8 into law.
* July 13: Plaintiffs filed the case in federal district court.
* August 4-5: The defendants filed four motions to dismiss, asking the district court to end the case.
* August 12: The federal district court judge scheduled a preliminary injunction hearing for August 30 to determine whether to block the law before it would take effect on September 1.
* August 25: The federal district court judge denied the defendants' motions to dismiss the case. Defendants immediately filed a notice of appeal with the Fifth Circuit, as well as a motion to stop all proceedings in the district court, including canceling the district court's preliminary injunction hearing.
* August 27: The Fifth Circuit Court of Appeals issued an order stopping all proceedings in the district court, including canceling the district court's preliminary injunction hearing. The court also denied the plaintiffs' request to expedite the appeal of defendants' motions to dismiss.
* August 29: The plaintiffs filed for emergency relief with the Fifth Circuit, which was quickly denied.
* August 30: The plaintiffs filed an emergency request with the U.S. Supreme Court, asking it to block the law before it could take effect on September 1 or allow district court proceedings to resume.
* September 1: S.B. 8 took effect after the Supreme Court did not respond to plaintiffs' request before the law's effective date. Late that same day, the Supreme Court denied the plaintiffs' emergency request to block the law and allowed Texas's six-week abortion ban to remain in effect. The case returned to the Fifth Circuit for briefing on defendants' appeal of the district court's denial of their motions to dismiss.
* September 10: The Fifth Circuit issued an order explaining its refusal to block the law, and expedited the defendants' appeals to "the next available oral argument panel."
* September 22: The Fifth Circuit issued a briefing schedule that will not allow the case to be heard until at least December.
* September 23: Plaintiffs filed a petition for writ of certiorari before judgment with the U.S. Supreme Court asking it to hear defendants' appeal on an expedited basis and bypass further proceedings in the Fifth Circuit.
* October 6: In a separate case filed by the DOJ, a federal district court judge temporarily blocked the law. The state appealed this to the Fifth Circuit.
* October 8: The Fifth Circuit stayed the district court's injunction in the DOJ case, allowing the law to take effect once more. The DOJ asked the Supreme Court to lift the Fifth Circuit's stay on October 18 and to also hear defendants' appeal on an expedited basis, bypassing further proceedings in the Fifth Circuit.
* October 22 (Today): The Supreme Court agreed to hear the DOJ's case and Whole Woman's Health v. Jackson on November 1 but did not grant the DOJ's request to immediately block the law.
Quotes from plaintiffs and litigators:
Amy Hagstrom Miller, president and CEO of Whole Woman's Health and Whole Woman's Health Alliance:
"Texans deserved better than this. The legal limbo is excruciating for both patients and our clinic staff. Lack of access to safe abortion care is harming our families and communities and will have lasting effects on Texas for decades to come. We've had to turn hundreds of patients away since this ban took effect, and this ruling means we'll have to keep denying patients the abortion care that they need and deserve. The Supreme Court has said that abortion is protected by our Constitution, yet they are allowing Texans to be deprived of their rights. To all the Texans who are with us, who have been speaking up, and to those who may need abortion care, let us be clear: just as we have been in the past, Whole Woman's Health is here for you, and we are here for the long haul."
Nancy Northup, president and CEO of the Center for Reproductive Rights:
"The Supreme Court's action today brings us one step closer to the restoration of Texans' constitutional rights and an end to the havoc and heartache of this ban. We are enormously disappointed that the Court has left the law in effect for now, forcing those with means to leave the state to access constitutionally protected abortion services and leaving others with no options at all. However, we are confident that when the Court ultimately rules in these cases, it will reject the state of Texas' cynical ploy to enact a brazenly unconstitutional abortion ban."
Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project
"By refusing once again to block Texas' horrific abortion ban, the Supreme Court is sending an alarming signal that it will stand idly by while our reproductive rights are violated, a reality Texans are too familiar with after living under the nation's most extreme abortion ban nearly two months. We hope that after the Court hears the case on November 1, that it will act immediately to correct its earlier mistake, and will issue a decision that restores abortion access in Texas. This cruel law has had devastating consequences, with the impact hitting marginalized communities the hardest. This is a dire moment, and we'll do everything in our power to fight back against attacks on our reproductive rights before it's too late."
Alexis McGill Johnson, president and CEO, Planned Parenthood Federation of America:
"S.B. 8 is a heinous and blatantly unconstitutional abortion ban that never should have been allowed to take effect--and it's devastating that it remains in place. For nearly two months, we've seen the catastrophic impact of S.B. 8 in Texas and beyond. Patients who have the means have fled the state, traveling hundreds of miles to access basic care, and those without means have been forced to carry pregnancies against their will. Every day S.B. 8 is in place is one more day of cruelty, and it cannot stand. We look forward to our patients and providers finally having their day in court on November 1, when the Supreme Court will hear the cases. And we are hopeful the Court will step in and block S.B. 8 from continuing to wreak havoc."
The Center for Reproductive Rights is a global human rights organization of lawyers and advocates who ensure reproductive rights are protected in law as fundamental human rights for the dignity, equality, health, and well-being of every person.
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US Lawyers Coalition Says Elite Firms Have Only One Choice: Capitulate to Trump—Or Fight Back
"These threats reveal the administration's own fear. They don't want you in court where they will lose. They are afraid to find out what happens if you and other firms stand together as a profession," says an open letter from legal groups.
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In an open letter published Wednesday, amid the Trump administration's unprecedented scrutiny on Big Law, multiple legal groups are calling on elite American law firms to convene and coordinate a unified response to U.S. President Donald Trump's "unconstitutional actions" and "threats to the rule of law and system of justice."
The legal groups include the coalition Lawyers Defending American Democracy (LDAD), the coalition Lawyers Allied Under Rule of Law, and the Steady State—which, according to the executive director of LDAD, "formed in the first Trump term as a loose association that maintained a low internet profile because many members were in government," but has "become much more organized and active" in response to the president's Department of Government Efficiency.
The groups drew a distinction between the several elite law firms who in recent weeks have negotiated deals with the Trump administration either in response to punishments imposed via executive order or to avoid the prospect of an executive order, and law firms who have resisted the Trump administration's pressure.
The law firms Perkins Coie, Jenner & Block, WilmerHale, and Susman Godfrey have all filed suits challenging Trump's executive orders targeting them. All four have won initial relief in court.
According to the letter, more than 800 other firms, including 17 firms on the Am Law 200—a ranking of top law firms based on gross revenue—have joined amicus briefs in defense of the firms that have sued.
"Lawyers Defending American Democracy calls on the 170 undeclared Am Law 200 firms to avoid the path of those now notorious nine," the letter states.
"If you are one of these firms, you understand that the threatened executive edicts are not legal or enforceable. Rather, they are a tactic designed to enlist you in undermining the rule of law. Any concession by your prestigious firms only helps the administration intimidate the legal profession from challenging its actions," according to the legal groups.
The letter states that negotiating with the administration is futile in part because "there exists no reasonable terms for resolving this dispute."
The letter also points to the fact that all four courts that have heard the cases from firms challenging Trump "have held that the likelihood of these law firms succeeding on the merits is so great that they have taken the extraordinary step of issuing temporary restraining orders against the government’s enforcement." This is evidence, according to the letter, that negotiation is unnecessary.
"If you band together and agree to support one another, the White House strategy will collapse," the letter states. "These threats reveal the administration's own fear. They don't want you in court where they will lose. They are afraid to find out what happens if you and other firms stand together as a profession."
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According to a statement from LDAD, the legal groups behind the letter collectively represent over 1,000 lawyers who who have worked as senior partners, judges, state attorneys general, senior officials at the U.S. Department of Justice, as general counsel for major companies, and state bar presidents.
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Attorneys for Mohsen Mahdawi, a Palestinian student organizer at Columbia University and permanent U.S. resident caught up in the Trump administration's crusade against Palestine defenders, argued in federal court Wednesday that their client was illegally arrested and detained for his constitutionally protected speech and should be immediately freed.
In what Mahdawi's legal team hailed as a "victory," U.S. District Judge Geoffrey W. Crawford extended a temporary restraining order issued last week by Judge William Sessions III to prevent federal officials from transferring Mahdawi from Vermont, where he is being held at the Northwest State Correctional Facility in St. Albans. Crawford also scheduled a new hearing for Mahdawi on April 30.
Addressing the nearly 100 letters submitted in support of Mahdawi, Crawford said that "no one has ever provided anything like that before," adding, "These were quite striking in geographic and philosophical breadth, including many members of the Jewish community."
Mahdawi, who is 34 years old and has been a green-card holder for a decade, was arrested on April 14 by masked Immigration and Customs Enforcement (ICE) agents during an appointment for his citizenship test in Colchester, Vermont. He was steps away from naturalization; instead, federal agents attempted to force Mahdawi onto a plane bound for Louisiana, where other Palestine defenders are being held pending deportation proceedings.
Mahdawi's lawyers are seeking his immediate release.
"We ask this court to suspend this unlawful retaliation and slow the grave threat to free speech posed by his continued detainment by releasing Mr. Mahdawi on bail," his legal team said in a filing.
Luna Droubi, an attorney on the team, said after the hearing that "Mohsen Mahdawi sits in a jail cell because of his lawful speech."
"What the government provided thus far only establishes that the only basis they have to currently detaining him in the manner they did is his lawful speech," Droubi added. "We intend on being back in one week's time to free Mohsen."
"What the government provided thus far only establishes that the only basis they have to currently detaining him in the manner they did is his lawful speech."
Like the numerous other pro-Palestine activists arrested—critics say kidnapped—and detained by the Trump administration, the government concedes that Mahdawi committed no crime. However, under the Immigration and Nationality Act of 1952, the secretary of state can expel noncitizens whose presence in the United States is deemed detrimental to foreign policy interests.
The U.S. Department of Justice (DOJ) argued that Mahdawi should be deported because letting him remain in the country "would have serious adverse foreign policy consequences and would compromise a compelling U.S. foreign policy interest."
Trump administration officials including Secretary of State Marco Rubio have cited President Donald Trump's executive order ostensibly aimed at combating antisemitism and his edict authorizing the deportation of noncitizen students and others who took part in protests against Israel's genocidal assault on Gaza as justification for Mahdawi's arrest and detention.
However, Mahdawi has repeatedly condemned anti-Jewish hatred, including during a 2023 interview on CBS News' "60 Minutes" in which he asserted that "the fight for freedom of Palestine and the fight against antisemitism go hand in hand because injustice anywhere is a threat to justice everywhere."
VTDiggerreported that hundreds of people gathered outside the Burlington, Vermont courthouse Wednesday to show support for Mahdawi and demand his release. Nora Rubinstein of Middletown Springs, Vermont said she was rallying in defense of "democracy and freedom" and to help the U.S. "return to the democratic principles this country was founded on."
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On Monday, Mahdawi told U.S. Sen. Peter Welch (D-Vt.), who visited him behind bars, that "I wanted to become a citizen of this country because I believe in the principles of this country."
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As Welch visited Mahdawi, Columbia University students, faculty, and alumni once again chained themselves to a fence to protest his detention and demand the release of not only Mahdawi but also of fellow Columbia activists and permanent U.S. residents Mahmoud Khalil and Yunseo Chung, as well as other student Palestine defenders including Rümeysa Öztürk, Badar Khan Suri, and others.
On Tuesday, a delegation of Massachusetts Democrats—U.S. Sen. Ed Markey and Reps. Jim McGovern and Ayanna Pressley—visited Khalil and Öztürk at the Louisiana ICE detention facility where they are being held. Markey accused the Trump administration of jailing the activists in Louisiana in a bid to have "the single most conservative circuit court of appeals in the United States of America" hear the case.
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"We are very hopeful that he will be released," attorney Cyrus Mehta told supporters and media gathered outside the Burlington courthouse on Wednesday. "The judge wants to move quickly, and he realizes that this is a case of great importance for this country."
"What we're seeing here is unprecedented where they are so hell-bent on detaining students," Mehta added. "These are not hardened criminals. These are people who have not been charged with any crime, they have also not been charged under any of the other deportation provisions of the immigration act."
One of the attorneys read the crowd a statement from Mahdawi in which he said that "this hearing is part of the system of democracy" that "prevents a tyrant from having unchecked power."
"I am in prison," he added, "but I am not imprisoned."
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The global human rights group Amnesty International on Tuesday called on supporters of the United States' core constitutional rights to write to Secretary of Homeland Security Kristi Noem, demanding that the Trump administration stop its campaign to strip foreign students of their right to be in the country for exercising their First Amendment freedoms.
As Common Dreamsreported Tuesday, since Immigration and Customs Enforcement (ICE) accosted former Columbia University student organizer Mahmoud Khalil, forced him into an unmarked vehicle, and took him to a detention center in Louisiana thousands of miles from his pregnant wife in March, the administration's attacks on international students have only intensified.
Seven identified students have had their visas revoked, while the administration is pushing to revoke the residency status of at least two students who protested the U.S.-backed Israeli assault on Gaza.
The White House is using a provision of the Immigration and Nationality Act to claim that certain students including Khalil pose a threat to U.S. foreign policy and should be deported.
"At least 1,300 additional students are known to have had their visas revoked," reads a letter template provided to supporters by Amnesty. "However, many of these students never received notice of the revocation, nor did they participate in any protest or expressive activity on campus. Some students may have been targeted due to having committed minor crimes such as traffic violations. According to a lawsuit filed on behalf of students, many were targeted because of their country of origin, particularly those from African, Arab, Middle Eastern, Muslim, and Asian backgrounds."
Supporters who send the letter can urge Noem to "restore the visas and immigration status of these students and visitors, release all students from immigration detention, refrain from deporting any of them, and end the targeting of students based on their immigration statuses and for exercising their human rights."
"According to a lawsuit filed on behalf of students, many were targeted because of their country of origin, particularly those from African, Arab, Middle Eastern, Muslim, and Asian backgrounds."
As Common Dreams reported, President Donald Trump's attacks on foreign students' First Amendment rights and his threats to universities' funding if they don't comply with his policies aimed at rooting out criticism of U.S. policy in Israel and Palestine, which both Republican and Democratic politicians have claimed is synonymous with antisemitism, have pushed schools to notify hundreds of students that their visas were revoked.
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