Gorsuch, the USSC and the rights of LGBTQ Employment Rights

[FJAG]

Aaaand! It took this long.

Trump calls for ‘new justices’ on Supreme Court, as conservatives rage at Roberts
Adam ShawBy Adam Shaw | Fox News

President Trump, in the wake of Thursday's defeat at the Supreme Court in his efforts to repeal the Obama-era Deferred Action for Childhood Arrivals (DACA) program, called for new justices as conservatives took aim at Chief Justice John Roberts for what they called a “pattern” of siding with the liberal wing in key decisions.

“The recent Supreme Court decisions, not only on DACA, Sanctuary Cities, Census, and others, tell you only one thing, we need NEW JUSTICES of the Supreme Court. If the Radical Left Democrats assume power, your Second Amendment, Right to Life, Secure Borders, and ... Religious Liberty, among many other things, are OVER and GONE!”  he tweeted.

He went on to promise that he will release a “new list of Conservative Supreme Court Justice nominees, which may include some, or many of those already on the list, by September 1, 2020.”

Trump’s call comes after the court ruled Thursday, in a 5-4 decision penned by Roberts, that his reversal of former President Barack Obama’s executive order –­ that shielded immigrants who came to the country illegally as children from deportation –­ was in violation of the Administrative Procedure Act (APA), which sets out rulemaking procedures for federal agencies.

...

See rest of article here

op:

 

[Xylric]

Aaaand! It took this long.

See rest of article here

op:

One thing I have wondered about, since I am still young in the ways of US politics, is if there is anything abnormal about this. Hasn't every president essentially have the Supreme Court slap them across the face like this in some way? I mean, that is one of its core functions, isn't it?

 

[Colin Parkinson]

That's my understanding and it annoys him that he cannot influence it or stack the deck as much as he would like. the main difference between Trump and the Dems, is that he will have a tantrum when things don't go his way and do it publicly. The Dems are more insidious, more or less boiling the frog and forcing cultural changes with the same determination, but more hidden. With Trump you know what you are getting, whether you like him, dislike or tolerate him due to a lack of better choice.

 

[Blackadder1916]

And in other Supreme Court news.

What the Supreme Court’s Abortion Decision Means
Trump promised to appoint justices who would “automatically” overturn Roe v. Wade. The chief justice just made sure that won’t happen before the 2020 election.
https://www.theatlantic.com/politics/archive/2020/06/supreme-court-abortion-trump/613642/

EMMA GREEN    JUNE 29, 2020  12:33 PM ET

Chief Justice John Roberts balked.

This morning, the Supreme Court announced its decision in June Medical Services v. Russo, the first big test of whether, and how, this Court—with two Donald Trump appointees—would revise abortion rights in the United States. When Trump was running for president, he explicitly promised to appoint judges who would “automatically” overturn Roe v. Wade, the case that established the constitutionality of abortion. Today, the Court has repudiated Trump’s promise with its decision in June Medical. While the ruling does not signal that abortion is safe at the Supreme Court, it’s a message that anti-abortion advocates cannot simply expect the Court to reverse abortion rights just because conservative justices now dominate the bench.

In 2018, when Justice Anthony Kennedy, who formerly acted as the Court’s main swing voter on social issues, announced his retirement, commentators were quick to pronounce abortion rights dead: “Abortion will be illegal in twenty states in 18 months,” tweeted the New Yorker writer Jeffrey Toobin. And yet, today, the liberal wing of the Court won.

June Medical concerns a Louisiana law that required doctors who perform abortions to obtain admitting privileges at nearby hospitals, which in theory meant they could immediately address emergency medical situations that arise during the procedure, but in practice served to limit the number of medical professionals who can legally terminate pregnancies. In the judgment of the Court, this case is nearly identical to one it decided just four years ago, Whole Woman’s Health v. Hellerstedt, about a strikingly similar law in Texas. When faced with the prospect of overturning such a fresh precedent—even though he disagreed with the outcome of that case—Roberts was unwilling to potentially undermine the legitimacy of the Court.

The Louisiana law that was at stake in June Medical embodies the anti-abortion movement’s strategy over the past decade. For at least the past 10 years, activists have pushed state-level regulations on abortion clinics. These restrictions are ostensibly designed to protect the health and safety of women. “The vast majority of Americans support patient-protection laws because they recognize that abortion practitioners should meet the same standard of care as any other physician,” Catherine Glenn Foster, the president and CEO of Americans United for Life, one of the national groups leading this effort, told me. When the Court considered a Texas law along these lines in Whole Woman’s Health v. Hellerstedt, however, it found that it placed an undue burden on women seeking abortions. June Medical Services effectively asked the new conservative majority on the Court to overturn precedent, effectively giving a green light to anti-abortion activists who have worked to restrict abortion at the state level.

The composition of the Court appeared favorable to the challenge. Roberts voted with the minority in Whole Woman’s Health. And the new justices on the Court, Brett Kavanaugh and Neil Gorsuch, are both conservatives who have written passionately about the importance of religion in America and have expressed skepticism of the Court’s record on abortion rights. Despite these shared views on abortion jurisprudence, Roberts has recently been concerned about the Court’s partisan appearance. “I’ve always thought this [case] was a particularly difficult ask for Roberts, who has been very public about his concern for the Court’s reputation and institutional legitimacy,” Mary Ziegler, a law professor at Florida State University and the author of Abortion and the Law in America: Roe v. Wade to the Present, told me. In 2018, Roberts went so far as to rebuke the president’s claim that judges can be relied on to vote a certain way simply because of who appointed them: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he told the Associated Press. Cases concerning abortion are arguably the ultimate test of this principle. “It is a challenge for him, in this case, as many people would react to a Louisiana victory by accusing the the Court of being an appendage of a political party,” Cary Franklin, a law professor at the University of Texas, told me.

In an opinion concurring with the majority decision, which was written by the liberal-leaning Justice Stephen Breyer, Roberts was explicit that he is not defending abortion rights. He is defending the Court. “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided,” he wrote. “The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.” The legal doctrine of stare decisis, which means “to stand by things decided,” requires courts to treat similar cases alike, he wrote. Otherwise, it’s difficult for Americans to know what the law actually says. While Louisiana had argued that the facts of this case were substantively different from those in Texas, Roberts didn’t buy it. His unwillingness to go along with the argument that abortion regulations in each state should be treated differently is a clear signal to anti-abortion activists that they may have to shift their legal strategy. “It may be popping the balloon of the anti-abortion movement,” Ziegler said.

And yet, this decision does not mean that abortion rights will be automatically protected by the Supreme Court in future cases. Roberts was clear that he is still critical of the way Whole Woman’s Health was decided, and there are countless abortion-related challenges, focused on entirely different issues, currently winding their way through the federal court system. And the Court will likely continue to hear cases about incremental restrictions on abortion rights.

Although Trump’s appointments have shifted the Court in many significant ways, this case is a sign that the institution cannot be rapidly transformed to meet the political needs of the current administration. For groups that have worked closely with the president to change the makeup of the Supreme Court and limit abortion rights, the decision in June Medical is a major strategic loss. “Today’s ruling is a bitter disappointment,” said Marjorie Dannenfelser, the president of the Susan B. Anthony List, an influential anti-abortion-rights advocacy organization, in a statement. “It demonstrates once again the failure of the Supreme Court to allow the American people to protect the well-being of women from the tentacles of a brutal and profit-seeking abortion industry.” For activists and scholars who support abortion rights, however, this is a victory—not just because the Court decided in their favor, but because it shows that even controversial issues such as abortion will not be wholly decided by political imperatives. “We should celebrate because it’s also a sign that there’s something going on,” Aziza Ahmed, a law professor at Northeastern University, told me. “We can’t just assume that because we have a conservative majority, the right will always win.”

 

[Colin Parkinson]

Short form: "courts working as intended, despite dire predictions"

 

[brihard]

Aaaand! It took this long.

See rest of article here

op:

I’m not sure he’s temperamentally equipped to deal with situations that he cannot resolve either by coercing or simply firing someone who makes a decision he doesn’t like. We’ve been seeing it in international relations, and now we’re seeing it in the judiciary. The protective benefits to democracy of appointed, tenured justices are revealing themselves.

 

[Navy_Pete]

Another editorial about the abortion case here; basically pointing out that this only got struck down because it was a stupid and lazy attempt. (The opinion is fairly biased, but raises some interesting bits about the already limited access and the impact this would have had)

Despite the supreme court abortion ruling, John Roberts has not become a liberal
Moira Donegan

The supreme court upheld the status quo on Monday, declining to further erode women’s rights for the time being. The court sided with plaintiffs representing Louisiana abortion providers in the case June Medical Services v Russo. The ruling, composed of one opinion signed by the four liberal justices and a very narrow concurrence by Chief Justice John Roberts, throws out a restrictive Louisiana law that aimed to close clinics by requiring abortion providers to obtain admitting privileges at nearby hospitals. The decision upholds the court’s own 2016 precedent, Whole Women’s Health v Hellerstedt, which threw out an identical law in Texas just four years ago.
The US supreme court has given LGBTQ Americans a rare bit of good news
Moira Donegan
Read more

If the Louisiana law had been upheld, getting an abortion in Louisiana would have gone from difficult to nearly impossible. The state already has a grand total of three abortion clinics, which are staffed by a total of just five providers. Only one of those providers was able to gain hospital admitting privileges as the law required, and he had already stated publicly that if the law went into effect, he would not continue providing abortions (he stated concerns about clinic security and his own personal safety as reasons to not continue as the state’s only abortion provider). That the law was overturned does not mean that abortion is now easy to get in Louisiana; like other states, Louisiana’s available abortion care is dwarfed by demand, and many women, especially in poor and Black communities, cannot reach, find or afford the abortions that they need. It is still too hard to get an abortion in Louisiana and in much of the US. This ruling simply means that it will not become even harder.
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But because the Louisiana law at issue was identical to the Texas law, and because the Texas law was declared unconstitutional by the court just four years ago, the case was less about the merits than it was about the supreme court as an institution. Nothing has changed since the Whole Women’s Health decision in 2016 except the makeup of the court itself: of the nine justices who presided over Whole Women’s Health, one conservative died and one swing vote retired, and Scalia and Kennedy were replaced by arch-conservatives and committed misogynists under Donald Trump, in the form of Neil Gorsuch and multiply accused sexual assault perpetrator Brett Kavanaugh.

[...] more on the site

https://www.theguardian.com/commentisfree/2020/jun/30/supreme-court-abortion-ruling-john-roberts

 

[Colin Parkinson]

multiply accused sexual assault perpetrator Brett Kavanaugh  and yet not convicted and the accusations were a mess. I am glad the person that wrote this is not in a position of power as would abuse it.

 

[Navy_Pete]

multiply accused sexual assault perpetrator Brett Kavanaugh  and yet not convicted and the accusations were a mess. I am glad the person that wrote this is not in a position of power as would abuse it.

Concur; I read stuff from multiple sources and both the left and right are equally deranged in their own special way. Anyway, didn't know about the background context though, which was where this would have effectively shut down the few remaining abortion clinics in the state with an arbitrary and very difficult to secure admin requirement that provided no actual benefit, so thought I would share with the caveat included above.

 

[Colin Parkinson]

Concur; I read stuff from multiple sources and both the left and right are equally deranged in their own special way. Anyway, didn't know about the background context though, which was where this would have effectively shut down the few remaining abortion clinics in the state with an arbitrary and very difficult to secure admin requirement that provided no actual benefit, so thought I would share with the caveat included above.

A requirement to be affiliated with a hospital seems logical, but the devil is in the details.

 

[Brad Sallows]

Another snippet of "background context" is that the law required a particular group of outpatient surgeries to operate under the same condition as the rest of outpatient surgeries in the state: to have admitting privileges at a nearby hospital in case things go wrong.

 

[Eaglelord17]

A requirement to be affiliated with a hospital seems logical, but the devil is in the details.

It is private health care, not public. If they so choose not to be affiliated with a hospital I would argue it is their right.

 

[Brad Sallows]

Good luck with that.  There are plenty of things private entities must and must not do.  Apparently individual rights, and public health and safety, are too important to be left to choice.  That's the amusing part: many people who are typically in favour of layering on all sorts of government-mandated protections suddenly made a 180 degree turn.

 

[Blackadder1916]

Another snippet of "background context" is that the law required a particular group of outpatient surgeries to operate under the same condition as the rest of outpatient surgeries in the state: to have admitting privileges at a nearby hospital in case things go wrong.

Not quite.  But as Colin P wrote "the devil is in the details".

What the Unsafe Abortion Protection Act stated was:

https://www.legis.la.gov/legis/ViewDocument.aspx?d=914189

(2) On the date the abortion is performed or induced, a physician performing
or inducing an abortion shall:
(a) Have active admitting privileges at a hospital that is located not further
than thirty milesfrom the location at which the abortion is performed or induced and
that provides obstetrical or gynecological health care services. For purposes of this
Section, "active admitting privileges" means that the physician is a member in good
standing of the medical staff of a hospital that is currently licensed by the
department, with the ability to admit a patient and to provide diagnostic and surgical
services to such patient consistent with the requirements of Paragraph (A)(1) of this
Subsection.

However, when compared to what Louisiana requires of "Ambulatory Surgical Centers" (ASC)

http://ldh.la.gov/assets/medicaid/Rulemaking/NoticesofIntent/February2017/ACSLicStdNOIOct2016LAC.pdf

Medical Staff—those physicians, dentists, podiatrists
and other medical practitioners who are authorized to
practice in the center according to these standards and the
requirements of the governing authority

§4509. General
. . .
F. The treating or admitting physician shall be
responsible for effecting safe and immediate transfer of
patients from the center to a hospital when, in his opinion,
hospital care is indicated. The center is responsible for
developing written procedures for safe transfer of patients.
The physician responsible for effective transfer shall be a
member in good standing of the medical staff of one or more
hospitals in the community. Refer to Medical Staff, §4535 of
these standards.
. . .
§4535. Medical Staff
. . .
E. It is expected that each center will attempt to secure a
written transfer agreement with at least one hospital in the
community. If the hospital refuses to cooperate, the center
will maintain documented evidence of its attempt to acquire
such an agreement. A transfer agreement shall serve as
evidence of a procedure whereby patients can be transferred
to a hospital should an emergency arise which would
necessitate admission to a hospital. Since it might not be
possible for the center to obtain a written transfer agreement,
the center's compliance with the requirements of the next
paragraph will be evidence of its capability to obtain hospital
care for a patient if the need arises. Even though the center
may have been successful in its attempt to secure a transfer
agreement, the conditions of the following paragraphs must
be met.
1. Each member of the medical staff of the center
shall also be a member in good standing of the medical staff
of at least one hospital in the co munity and that hospital(s)
must be currently licensed by the Department of Health and
Human Resources. Members of the center medical staff shall
be granted surgical privileges compatible with privileges
grant hospital for that physician.

I notice a difference in how the now struck abortion law defined "medical staff" as compared to the definition in the ASC regulations.

But Louisiana does not require all abortions to be performed in a "licensed clinic", nor are all abortions surgical procedures, nor do they usually require general anesthesia which is often an element of procedures performed in ASCs.

http://ldh.la.gov/index.cfm/page/1036

One -7 Weeks

The abortion pill regimen, also known as RU-486, is a drug combination designed to end pregnancies up to 49 days after the last menstrual period (five weeks since conception).

The Abortion Pill Regimen

The abortion pill regimen is a combination of drugs that results in a chemical abortion. The pills must be taken in the doctor's office or clinic.

13 Weeks

Suction curettage (also referred to as vacuum aspiration) is generally used during the first trimester. Unless there are complications, this procedure is done on an outpatient basis and may be done in a physician’s office or a clinic.

Not all surgical procedures are performed in "licensed ambulatory surgical centers" or "hospitals"; what immediately comes to mind are vasectomies and circumcisions as well as many dermatology and plastics procedure that are done in a doctor's office.  What can be done in a Louisianan doctor's office is governed by the Professional and Occupational Standards issued by the Louisiana Department of Health and Human Resources, Board of Medical Examiners; specifically, Chapter 73 Office-Based Surgery (page 47)

https://www.lsbme.la.gov/sites/default/files/documents/Rules/Individual%20Rules/Physicians%20June%202020.pdf

This is what they consider necessary if unforeseen complications require a patient to be transferred to a hospital.

7. Emergencies and Transfers
a. Emergency instructions along with the names and
telephones numbers to be called in the event of an emergency
(i.e., emergency medical services ["EMS"], ambulance,
hospital, 911, etc.) shall be posted at each telephone in the
facility.
b. Agreements with local EMS or ambulance
services shall be in place for the purpose of transferring a
patient to a hospital in the event of an emergency.
c. Pre-existing arrangements shall be established for
definitive care of patients at a hospital located within a
reasonable proximity when extended or emergency services
are needed to protect the health or well being of the patient.

I don't see any requirement in those rules for doctors performing procedures in their offices (some of which may be as interventional or more so than an abortion) to have admitting privileges as a prerequisite to practice, so adding that requirement for doctors performing abortions does not seem to be based on a clinical necessity.

 

[Brad Sallows]

Let one of the legislators (Katrina Jackson, D) provide the context, then.

 

[FJAG]

Let one of the legislators (Katrina Jackson, D) provide the context, then.

Then let's put Katrina Jackson into context. While a Democrat, she's a firm pro-life advocate (in fact she frequently calls it "Whole Life" which essentially means she wants to not only restrict abortions but have the state provide support afterwards across a wide spectrum). Louisiana is a state with fairly strong religious constituencies that cross party lines and as such pro-life issues generally cross party lines and have wide-ranging support.

See: https://www.ncronline.org/news/people/katrina-jackson-offers-glimpse-whole-life-politics-louisiana

See also: https://www.foxnews.com/politics/katrina-jackson-pro-life-democrat-louisiana

Make no mistake about it. This legislation uses women's health as a cover for what is first and foremost a religious based pro-life agenda. The majority of the USSC saw through the smoke and mirrors and recognized that there was no real medical or scientific basis behind the legislation:

https://www.usatoday.com/story/opinion/2020/06/29/louisiana-abortion-law-undue-burdens-no-medical-benefits-column/3280613001/

:cheers:

 

[Brad Sallows]

Which supports my point: "That's the amusing part: many people who are typically in favour of layering on all sorts of government-mandated protections suddenly made a 180 degree turn."

The "if it saves one life" crowd takes a vacation when it suits their political preferences.

 

[Eaglelord17]

Which supports my point: "That's the amusing part: many people who are typically in favour of layering on all sorts of government-mandated protections suddenly made a 180 degree turn."

The "if it saves one life" crowd takes a vacation when it suits their political preferences.

It is also interesting that the people who are against all sorts of government mandated protections/interventions suddenly feel the need for the government to make a bunch up to suit their beliefs/restrict others. Both sides are fairly hypocritical here...

 

[Colin Parkinson]

Then let's put Katrina Jackson into context. While a Democrat, she's a firm pro-life advocate (in fact she frequently calls it "Whole Life" which essentially means she wants to not only restrict abortions but have the state provide support afterwards across a wide spectrum). Louisiana is a state with fairly strong religious constituencies that cross party lines and as such pro-life issues generally cross party lines and have wide-ranging support.

See: https://www.ncronline.org/news/people/katrina-jackson-offers-glimpse-whole-life-politics-louisiana

See also: https://www.foxnews.com/politics/katrina-jackson-pro-life-democrat-louisiana

Make no mistake about it. This legislation uses women's health as a cover for what is first and foremost a religious based pro-life agenda. The majority of the USSC saw through the smoke and mirrors and recognized that there was no real medical or scientific basis behind the legislation:

https://www.usatoday.com/story/opinion/2020/06/29/louisiana-abortion-law-undue-burdens-no-medical-benefits-column/3280613001/

:cheers:

"A whole life" belief is something I can respect for sure. I still believe that the majority of Canadian would support abortion in the first trimester, likley a slim majority for 2nd trimester and a majority against it in the third trimester, unless certain circumstances are met. The concept that "life" starts outside of the womb is "legally neat" but has no real scientific basis.

 

[FJAG]

"A whole life" belief is something I can respect for sure. I still believe that the majority of Canadian would support abortion in the first trimester, likley a slim majority for 2nd trimester and a majority against it in the third trimester, unless certain circumstances are met. The concept that "life" starts outside of the womb is "legally neat" but has no real scientific basis.

It always has been and always will be a balancing act which is based on numerous scientific/medical, moral, religious and other factors. The question has never solely been "when does biological life begin?" but rather "when does a viable biological element become a human life separate and apart from it's host/mother?" Let's not forget that there are some elements of our society that still believe that any form of artificial contraception is intrinsically evil. The trimester division percentages that you give may be accurate (I really don't know one way or the other) but are nonetheless based on no credible evidence one way or the other except on a more or less emotional basis of whether or not the fetus "looks" more human in its later stages.

"Whole life" is about as close to universal socialism as one can get. I doubt that the "pro life" faction will ever be persuaded to embrace the "whole life" movement except on this one very narrow issue.

Interesting that pro-life Louisiana still has the death penalty.

:stirpot: