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Supreme Court Archives – Page 2 of 3 – Concerned Women for America

U.S. Supreme Court Nominee Ketanji Brown Jackson

By | Breyer, Legal, News and Events, SCOTUS, Vacancy | No Comments

Experience

  • U.S. Court of Appeals for the District of Columbia Circuit
  • U.S. District Court for the District of Columbia
  • United States Sentencing Commission Vice Chair
  • Assistant Federal Public Defender, Appellate Division
  • Law Clerk for Justice Stephen Breyer at the U.S. Supreme Court, Judge Bruce M. Selya of the U.S. Court of Appeals for the First Circuit, and Judge Patti B. Saris of the U.S. District Court for the District of Massachusetts

Education

  • JD., cum laude, from Harvard Law School in 1996
  • Supervising editor of the Harvard Law Review
  • B., magna cum laude, in Government from Harvard-Radcliffe College in 1992

Involvement

  • Board of Overseers of Harvard University
  • American Law Institute
  • C. Circuit Historical Society
  • United States Supreme Court Fellows Commission

Notable Cases

  • Fed. of Gov. Employees, AFL-CIO v. Trump – unanimously reversed by the D.C. Circuit for ignoring clear jurisdictional requirements to enjoin an executive order by President Donald Trump seeking to make it easier to hold federal workers accountable.
  • Make the Road New York v. McAleenan – unanimously reversed by D.C. Circuit. Judge Neomi Rao would have gone further and dismissed the case, believing Judge Jackson overstepped the bounds set by Congress, saying, “One of the few checks on the independent judiciary comes from Congress’s ability to set the jurisdiction of the inferior federal courts.”
  • Committee on the Judiciary v. McGahn – ordered White House counsel to President Donald Trump, Don McGahan, to testify before the House Judiciary Committee as part of its investigation into Russia’s involvement in the 2016 election saying, “The primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.”
  • McGuire v. Reilly— authored an amicus brief representing Planned Parenthood, NARAL Pro-Choice America, the Religious Coalition for Reproductive Choice, and the National Women’s Law Center, among other radical groups in supporting a “buffer zone” law that targeted pro-life advocates wishing to counsel women in front of abortion clinics.

Click here for a .PDF version of this one pager on U.S. Supreme Court Nominee Ketanji Brown Jackson

Penny Nance statement on Justice Breyer’s retirement

By | Judicial Nominations, News and Events, Press Releases, SCOTUS | No Comments

Penny Nance, CEO and President of Concerned Women for America (CWA), the largest public policy organization for women in the country, had this to say on the retirement announcement of Associate Justice of the United States Supreme Court Stephen Breyer:

“Justice Breyer’s announcement comes as no surprise to those of us engaged in the policy, political arena. The Democrats are facing a potentially disastrous midterm election, and the left has been aggressively, and very publicly, pushing for his retirement—to their shame honestly.

“We are thankful for Justice Breyer’s service and have shown respect for him, even when we vehemently disagree with his judicial philosophy.

“But the radical left does not care. And it is that same boorish crowd we hope President Joe Biden can resist in making his nomination.

“He needs a win; we can all see that. But I hope he has learned from his recent defeats in the Senate that the radical lefts’ insistence on alienating half the country to get their way is a losing strategy.

“The president has a chance to finally unify the country with a consensus nominee, breaking away from the shameful and vile tactics we have experienced in recent Supreme Court nominations.

“No matter what, CWA’s army of happy warrior women is ready and eager to speak up for truth and justice to prevail on this nomination, against any and all odds.”

 

For media inquiries, please contact: Katie Everett, Press Secretary 571-420-2488

Breyer Retires

By | Breyer, LBB, SCOTUS, Vacancy | No Comments

I was done writing my newsletter piece to you when the news broke. Justice Stephen Breyer is retiring. That changes things a bit.

No official word from the Supreme Court, though, which is interesting and suggests someone talked without authorization. It immediately brought memories of these radical groups in Washington, D.C., driving trucks saying “Breyer Retire” all over town, trying to bully him into submission. The Left is so eager to see him gone that they even messed up his announcement. Usually, the justice who is retiring gets to announce it himself. He must not be happy.

Whatever the case, the radicals got their wish. Breyer is retiring, they have the majority in the U.S. Senate, and President Joe Biden gets to appoint whomever he wants.

Except, that is not entirely true. President Biden made a pledge. During the 2020 presidential debate in South Carolina, when his campaign was struggling to get off the ground, then-presidential candidate Biden promised that, if elected, he would appoint the first African American woman to the Supreme Court. “Not a joke,” he emphasized with his usual common-man style.

As told through different reports, the story of the pledge behind the scenes is not about sincere, ordinary person concerns for the country but about raw politics, as you might have guessed.

The story goes that candidate Biden desperately needed the endorsement of one of the most influential figures in South Carolina, House Majority Whip James Clyburn, who had also been the chair of the Congressional Black Caucus. Without his endorsement, the whole campaign could tank. Clyburn asked him not only to commit to appointing the first African American woman but also to pledge it publicly during the debate.

According to Jonathan Allen and Amie Parnes, who wrote the book “Lucky,” Clyburn was so frustrated when he didn’t hear candidate Biden say the pledge publicly that he went backstage during one of the breaks to put pressure on him. “Don’t you leave this stage without doing it,” he is reported saying.

And so, he did. Now, President Biden is locked into a very narrow pool of candidates, not based on professional qualifications and merit, but on identity politics. Sad to see the judicial nominations process reduced to these sorts of calculations.

Given that, some names are already floating around. Judge Ketanji Brown Jackson, who was recently elevated to the U.S. Court of Appeals for the D.C. Circuit, which is said to be the second-highest court on the land, is the first name you will hear. She is a former clerk of Justice Breyer.

California Supreme Court Justice Leondra Kruger has also been mentioned, as well as South

Carolina U.S. District Judge Michelle Childs and NAACP attorney Sherrilyn Ifill.

For our part, we must add this nomination to our prayers as we continue to lift up the Court on the upcoming Dobbs decision. As CWA President Penny Nance said in her statement on Justice Breyer’s resignation, let us pray for President Biden that he may use this opportunity to unite the country, instead of further alienating half, to appease the most extreme elements of his party.

“The president has a chance to finally unify the country with a consensus nominee, breaking away from the shameful and vile tactics we have experienced in recent Supreme Court nominations,” Penny said.

Let us pray as one for that as we await an official announcement. And stand by, ready to lift our voices for justice.

Drama at Supreme Court on Texas Abortion Law Case

By | LBB, Legal, News and Events, Texas | No Comments

If there is drama at the U.S. Supreme Court these days, you can rest assured that Justice Sonia Sotomayor is at the center of it. And when the issue in the case is protecting unborn babies, you already know the side for which she fights. So here is why you are hearing so much about her and what the U.S. Supreme Court did in the Texas abortion law case.

If you remember, last time, the Supreme Court dismissed most of the challenges against the law but left the one against the medical licensing officials to go on. That is the case the Fifth Circuit was to consider when Texas asked that the question of whether the medical licensing official can enforce the law if it is violated be sent to the Texas State Supreme Court for clarification as to what the state law allows. The Fifth Circuit allowed that to proceed. This makes sense because the case deals with state law, not federal law.

The pro-abortion side objected to this because it would cause a delay in the proceedings while the law is still in effect. So, they went back to the U.S. Supreme Court and asked it to intervene to stop the case from going to the Texas Supreme Court. The Supreme Court denied the request, making no judgment, but simply allowing the proceedings to continue.

That’s where the pro-abortion advocates at the Supreme Court led by Justice Sonia Sotomayor lost it. They dissented with much fanfare, saying, “The Fifth Circuit should have immediately remanded this case to the District Court, allowing it to consider whether to issue preliminary relief.” Imagine all these babies being born in Texas. Preposterous, in their view. It is a disaster as far as Justice Sotomayor is concerned. She wrote, “This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies. I will not stand by silently as a State continues to nullify this constitutional guarantee.”

Aside from the forceful pro-abortion advocacy of Justice Sotomayor, supported by Justices Stephen Breyer and Elena Kagan, not a lot has happened in the case. It is still ongoing. Texas may still lose in the end. The ruckus you read about in the media is the early signs of desperation from the pro-abortion side.

It is a preview of what we can expect when the Dobbs decision is handed down if it does not live up to their abortion on demand for any reason up to birth dreamland.

CWA Stands for Religious Freedom and the Christian Flag at the Supreme Court

By | LBB, Legal, News and Events | No Comments

Today, Concerned Women for America (CWA) was proud to stand for the Christian principles of our founding in an important First Amendment case before the United States Supreme Court. Annabelle Rutledge, National Director of CWA’s Young Women for America program, delivered an impassioned speech (below) in front of the Court as they heard oral arguments in Shurtleff v. Boston.

 

Statement by Annabelle Rutledge
National Director
Concerned Women for America’s Young Women for America
Delivered January 13, 2022, at the United States Supreme Court
Shurtleff v. Boston Oral Arguments Rally

Good morning everyone

My name is Annabelle Rutledge from Concerned Women for America, the largest public policy organization for women in the nation. I serve as the national director of CWA’s Young Women for America project, which is training the next generation of young women on the Christian and constitutional principles that are the foundation of our liberties and freedoms.

I stand here on behalf of hundreds of thousands of women who want to see an end to the pernicious hostility towards religion that has become all too common in our day and age. If we are being honest, the hostility we see in many cases is directed specifically at Christians.

Many Americans fail to realize that the very foundations of the liberties they enjoy sprout out of Biblical soil. Therefore, in attacking religion as a whole, and Christianity more specifically, they work against their own interests, against their own liberty.

This case is a prime example that sometimes the loudest voices crying for diversity and tolerance are the most intolerant of diversity when that diversity is also inclusive of people of faith with whom they disagree.

The City of Boston has a worthy goal for its flagpole policy in its city hall plaza. The city explained that it wants “to create an environment in the City where everyone feels included and is treated with respect.” Except that “everyone,” according to the City of Boston, does not include Christians—we are apparently the right kind of people to exclude.

The city’s website further explains their policy this way, “We also want to raise awareness in Greater Boston and beyond about the many countries and cultures around the world. Our goal is to foster diversity and build and strengthen connections among Boston’s many communities.”

Accordingly, LGBTQ+ communities are loudly celebrated, their flag displayed with pride, no pun intended. Likewise, flags with Muslim themes from countries other than our own are welcomed with open arms. “Yay, diversity!”

But the flag that represents the faith of the very people who founded the City of Boston (the Puritans) that flag is just not welcomed. For Boston, diversity stops at Christianity’s doorsteps.

Needless to say, this nonsensical policy stands in clear violation of the First Amendment to our Constitution, which states plainly, as applied to the states, that the city “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” In targeting religious speech and somehow saying it is unworthy of the same protections afforded other types of speech, the city violates the most basic principles of justice and fairness, not to mention the essence of our First Amendment.

As we pointed out in our brief before the Court, the city’s attempt to differentiate between religious organizations and civic organizations fails to recognize the nature of our faith. By their very nature, religious organizations are civic organizations. Our concern for the poor and needy, for the weak and oppressed, and for justice and righteousness cannot be contained to the four walls of a building. Call that building a church or call it what you want.

Our faith is a living faith. We are called to go and love our neighbors. We cannot do otherwise.

That faith gave birth to many of the freedoms we enjoy. The faith that is at the root of the City of Boston, whose very city flag contains its motto in Latin words that read, “God be with us as he was with our fathers.”

Fitting, since from the founding of our country, churches have been the most important civic institution, bringing incredible progress. It is why the Northwest Ordinance of 1787 declared that “religion, morality, and knowledge [were] necessary to good government.”

The words of John Adams also stand as a similar reminder when he said that “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

Religion and faith are not only compatible with our Constitution; they are indispensable to its proper understanding.

We are confident the Supreme Court understands this, and we expect a unanimous Court to send a clear message by striking down this unconstitutional policy.

Thank you.

Click here for a PDF version of the statement.

Nance on SCOTUS Vaccine Mandate Decisions

By | News and Events, Religious Liberty | No Comments

WASHINGTON, D.C. – The Supreme Court of the United States today struck down the Biden Administration’s unconstitutional vaccine mandate for private employers with 100 or more employees.

Penny Nance, CEO and President of Concerned Women for America, gave the following statement responding to today’s mixed decision:

“The Supreme Court’s decision to strike down President Biden’s unconstitutional vaccine mandate for businesses with over a hundred employees was an important victory for every American’s individual and religious freedom.

“It is troubling that the Court suggests that such a mandate could be enforced on healthcare workers and others. Forcing compliance on frontline healthcare workers will cause hundreds of hard-working Americans to lose their jobs; many of these healthcare workers have natural immunity from prior infections. As the case goes forward, we hope the Biden Administration finally listens to the American people and enacts reasonable, unifying policies that actually help people, instead of hurting them further.

“Concerned Women for America will continue to stand up for individual freedom for every American to make the best decision on the COVID-19 vaccination for themselves and their families.”

Sensible Supreme Court Opinion Halts Vaccine Mandate

By | Briefs, Case Vault, Gorsuch, LBB, Legal, News and Events | No Comments

In a “per curiam” opinion, meaning a decision authored by the entire Court, instead of a single justice, the United States Supreme Court granted a stay of the Occupational Safety and Health Administration (OSHA) vaccine mandate for employers with 100 or more workers. The rule, therefore, will not go into effect until the case goes through the entire appellate process.

But the Court’s division can be further assessed by the fact that the three more liberal justices—Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan— dissented from the opinion, and Justices Clarence Thomas and Samuel Alito joined a very strong concurring opinion by Justice Neil Gorsuch.

The Court’s sensible approach to the issue simply noted that OSHA’s “emergency standard,” which it used here and which circumvents the usual public notice and comment accountability processes, should be used with precision and caution. Instead, the Court notes that the OSHA rule which applies to 84 million workers “requires workers receive a COVID-19 vaccine, and it pre-empts contrary state laws,” works as “a blunt instrument.” It found the exemptions presented (for employees who work outside 100 percent of the time or who work exclusively outdoors, for example) were “largely illusory.” The rule “draws no distinctions based on industry or risk of exposure to COVID-19.”

The Court found those objecting to the rule were “likely to succeed on the merits of their claim that [OSHA] lack[s] authority to impose the mandate.”

In doing so, the Supreme Court returns power to the states and the people, where it belongs, because the vaccine mandate goes way beyond establishing a simple workplace standard, as the agency is charged to enact, and into establishing nationwide public health policy. Remember, OSHA has never in its history done anything like this.

And here is where Justice Gorsuch’s concurrence is extremely helpful because it acknowledges what most Americans understand. This administrative mandate is trying to accomplish what President Joe Biden could not get done through the people’s representatives. He is trying to enact something Congress up until now has rejected.

If the people want a vaccine mandate, they could easily demand it from Congress. The reality is most people do not. In fact, the President’s approval numbers have been steadily declining. The latest numbers show him at an all-time low of 33 percent.  Fifty-five percent disapprove of his handling of the pandemic.

That is why President Biden had to work through OSHA to establish this national vaccine mandate. He lacks the necessary support to do it otherwise.

Justice Gorsuch wrote:

The central question we face today is: Who decides? No one doubts that the COVID–19 pandemic has posed challenges for every American. Or that our state, local, and national governments all have roles to play in combating the disease. The only question is whether an administrative agency in Washington, one charged with overseeing workplace safety, may mandate the vaccination or regular testing of 84 million people. Or whether, as 27 States before us submit, that work belongs to state and local governments across the country and the people’s elected representatives in Congress.

That power belongs to the people, said the Supreme Court today—to those most immediately accountable to them. The concurrence noticed that “a majority of the Senate even voted to disapprove OSHA’s regulation.” Therefore, it seemed reasonable to conclude “the agency pursued its regulatory initiative only as a legislative ‘work-around.’”

With this decision, the Court re-affirms what it has said in the past, that major questions of doctrine with broad effects on the public are left to the people’s elected representatives, and that they must make it very clear when they are giving such broad power to an agency. The concurrence said this rule, known as the “major questions doctrine”:

[E]nsures that the national government’s power to make the laws that govern us remains where Article I of the Constitution says it belongs—with the people’s elected representatives. If administrative agencies seek to regulate the daily lives and liberties of millions of Americans, the doctrine says, they must at least be able to trace that power to a clear grant of authority from Congress.

And even then, the concurrence suspects that such an intrusive mandate brought through the backdoor of an administrative agency might run afoul of the “nondelegation doctrine,” which “ensures democratic accountability by preventing Congress from intentionally delegating its legislative powers to unelected officials.”

Justice Gorsuch concludes:

On the one hand, OSHA claims the power to issue a nationwide mandate on a major question but cannot trace its authority to do so to any clear congressional mandate. On the other hand, if the statutory subsection the agency cites really did endow OSHA with the power it asserts, that law would likely constitute an unconstitutional delegation of legislative authority.

Whatever your view of the COVID vaccine in general, it should be encouraging to all to see the Court protecting the Constitutional structures that guard our liberties in this way. As Justice Gorsuch put it, “The question before us is not how to respond to the pandemic, but who holds the power to do so.”

The rule will be halted for now, but the case will continue. As we await further proceedings let us pray for a wiser, more honest, and unifying approach to fighting the pandemic going forward.

Indefensible Roe – The Scientific Track

By | Dobbs, Legal, News and Events, Sanctity of Life, SCOTUS, Substack | No Comments

Do not believe your lying eyes.

This (pictured above) is not a baby. No sir.

If it were a person, then the Supreme Court itself admitted in Roe they would not have made the decision they made to allow her to be crushed and sucked out of her mother’s womb.

It is actually a good thing they didn’t have such confusing pictures back then. In 1973, when Roe was decided, they thought a baby at 15 weeks, as is at issue in the Mississippi law being challenged in Dobbs v. Jackson Women’s Health Organization, looked like this:

Much easier to declare that this is some sort of tissue, part of a woman’s body, instead of a baby deserving of love and care. That is why the pro-abortion side in Dobbs wants the justices to keep women back in 1973. Nothing has changed, they argued on the day of oral arguments…

<em><a href=”https://mariodiaz.substack.com/p/indefensible-roe-the-scientific-track”>Click here</a> to read the rest of Mario’s exclusive <a href=”https://mariodiaz.substack.com/”>Substack column</a>. And be sure to subscribe below to never miss one of his posts again!</em>

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Supreme Court Releases Opinions in Texas Abortion Law Cases

By | CWA of Texas, Dobbs, LBB, Legal, News and Events, Sanctity of Life, SCOTUS | No Comments

As we discussed recently, the state of Texas presented a novel problem to the United States Supreme Court by enacting a law prohibiting abortions after a heartbeat is detected, but giving the right of enforcement to private citizens and not to any state official. Today, the Court handed down its opinion dismissing most of the claims but preserving the challenge going forward. Here is a short summary.

When abortionists sought to challenge S. B. 8, the Texas Heartbeat Act, they really had no one to sue because no state official is charged with its enforcement and no private citizen had sued. Still, they tried to push the legal envelope by suing a whole host of people, including state judges or state law clerks, the attorney general, some licensing officials, and even a potential private citizen defendant in an effort to enjoin the law and prevent it from going into effect.

The United States also tried to intervene, given its radical pro-abortion stance under President Joe Biden. That was the easy part (United States v. Texas). Its claim was summarily dismissed by the Court (8-1), as expected, with only Justice Sotomayor dissenting. The United States simply has no business interfering with this state law and basically seeking an unprecedented injunction against all persons in the country. Their effort would break with the most fundamental principles of federalism in our Constitution.

The more interesting challenge (Whole Woman’s Health v. Jackson) is a bit more complicated. In its opinion, the Court wanted to stress first what it was not deciding. “In this preliminary posture, the ultimate merits question, whether S. B. 8 is consistent with the Federal Constitution, is not before the Court,” said Justice Neil Gorsuch who wrote the majority opinion.

He summarized, “The Court concludes that the petitioners may pursue a pre-enforcement challenge against certain of the named defendants but not others.” So, who can be sued? Well, not court officials: “Under the doctrine of sovereign immunity, named defendants Penny Clarkston (a state-court clerk) and Austin Jackson (a state court judge) should be dismissed.” Not the attorney general: “Texas Attorney General Paxton should be dismissed.” And not a private citizen prematurely (an affidavit showed he had no intention to sue): “The sole private defendant, Mr. Dickson, should be dismissed.”

But the Court leaves open “other defendants (Stephen Carlton, Katherine Thomas, Allison Benz, and Cecile Young), each of whom is an executive licensing official who may or must take enforcement actions against the petitioners if the petitioners violate the terms of Texas’s Health and Safety Code, including S. B. 8. Eight Members of the Court hold that sovereign immunity does not bar a pre-enforcement challenge to S. B. 8 against these defendants.”

Justice Clarence Thomas dissented from this last pronouncement, saying he would have dismissed the case against “all respondents, including the four licensing officials.”

It also declared “petitioners may bring a pre-enforcement challenge in federal court as one means to test S. B. 8’s compliance with the Federal Constitution. Other pre-enforcement challenges are possible too; one such case is ongoing in state court in which the plaintiffs have raised both federal and state constitutional claims against S. B. 8. Any individual sued under S. B. 8 may raise state and federal constitutional arguments in his or her defense without limitation.”

So, the bottom line is that the challenge to this law will continue as to the allowed defendants.

It is important to note that Chief Justice Roberts, joined by Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor, expressed considerable frustration with the law in concurring in part and dissenting in part. He wrote, “Texas has employed an array of stratagems designed to shield its unconstitutional law from judicial review.”

It seems clear the Chief views the law as an attack on the Court itself. “The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings … Indeed, ‘[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.’[] The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake,” he wrote.

We will have to wait for a further challenge to see where the more conservative justices land on the issue.

As I mentioned before, this problem is of the Court’s own making, by injecting itself into the political abortion debate. Texas is simply trying to protect life, which most of its citizens demand, and trying to work within the arbitrary and dubious parameters the Supreme Court has set up. The best way for the Court to guard its legitimacy would be to reverse Roe and Casey in the Dobbs case, and then states like Texas would be free to protect life, without having to come up with innovative ideas to appease the Supreme Court’s personal preferences.

Three Takeaways from Today’s Dobbs Oral Arguments

By | Case Vault, Dobbs, Legal, News and Events, Sanctity of Life | No Comments

Today, the United States Supreme Court heard oral arguments on the most important pro-life case of our lifetime: Dobbs v. Jackson Women’s Health Organization. As hundreds of pro-life supporters rallied outside the courtroom (outnumbering the other side by a considerable margin!), inside the Justices heard arguments from the state of Mississippi, the Jackson abortion clinic, and the United States Solicitor General.

Here are the top three takeaways:

1-    Institutional Legitimacy was the Liberal Side’s Theme

Justice Stephen Brayer led the charge for the liberal side of the Court on this point. He quoted Casey and argued that to overturn Roe and Casey “Would subvert the Court’s legitimacy.” Justice Sonia Sotomayor, who blatantly and embarrassingly acted as an advocate for the pro-choice side instead of a justice of the Supreme Court, suggested the Court would not survive “the stench” of overturning Roe.

She’s obviously grown used to the fetor of more than 60 million babies aborted since 1973.

In the liberal side’s warped view, to overturn Roe would be a political action, but to impose abortion on demand on all Americans was not. They kept expressing concerns over the politicization of the Court as if it were not seen as activist in favor of abortion right now.

Mississippi’s State Solicitor General Scott Grant Stewart made clear that Roe and Casey had no grounding in the constitutional text and that the continued upholding of erroneous precedent is in fact more of a threat to the Court’s legitimacy…

Click here to read the rest of Mario’s exclusive Substack column. And be sure to subscribe below to never miss one of his posts again!

Texas Abortion Law Cases at the Supreme Court—What was it All About?

By | Case Vault, Legal, News and Events, Texas | No Comments

On Monday (November 1, 2021), the Supreme Court of the United States (SCOTUS) heard oral arguments in two cases (Whole Woman’s Health v. Jackson, and United States v. Texas) challenging the Texas Heartbeat Act (S.B. 8). The law prohibits most abortions after a heartbeat can be detected through an ultrasound.

Other laws around the country have tried to do this only to run afoul of SCOTUS’ arbitrary viability line which makes a law unconstitutional in the Court’s view.

The Texas Heartbeat Act is unique because it explicitly prohibits any state law enforcement from enforcing the law. Instead, it allows any private citizen to bring a civil suit against anyone who performs or helps someone obtain an illegal abortion.

Because of this, abortionists cannot simply sue state officials, as they usually do to prevent the implementation of this law. And that is the question before the Court in Whole Woman’s Health v. Jackson, “whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.”

This has confused many people because popular media outlets love to fixate on the “war on women” and the abortion narrative. But I hope you can see by the question presented how the issue before the Court is not really about abortion. We have a fundamental disagreement about abortion being a “constitutional right,” obviously. It is not. Still, the legal question, as presented, could be about any other constitutional right.

This is why even some of the more constitutionally faithful justices expressed concerns about the law. Justice Brett Kavanaugh asked about an amicus brief filed by the Firearms Policy Coalition that argued that a similar law would be used against Second Amendment rights in liberal states. He said, “[I]t could be free speech rights. It could be free exercise of religion rights.  It could be Second Amendment rights. If this position is accepted here, the theory of the amicus brief is that it can be easily replicated in other states that disfavor other constitutional rights.”

Justice Clarence Thomas asked about the concern that those bringing the suit have apparently suffered no injury, even though they will be awarded monetary relief. “[U]sually, when you think of traditional torts, there is a duty, there’s an injury to the individual. It’s a private matter. There is no requirement here that there be an injury to the plaintiff.”  To this, the Texas Solicitor General Judd Stone rightfully answered that the Texas Supreme Court does, in fact, require an injury in fact, even if none is explicitly asserted in the text of the law. But Justice Thomas struggled to find the injury, “So what would that injury be in this — under S.B. 8, if it’s an injury in fact?”

Those attacking the law had serious difficulty making their case, too. SCOTUS has strong precedent which restricts a federal court’s power to enjoin state judges. That is why the pro-abortion side sought to enjoin state law clerks. However, this seemed artificial and unenforceable ultimately. Justice Samuel Alito expressed the skepticism this way:

“[A] clerk performs a ministerial function. Somebody shows up with a complaint, wants to file a complaint, and assuming the formal requirements are met, the clerk files the complaint. The clerk doesn’t have the authority to say, you can’t file this complaint because it’s a bad complaint. I mean, what if the judge, the presiding judge in a particular jurisdiction, said, okay, fine, you don’t want the clerks filing these things, if anybody shows up with an S.B. 8 complaint, call me and I’ll docket it myself? Then what?”

In United States v. Texas, the question was related, but it had to do with the federal government’s power to obtain injunctive or declaratory relief against state officials to stop the enforcement of a law, like the Texas Heartbeat Act. And if the effort of the Texas abortionists to obtain such a relief is difficult, this one seems even more problematic under the federalism principles embodied in the U.S. Constitution.

Justice Neil Gorsuch stressed the unprecedented nature of the United States’ request by pointing out it would be the first time in the nation’s history that the Court would grant such a request:

Justice Gorsuch: “General, are you aware of a precedent that permits an injunction against all persons in the country or the world, the cosmos, who bring suit?

U.S. Solicitor General Elizabeth Prelogar: No, Justice Gorsuch.

There are novel legal concepts to consider in both these cases for sure, but ultimately this is a problem of SCOTUS’ own making by its underlying, unconstitutional overreach when it comes to abortion. Texas and other states simply continue to try to find ways to save babies within the limits imposed by law. The Texas Heartbeat Act is said to have been saving 150 babies a day, thousands by now. And that is a good thing, no matter how you look at it.

That is why Concerned Women for America (CWA) stood with the people of Texas and Attorney General Ken Paxton, who has been a champion for life, on the steps of the Supreme Court on the day of oral arguments. And we will continue to do so until the day the Court acknowledges the error of its ways and restores justice for the unborn. We are praying that day is very close.

Your Voice in the Biggest Abortion Case of Our Lifetime

By | Briefs, Dobbs, Legal, News and Events, SCOTUS | No Comments

The Concerned Women for America (CWA) Legal Studies Department is proud to report that we have completed your amicus (friend of the Court’s) brief in the Dobbs v. Jackson Women’s Health Organization abortion case before the United States Supreme Court.  

From the outset, we let the Court know we are representing you, and we make clear the values for which you stand. “CWA believes abortion harms women, men, their families, and the nation and actively promotes legislation and public education to support women in crisis pregnancies and address the harms caused by pro-abortion policies,” we write on our Statement of Interest. And we conclude saying, “CWA believes it is false to suggest women need abortion to have equality. Moreover, we affirm women are not a monolithic group assenting to a homogeneous worldview on any policy issue so that this honorable Court benefits from hearing and giving value to a broad range of women voices in cases such as this one.” 

We present three basic arguments: (1) states should be free to make a reasonable determination about abortion policy that places a higher value on the life of mothers and their unborn children, (2) the Court has undervalued the state’s interest in women’s health by failing to give the proper weight to the physical, psychological, emotional, and even spiritual harms abortion has had on women’s lives, and finally (3) the Court should give proper weight to the views of a wide range of women’s voices, including those who reject the Court-created “right” to abortion. 

The first argument is simple. The Court’s abortion jurisprudence has no foundation in our Constitution and has therefore been predictably unreliable and inconsistent. We write: 

Advances in science and our understanding of the process and interests involved in the abortion decision today should push the Court not only to reconsider the definition and timing of viability but the factual underpinnings from Roe that it left standing in Casey. The time has come for the Court to rectify the constitutional error of Roe’s quasi-legislative analysis. States should never be prevented from presenting the evidence which undergirds their legislative reasoning as they fight to withstand a constitutional challenge to its laws in areas where the Constitution envisions them having ample freedom to engage based on well-established federalism principles.  

The lower court, in this case, did not even allow the state of Mississippi to show the scientific evidence on which it relied to enact the law at issue. The state’s interest in women’s health was front and center; therefore, we write of the great injustice of the court barring this evidence, “As a women’s organization, amicus considers the omission of the evidence for the state’s interest in the mother’s health from consideration at the pre-viability stage, for example, a grave misuse of the Court’s jurisprudence that the Constitution in no way prescribes.” 

The Constitution’s framework is key to our argument because, though the question before the Court concerns viability, the Court’s abortion jurisprudence problem is much more profound. We conclude: “Though not strictly necessary to resolve this case, the Court’s fundamental problems in this area of law go all the way back to Roe and Doe. To fully vindicate the constitutional principles involved requires an honest reversal.” 

Second, we argue, “Women’s interests should never be irrelevant in the abortion context at every stage of pregnancy, including at the pre-viability stage.” Period. “Amicus represents mothers, daughters, sisters, aunts, and friends who have seen the devastation that abortion can have on women’s emotional, psychological, and spiritual lives.” We go on to present some of the studies of the mental health risks associated with abortion and let the Court know, “Any interpretation of viability that forces courts to exclude the consideration of women’s health, not only before choosing to have an abortion but also after that choice, as the lower court decreed here, should not be upheld.”  

And finally, third, we go to CWA’s roots. Pro-abortion women do not represent all women. They do not even represent most women. Pro-life is pro-woman. “[A] new AP-NORC poll found that, ‘most Americans say abortions should generally be illegal during the second and third trimester,’” we report, “One would never guess this by looking at the Court’s abortion precedent.” 

The hundreds of thousands of women amicus represent want to stress that women do not need abortion as a measure of equality. Women have intrinsic dignity and value, regardless of abortion public policy. The fact that men do not give birth is not something they see as a flaw but a feature of the beautiful way women are created—the imago Dei. Being mothers is not to women’s detriment, despite its many challenges. Women celebrate the diversity of our Creator and therefore affirm our dignity, aside from abortion. Amicus affirms the dignity of every woman, including unborn women. 

That is just a sample, but you can access the full document here. We are confident this brief is something you can be proud of, as we stand together before the Supreme Court and proclaim the truth with honesty and respect. 

It is an honor to serve you in such a way. 

High Court Term Closes with Momentous First Amendment Defense, A CWA Win

By | California, Case Vault, News and Events, SCOTUS | No Comments

This week, on the last day of the Court’s 2020 term, the United States Supreme Court gave us a significant First Amendment victory in Americans for Prosperity Foundation v. Bonta, and Thomas More Law Center v. Bonta. In a 6-3 decision authored by Chief Justice John Roberts, the Court reversed the Ninth Circuit Court of Appeals and remanded the cases, concluding, “California’s disclosure requirement is facially invalid because it burdens donors’ First Amendment rights and is not narrowly tailored to an important government interest.”

The decision is a major victory for the First Amendment, for us at Concerned Women for America (CWA), since we submitted a brief supporting the Petitioners, but more importantly, it is a victory for freedom.

California’s requirement for charities to file major donor lists was a blatant attempt at political intimidation, which would have been exploited maliciously in today’s cancel culture environment. Thankfully, the Supreme Court recognized it for what it was and declared it unconstitutional.

There was some disagreement among the justices about the standard of review to be applied in this case. The Chief Justice argued for an “exacting” scrutiny standard, which would be lower than the traditional “strict” scrutiny, which is the highest the Court applies. In the case of an exacting scrutiny standard, the law does not have to be the “least restrictive” means for the government to accomplish its purposes, but it does mean that it has to be “narrowly tailored.”

This law was blatantly not “narrowly tailored,” so it was declared unconstitutional.

Though we agree with Justice Thomas, who argued in his concurrence that in review of a law that so blatantly burdens First Amendment rights, the higher strict scrutiny standard should apply; Justices Alito and Gorsuch were right in writing that this law was so egregious it fails either standard.

Justices Sotomayor, Breyer, and Kagan dissented.

The Court recognized that the law “casts a dragnet for sensitive donor information from tens of thousands of charities each year, even though that information will become relevant in only a small number of cases.” Juxtapose that with the risks involved in today’s day and age, and the danger is hard to ignore.

“The petitioners here, for example, introduced evidence that they and their supporters have been subjected to bomb threats, protests, stalking, and physical violence,” the Chief Justice wrote. And continued, “Such risks are heightened in the 21st century and seem to grow with each passing year, as ‘anyone with access to a computer [can] compile a wealth of information about’ anyone else, including such sensitive details as a person’s home address or the school attended by his children.”

This recognition is significant. Cancel culture is a cancer that has overtaken our culture by storm, and the Court needs to recognize it here. California, of course, tried to downplay this issue at oral arguments, boasting of its intent to keep the information private, even when the evidence showed they had violated that privacy in multiple ways.

You are sure to hear this ruling reported as a “conservative Court” acting on behalf of conservatives. A New York Times tweet read, “Breaking News: The Supreme Court rejected California’s requirement that charities report the identities of major donors, siding with conservative groups who said the disclosures could lead to harassment.” This is fake news, as we’ve come to expect. They are manipulating this decision for political gain.

The reality is this was an unusual case where most charitable organizations from both the left and the right were in agreement, standing against California’s radicalism. As the Court noted, “The gravity of the privacy concerns in this context is further underscored by the filings of hundreds of organizations as amici curiae in support of the petitioners. Far from representing uniquely sensitive causes, these organizations span the ideological spectrum, and indeed the full range of human endeavors.”

Yes, this was the rare case where CWA stood alongside the American Civil Liberties Union and many other organizations, conservative and liberal. Good to see the Court take notice and concluding, “the Attorney General’s disclosure requirement imposes a widespread burden on donors’ associational rights. And this burden cannot be justified on the ground that the regime is narrowly tailored to investigating charitable wrongdoing or that the State’s interest in administrative convenience is sufficiently important.”

CWA of Pennsylvania Responds to SCOTUS Win

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Concerned Women for America of Pennsylvania State Director Dilonna Coran responds to today’s decision by the Supreme Court in the Fulton v. City of Philadelphia case.

“Today’s unanimous decision by the Supreme Court is a tremendous win in the pro-religious liberty column. Faith-based organizations should not be discriminated against and forced to give up the free exercise of their First Amendment rights in order to serve their communities with their much-needed ministries.”

Dobbs v. Jackson Women’s Health Organization Fact Sheet

By | Dobbs, Legal, News and Events, SCOTUS | No Comments
  • The case1 presents a challenge to a Mississippi state law that places strict limits on abortions after 15 weeks.
  • The limited question before the Court is whether all pre-viability prohibitions on elective abortions are unconstitutional.2
  • The Mississippi law is known as the “Gestational Age Act,”3 and it seeks to protect women and unborn children by limiting abortions after 15 weeks only to the cases of medical emergencies and/or severe fetal abnormalities.
  • Though it is true that the Supreme Court manufactured a constitutional right to abortion in Roe v. Wade,4 the Court has always recognized “the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus” (see Planned Parenthood v. Casey5).
  • The Court’s jurisprudence has been a complete failure in balancing those two interests, namely, the Court-created right to an abortion and the state’s interest in protecting the health of the mother and the life of a baby in the womb.
  • The Court has used many legal tricks to try to establish some guidelines, including a baby’s viability and the burden on the woman’s rights, but their efforts in this area have been decidedly legislative in nature and beyond the role the Constitution envisioned for the Court.
  • Scientific progress has given us a window into the womb, thereby destroying the foundation upon which Roe and Casey and the Supreme Court’s entire abortion jurisprudence rests.
    • With advancements in ultrasounds, not only do we know the life inside the womb is a baby, but doctors are able to perform life-saving treatment, even perform surgery, as with the famous cases of babies with spina bifida.6
    • Babies feel pain at a very early stage. The scientific evidence shows that from 15 weeks onward, “the fetus is extremely sensitive to painful stimuli, and that this fact should be taken into account when performing invasive medical procedures on the fetus. It is necessary to apply adequate analgesia to prevent the suffering of the fetus.”7
    • According to the U.S. National Library of Medicine,8 a 15-week-old baby:
      • Has eyes and eyelids with a well-formed face,
      • Limbs have developed,
      • The baby has hands and feet with little toes and fingers that have gone so far as to develop nails on them (he or she can make a fist!),
      • The genitals have appeared,
      • Organs are fast developing with the baby’s liver already making red blood cells of its own,
      • And muscle tissue and bones continue to grow and become harder, making it possible to begin to move.
  • It is time for the Supreme Court to catch up to the 21st Century.
  • Americans overwhelmingly support banning late-term abortion and restricting it during the first trimester. A recent Marist poll found 75% of Americans, including 61% of those who identify as pro-choice, say abortion should be banned at the very least to after the first trimester.9
  • It is time for Roe’s House of Cards to come tumbling down. Women and children deserve better than the legislative games the Supreme Court has employed up to this point!
  • It is the states’ highest duty to protect the health of mothers and the life of babies. They should be free to enact laws to do that in the best way they see possible, as Mississippi has done here.

Click here for a PDF version.

[1] Supreme Court Docket No. 19-1392, available at https://www.supremecourt.gov/docket/docketfiles/html/public/19-1392.html.

[2] Dobbs v. Jackson Women’s Health Question Presented, available at https://www.supremecourt.gov/docket/docketfiles/html/qp/19-01392qp.pdf.

[3] Mississippi House Bill 1510, available at https://legiscan.com/MS/text/HB1510/id/1692666.

[4] Roe v. Wade, 410 U.S. 113 (1973), available at https://www.law.cornell.edu/supremecourt/text/410/113.

[5] Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), available at https://www.law.cornell.edu/supct/html/91-744.ZS.html.

[6] The Perinatal Revolution, Colleen Malloy, M.D., Monique Chireau Wubbenhorst, M.D., MPH, and Tara Sander Lee, Ph.D, Issues in Law & Medicine, Volume 34, Issue 1, Article 2, (Spring 2019).

[7] Fact Sheet: Science of Fetal Pain, Charlotte Lozier Institute, available at https://lozierinstitute.org/fact-sheet-science-of-fetal-pain/, citing Sekulic S et al., Appearance of fetal pain could be associated with maturation of the mesodiencephalic structures. J Pain Res. 9, 1031, 2016.

[8] Fetal development, MedlinePlus, U.S. National Library of Medicine, available at https://medlineplus.gov/ency/article/002398.htm, accessed May 21, 2021.

[9] America’s Opinions on Abortion, January 2019, available at https://www.kofc.org/un/en/resources/communications/american-attitudes-abortion-knights-of-columbus-marist-poll-slides.pdf.

Momentous Pro-Life Case to the U.S. Supreme Court

By | Case Vault, Dobbs, Legal, News and Events, Sanctity of Life, SCOTUS | No Comments

Dobbs v. Jackson Women’s Health Organization Explained

The United States Supreme Court has agreed to hear a pro-life case out of Mississippi challenging a state law that places strict limits on abortions after 15-weeks. As with every single pro-life case that comes to the Supreme Court, you are about to hear news from the usual suspects in the liberal media that the world is about to end — again! Pay no attention to their hysterics. Here is what you need to know.

As the Supreme Court has said numerous times, states have a legitimate interest in limiting abortion and protecting innocent life. Relying on that premise, Mississippi’s “Gestational Age Act,” enacted in 2018, limits abortions after 15 weeks to the cases of medical emergencies and several fetal abnormalities.

The law was immediately challenged as unconstitutional by abortionists at the Jackson Women’s Health Organization. A federal district court agreed with the abortion clinic, declaring that Supreme Court precedent does not allow states to restrict abortions in this way until a fetus becomes “viable.” The U.S. Court of Appeals for the Fifth Circuit upheld the district court’s decision.

Mississippi is now appealing to the U.S. Supreme Court, and the Court has fortunately granted the review.  Although you will hear the constant drumming of protecting Roe, the limited question before the Court is whether all pre-viability prohibitions on elective abortions are unconstitutional.

The case will be heard in the fall when the justices return from the summer recess. It joins Cameron v. EMW Women’s Surgical Center, another pro-life case that will deal with a more procedural question about the State’s authority to ensure that laws are fully defended in the courts. Dobbs, therefore, becomes the most crucial pro-life case the Court will hear, given that it will deal with the merits of the law, testing the limits of the Court’s dubious abortion jurisprudence.

The scientific advances made since the lies upon which Roe and Casey were built have exposed the lie of abortion. As women peer into the womb, the fact that we are not dealing with a blob of tissue has become apparent. And given that undeniable fact, pro-abortion proponents and sympathetic judges have struggled to come up with a clearly arbitrary, yet credible, artificial line at which to allow abortions.

Most Americans (up to 74%) want to ban second and third-trimester abortions.

Now you may be thinking, “What difference does that make? This is a legal case, and polls shouldn’t matter to the Court,” and you would be right. Traditionally, the Court would look at the law and the facts of the case and render a decision on the law, giving the legislature ample room to operate and make policy determinations within constitutional limits.

Nevertheless, in the case of Roe—in the abortion context—the Court has so overstepped its role that all it has and will ever have (until it corrects itself) are questions of policy. Now they are legislating about viability and weighing and reweighing the state’s interests in protecting life and protecting women and children. It is embarrassing. Can there be any more compelling interest than these?

But when it comes to abortion, the Supreme Court has had to employ all kinds of gimmicks and smokescreens in order to ignore its traditional role and interpretative procedures to preserve the abortion fiction. Justice Anthony Kennedy admitted as much in the Carhart decision writing:

“It is true this longstanding maxim of statutory interpretation has, in the past, fallen by the wayside when the Court confronted a statute regulating abortion. The Court at times employed an antagonistic ‘canon of construction under which in cases involving abortion, a permissible reading of a statute [was] to be avoided at all costs.’”

What has the other side so bent out of shape this time around is that they are not sure they have enough liberal legal wizards to perform their abortion alchemy to save their all-encompassing pro-abortion standard, where even the most reasonable restrictions on abortion are unconstitutional.

There is indeed much hope for most Americans who support such restrictions, given the gains we have made at the U.S. Supreme Court. But far from a turn to the extreme right as you are sure to read about in the papers, all we will hopefully witness (God willing) is a return to the basic tenant of truth in law. A return to scientific reasonableness. A return to biological reality.

And that will be a monumental step indeed.

Concerned Women Ready to Fight for Life

By | Dobbs, News and Events, Press Releases, Sanctity of Life | No Comments

FOR IMMEDIATE RELEASE
May 17, 2021

Contact:
Natalie Panettiere
202-266-4816, [email protected]

Washington, D.C. – Penny Nance, CEO and President of Concerned Women for America Legislative Action Committee (CWALAC), the largest public policy organization for women in the nation, had this to say about the news that the United States Supreme Court will hear arguments in Dobbs v. Jackson Women’s Health Organization—a case challenging a Mississippi law that limits abortions after 15 weeks, except in certain circumstances.

“As the hundreds of thousands of women I represent have made clear throughout the years, we will never stop fighting for the most vulnerable among us—for babies in the womb and mothers in crisis pregnancies. That is why this law in Mississippi was passed. It is a good law that protects women and children. It seeks to recognize the humanity and dignity of unborn children while protecting the health of mothers.

“We are thrilled that the Supreme Court gets another shot at correcting the nonsensical and unscientific structure established under Roe v. Wade and Planned Parenthood v. Casey. It is way past time for the Roe house of cards to come down. Women deserve better.

“Concerned Women for America members are ready! We cherish the opportunity to have this debate inside and outside the courtroom.”

###

Concerned Women for America Legislative Action Committee (CWALAC) is the legislation and advocacy arm of Concerned Women for America. Concerned Women for America is the nation’s largest public policy women’s organization with a rich 40-year history of helping our members across the country bring Biblical principles into all levels of public policy.

California Just Doesn’t Get It

By | Briefs, Case Vault, Legal, News and Events, SCOTUS | No Comments

They know it is wrong. You have told them it is wrong. But our kids do it anyway, don’t they? Of course, we know once caught, they promise they will never do it again. Ever. They promise they get it, but you walk away from the conversation thinking, “They don’t get it.”

That was the feeling one got from the state of California after hearing oral arguments this week in two significant First Amendment cases before the United States Supreme Court: Americans for Prosperity Foundation v. Bonta and Thomas More Law Center v. Bonta.

The cases challenge California’s effort to force all non-profits that solicit support in the state to disclose to the government sensitive information about their major donors.

Although the state recognizes the glaring constitutional burdens on individual rights to freedom of speech and association, it still claims it needs the private information to guard against fraud. Besides, the state promises to keep the information super confidential.

Only they haven’t. As Justice Elena Kagan pointed out during oral arguments, the district court that heard the evidence in this case found that “there was a pervasive, recurring pattern of inadvertent disclosure by California.” In other words, they promise to keep the donor information private, but they don’t. They leak them intentionally or by error, ensuring, as the court also found, that “donors would likely be subject to threats and harassment.”

So, what do you do when your child has a pervasive and recurring pattern of misbehavior that endangers others? Do you just need them to promise you (one more time) that they will never do it again? …

Click here to continue reading this op-ed as featured on American Thinker.