SCOTUS: Abortion, LGBTQ+ Rights and DACA

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Alyssa Hurst: You're listening to RadioEd…

Lorne Fultonberg: a University of Denver podcast.

Nicole Militello: We're your hosts, Nicole Militello…

Lorne Fultonberg: ...Lorne Fultonberg...

Alyssa Hurst: ...and I’m Alyssa Hurst. We're doing something a little different this time around. In just the past few weeks, the US Supreme Court has handed down a number of, some would say, surprising decisions that tackled pressing issues of such importance that we couldn't choose just one. So we've packed three interviews into one episode. You'll hear from Lorne Fultonberg, on LGBTQ-plus workplace discrimination, and Nicole Militello on the court's decision to uphold DACA. But first I'm taking on June Medical Services vs. Russo, in which the Supreme Court struck down a Louisiana law that would have significantly limited abortion access in the state. Though many abortion rights advocates were bracing for bad news, Chief Justice John Roberts shocked many by siding with the court's liberal judges. Abortion politics expert and political science professor Josh Wilson explains this decision and its implications for Roe v. Wade and the 2020 election. 

Alyssa Hurst: So could you just start by giving me sort of a brief overview of the case at hand?

Josh Wilson: Abortion politics has really changed over time. People think about it as being rather consistent, but it's not, and different kinds of tactics rise and fall over time. And this case comes out of really a dominant tradition for the last quite a few decades of incrementally regulating abortion. So, states that want to restrict or limit abortion access find ways of trying to regulate around abortion, so this [June Medical Services vs. Russo] is an example of regulating clinics. Primarily here the main focus here was about doctors getting admitting privileges at local hospitals. This law really closely mirrored a law that was passed in the neighboring state of Texas that regulated abortion clinics along the same line. 

Louisiana passed this law. [It had] the kind of obvious connection with the Texas law, which was struck down in 2016, that case is called Whole Woman's Health v. Hellerstedt. The court pronounced that to be what's called an undue burden on women seeking abortion, which is a reference back to a case called Planned Parenthood v. Casey, and that established a new standard in how we evaluate state laws that regulate abortion and whether or not they infringe on the right to abortion. And so the standard there is, does it impose an undue burden? And the court found in the Texas case that it did because it shut many clinics, and then that gets us to this case as well. 

So with the admitting privileges requirements, there are a lot of hospitals that don't want to give admitting privileges to doctors who are providing abortions for reasons unrelated to kind of their credentials as doctors. And so the court estimated that it would severely restrict the number of doctors that would actually have admitting privileges and thus be able to provide abortions, limiting them the low single digits, and so that would impose a substantial burden on women seeking abortion, because essentially you wouldn't have the number of providers to meet the demand in the state.

Alyssa Hurst: So one of the things I found really interesting about this case is that after Donald Trump's two conservative appointees, there's been a lot of fear around how abortion law would look going forward. So this was sort of a surprise. From your point of view, was it surprising?

Josh Wilson: Yeah, I definitely found it to be surprising. And the reason why is that because the Louisiana law was so similar to the Texas law, it seemed the only reason why the court would take it is in order to reverse what they had just established in the Whole Women's Health case. In other ways, it's not all that surprising. Again, if we look at that it's Chief Justice Roberts who wrote a concurrence that made kind of the liberal justices seemed to try and appear, and actually, they do try them from the standpoint that they strike down Louisiana's law, and essentially then affirm what they established in relation to the Texas law. But a really important thing to notice here is that, okay, so conservatives might be complaining that they now think of Roberts as this liberal in conservative clothing. And that's not a very good way of understanding the Chief Justice. The better way of understanding the Chief Justice is that he understands his role as Chief Justice, in part, is to protect the court's legitimacy as a whole. The power of the court totally rests in people believing the court. The court relies on us to consent to it, to be convinced by it. Chief Justice Roberts really understands the role of legitimacy for preserving the power of the court. And that's essentially what he's done here, is he said, ‘Hey, I still don't agree with what the majority decided four years ago, but I have to preserve the legitimacy of the court and thus I have to abide by what came before.’ And so if you think about Roberts as Chief Justice, as protector of the court's legitimacy, this makes sense.

Alyssa Hurst: So reproductive rights attorneys and advocates have noted that Roberts’ opinion seems to kind of leave open the store for similar laws to take effect in other states? I'm curious what your read was.

Josh Wilson: Yeah, his concurrence is really narrow. He spends a tremendous amount of time talking about stare decisis, which is essentially saying, if cases are similar, we have to decide in the way that the case was decided before for the sake of consistency [and] thus for the sake of legitimacy. And then the next part of his opinion is he starts talking about the standard that governs both of these cases. I mentioned before, there's the precedence set by Casey. And if you wanted to have a more kind of full-throated kind of understanding of Casey, you would say that laws can only stand, that regulate abortion A) if they serve a valid purpose, and B) if they don't substantially burden women seeking abortions. He essentially spends the latter half of his opinion saying, ‘You know what, we don't actually need to pay that much attention to whether the law pursues a legitimate end or not. What we really need to pay attention to is, does it establish an undue burden on women seeking abortion?’ So he's created a bit of a window for anti-abortion activists by essentially saying, ‘Hey, we're not gonna pay that much attention to whether the laws you're passing at the state level are serving a legitimate purpose.’ Okay, if that's the standard, there's a lot of things you can still do. You can just keep incrementally chipping away at abortion here and restricting access.

Alyssa Hurst: So this case doesn't directly weigh into Roe v. Wade territory, but it might be an indication of how Roe v. Wade is going to be seen in the future and how the court might vote should Roe v. Wade ever come before them again. So I'm just curious what you think it means for Roe v. Wade and what implications it might have outside of just this one law.

Josh Wilson: Roe v. Wade is a long established precedent now. So if I'm an antiabortion activist, the way that I would read this is we're not gonna be able to strike down Roe directly. So what does that do? It reopens and makes very clear to us that incrementalism is the way to go and that we still have ample room to regulate. We're never gonna be able to get rid of abortion altogether, but we can erect barriers or challenges to women getting an abortion. 

The President promised the overturning of Roe right out of the gate, and you can see an interesting response in conservative states in that conservative states started passing really direct attacks on abortion. And so we can look at Georgia and Alabama and so forth as passing these really extreme laws. And the important thing to recognize about them as to what actually makes them legitimately labeled as extreme, is that—like I said, the previous quite a few decades, essentially 30 years of abortion politics—conservatives have understood that the way to challenge abortion was through incremental regulation that did not draw attention. What we've seen since Trump was elected is suddenly there's been a split in anti-abortion activists and within states that want to regulate abortion. And the split you have are the states that have kept moving ahead with incremental regulations, and the states that have said, ‘We've got our president, we've got our court, let's shoot for the fences. Like let's hit for the fences, let's just try to get rid of Roe right now.’ What's important to see about the Louisiana case is I think it's a strong signal back to those states, and back to anti-abortion activists, that those swing-for-the-fences laws are not gonna be the legitimate way forward now.

Alyssa Hurst: It seems like based on reading your op-ed in Newsweek that a lot of what you talk about is the activism around abortion and the two different sides. And you did mention that the Evangelical Christian side is something you researched in particular. So I'm curious how this decision is being taken by the folks on both sides of this debate. Is it energizing both sides? Is one side feeling more comfortable now than they maybe were before? How does that all play out?

Josh Wilson: A really important thing to recognize about abortion politics is that the vast majority of the country doesn't want to see abortion wholly eliminated. So there's this big—what's referred to by me and others—“mushy middle” in American popular opinion around abortion. Activists in both camps will try to jolt that mushy middle awake and say, ‘Hey, look, pay attention, something big is happening,’ and to get more people invested in abortion politics. So before or after any case in the immediate, it's not a good time to gauge what either side is actually going to do in the long run, because they're trying to mobilize the energy of the moment.

Alyssa Hurst: So Donald Trump has kind of taken up the abortion case [and] debate as sort of something he can use to mobilize his base. Overturning Roe was something he talked a lot about and one of the campaign promises he made. So how has that looking now, with this kind of loss for him and for anti-abortion activists? How do you think this will play out in 2020?

Josh Wilson: I would fully expect that the way the President would speak to this is again to use it as an example of why his supporters need to re-elect him. You can paint maybe Roberts as this traitor to the cause, he can point at his appointees and say, ‘Hey, look, you look at the two people that I appointed, they would have voted in the way we wanted them to vote. So keep me as the president for another four years and I will give you more of those justices, and we will get changes over time.’ And then if we look to who he's speaking to here really, he's speaking to white evangelicals. White evangelicals have, for his entire presidency and into the first election, they're his strongest and most steadfast supporters. I think that they will see this again just like the President, as a way to argue to their supporters, ‘This is why we need to keep him in power for another four years.’

Alyssa Hurst: Well, thank you so much, Josh.

Josh Wilson: Yeah, no problem.

Alyssa Hurst: Another important topic SCOTUS addressed this year was whether the protections included in the Civil Rights Act of 1964 extend to LGBTQ+ workers. Here's Lorne Fultonberg with more on that.

***

Lorne Fultonberg: Researchers from UCLA estimate there are more than 8 million LGBTQ+ workers in the labor force today. And yet, federal law has never explicitly protected them from discrimination based on their sexual orientation. There was something called Title VII in the 1964 Civil Rights Act. It forbids discrimination based on someone's race, color, religion, nationality, or sex. Up until the Supreme Court's ruling in Bostock v. Clayton County, the meaning of that last word, sex, was up for debate. Workplace law expert, Rachel Arnow-Richmond, says the court's interpretation expanded the definition and extended protection to an entire class of workers. 

This decision surprised a lot of people, particularly because it was coming from a more conservative Supreme Court. Trump appointee Neil Gorsuch wrote the majority opinion here. Were you as surprised as a lot of people were in this country?

Rachel Arnow-Richmond: I would say that I was more relieved than surprised. I agree with your assessment; I think the expectation of most people was that we would see a more conservative court finding against the employees in this case and sort of rejecting the idea of expanding the reach of anti-discrimination law. At the same time, this is a very narrow decision, and it was a very narrow question coming down to the meaning of this one word: sex. And to my mind, from a textualist perspective, the analysis is very clear as to why sexual orientation is a form of sex discrimination. And I will add that Justice Scalia, who got much attention in both the majority and the dissenting opinion, authored a rare, unanimous decision of the Supreme Court 20-plus years ago in Oncale v. Sundowner, which was a case that recognized same-sex sexual harassment. That is to say male-on-male harassment and female-on-female harassment as potentially embraced within the meaning of sex discrimination, under this same statute. So we already had precedent by a conservative jurist that viewed the words sex and discrimination on the basis of sex in a way that is arguably expansive or even progressive, although decided on very narrow statutory grounds, similar to what we see the court doing in this decision authored by Gorsuch.

Lorne Fultonberg: You've mentioned the word textualism, and for people who might not be up on legal definitions, can you explain what exactly that means?
 

Rachel Arnow-Richmond: At the broadest level, a textualist perspective is looking at the language of the statute in isolation, or relative isolation, and trying to understand what the word means irrespective of policy considerations [or] considerations of legislative intent, particularly looking specifically at the meaning of the word rather than the implications of the work.

Lorne Fultonberg: So since you mentioned legislative intent, am I reading it right that the dissent's argument was basically that this was something that Congress should take up, this is not something for the Supreme Court to interpret and impose?

Rachel Arnow-Richmond: As you know, at the simplest level, judges are supposed to interpret the law. They're not supposed to write the laws. I think one of the perspectives that is coming across in a dissenting opinion is the idea that because sexual orientation isn't listed as a protected classification, it would be wrong for the court to effectively write it into the statute. That is the role of Congress. And so this goes back to the reason why the decision itself is so focused on the meaning of that word, sex. Because, again, the only way in which the employees can succeed in the claim is to assert that sex and the discrimination against sex prohibition embraces sexual orientation. The court is outside its role to simply add sexual orientation to the statute. That is the role of Congress.

Lorne Fultonberg: So Rachel, you mentioned that this was a narrow decision. Does that mean that this issue is going to be litigated in the future? We're going to see more cases popping up and heading to the Supreme Court?

Rachel Arnow-Richmond: I think this is a very powerful, end-of-the-line type of decision with respect to the narrow question. And that narrow question is whether sexual orientation is covered by the statute. Now, how that then applies in different situations, that would be the subject of litigation. The dissenting opinion raises all kinds of questions that are not before the court: What will this mean in terms of locker rooms? What will this mean in terms of bathrooms? What will this mean in other situations? So those cases will certainly arise, and the court will have to understand what this prohibition actually means in practice.

Lorne Fultonberg: Do you think that this decision from the Supreme court which was tailored toward workplace protections will have implications outside the workplace?

Rachel Arnow-Richmond: Yes and no. This statute is focused on employment, so that is all that the courts are deciding in this case. But I think it really comes down to an understanding of sexual orientation, what sexual orientation is, and how it operates. This in turn requires us to really think deeply about what sex discrimination is. What the majority is doing is saying, ‘Hey, if you have a man and you have a woman, and they like both men, if you treat the man differently from the woman, that's straight-up sex discrimination.’ 

The flip side is what [Justice] Alito is saying is, ‘Look, that's not what's going on. You have a man and a woman, and both of them are gay. And if they're both gay, they're both treated the same if the employer fires them for that reason.’ That's how this decision operates, but I think there are hints in Gorsuch’s reference to gender roles that are really important. I strongly suspect that the ability to achieve a majority in this case had a lot to do with the opinion's silence on this issue of stereotype. But in one or two places, Gorsuch says, quite clearly, that failure to conform to one's gender role is sex discrimination. The reason, if you think of classic sex discrimination 1970s style, it was largely based on the assumption that women should be at home and not in the office. When we extend that idea to sexual orientation discrimination, I think what we see is that similarly sexual orientation discrimination, at its heart, is really about the failure to conform to gender roles. The ultimate gender stereotype about men is that they will prefer women. And with respect to women, that they would prefer men. If you get to a place of deeply questioning why such discrimination exists, I think it's impossible to separate it out from our notions of gender roles, what are proper gender roles, and our stereotypes about how those individuals who are assigned male or female organs should behave, and in particular should behave in the workplace. 

So, if that's what sex discrimination is, it's hard to understand why sexual orientation isn't simply another form, perhaps the ultimate form of sex discrimination. It's hard to imagine that it won't be used as some precedent for understanding the meaning of sex in other federal statutes. So I do think, in that respect, it could have broad application outside the workplace, not through Title VII, but as a precedent for interpreting the same language in other parts of the federal canon.

Lorne Fultonberg: So the last time we had a big LGBTQ decision was in 2015 when the Supreme court effectively legalized same-sex marriage. How do you think this moment compares to that moment?

Rachel Arnow-Richmond: It's hard to say which is the bigger moment. We have clearly been on a progressive path and moving in a progressive direction with a series of US Supreme Court decisions that recognize the rights of LGBT individuals. In some ways, this is the least expansive of those decisions, certainly compared to Obergefell [v. Hodges], which was a constitutional recognition of the rights of same sex partners to marry. This case, Bostock, is evaluating the meaning and the reach of one federal statute. So I would say, Obergefell, in that respect, was a more sort of stunning, a more watershed decision. On the other hand, the decision today in Bostock, may have more of a day-to-day impact on more individuals. Almost all of us work, not all of us choose to marry, but I would say more generally is that we're in a period that perhaps despite sort of other trends in our society, we're in a period of progressive development in favor of recognizing LGBTQ individuals as full-fledged members of society. And it's from my perspective, really wonderful, reassuring, and a true breath of fresh air to see the Supreme Court take this next step in that progression, notwithstanding the conservative bend of recent appointees.

Lorne Fultonberg: Rachel Arnow-Richmond, Professor and Director of the Workplace Law Program at the Sturm College of Law. Thanks so much for your insight.

Rachel Arnow-Richmond: It was a pleasure, thank you.

***

Alyssa Hurst: Finally, we're turning the mic over to Nicole Militello for an expert take on the Supreme Court's decision to uphold deferred action for childhood arrivals, also known as DACA.

***

Nicole Militello: For the past few years, the fate of DACA has been on the line after the Trump administration declared it was ending the program, claiming it was illegal and unconstitutional. DACA was created by an Executive Order by former President Obama back in 2012. It's the Deferred Action for Childhood Arrivals program, which offers temporary protections to qualified individuals who were brought to the United States as children to live, study, and work without fear of deportation. The close to 650,000 DACA recipients are known as Dreamers. Recently, the Supreme Court blocked the Trump administration from ending DACA. We're talking about this ruling with one of the leading scholars of migration, César Cuauhtémoc García Hernández. He's a law professor who studies the intersection of criminal law and immigration law. We start with the reasoning behind the Supreme Court's decision.

César Cuauhtémoc García Hernández: So, the Supreme Court came to the conclusion that the Trump administration's decision to rescind DACA, that is, to terminate DACA, violated a federal law called the Administrative Procedure Act. And that law doesn't apply only to immigration; it applies across the entire federal government and really dictates the way by which federal government agencies go about making policies that affect people's lives. And so this happens on a daily basis. So, the key language in that law is that the federal government cannot act in a way that is arbitrary and capricious. Well, the Supreme Court, in an opinion written by Chief Justice John Roberts, came to the conclusion that that's exactly what happened in this case. It's when the Trump administration decided to eliminate DACA, that it did so in a manner that was arbitrary and capricious. I think for all of those hundreds of thousands of young people who currently benefit from DACA, the Supreme Court's decision was cause for an enormous sigh of relief [and] a sense that they are going to continue with life as it has become normal for them to be able to study [and] to be able to to work as all of us are able to do day in and day out. And the looming threat of losing that ability is, for now, at least in the past, and we'll see what the Trump administration does in the next few months and, of course, what happens with the election, to see whether the threat becomes ever present danger to their lives to get again.

Nicole Militello: And what was your reaction to the ruling?

César Cuauhtémoc García Hernández: I was surprised, I have to admit. I was expecting that the more conservative members of the court would have the votes to carry the day, and that Chief Justice Roberts would side with them. And so, I think this was one of those instances that has taught me many times over in the past to not predict how the court's going to rule. I get asked on a regular basis when an important case is argued before the Supreme court, ‘Well, what do you think is gonna happen? What's the outcome gonna be?’ And I've learned already the hard way many, many years ago, I have to say, don't try to predict. I have no idea what is going on behind those closed doors. In fact, most of us don't. And I think this is a reminder that it's better just to wait and see and then we can figure out what to make of the decision, but not necessarily of the process by which the court comes to it.

Nicole Militello: So, President Trump has vowed to try again following the guidelines that were laid out by the Supreme Court. So what are his options moving forward?

César Cuauhtémoc García Hernández: Well, the Trump administration now has a pretty clear roadmap for how to go about rescinding the DACA program. The Supreme court noted that there were two particular reasons why the administration's decision process was arbitrary and capricious. One was that the court took the view that the administration failed to consider whether or not the program could be separated into a deportation reprieve program and then a separate part that is focused on employment authorization. And those two are very valuable benefits that recipients get. The first is a promise that the Immigration Customs Enforcement (ICE) agency is not gonna move you to the top of the list of its deportation efforts. But the second one is just as important, and that it's the notion that the person who received DACA can work [and] can actually make a living while they're in the United States. The court's opinion very clearly laid out the fact that the Department of Homeland Security ought to consider more narrowly whether it can segregate these two, can divorce these two parts, and if it can, then it can go ahead and try to do so again. And perhaps the outcome would be different that time.

Nicole Militello: So this might just be temporary relief for now, but it also doesn't diminish how significant the ruling is. So the head of ICE has previously said that he was going to start deporting Dreamers if the Supreme Court would have ended DACA. Can you just tell us more about what that scenario would have looked like?

César Cuauhtémoc García Hernández: Yeah, in fact, in January, the head of ICE very clearly said that if DACA was allowed to be eliminated, that his agency would not in any way steer clear of these young people. I think what we would have seen then is that people who are working as teachers and nurses and who are studying in colleges and universities across the United States, including at DU, would find themselves susceptible to being arrested by ICE, taken to one of its many immigration prisons across the United States, and find themselves in the midst of a deportation process in those prisons. We have one here in Colorado, in a suburb of Denver, Aurora, that's been around since the mid-eighties that are rather notorious for their achievements of people. We've seen COVID-19 is spreading quite rapidly in those detention centers. We have, in the past and very recently as well, seen deaths in some of these facilities, including the facility here in Aurora. And that's a topic that, to me, is rather frightening. I'm really familiar with the immigration prison system. Just a few months ago, I published a book, "Migrating to Prison,” that is specifically focused on the way that imprisonment has become such an important part of modern-day immigration law enforcement. And I was really worried about seeing the possibility that these young people would find themselves in these facilities facing the possibility of a forcible removal from the country.

Nicole Militello: And that threat for them really isn't quite over yet. So let's just talk about the politics of DACA. So the chairman of the DNC, Tom Perez, had said, if Donald Trump wins in November, he will end DACA. So just talk to us about how much additional pressure this puts on the 2020 election for Dreamers now.

César Cuauhtémoc García Hernández: Yeah, I think it's entirely reasonable to assume that the administration is working hard on revamping its efforts to rescind DACA. Frankly, I'm surprised that they hadn't already done that. I would have expected that they would be able to take the court's opinion and, within a matter of weeks, turn around and start over. The possibility remains that they'll do that through the summer and the fall. But I think certainly if President Trump gets the second term, I would fully expect that the Trump administration would try again, and that would put Dreamers in the very real position of facing the end of their periods in which they can work, they can study, and they can start to make a life in the United States with at least a promise that they wouldn't be the target of deportation efforts.

Nicole Militello: An NPR article says the problem for the administration was that it never wanted to take responsibility for abolishing DACA and instead sought to blame the Obama administration for what it called ‘an illegal and unconstitutional program.’ And then there's also been recent polling that shows that actually a majority of Trump voters want to protect Dreamers. So we're just curious, how might that impact the administration's decisions moving forward, and why Trump seems to be so committed to getting rid of DACA, given this information?

César Cuauhtémoc García Hernández: Well, when it comes to immigration policies, President Trump has, from the very beginning, been focused very squarely on what his most ardent supporters are part promoting. And there are key officials within his administration, including, most prominently, Stephen Miller, who have not shifted their attention from a really sweeping series of policies that would, and that have limited immigration to the United States of all kinds. And there is little doubt in my mind that the Trump administration would continue to view rescinding DACA as a way of currying favor with their most fervent supporters who they're gonna need, who the president's gonna need in November, to get out of their houses and get in line at polls, or submit their polls by mail, to make sure that he can get a second term.

Nicole Militello: Okay, and then another key player in this whole equation is Congress. So is there a scenario where Congress could take action to protect Dreamers?

César Cuauhtémoc García Hernández: Well, Congress always has the prerogative to legislate, to protect Dreamers or any other group of people who are in the United States. But the politics of the moment suggest to me that that is unlikely to happen.

***

Alyssa Hurst: To learn more about today's guests and these Supreme Court decisions, visit du.edu/radioEd. Tamara Chapman is our Managing Editor, and James Swearingen arranged our theme music. We're Alyssa Hurst...

Nicole Militello: ...Nicole Militello...

Lorne Fultonberg: ...Lorne Fultonberg...

Alyssa Hurst: ...[and] this is RadioEd.