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Judge Lynn Hughes had issued a lifetime ban against a female litigator after she won an appeal related to comments he made in an earlier case.
A federal appeals court had stern words for a Texas federal judge who issued a lifetime ban to a female litigator who previously accused him of sexism in the courtroom.
The U.S. Court of Appeals for the Fifth Circuit revoked that ban issued by U.S. District Judge Lynn Hughes of the Southern District of Texas, known as an exclusion order, but it was a concurrence from circuit Judge James Ho that drew attention from the legal community on social media. “It is apparent from the transcript of the proceedings that the district judge believes he has been falsely accused of discriminating against the AUSA based on her sex,” wrote Ho. “But be that as it may, it’s hard to imagine a less persuasive way for a judge to rebut the charge that he discriminated against a female attorney than by expelling her from his courtroom—not just in one case, but in every case that she may bring for the rest of her career.” Hughes, a Ronald Reagan appointee, has frequently been criticized for making racist and sexist comments in the courtroom. In 2012, Hughes allegedly made comments about a litigants race, and called the swastika “a symbol of good luck.” And in 2015, the Fifth Circuit removed Hughes from a qui tam case involving Shell Exploration, because he ignored the panel’s instructions on remand. In 2018, the Fifth Circuit reversed Hughes and criticized his conduct in a case where the judge faulted a female prosecutor, Tina Ansari, for her handling of discovery in a criminal case and implied that things were better when lawyers wore suits and “girls” were not allowed. The Fifth Circuit ordered the district court’s chief judge to assign a new judge to the case on remand. And in Wednesday’s opinion Ho joined the list of Fifth Circuit judges who have admonished Hughes. “Now fast forward to the present case: That same district judge issued a verbal order from the bench, excluding that same AUSA [Ansari] from his courtroom—not only in this case, but in all future cases as well,” wrote the Trump appointee. “By all accounts, the district judge issued the order to punish the AUSA for the USAO’s appellate briefing in [an earlier case].” According to the government’s brief, the interaction started when Huges excused Ansari, the target of Hughe’s sexism in 2018, from the current case after she walked into the courtroom for a pretrial conference “I would like to have a reason why I am being excused,” Ansari said. “I understand you would like that. You will be disappointed,” Hughes responded. “I’ll be disappointed by your reason?” Ansari followed up. “No, because you are not going to have my reasons,” the judge responded. Department of Justice counsel then stepped in and asked for details from Hughes, who said he’d been displeased with the appeals court’s opinion in 2018 and thought the ruling was based on “lies and misrepresentations of the record in the government’s appellate brief.” Hughes instead stressed the comment about women’s clothes he’d been admonished for earlier were not directed at counsel, but actually “addressed to a different person in the room and was referring to historical facts about FBI agents’ dress.” And while Wednesday’s panel acknowledged a judge may have the power to issue an order barring counsel indefinitely, they noted a proper set of facts proving such bad faith on behalf of the attorney would be required. “The district judge relied on his inherent power, but he did not make a specific finding that the AUSA acted in bad faith,” wrote the panel made up of Ho, Chief Judge Priscilla Richman and Judge Kurt Engelhardt. Ho’s concurring opinion has since gone viral on twitter, leading legal commentator Ken White, aka Popehat, to chime in:
Hughes secretary, Crystina Huerta, said the judge will not be responding to questions about the latest opinion.
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 The U.S. Department of the Interior lifted a decades-old policy that had prohibited certain Native American tribes from adopting their own water-use rules, which critics said left those resources at risk of misappropriation and was inconsistent with tribal self-determination.
Rescinding the so-called Morton Moratorium — named for former Interior Secretary Rogers C.B. Morton, who enacted the measure in 1975 — will streamline the department's review of new tribal water codes, the DOI announced in a press release. Interior officials plan to consult tribes on aspects of that process, including the "appropriate delegation of approval authority" as well as approval criteria, according to Secretary Deb Haaland. She said the DOI "cannot be afraid to review and correct actions of the past that were designed to create obstacles for Tribal nations." "The 'Morton moratorium' is inconsistent with the Department's commitment to upholding Tribal self-determination and the federal trust responsibility to support Tribal sovereignty," Haaland said in the statement. "Today's action underscores our efforts to move forward in this new era." Advocates for Native American rights, including the National Congress of American Indians, have for years called on the Interior Department to drop its longtime water code ban. That policy left "tribes vulnerable to misuse and misappropriation of tribal water without a means to enforce their water rights on their reservations," the NCAI said in a 2018 resolution calling for its repeal. Noting the Morton Moratorium was meant to precede new federal guidance for reviewing tribal water codes, the organization said the policy had "effectively frustrated its original purpose" because the DOI never enacted those rules. As a result, the NCAI said tribes that didn't put water-use rules in place before 1975 have risked having those resources misused or misappropriated — a substantial threat as state water users face shortages and look to shore up their own access. "It is in the best interest of the federal government and tribes to be able to develop and implement tribal water codes in order to support tribal self-determination and self-governance over their most significant tribal natural resource — water — in order to provide a sustainable homeland for tribes and their members," the NCAI argued at the time. The Interior Department took a similar stance in announcing the Morton Moratorium's repeal Thursday, saying the policy "imposed a procedural hurdle" for tribes that wanted to adopt new water-use rules. "The action has created unnecessary confusion for nearly 50 years regarding the department's willingness to work with and support tribes considering water regulation within their reservations," the DOI said. Federal regulators will nonetheless retain final authority over water codes for tribes whose constitutions don't give them full sovereignty in that arena. It remains unclear how the Bureau of Indian Affairs will evaluate any new policies, according to David L. Ganje, a Phoenix-based natural resources lawyer. Tribes will still "have to go through a bureaucratic dance" with the BIA, he said, adding the agency has been "inarticulate, unresponsive [and] incompetent" in handling Native American water issues in the past. Still, Ganje cheered the Morton Moratorium's repeal, saying the policy prevented many tribal communities from realizing the full sovereignty they're owed over natural resources on their lands. Without that authority, he said, many tribes entered water-sharing agreements — both formal and informal — with state partners. Ganje predicted Native groups will be cautious in flexing their new water rights, but said those policies will likely resemble property-rights laws they've always been able to enact for reservation lands. "It's the right thing to do because these rights exist," he said of the DOI repeal, pointing to the U.S. Supreme Court's 1908 ruling in Winters v. United States that guaranteed water access for Native American reservations. "These are actual water rights."  Over objections from his own administration, Missouri Gov. Mike Parson signed a bill that makes it a crime for the homeless to sleep on state-owned lands, such as under highway overpasses and bridges, reports Business Insider.
Meanwhile, in California, The Guardian reports that as a result of authorities’ crackdowns on homelessness banning people from camping in certain spots, at least 200 unhoused people live outside in a remote stretch of dessert in LA County. The Missouri law states that “no person shall be permitted to use state-owned lands for unauthorized sleeping, camping, or long-term shelters.” The first offense gets a warning, and the second gets a Class C misdemeanor, punishable by 15 days in prison, or a $750 fine, the St. Louis Post-Dispatch reported. Cities that don’t “enforce any ordinances prohibiting public camping, sleeping, or obstruction of sidewalks,” can be sued by the Missouri attorney general. Those “with a higher per-capita homelessness rate than the state average will not receive further state funding” until they lower their per-capital homelessness rate or enforce statewide bans, the legislation said. The legislation also dictates that cities can only use state and federal funds to build temporary camps for the homeless, instead of permanent housing. Since the bill’s passage, service providers and cities are scrambling to understand what the legislation means, reports the Missouri Independent. “There’s been no clarity or guiding information issued from the governor’s office or from any state agencies at this point,” said Sarah Owsley, director of policy and advocacy for Empower Missouri, which advocates on behalf of low-income residents. “We have reached out to [Missouri Housing Development Commission] staff, who also similarly don’t seem to really understand it.” According to Owsley, part of Missouri officials’ lack of understanding of how to implement the law stems from the fact that the legislation originated from a template bill written by a conservative think-tank in Austin, Tx., called the Cicero Institute. In California, The Guardian reports that a crackdown by authorities has forced at least 200 unhoused people to live outside in a remote stretch of dessert in LA County, battling the extremes. The authorities banned people from camping in certain spots, giving out citations for “loitering” and related violations and conducting encampment sweeps that advocates say destroy people’s belongings. Data obtained by The Guardian shows that the coroner’s office has logged 246 deaths of unhoused people in the city of Lancaster and the surrounding area since 2015, including 18 deaths in the desert and 29 fatalities so far this year. Residents are scattered in small communities dispersed throughout the desert, with some couples and individuals in isolated pockets on their own while others cluster together for safety and support.  A local government board in southern New Mexico approved a message Thursday saying that abortion clinics are not welcome in politically conservative Otero County — even though state law allows most abortion procedures.
The nonbinding anti-abortion resolution, approved in a 3-0 vote, said the commission “stands firmly against the presence in the county of Planned Parenthood clinics or any other clinics where abortion is practiced at will and on demand.” At least two groups have announced plans to open new abortion facilities in New Mexico after the U.S. Supreme Court in June overturned Roe v. Wade and took away women’s constitutional protection for abortion nationwide. One of them is the abortion provider at the center of the Dobbs v. Jackson Women’s Health Organization decision that overturned Roe. Otero County Commissioner Couy Griffin sponsored of the resolution that condemns “voluntary abortion” practices. He said it responds to concerns that New Mexico may become a regional hub for people seeking abortions from neighboring states where the procedures are illegal or heavily restricted. The resolution says abortion procedures aimed at protecting the health of a mother “will take place in a local hospital under the care of a physician,” and that the county takes a “neutral position” in instances involving incest or rape. Otero County Attorney Roy Nichols said the resolution does not have any legal ramifications. “This is not going to outlaw anything. This is more for the opinion to be expressed,” he said. The Democrats who control the New Mexico Legislature support access to abortion, as does Democratic Gov. Michelle Lujan Grisham. State lawmakers last year repealed a dormant 1969 law that outlawed most New Mexico abortion procedures as felonies, ensuring access to abortion even after the Supreme Court rolled back the national guarantee. Raw emotions about government regulation of abortion emerged at the Otero County commission meeting in Alamogordo for debate on the resolution, with dueling references to Christian scripture and quotations from the U.S. founders aimed at bolstering arguments for and against legal abortion access. Commissioner Gerald Matherly said he voted against a similar anti-abortion resolution three years ago and supported the new measure because it leaves out opposition to abortions in instances of rape, incest or when a woman’s life is in danger. “The state helps (with) birth control pills, they’re helping the mothers after the babies are born,” Matherly said. “I don’t believe that a person can just go out and have a wild Friday night — she gets pregnant and can go off and get an abortion. She should have, some people should have, responsibilities.” Griffin — a firebrand conservative who was convicted of entering a restricted area at the U.S. Capitol in the Jan. 6, 2021, insurrection — urged other rural, conservative counties to adopt identical resolutions to try to contain the proliferation of abortion clinics. “If the governor wants to embrace it in Santa Fe, if they want to have abortion clinics in Las Cruces, if they want to do it in Albuquerque, they are well within their rights to do so,” Griffin said. “But if they don’t want it Carlsbad, if they don’t want it in Roswell, if they don’t want it in Farmington, then those county commission boards need to get the same kind of resolution passed.” Lujan Grisham signed an executive order last month that prohibits cooperation with other states that might interfere with abortion access in New Mexico, declining to carry out any future arrest warrants from other states related to anti-abortion provisions. The order also prohibits most New Mexico state employees from assisting other states in investigating or seeking sanctions against local abortion providers.  A Louisiana judge on Monday temporarily extended an order blocking the state trigger law but did not yet grant a preliminary injunction that would keep abortion available until a district court determines whether the near-total state abortion ban, with no exceptions for rape or incest, violates the Louisiana Constitution.
The legality of abortion in Louisiana has changed rapidly in the weeks since the Supreme Court struck down Roe v. Wade and gave states the power to enact restrictions. The ensuing confusion has left patients and abortion providers scrambling as the courts have blocked, unblocked and then reblocked the ban. “We are still getting a lot of desperate phone calls from women who are angry or sobbing,” said Kathaleen Pittman, who runs an abortion clinic at Hope Medical Group in the Louisiana city of Shreveport. “They seem so totally beaten down because they have been trying to access care and, in one moment, it is available in a few weeks. The next minute, it may not ever be available here.” The hearing was the latest step in a lawsuit brought by abortion providers who have challenged the state trigger law as “constitutionally vague.” A judge in Baton Rouge asked both sides of the suit to file new documents by Tuesday morning before he decides whether to grant a preliminary injunction that would keep the near-total state abortion ban from taking effect until a panel of judges rules on the merits of the case, which could take weeks. The laws “do not clearly determine what conduct has been made illegal and what conduct is allowed,” said Joanna Wright, an attorney representing the abortion providers who are challenging the state abortion restrictions. “The Louisiana Constitution requires that criminal laws provide proper notice of what is and is not illegal.” Shortly after the Supreme Court decision in late June, the plaintiffs sought a temporary restraining order that allowed abortion providers to keep offering services as the case moved forward. That order was granted June 27 but then dissolved July 8, when the lawsuit was moved to a different jurisdiction. For a few days, abortion was illegal throughout Louisiana. Another judge granted a second temporary restraining order last week, again pausing the state abortion ban. “When we were granted the most recent” temporary restraining order “I don’t know how to describe the staff except for giddy,” Pittman said. “The relief was palpable around here.” When the first restraining order expired, physicians at her clinic continued to meet with prospective patients and offer them counseling, ultrasounds and initial consultations. But patients could not access abortions while the courts considered the request to temporarily block the ban. “Some of these women had been waiting weeks, or even months,” Pittman said. Hope Medical Group had a waiting list of 300 to 500 patients even before the Supreme Court decision to roll back the federal protections guaranteed by Roe. Many patients scheduled to have an abortion shortly after the Supreme Court decision had their appointments canceled as the clinic halted the procedure for several days because of the state trigger law. Some were able to reschedule after the district court blocked the trigger ban, but abortions stopped again when the first temporary restraining order expired a judge granted a second temporary restraining order and Hope Medical Group resumed abortions once more Thursday. “Some of the women we’re seeing today have already had appointments canceled on them twice now,” Pittman said Thursday, the first morning that her clinic was able to perform abortions after the second restraining order took effect. Louisiana Attorney General Jeff Landry has sought to discourage patients from seeking abortions even while the state ban is blocked by the courts. When some clinics resumed services after the second restraining order went into effect, Landry tweeted a “reminder.” “Louisiana’s laws banning abortion have not been enjoined,” he wrote. “Subject to certain exceptions, abortion remains a criminal offense in our State! Anyone performing abortions, pending outcome, will be culpable when the case is closed in favor of the laws of our State.” But legal experts say criminal laws are not typically applied to actions that took place when those laws were blocked by the courts. “Most people would tell you there is a real retroactivity problem there,” said Elizabeth Sepper, a professor of law at the University of Texas at Austin. “You can’t apply criminal law that didn’t exist at the time to a provider who was operating under” a temporary restraining or preliminary injunction. Landry also criticized the district court for temporarily blocking enforcement of the state abortion laws that have been supported “at the ballot box and through their elected legislature again and again and again.” “To have the judiciary create a legal circus is disappointing and what discredits the institutions we rely upon for a stable society,” Landry tweeted after a judge granted the second temporary restraining order. “The rule of law must be followed, and I will not rest until it is. Unfortunately, we will have to wait a little bit longer for that to happen.” The district judge may decide later this week whether the Louisiana trigger law that bans abortion will continue to be blocked as the case wends its way through the courts. If the law is not blocked, the three abortion clinics in the state will have to close their doors to patients, Pittman said. “We absolutely have to have that preliminary injunction,” she added. Individual Lawyers Speak Out Against 'Dobbs' While Official Statements From Big Law Remain Sparse6/28/2022 Individual lawyers and firms alike vow increased pro bono resources to support people with women's health challenges.  Responses to Friday’s overturning of Roe v. Wade from lawyers at top law firms continue to gather momentum, yet much of the reaction is coming from individual lawyers rather than law firms themselves.
In particular, hundreds of women attorneys have collected together to show their indignation over the ruling and their resolve to keep women’s productive rights alive in the United States. Jennifer Kennedy Park, a partner at Cleary Gottlieb Steen & Hamilton in New York, was among a group of women who put together a statement by women law partners on Dobbs v. Jackson Women’s Health Organization, condemning the decision. “Each of the undersigned has the great honor and privilege of being members of the bar. We swore oaths to support and defend the Constitution. We take that oath seriously. We know that our ability to serve in the legal profession and swear that oath was hard fought and rests fundamentally on the premise and promise that we, as women and people who have or had the potential to become pregnant, are free and equal citizens under the law,” the women wrote. “And our presence and leadership within the bar is without question a byproduct of the freedom each of us has had to make reproductive decisions for ourselves.” Park said Monday afternoon that the number of signatories is over 800. She noted those signatures were collected by “word of mouth” in less than 24 hours. “We cannot let that failure stand,” the women wrote of the decision. “As lawyers, and officers of the courts, we know we have unique abilities and responsibilities in the wake of this decision. To honor that responsibility and our oath to support the Constitution, we each commit ourselves to offering our pro bono legal services to organizations that defend and support women’s rights to autonomy, equality and safe access to reproductive care, including abortion.” “Each of us, as women partners at major law firms, have that privilege because we have each had reproductive freedom,” Park said in an interview. “So, how could we not have spoken out and committed ourselves to action? I hope that the community sees that we’re ready—despite what is an incredibly egregious decision—to fight. We have called for others to join the fight with us, and they have responded in turn.” Claudia Hammerman, a partner at Paul, Weiss, Rifkind, Wharton & Garrison, was also one of the organizers of the letter. “I had an abortion as a young woman, and have never regretted it,” said Hammerman, adding that she knows “for a certainty” that her abortion allowed her to chart her own life, and to eventually become a partner at a premier law firm. “It also allowed me to become a parent at a time when I knew I would have the resources—economic and emotional—to be the best parent that I could be.” Hammerman said there is ”simply no question”—from the conversations that she has had with other women lawyers—that the ranks of women equity partners would be “severely depleted” had women not had access to safe and legal abortion in the event of an unintended pregnancy. Another organizer of the statement, Debevoise & Plimpton partner Shannon Rose Selden, said women who signed the open letter are taking a risk by voicing their views. “We all realize that it is not riskless to come out and take a stand on this issue—especially in the world of social media—but we think that it is important,” said Selden, adding that while there has been a “universal call” for greater diversity within the legal profession, the legal community has not always recognized how crucial reproductive freedom is to the inclusion of women in law, or any other profession. Jamie Levitt, a managing partner of Morrison & Foerster’s New York office who also helped organize the statement, said it was a privilege to join forces with other law firm partners to make a public statement of commitment to fight for reproductive justice, and to call others to join. “The research is clear and overwhelming that the ability to decide if and when to have or expand a family is fundamental to women’s success and equal status in society as well as their personal autonomy,” said Levitt, the daughter of a physician who practiced before Roe v. Wade and saw “first-hand” how the criminalization of abortion harms women. “Women will not stop having abortions, they will just lose access to safe abortions. I have fought for reproductive rights in my pro bono work for decades, including as counsel on the Texas SB8 litigation, and served as a member of the Board of the Center for Reproductive Rights. And after Dobbs, I will redouble my efforts.” In an earlier copy of the statement seen by The American Lawyer, dozens of lawyers from leading firms attached their name and endorsement, including at least 15 lawyers from Cleary; 35 from Paul, Weiss, Rifkind, Wharton & Garrison; 22 from White & Case, one from Baker & McKenzie; 24 from Sullivan & Cromwell; 22 from White & Case; 26 from Debevoise & Plimpton; seven from Clifford Chance US; three from Cravath, Swaine & Moore; eight from Frankfurt Kurnit Klein; six from Gibson, Dunn & Crutcher; two from Hogan Lovells; two from Holland & Knight; 44 from Jenner & Block; 15 from K&L Gates; two from Kirkland & Ellis; one from Latham & Watkins; one from Manatt, Phelps & Phillips; two from Mayer Brown; 36 from McDermott Will & Emery; 40 from Morrison & Foerster; two from Orrick Herrington & Sutcliffe; three from Seyfarth Shaw; 20 from Shearman & Sterling; two from Sidley Austin; 28 from Simpson Thacher & Bartlett; 31 from Skadden, Arps, Slate, Meagher & Flom; 11 from Wachtell, Lipton, Rosen & Katz; and 44 from Wilmer Cutler Pickering Hale and Dorr. Beyond the statement from the 800+ lawyers, other lawyers have also voiced their intent to provide pro bono services for people facing women’s health challenges. A spokesperson for Ropes & Gray told The American Lawyer that on Friday, the firm had more than 265 people sign up for pro bono opportunities, and he expected more to do so over the weekend. Ropes chair Julie Jones was one of several female firm leaders who were quick to make internal statements to their colleagues about the decision in emails and memos sent firmwide. Jones expressed feelings of vulnerability as a woman and fear for the country as a whole. Kim Koopersmith, chair of Akin Gump Strauss Hauer & Feld, offered her “understanding to those of you who are feeling profound distress in the loss of a right that has been recognized as fundamental for a half-century.” Morgan Lewis & Bockius chair Jami McKeon acknowledged there will likely be “polarized” views of the Dobbs decision, as well as “more nuanced views of the role of elected officials and the courts in restricting access to abortion.” Steptoe & Johnson chair Gwen Renigar gave the firm’s lawyers and business professionals the day off Friday, to reflect. Few Firms Make Public Statements While many individual lawyers have spoken up, few firms or firm leaders have made public statements on Dobbs. There is a variety of reasons firms might not be issuing public statements. Many Big Law firms have offices in jurisdictions where their collective views might be unpopular, such as Texas, said the practice head of one Am Law 100 firm. The firms may also be wary of alienating clients that are pro life. The practice head noted that while firms might not be making specific public statements, the 23 firms who have joined the San Francisco alliance have ostensibly made their feelings known on the public stage. One Big Law chair who has made a statement on behalf of his firm was Larren Nashelsky of Morrison & Foerster. “The Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization today struck down 50 years of precedent that we, on behalf of our clients, have fought to defend,” said Nashelsky in a statement, adding that Morrison & Foerster has worked “tirelessly” to protect women’s health care rights, including a woman’s fundamental right to choose when, and whether, to have children. Last month, after a draft opinion in Dobbs leaked, Nashelsky promised that Morrison & Foerster would “redouble” its efforts to protect abortion and other reproductive rights. “We honor that promise today,” wrote Nashelsky, adding that over the last few weeks, the firm had joined new initiatives to protect reproductive freedom, and to defend health care providers and others who are targeted for helping women obtain reproductive services. “We will continue to marshal the time, talent, and resources zealously to advocate for our clients and their cause.” “I know so many of us are angry, upset, despondent, deeply troubled and, frankly, scared of what this means for women choosing to obtain reproductive services and all others affected by today’s decision,” wrote Nashelsky. “There are no easy answers today—just the need to keep fighting to protect the liberty and autonomy of women. Morrison & Foerster proudly remains on the front lines.” Morrison & Foerster was one of 23 original signatories to an initiative aimed at providing free legal services to those who will be affected if Roe v. Wade were to be struck down by the U.S. Supreme Court. The alliance is led by San Francisco city attorney David Chiu and supported by the San Francisco Bar Association. Other founding firms include Arnold & Porter Kaye Scholer; Crowell & Moring; Orrick Herrington & Sutcliffe; Paul, Weiss, Rifkind, Wharton & Garrison; and Willkie Farr & Gallagher. Monday the board of directors of Cooley, publicly expressed their “shared commitment” to gender equality and principles of diversity, equity and inclusion, and to fighting for reproductive rights. “The issues addressed in reproductive rights cases are indivisible from our values as a firm, as demonstrated by the spectrum of our pro bono work, which seeks to protect the rule of law, facilitate access to justice, and prevent disparate impacts on underrepresented communities,” wrote the Cooley board. “We respect that there are a range of personal beliefs around these issues. Yet we must acknowledge this rollback of rights and protections that have existed for decades and that affect so many of our colleagues. Concerns that impact any of us affect all of us. We have the utmost faith in our ability to support one another, through all our differences, with compassion, understanding and care.” Local Alliances Pledge National Support As news of the Dobbs decision spread around the legal community, San Francisco Bar Association president Mary McNamara members were “prepared to fight.” “We are ready to defend access to reproductive healthcare and protect those in need of legal assistance. Dobbs not only reverses nearly 50 years of precedent, it empowers the cruelest, most barbarous treatment of women imaginable. Women will be imprisoned, their health will suffer, their families will be impoverished. Some will die. This is a nationwide crisis,” said McNamara. Arnold & Porter partner Teresa Johnson, who is heavily involved in the alliance, said the alliance will work closely with organizations such as Planned Parenthood, the Center for Reproductive Rights and national advocates for pregnant women, who will likely be the first call for people needing help. “We’re all keenly aware that the people who are going to be most adversely affected by this ruling are members of underrepresented communities, of minorities, and people with limited means—magnifying the tragedy of all of this,” she said. On Friday, a Fenwick & West spokesperson said it too had joined the alliance, as well as one in New York. The Fenwick spokesperson said “we have received a big response from Fenwickians about the opinion and many partners and firm leadership have sent messages expressing support and concern for our firm community reeling from the decision and its potential impact.” The firm’s diversity, equity and inclusion team Friday facilitated small virtual gatherings to create a “safe space to discuss and share their thoughts and feelings” about the ruling. “We are encouraging people to reach out to our Women’s Caucus to share ideas and to find support and community,” said the spokesperson. Fenwick is also working with the Center for Reproductive Rights to accept cases brought against women’s health clinicians or clinics under the Texas Heartbeat Act (Texas SB 8), which outlaws abortion after six weeks of pregnancy and is enforced by civil lawsuits brought by private citizens. A spokesperson for another founding member of the San Francisco-based alliance, Farella Braun + Martel, said the firm “stands in solidarity” with those who support a woman’s right to choose. “As lawyers, we will do our part to fight in the courts to see that this ruling is reversed,” said the spokesperson. Keker, Van Nest & Peters managing partner Steve Taylor said his firm has not only joined the San Francisco alliance, but had also filed an amicus brief in the Dobbs case, representing more than 150 economists and researchers to show the Court how causal-inference tools have been used to isolate and measure the impacts of abortion legalization in the U.S., and to model what would happen if Roe were overturned or limited. “As a firm, we will continue to fight for safe, accessible reproductive healthcare,” said Taylor.  A group of students at George Washington University wants U.S. Supreme Court Justice Clarence Thomas banned from teaching at the law school following Friday’s ruling overturning Roe v. Wade.
As of Tuesday afternoon, more than 6,000 had signed the petition within the first two days of it being posted on Change.org. The petition states: “With the recent Supreme Court decision that has stripped the right to bodily autonomy of people with wombs, and with his explicit intention to further strip the rights of queer people and remove the ability for people to practice safe sex without fear of pregnancy, it is evident that the employment of Clarence Thomas at George Washington University is completely unacceptable.” “While also factoring in his wife’s part in the attempted coup in January of 2021, Judge Thomas is actively making life unsafe for thousands of students on our campus (not to mention thousands of campuses across the country),” the petition, started by Jon Kay, a rising junior majoring in international affairs and philosophy at GWU, states. Thomas, who is a professorial lecturer in law at GW Law and has taught at the school since 2011, joined the conservative 5-4 majority opinion in Friday’s ruling in Dobbs v. Jackson Women’s Health Organization. An email to the GW community from Christopher Alan Bracey, provost and executive vice president for academic affairs and professor of law, and Dayna Bowen Matthew, dean and and Harold H. Greene professor of law, was provided to Law.com late Tuesday afternoon. It addresses requests “from some members of the university and external communities that the university terminate its employment of Adjunct Professor and Supreme Court Justice Clarence Thomas and cancel the Constitutional Law Seminar that he teaches at the Law School.” “Justice Thomas has been a consistent critic of the Court’s legal philosophy on substantive due process for many years,” the email states. “Because we steadfastly support the robust exchange of ideas and deliberation, and because debate is an essential part of our university’s academic and educational mission to train future leaders who are prepared to address the world’s most urgent problems, the university will neither terminate Justice Thomas’ employment nor cancel his class in response to his legal opinions.” While Thomas’ views do not represent the views of GW University nor its law school, “like all faculty members at our university, Justice Thomas has academic freedom and freedom of expression and inquiry,” the email states, adding that “we affirm the right of all members of our community to voice their opinions and contribute to the critical discussions that are foundational to our academic mission.” On Tuesday, Kay posted an update to the petition about “next steps,” urging people to sign the petition and to send an email to GWU Dean Dayna Bowen Matthew, with a template provided, urging her to “terminate Professorial Lecturer and Supreme Court Justice Clarence Thomas from GW Law School” because he is “enemy of the human rights and freedoms we have as Americans.” The email template closes by saying that Thomas grossly misrepresents GWU’s values. Matthew said in an email to the GW Law community that the law school would be hosting discussions in the coming weeks regarding the reversal of Roe, as well as rulings in two other cases that involved gun rights and religious freedom, according to an article in The GW Hatchet posted Monday evening. “This is a time when GW Law may distinguish ourselves among all other law school communities by the way that we approach having difficult conversations and act constructively to preserve the rule of law and our democracy,” Matthew said in the email, according to the article. Several of those who signed the petition listed reasons for doing so. “Because this isn’t right. We are not moving backwards!” read one comment. “Justice Thomas can’t be trusted to be an unbiased and objective professor if he believes his female and queer students should have fewer rights than his straight, male students,” said another. But the petition has also attracted its share of on-campus critics. A press release sent on behalf of John F. Banzhaf III, professor emeritus of public interest law at GW Law, said the petition represents the “ultimate cancel culture demand.” “These sound like the same students who signed a petition asking their GW university to ban the stick figure used on lighted crosswalk signs on campus because they feel ‘oppressed’ because the figure appears to be that of a white man telling them what to do,” the release said. Banzhaf’s release also quoted the GW College Republicans as stating: “One of the principal assets of our school is learning from figures across the ideological spectrum. [T]he free exchange of ideas and opinions should be valued—not discouraged—at an institution of higher learning like ours.” According to Banzhaf’s release, “while there have been many other situations in which students have demanded that a professor be relieved of all his teaching duties because some disagreed with his views, this may well be the first time that students want to stop a Supreme Court justice from agreeing to teach at a law school.” Similarly, Jonathan Turley, Shapiro Chair for Public Interest Law at GW Law, wrote on Twitter that the petition is “a continuation of the enforced orthodoxy now all too common on our campuses where Thomas has long been a source of personal and offensive attacks.”  The D.C. Circuit on Friday delivered two wins to the U.S. Drug Enforcement Administration, tossing a pair of related appeals brought by a hemp industry group challenging the agency's authority to regulate aspects of the federally legal crop. In the first decision, U.S. Circuit Judge Laurence Silberman accused petitioners Hemp Industries Association and its member RE Botanicals Inc. of having brought "a rather weak case" against the DEA's interim final rule governing hemp by failing to demonstrate how the policy had injured them. Judge Silberman wrote that the petitioners had not shown that the 2020 interim final rule at issue was more severe than the 2018 statute legalizing hemp nationwide, which the rule was written to implement. "Although Petitioners' opening brief suggests that the language of the implementing regulation is different from the language of the statute, they never explain the significance in their view of the textual difference nor why the textual difference causes them injury," he wrote for the court. "There is simply the claim that the regulation increases DEA authority over what the statute contemplates." In the 2020 interim final rule at issue in the appeals, the DEA said any hemp derivative would still be considered a Schedule I substance if it went over the legal limit of psychoactive THC. The problem for the hemp industry, the petitioners and other stakeholders have argued, is that the process by which hemp is turned into CBD for consumer products creates waste and intermediate-stage material that exceed the 0.3% Delta-9-THC limit, becoming so-called "hot" hemp product that could put industry players in the crosshairs of DEA enforcement. Judge Silberman noted that counsel for the government said at oral arguments that the DEA's rule was not intended to be more onerous than the statute legalizing hemp, and the petitioners therefore could not show an injury. "Petitioners' primary argument is simply pushing on an open door because there is no dispute with the government," he wrote. "In other words, jurisdiction is absent — over the major issue — not just because Petitioners lack injury, but also because we do not even have before us a case or controversy." In a second decision dismissing a parallel appeal focusing on the hemp-extraction prongs of the DEA rule, U.S. Circuit Judge Karen Henderson wrote that the petitioners had also failed to show that they were directly injured by the DEA's policy toward waste and intermediate-stage material. "Neither the Plaintiffs nor the DEA asserts that the agency is currently undertaking or has undertaken an enforcement action against the Plaintiffs' possession or manufacture of hemp byproducts," Judge Henderson wrote for the court. "Meaning that the Plaintiffs' challenge is therefore grounded in the alleged threat of enforcement." Shawn Hauser, an attorney for the hemp parties, told Law360, "We disagree with the opinions, which highlight the confusing nature of these laws. We are evaluating next steps." A spokesperson for the DEA did not immediately respond to requests for comment Friday. The appeals were argued before U.S. Circuit Judges Karen Henderson, Judith Rogers and Laurence Silberman for the D.C. Circuit. Hemp Industries Association and RE Botanicals are represented by Matthew Zorn of Yetter Coleman LLP and Shane Pennington, Shawn Hauser and David Kramer of Vicente Sederberg LLP. The DEA is represented by Mark B. Stern and Sarah Carroll of the U.S. Department of Justice's Civil Division. The cases are Hemp Industries Association, et al. v. U.S. Drug Enforcement Administration, et al., case no. 20-1376, and Hemp Industries Association, et al. v. U.S. Drug Enforcement Administration, et al., case no. 21-5111, in the U.S. Court of Appeals for the District of Columbia Circuit.  A 1982 Maine law excluding religious schools from a rural-area, public school tuition payment program is unconstitutional, a divided U.S. Supreme Court ruled on Tuesday.
In an opinion by Chief Justice John Roberts Jr., the court’s conservative majority continued its expansive view of the demands of the First Amendment’s free exercise clause on government funding programs. Five of the six conservative justices attended religious schools. “Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment,” Roberts wrote. “Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.” Justice Stephen Breyer, joined by Justices Sonia Sotomayor and Elena Kagan, in a dissent wrote: “Maine wishes to provide children within the state with a secular, public education. This wish embodies, in significant part, the constitutional need to avoid spending public money to support what is essentially the teaching and practice of religion. That need is reinforced by the fact that we are today a nation of more than 330 million people who ascribe to over 100 different religions. In that context, state neutrality with respect to religion is particularly important.” Because of its rural nature, some areas of Maine are unable to provide K-12 public schools. In order to fill the gaps, the state offers two options to local school administrative units: Contract with another public or approved private school for some or all of its students or pay tuition for their students at another public school or “the approved private school of the parent’s choice at which the student is accepted.” The tuition payment program only includes nonsectarian schools—schools that do not inculcate students with a particular religious faith and that will provide a roughly equivalent secular public education. The Institute for Justice challenged the Maine law on behalf of two families who wanted to send their children to religious schools. Their challenge followed the justices’ 2017 decision in Trinity Lutheran v. Comer in which the court held that the free exercise clause was violated by Missouri’s refusal to allow a church school to participate in its grant program for resurfacing playgrounds. In the Maine lawsuit, a panel of the U.S. Court of Appeals for the First Circuit, which included retired Justice David Souter, upheld the state law because of the justices’ distinction in Trinity Lutheran between religious status and religious use. In Trinity Lutheran, exclusion of the church was discrimination based on religious status. The First Circuit said, and Maine had argued, that religious schools could participate in the tuition program as long as they provided a non-sectarian, public school education. They said that was exclusion based on religious use, not status. In a 2019 decision, Espinoza v. Montana Dept. of Revenue, the court again found a First Amendment violation based on religious status discrimination. Justice Neil Gorsuch, in a concurring decision, said he found it difficult to make a distinction between religious status and religious use. In two-hour arguments on Dec. 8 in Carson v. Makin, the two families, represented by Michael Bindas of the Institute for Justice, argued that Maine’s program discriminated against religion in violation of the First Amendment establishment and free exercise clauses, as well as the 14th Amendment. Bindas argued that religious schools were allowed to participate for more than a century until 1980 when Maine reversed course based on an erroneous reading of the establishment clause. “Here you are forced to make a choice: You can get the benefit (tuition payments) or you can exercise your free exercise right. You can’t do both,” he said. Maine Chief Deputy Attorney General Christopher Taub argued that a free public education was the benefit at issue. “The reason that schools that promote a particular faith are not eligible to participate is simple,” he said. “Maine has determined that, as a matter of public policy, public education should be religiously neutral. This is entirely consistent with this court’s holdings that public schools must not inculcate religion and should instead promote tolerance of divergent religious views.” Supporting Maine, Deputy U.S. Solicitor General Malcolm Stewart argued that the government has far greater latitude when it simply declines to fund particular speech than when it imposes barriers to that speech or exercise. Friday's decision overturning Roe. v. Wade raised concerns that decisions allowing privacy, birth control and same-sex marriage could be next.  While the future for many women seeking abortions in a post-Roe nation looks grim, it is the future of other constitutional rights sharing a foundation similar to the now-revoked abortion right that provoked sharp disagreements among the justices in Friday’s abortion ruling.
What about cases like Griswold v. Connecticut (right of married persons to obtain contraceptives), Lawrence v. Texas ( right to engage in private, consensual sexual acts) and Obergefell v. Hodges (right to same-sex marriage)? Justice Samuel Alito Jr., writing for the 6-3 majority, answered that abortion is unique and nothing in the opinion should cast doubt on precedents that don’t concern abortion. “Scout’s Honor,” replied the incredulous dissenter from Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. During arguments in Dobbs v. Jackson Women’s Health Center in November, U.S. Solicitor General Elizabeth Prelogar warned that overruling Roe v. Wade would threaten the protection of other rights under the due process clause of the Fourteenth Amendment. Countering that warning, Alito explained, “rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed ‘potential life.’” Because of that difference, he added, “a right to abortion cannot be justified by a purported analogy to the rights recognized in those other cases or by ‘appeals to a broader right to autonomy.’ It is hard to see how we could be clearer.” But the majority opinion contends there is no Fourteenth Amendment liberty interest in abortion because “and only because” the law offered no protection to the woman’s choice in the 19th century, the dissenters begin their rebuttal of Alito’s reassurance. “But here is the rub,” the dissenters continued. “The law also did not then (and would not for ages) protect a wealth of other things. It did not protect the rights recognized in Lawrence and Obergefell to same-sex intimacy and marriage. It did not protect the right recognized in Loving to marry across racial lines. It did not protect the right recognized in Griswold to contraceptive use. For that matter, it did not protect the right recognized in Skinner v. Oklahoma ex rel. Williamson. not to be sterilized without consent. So if the majority is right in its legal analysis, all those decisions were wrong, and all those matters properly belong to the states, too—whatever the particular state interests involved. And if that is true, it is impossible to understand (as a matter of logic and principle) how the majority can say that its opinion today does not threaten—does not even ‘undermine’—any number of other constitutional rights.” And it also doesn’t help, they added, to take the majority at its word “Scout’s honor.” Still, the future significance of today’s opinion will be decided in the future. And law often has a way of evolving without regard to original intentions—a way of actually following where logic leads, rather than tolerating hard-to-explain lines. The only justice willing to state clearly what he would do if faced with challenges to those “other rights” was Justice Clarence Thomas in his concurring opinion. Thomas has long railed against the court’s recognition of a substantive due process component of the Fourteenth Amendment—the basis for Roe, Griswold, Lawrence and Obergefell. Substantive due process, Thomas has written, is an “oxymoron” without any basis in the Constitution. The due process clause guarantees “at most” process. “It does not, as the court’s substantive due process cases suppose,” forbid government from infringing to certain ‘fundamental’ liberty interests at all, no matter what process is provided.” Resolving the Dobbs abortion case, Thomas said, was straightforward “because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.” However, Thomas added, abortion cases are “unique,” and no party in Dobbs had asked the court to reconsider its entire substantive due process jurisprudence. “For that reason, in future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote. “ Because any substantive due process decision is ‘demonstrably erroneous,” we have a duty to ‘correct the error’ established in those precedents. After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.” Like the court, some scholars disagree on what the abortion decision portends for those other rights. The opinion provides the foundation for taking away other fundamental rights the court has long protected, said Elizabeth Wydra, president of the Constitutional Accountability Center. “Abortion rights might be the unenumerated rights that fall in this particular opinion, but other essential rights—including the right to marry or to access birth control—hang by a thread as well. As the joint dissent by Justices Breyer, Kagan and Sotomayor says, ‘no one should be confident that this majority is done with its work. The right Roe and Casey recognized does not stand alone.’” But Alan White of the American Enterprise Institute called “false” the assertion that abandoning Roe would require abandoning other precedents. “Roe was an extraordinarily weak Supreme Court opinion, and it should never have been the benchmark for ‘stare decisis’ itself,” he said. |
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