- The Washington Times - Wednesday, September 29, 2021

The Supreme Court will wade into the gun debate for the first time in more than a decade and grapple with abortion restrictions in its next term, which begins Monday.

Several other issues percolating in lower courts, including religious liberty and freedom of speech and association, likely will make it to the Supreme Court in the coming months.

Justice Stephen G. Breyer, the most senior member of the court’s liberal wing, has become the focus of court watchers. Liberals are pressuring him to retire to allow President Biden to appoint a younger jurist in his place.



“I hope that he doesn’t let the pressure campaigns coming from the activists and the deep pockets on the left influence his decision,” said Carrie Severino, the chief counsel of the Judicial Crisis Network. “Maybe it will turn on how this term goes.”

The justices will hear two riveting cases in October.

One focuses on the authority of Kentucky Attorney General Daniel Cameron to defend a law requiring a procedure to end fetal life before a woman can undergo a dilation-and-extraction abortion, which usually is performed during the second trimester.

State officials stopped litigating the issue after abortion providers challenged the law. At issue is whether Mr. Cameron can continue to defend the law on his own.

The justices also will have to decide whether the 1st U.S. Circuit Court of Appeals erred in vacating the death sentence of Dzhokhar Tsarnaev, whose homemade bombs killed three people and injured dozens of others at the 2013 Boston Marathon.

The lower court found that jurors weren’t quizzed about observing media coverage of the attack and their potential bias.

‘Proper cause’ for handguns

Come November, the court will take on the most significant Second Amendment case since District of Columbia v. Heller in 2008. The justices ruled 5-4 in the case that D.C. officials cannot restrict the possession of firearms inside a home.

In New York State Rifle & Pistol Association v. Bruen, scheduled to be heard Nov. 3, the justices will consider the constitutionality of a state license requirement to carry guns outside the house.

Two men and the New York State Rifle & Pistol Association are challenging the state’s law. Anyone who wants to carry a handgun outside the home must apply for a license and show “proper cause” for the need to carry a gun.

Robert Nash was denied a license after pointing to a string of robberies in his neighborhood and verifying that he had taken an “advanced firearm training course.” Brendan Koch, who applied for a license for similar reasons, noted his “extensive experience” with handling firearms in a safe manner.

New York officials denied licenses to both men, saying they did not show a “proper cause” for carrying a gun in self-defense. The lower court sided with New York.

“This is potentially their first big Second Amendment ruling since [McDonald v. City of Chicago] extended Heller to states,” said Curt Levey, president of the Committee for Justice, citing a 2010 ruling.

On Dec. 1, the court will evaluate its roughly 50-year-old landmark decision Roe v. Wade, which granted women a right to an abortion up to the point where a fetus is viable, usually at 24 to 28 weeks of gestation.

Mississippi challenged Roe in defending its 15-week abortion ban against a lawsuit brought by abortion providers. Lower courts sided with the providers and issued an injunction blocking the 15-week ban.

It’s potentially the year’s most highly watched legal battle, especially after the justices declined this month to block a Texas ban on abortions when a fetal heartbeat is detected, usually around six weeks of pregnancy.

Mississippi officials argue that Roe v. Wade is outdated and its viability standard is unclear. The state says it has an interest in banning abortions after 15 weeks to protect the health of women and unborn children.

A ruling for Mississippi would allow other states to enact increasingly strict abortion laws. The case is Dobbs v. Jackson Women’s Health Organization.

‘A very narrow set of cases’

Elliot Mincberg, a senior fellow at People for the American Way, said the refusal to block the Texas heartbeat law is a sign that the court could “eviscerate” its abortion precedent.

“It sends a disturbing signal,” Mr. Mincberg said. “It clearly has the potential for completely overruling Roe v. Wade.”

As the high court considers the Mississippi case, the Texas case is set to return before the justices on a petition for review before the 5th U.S. Circuit Court of Appeals rules on the law’s merits.

Other abortion lawsuits in lower courts also could force the high court to get involved.

The 8th U.S. Circuit Court of Appeals is expected to rule on a Missouri law that limits abortion to eight weeks and doesn’t allow abortion if the sole reason is Down syndrome.

Earlier this year, the 6th Circuit reviewed an Ohio law that banned the abortion of a fetus with Down syndrome if that is the only reason for terminating a pregnancy. The court struck down a lower court’s injunction stopping the law from taking effect.

Josh Blackman, a professor at South Texas College of Law, said the Ohio and Missouri cases could interest Supreme Court justices.

“These sorts of cases may be more appealing to the Supreme Court. It is not an absolute ban on abortion at a particular time. Rather, it applies to a very narrow set of cases. As I understand the law, if a woman gives some reason other than Down syndrome, abortions are still permitted,” Mr. Blackman said.

The justices also will decide whether to hear legal battles on religious rights, the First Amendment and LBGTQ rights.

One case involves a Catholic hospital’s refusal to perform a hysterectomy on a transgender man. He sued the hospital after his surgery was canceled, though he was able to obtain a hysterectomy at another hospital.

Another lawsuit focuses on Harvard University’s affirmative action policy, which Asian students claim is discriminatory.

Project Veritas, a conservative activist group, also has a case pending before the high court. It is asking the justices to review a Massachusetts law that bans the secret recording of communications by anyone who is not a law enforcement officer. The organization is known for its undercover recordings exposing left-wing corruption.

Rulings in the New York gun case and the Mississippi abortion dispute are expected by the end of June.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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