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Abortion, Guns And Gay Rights On The Docket For Supreme Court’s New Term

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Separation of church and state, immigration and questions about impeachment could be on the table this term, which starts Monday and will almost surely be a march to the right on flashpoint issues.

Speaker 1: 00:00 As the Supreme court session gets underway today, the court has decided it will not take up SDG and E's appeal to pass on $397 million in costs from the 2007 wildfires to customers. This will keep the state Supreme court's decision in place and is seen as a win for rate payers. The court will, however be considering cases this session on DACA, LGBTQ rights, abortion, and an anti-smuggling law for more on these cases. We are joined by Dan Eaton legal analyst and partner with seltzer Caplan, McMahon Vita tech. Dan, welcome. Good to be with UJ. You know, these are some divisive issues to be deciding in a on an election year. Isn't that something the court usually avoids?

Speaker 2: 00:44 Well, the court decides the cases that come before it and the court is basically a reactive institution in the sense that it doesn't go around making policy. It just decides the actual controversies in cases that come to it. And these happen to be very, very hot button issues and the way they come out may very well affect the upcoming election

Speaker 1: 01:07 and the court will take up a series of cases tomorrow that deal with protections for the LGBTQ people. Uh, what type of protections will the judges be considering in these three cases?

Speaker 2: 01:17 The critical question is whether a title seven, the federal employment discrimination law, which prohibits discrimination quote because of SACS. Closed quote includes, uh, a prohibition on discrimination because, uh, someone is gay. There is no dispute that back in 1964, when the statute was passed that no one contemplated that it would apply to gay and lesbian people. The question is whether the plain meaning of the statute embraces gay and lesbian people such that that protection should be extended. It's important to realize that the lower courts are split, which is why the Supreme court ultimately has to weigh in. And does this include transgender people as well? Yeah, there's a separate case that the court will, uh, hear involving the employee of a funeral home, uh, who was transitioning between male and female. And the question is whether because of sex includes, uh, transgender individuals, that person was fired.

Speaker 2: 02:19 Again, this is a very interesting issue of statutory construction. Really the question is whether the plain meaning applies to gays and transgender individuals and protects a gender identity or perceived stereotypes. The Supreme court actually has held that it does or whether the understanding of the statute at the time it was enacted, uh, rules and uh, therefore these folks are outside of the protection of the federal antidiscrimination law. It's important to realize at California and several other States do protect gender identity and uh, people who are gay and lesbian and broadly, uh, transgender. But, uh, the federal is important for those in States that don't have those kinds of protections. And one of the big cases people will be watching this session is one on abortion. This is the first time the court, uh, the current court rather will be considering the issue, correct? Well, yes, that's right.

Speaker 2: 03:14 J D the important thing is that three years ago with justice Anthony Kennedy sitting on the court, the court invalidated a very similar law, a out of a Texas. This case involves a Louisiana law that prohibits, uh, abortions by any doctor that doesn't have admitting privileges to a facility within 30 miles of where the abortion is going to be performed. Those who are challenging this law stabled weight that leaves as a practical matter only a single doctor in the entire state of Louisiana who can perform abortions. The fifth circuit court of appeals upheld, uh, this law saying that there was evidence unlike in the Texas case, that the requirement of admitting privileges actually helps to protect the health of a woman and therefore, uh, not withstanding the burden on her right to an abortion, it doesn't constitute an unconstitutionally undue burden. In light of this state's interest in protecting her health.

Speaker 2: 04:11 And the court will also be making some key decisions on the DACA program, which protects nearly 800,000 people bought to the country illegally as children from deportation. What exactly is the court being asked to decide here? Understand J that DACA stands for deferred action for childhood arrivals and what the court is actually being asked to decide as a rather technical question about whether the administration and resending this program violated the administrative procedures act. Because the reason, uh, given, uh, by the administration for resending the program, uh, was that it was an unlawful exercise of executive power. Uh, the lower court said, well, no, that if that's your reason, that isn't right. That ends up being arbitrary because it wasn't an unlawful exercise of executive power given the broad discretion that the, uh, executive has, the president has with respect to deciding who, uh, stays and who doesn't in this country.

Speaker 2: 05:08 So, uh, really the question is whether the reason given doesn't hold water and is arbitrary and uh, ultimately that may determine whether DACA for now survives or doesn't. And the Supreme court will also take up another case surrounding immigration. This one challenges in anti-smuggling law that makes it a felony to encourage or induce someone to enter or stay in the U S illegally. Talk to us about what the high court will be deciding there. It's actually a fascinating case and the court just agreed to a review this, uh, last Friday at its conference and it's out of the ninth circuit, which of course is based in California. Uh, the issue, uh, is whether this statute which prohibits encouraging or inducing, uh, someone to stay in this country illegally by the way, for purposes of financial gain. That's what the specific facts, uh, were and what the law says, whether the idea of, uh, criminalizing encouraging her to sing takes in two broad sweep of legitimate free speech activity for example, of the ninth circuit, uh, said that it would criminalize someone making a speech to a gathered crowd to say, I encourage all you folks out there without legal status to stay in the U S we are in the process of trying to change the immigration laws in the more we can show the potential hardship on people who have been in the country a long time, the better we can convince American citizens to fight for us and grant us a path to legalization now that could be criminalized under this law and said, well, that's legitimate.

Speaker 2: 06:30 That is protected speech and this statute, it goes too far. It'll be interesting to see whether the Supreme court says no, that statute really can be read only to prohibit criminal activity and inducing criminal activity, and we'll be looking forward to all of the big decisions to come and many others. Yes. I've been speaking with Dan Eaton legal analyst and partner with seltzer Caplan McMahon Vtech Dan, thank you so much. Good to be with you. Jade.

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Maureen Cavanaugh and Jade Hindmon host KPBS Midday Edition, a daily radio news magazine keeping San Diego in the know on everything from politics to the arts.