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January 13, 2020 NEWSLETTER


Winter 2020 Edition

Natalie Dickes, 2020 Spring Intern

What is the New Year Beginning With? January Cases

Age Discrimination

In Babb v. Wilkie, a pharmacist at the C.W. "Bill" Young VA Medical Center in Bay Pines, Florida, Dr. Noris Babb, filed a complaint with the Equal Employment Opportunity Commission (EEOC). Her complaint addressed age and gender discrimination that she had been experiencing in her place of work regarding her job duties, pay and opportunities for advancement.

The issue highlighted in this case is whether the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA) requires a plaintiff to prove that age was the not just the motivation, but the cause of whatever the challenged action may be. The Age of Discrimination in Employment Act of 1967 explains that personnel actions affecting agency employees that are at the age of 40 years or older are free of “any discrimination based on age,” U.S.C §633a(a). Due to Dr. Babb working in the federal sector instead of the private sector or for a state/local government, this case must be addressed by the Supreme Court. If she were not an employee for the Department of Veterans Affairs, her argument of age discrimination would have been precluded with the previous Supreme Court Case Gross v. FBL Financial Services. This case could impact many of the United States’ older works, as the federal government employs roughly 3 million nationwide.

Babb v. Wilkie will be argued January 15, 2020.

The Supreme Court of the United States, Washington, D.C.

The Supreme Court of the United States, Washington, D.C.

Religious Freedom

In Espinoza v. Montana Department of Revenue, the Montana State Legislature enacted a law that included a provision entitled the “Tax Credit for Qualified Education Contributions.” The provision established a tax credit for taxpayers donating to scholarship organizations for private school students. This law made the Montana Department of Revenue responsible for administering tax credit, gave rulemaking authority for implementation, and provided instruction to ensure there was compliance with the Montana Constitution. Rule 1 was established to ensure compliance. However, this rule excluded religiously-affiliated private schools as Qualified Education Providers (QEPs). The plaintiffs of this case – Kendra Espinoza, Jeri Anderson, and Jaime Schaefer, challenged Rule 1, arguing that it violated both the Montana and United States Constitutions of their right to free exercise of religion.

The question regarding this case is whether invalidating a generally available and religiously neutral student-aid program violate the clauses in the United States Constitution that pertain to religion and equal protection simply because the program affords students the choice of attending religious schools.

Espinoza v. Montana Department of Revenue will be argued January 22, 2020.

On the Docket for February and March: Cases within the next few months

Criminal Justice & Prison Reform

In Lomax v. Ortiz-Marquez, the District of Colorado rejected the complaint of Limon Correctional Facility prisoner Arthur James Lomax against Centennial Correctional Facility personnel under the three-strikes provision, and rejected Lomax's motion to proceed in forma pauperis for failure to show cause of imminent physical danger. Because of Lomax’s previous three strikes, the district ordered for cause to be shown before proceeding in forma pauperis. Lomax argued that the district court's dismissals of his previous complaints were without prejudice and as such do not count as strikes. Additionally, even if previous dismissals had counted as strikes, Lomax had argued that he is under imminent physical danger, which is a condition that satisfies the exception of the three-strikes provision. Due to the district’s decisions, Lomax was ordered to pay the $400 appellate filing fee in full.

The question addressed by this case is whether a dismissal without prejudice for failure to state a claim counts as a strike under the Prison Litigation Reform Act.

The intention of the three-strikes provision is to remove frivolous claims from entering the courts. However, this provision has a disproportionally impact on offenders that are people of color. As there is an imbalance in the prison system due to the ‘war on drugs,’ more minorities are subject to life sentences under the ‘three strikes’ law. This is because many of these laws include drug offenses as prior ‘strikes.’ If SCOTUS were to not decide in Lomax’s favor, this could affect a vast population of inmates that have prior strikes, feel that their lives are in impending danger, but cannot afford the costs of the appellate fees.

Lomax v. Ortiz Marquez will be argued February 26, 2020.

Women’s Rights & Abortion

With the case of June Medical Services LLC v. Gee, June Medical Services, a clinic in Shreveport, Louisiana, challenged Act 620 in court. Louisiana Act 620 established requirements for doctors performing abortions, specifically that they be able to admit patients and provide diagnostic and surgical services to a hospital within 30 miles of the facility where the abortion is provided. June Medical Services LLC argued that Act 620 was unconstitutional under the Fourteenth Amendment, as it was a burden on the right to choose abortion.

Furthermore, while this lawsuit was being pursued, the U.S. Supreme Court held in Whole Woman's Health v. Hellerstedt that a Texas law, similar to Louisiana Act 620, was unconstitutional. After the U.S. Supreme Court decided Whole Woman's Health, the 5th Circuit remanded the case in June Medical Services v. Gee to the district court. There, Act 620 was ruled unconstitutional. Later in the year, the Fifth Circuit revered the district court’s ruling, declaring Act 620 unconstitutional. A petition for a rehearing was brought forth by June Medical Services but was denied by the Fifth Circuit on January 28, 2019.

The issue being addressed in this case is whether there is confliction between the 5th Circuit’s decision upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital and the U.S. Supreme Court’s binding precedent in Whole Woman’s Health v. Hellerstedt.

Louisiana 620 Act is a law that limits the access to abortion care and lacks any medical benefits. On December 2, 2019, the ABA filed an amicus brief on this case on behalf of the petitioner.

June Medical Services LLC v. Gee will be argued March 3, 2020.

Cases Not (Yet) Set for Argument

Native American Rights

The McGirt v. Oklahoma case will decide if a state can prosecute an enrolled member of a Native American Tribe for crimes committed within the historical native boundaries.

The plaintiff, Jimcy McGirt was found guilty of one count of first-degree rape by instrumentation, one count of lewd molestation, and one count of forcible sodomy by a jury in Wagoner County District Court. He was sentenced to 500 years in prison and life in prison without parole. Through the Oklahoma Court of Criminal Appeals, McGirt brought forth a petition of review, which was denied. Afterwards, McGirt appealed to the U.S. Supreme Court, arguing the Oklahoma courts lacked jurisdiction to hear his case because of his membership in the Seminole/Creek Nations of Oklahoma and because the alleged crimes occurred in Indian Country. Additionally, the crimes are considered within the Indian Major Crimes Act.

The issue discussed in this case is whether Oklahoma courts can continue to unlawfully exercise, under state law, criminal jurisdiction as "justiciable matter" in Indian country over Indians accused of major crimes enumerated under the Indian Major Crimes Act—which are under exclusive federal jurisdiction.

If SCOTUS were to rule in favor of the plaintiff, any crime with a victim or perpetrator that is Native American would be subject to federal jurisdiction, not state jurisdiction.

AIDS & First Amendment Rights

In the U.S. Agency for International Development v. Alliance for Open Society International case, the Alliance for Open Society International (AOSI) challenged a 2003 Congressional provision requiring U.S.-based organizations that receive federal funds to prevent HIV/AIDS overseas to adopt anti-prostitution and anti-sex trafficking policies.

After litigation in the U.S. District Court for the Southern District of New York and the U.S. Court of Appeals for the 2nd Circuit, the U.S. Supreme Court held the provision violated the First Amendment. The government did not enforce the policy against United States organizations but continued to apply it to foreign affiliates. Again, the Alliance for Open Society International challenged the provision. The United States Agency for International Development (USAID) petitioned the United States Supreme Court for review, asking the court to determine whether, based off its 2013 decision, the First Amendment prohibits enforcement of the provision for foreign entities affiliated with organizations like AOSI.

The issue being addressed in this case is whether—considering the 2013 decision by the Supreme Court in which the court held the First Amendment bars enforcement of Congress' policy requirement—the First Amendment further bars enforcement of that requirement with respect to legally distinct foreign entities operating overseas that are affiliated with U.S.-based organizations that receive federal funds to fight HIV/AIDS abroad.

If the Supreme Court were to rule in favor of the Alliance for Open Society International, this would uphold freedom rights laid out in the First Amendment of the United States Constitution. More importantly, the government cannot force a private organization to publicly profess a viewpoint that mirrors the government's view but is not held by the organization itself. A requirement of such would be considered a form of "leveraging."

Learn More

Curious about past Supreme Court terms and the status of case decisions? Check previous editions of our SCOTUS updates (October 2019July 2019April 2019January 2019)
from the Section's quarterly e-Newsletter on cases related to civil rights and social justice. Additionally, the Section of Civil Rights and Social Justice routinely hosts webinars and panels, discussing social inequities and their legal connection. If interested in learning more about these issues, recordings of past webinars can be found on the Section’s YouTube channel.  

Please refer to the directory of Amicus Curiae Briefs on the Section’s website, which contains amicus briefs filed by the ABA pertaining to civil rights cases. 

For existing policy, check out the Policy Project, featuring a compilation of all policy drafted by the ABA relating to the committees of the Section of Civil Rights and Social Justice.