Lisa Soronen speaking about the Supreme Court at the 2021 Legislative Summit

Lisa Soronen, executive director of the State and Local Legal Center, summarized the major cases facing the Supreme Court this term.

Controversial Supreme Court Cases on Abortion, Guns Previewed

By Mark Wolf | Nov. 4, 2021 | State Legislatures News | Print

No U.S. institution is politically hotter than the Supreme Court, and no issues are hotter than abortion and guns. When they collide, well, close cover before striking.

Lisa Soronen, executive director of the State and Local Legal Center and NCSL’s blogger on judicial issues, gave a guided tour of those cases and several others on the court’s current docket during the Legislative Summit session “Supreme Court Watch: What States Need to Know.

Abortion Headlines the Docket

Technically the court will consider three abortion cases, but of them, it’s only one from Mississippi, Dobbs v. Jackson Women’s Health Organization, that has the potential to overturn Roe v. Wade, which guaranteed a woman’s right to an abortion before fetal viability, or at around 24 weeks of gestation.

“Everything seemed crazy and excited at the Supreme Court about the Mississippi case and then along came the Texas law, which upset the apple cart and put the abortion discussion in a different light,” Soronen said.

Of the Texas cases—officially there are two—the most significant is U.S. v. Texas, in which the U.S. challenges a Texas law banning abortion after six weeks and allowing citizens to sue violators for $10,000. Because no state official enforces the law, it is designed to evade court review.

Soronen blogged about both the Texas and Mississippi cases for NCSL.

“Mississippi says you can’t do abortions after 15 weeks. There’s no question it violates Roe v. Wade, which says women can have abortions until viability and states may regulate abortion before viability as long as they don’t impose undue burdens on a woman’s rights and that states may not ban abortions,” she said.

“Initially Mississippi didn’t ask the court to overturn Roe v. Wade but it changed its tune in its brief,” she said.

Before the Texas case, she said, most people believed the court was not going to overturn Roe but would focus on whether cutting off abortions after 15 weeks is an undue burden.

“The problem is where you draw the line, and Texas pushes that,” she said.

The Texas case, she said, “is the most expedited case court had since Bush v. Gore (the 2000 case that stopped a recount of that year’s presidential election, resulting in George W. Bush winning the presidency). In oral argument, Justice (Brett) Kavanaugh described the case as ‘different, irregular, unusual.’ I think the court is going to be torn about allowing the U.S. to sue. Justice (Elena) Kagan wrote, ‘Until this law came along, no state dreamed about doing this.”

Soronen cited a blog post by Cornell law professor Michael Dorf about a conversation he had with New York Times Supreme Court reporter Adam Liptak, positing that the court could allow the U.S. to sue Texas but in the Mississippi case uphold the ban on abortion after 15 weeks. If that happens, the public could perceive the court had reached a middle ground compromise that states can ban abortion sometime between six and 15 weeks.

“I think that’s an interesting thing to think about in terms of what might happen,” said Soronen.

Firearms Restrictions

The Supreme Court has only decided one big gun case, D.C. v. Heller, which held that a “ban on handgun possession in the home violates the Second Amendment.” The Supreme Court has never opined on whether and under what circumstances a person may possess a gun outside the home.

Comes now New York State Rifle and Pistol Association v. Bruen in which the court will decide whether states and local governments may prevent people from obtaining a concealed-carry license for self-defense if they lack “proper cause.” 

“New York only allows people to have guns if they show proper cause for self-defense,” Soronen said. “It means not that they just want a gun, it means they have a greater need for self-defense than the average person.

“It’s easy to find six votes to overturn,” she said.

Reflecting on the current court makeup, Soronen said, “Some justice said when you get a new justice you get a new court. A new justice equals a new court. Believe me, these abortion and gun cases wouldn’t be on the docket but for Justice (Amy Coney) Barrett. You can really see the impact of one justice.”

Other significant cases Soronen addressed (some with links to NCSL blog posts she wrote) include:

  • Carson v. Makin, dealing with school choice in Maine.
  • Shurtleff v. City of Boston, a government free speech case involving flags that can be flown on a city-owned flagpole.
  • Ramirez v. Collier, about whether a condemned man can bring a religious person into the death chamber.
  • Gallardo v. Marstiller, about whether the federal Medicaid Act allows a state Medicaid program to recover reimbursement for Medicaid’s payment of a beneficiary’s past medical expenses by taking funds from the beneficiary’s tort recovery to compensate for future medical expenses.

Mark Wolf is a senior editor at NCSL.

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