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U.S. Federal Courts

Draft of Supreme Court opinion that overturns Roe leaked

LGBTQ activists, allies condemned reported decision

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Protesters gather outside of the United States Supreme Court on May 3. (Washington Blade photo by Michael Key)

In a stunning revelation published Monday evening in Politico, an initial draft majority opinion written by Justice Samuel Alito disclosed that the U.S. Supreme Court is poised to strike down the landmark 1973 Roe v. Wade decision.

According to Politico’s reporting; “The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision — Planned Parenthood v. Casey — that largely maintained the right. ‘Roe was egregiously wrong from the start,'” Alito writes.

The unprecedented disclosure marks the first time in the modern history of the court that an opinion has leaked while a case is still pending. If issued, the ruling would pave the way for a majority of states to criminalize abortion — a devastating reality for millions of American women and transgender and non-binary people who rely on safe, legal abortion care.

Slate Senior Legal Writer Mark Joseph Stern noted that Alito’s draft opinion explicitly criticizes Lawrence v. Texas (legalizing sodomy) and Obergefell v. Hodges (legalizing same-sex marriage.) He says that, like abortion, these decisions protect phony rights that are not “deeply rooted in history.”

A lawyer contacted by the Washington Blade who asked to speak on background said that the greater issue for the LGBTQ community and Americans in general is that should the court proceed with the draft in present form, which although may seem unlikely, it sends a clear signal that the high court cannot be trusted to protect and preserve the rights of minority citizens.

In the draft Alito writes; “We hold that Roe and Casey must be overruled. It is time to heed the constitution and return the issue of abortion to the people’s elected representatives.” With the current political climate leaning against LGBTQ Americans as evidenced by passage of a litany of anti-trans laws, ‘don’t say gay’ measures, and book bans, “this points to the immediate need to raise the alarm,” the lawyer continued.

Equality California, the nation’s largest statewide LGBTQ civil rights organization released the following statement from Executive Director Tony Hoang in reaction to Politico’s reporting and the draft opinion:

“Abortion is healthcare. Abortion is essential. Abortion is a fundamental human right.

“There is nothing the Supreme Court can do to change that. There is nothing five or six justices can do to stop people from needing and seeking abortion care. What they can do — and what overturning Roe will do — is cost people their lives and livelihoods. Women. Transgender and non-binary people. Our mothers and sisters and friends and neighbors and colleagues.

“Shame on us if we let this stand. We must organize, mobilize and vote like our lives depend on it. Because they do.”

Reaction to the leaked document from politicians and others came swiftly as word spread of the Politico report.

New York Gov. Kathy Hochul, a Democrat, released a statement saying;

“I am horrified by the apparent draft Supreme Court opinion leaked this evening that would overturn the right to abortion guaranteed by Roe v. Wade. For the sake of women across the country, this should not be the Supreme Court’s final opinion when it comes to abortion rights.

“We have been fighting this battle for too long. I refuse to go backwards. I refuse to let my new granddaughter have to fight for the rights generations have fought for and won, rights that she should be guaranteed.

“For anyone who needs access to care, our state will welcome you with open arms. New York will always be a place where abortion rights are protected and where abortion is safe and accessible. Just as the Statue of Liberty lifts her lamp tall in our harbor, New York will never stop fighting for what’s right — unafraid and undeterred.”

Politico did point out that deliberations on controversial cases have in the past been fluid. Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled. The court’s holding will not be final until it is published, likely in the next two months.

The court is expected to rule on the case before its term is up in late June or early July.

The Blade spoke with Shannon Minter, the legal director of the National Center for Lesbian Rights (NCLR) who said;

“That someone leaked this opinion — violating the court’s most sacrosanct rule of confidentiality — speaks volumes about how extreme and dangerous much of the court’s jurisprudence has become. We don’t know if this will be the final decision, but it is shocking to read this assault on an established fundamental right. A court that would issue an opinion like this — if it does — is a court that has abandoned any pretense of protecting individual freedom.

It would be harder for the court to hold that there is no fundamental right to marry or to sexual privacy, as any such decision would apply to both gay and straight people, but it would be foolhardy to predict how extreme this court may become. LGBTQ people should recognize that we are once again in the crosshairs and that all of our hard-won protections are under serious threat.

We have become too accustomed to counting on the courts for protection, and we must realize the days when we could safely do so are past. Our hope lies in joining forces with others who are fighting to protect democracy and the rule of law and to prevent our country from sliding into the same authoritarianism that is rising across the globe.”  

In Sacramento Monday evening, California Gov. Gavin Newsom issued a statement:

“This draft opinion is an appalling attack on the rights of women across this country and if it stands, it will destroy lives and put countless women in danger. It will be the end of fundamental constitutional rights that American women have had for nearly 50 years.

“This is not an isolated incident, and it is not the end. We have a Supreme Court that does not value the rights of women, and a political minority that will stop at nothing to take those rights away. This won’t stop with choice and the right to privacy. They are undermining progress, and erasing the civil protections and rights so many have fought for over the last half century.

“I’m furious that my own daughters and sons could grow up in an America that is less free than the one they were born into. We have to wake up. We have to fight like hell. We will not be silenced.”

California state Sen. Scott Wiener noted; “California unequivocally stands for the right to an abortion, no matter what the right-wing zealots on the Supreme Court say. We will fight hard to expand abortion access, here and in other states.”

U.S. Sen. Tammy Baldwin, (D-Wisc.), who is openly lesbian, tweeted her disgust at the leaked draft.

Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”

Justice Samuel Alito in an initial draft majority opinion

Politico received a copy of the draft opinion from a person familiar with the court’s proceedings in the Mississippi case along with other details supporting the authenticity of the document. The draft opinion runs 98 pages, including a 31-page appendix of historical state abortion laws. The document is replete with citations to previous court decisions, books and other authorities, and includes 118 footnotes. The appearances and timing of this draft are consistent with court practice.

Link to full Politico article and the draft document here: https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473

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U.S. Federal Courts

Club Q shooter sentenced to life in prison for federal hate crimes

Five people killed in 2022 mass shooting in Colo.

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Assistant U.S. Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. (Justice Department YouTube screenshot)

Anderson Lee Aldrich, 24, formerly of Colorado Springs, Colo., was sentenced to 55 concurrent life sentences to run consecutive to 190 years in prison after pleading guilty to 74 hate crimes and firearms charges related to the Nov. 19, 2022, mass shooting at Club Q, an LGBTQ establishment in Colorado Springs.  

According to the plea agreement, Aldrich admitted to murdering five people, injuring 19, and attempting to murder 26 more in a willful, deliberate, malicious, and premeditated attack at Club Q. According to the plea, Aldrich entered Club Q armed with a loaded, privately manufactured assault weapon, and began firing. Aldrich continued firing until subdued by patrons of the club. As part of the plea, Aldrich admitted that this attack was in part motivated because of the actual or perceived sexual orientation and gender identity of any person.

“Fueled by hate, the defendant targeted members of the LGBTQIA+ community at a place that represented belonging, safety, and acceptance — stealing five people from their loved ones, injuring 19 others, and striking fear across the country,” said Attorney General Merrick Garland. “Today’s sentencing makes clear that the Justice Department is committed to protecting the right of every person in this country to live free from the fear that they will be targeted by hate-fueled violence or discrimination based on who they are or who they love. I am grateful to every agent, prosecutor, and staff member across the Department — from the U.S. Attorney’s Office for the District of Colorado, to the Civil Rights Division, the ATF, and FBI — for their work on this case. The Justice Department will never stop working to defend the safety and civil rights of all people in our country.”

“The 2022 mass shooting at Club Q is one of the most violent crimes against the LGBTQIA+ community in history,” said FBI Director Christopher Wray. “The FBI and our partners have worked tirelessly towards this sentencing, but the true heroes are the patrons of the club who selflessly acted to subdue the defendant. This Pride Month and every month, the FBI stands with the survivors, victims, and families of homophobic violence and hate.”

“ATF will not rest until perpetrators like this defendant are prosecuted to the fullest extent of the law,” said Steven Dettelbach, director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). “I hope today’s life sentence brings at least some peace to the victims and survivors of this senseless, horrific tragedy. That this sentence should come during Pride month reinforces how far we have left to go before all communities, including all LGBTQIA+ communities, are safe here. It also shows how far ATF and all our partners will go to ensure hatred does not win.”

“The defendant’s mass shooting and heinous targeting of Club Q is one of the most devastating assaults on the LGBTQIA+ community in our nation’s history. This sentence cannot reclaim the lives lost or undo the harms inflicted. But we hope that it provides the survivors, the victims’ families, and their communities a small measure of justice,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. “Our message today should be loud and clear. No one should have to fear for their life or their safety because of their gender identity or sexual orientation. The Justice Department will vigorously investigate and prosecute those who perpetrate hate-fueled, bias-driven attacks.”

“Hate has no place in our country and no place in Colorado” said Acting U.S. Attorney Matt Kirsch for the District of Colorado. “I hope that today’s sentence demonstrates to the victims and those connected to this horrific event that we do not tolerate these heinous acts of violence.”

The FBI Denver Field Office, Colorado Springs Police Department, and ATF investigated the case.

Assistant U.S. Attorneys Alison Connaughty and Bryan Fields for the District of Colorado and, Maura White of the Justice Department’s Civil Rights Division prosecuted the case.

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U.S. Federal Courts

Title IX protections blocked in six more states

Ruling applies to Va.

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(Bigstock photo)

BY McKENNA HORSLEY | A federal judge has blocked new Title IX rules, including those aimed at protecting LGBTQ students from discrimination in K-12 schools, and sided with Republican attorneys general in several states — including Kentucky. 

Chief Judge Danny Reeves of the U.S. District Court in Eastern Kentucky on Monday issued a ruling siding with Republican Attorney General Russell Coleman and his counterparts in five other states. The ruling prevents the U.S. Department of Education from “implementing, enacting, enforcing, or taking any action to enforce the Final Rule, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance,” which was set to begin Aug. 1. 

Kentucky Attorney General Russell Coleman (Kentucky Lantern photo by Mathew Mueller)

Coleman and the GOP attorneys general filed the lawsuit in April. At the time, they argued the Department of Education “used rulemaking power to convert a law designed to equalize opportunities for both sexes into a far broader regime of its own making” with the new Title IX regulations. 

Reeves limited the injunction to the plaintiff states of Tennessee, Kentucky, Ohio, Indiana, Virginia and West Virginia.

The Biden administration introduced the rules to “build on the legacy of Title IX by clarifying that all our nation’s students can access schools that are safe, welcoming, and respect their rights,” U.S. Secretary of Education Miguel Cardona said in a statement. The rules also would have rolled back Trump administration changes that narrowly defined sexual harassment and directed schools to conduct live hearings, allowing those who were accused of sexual harassment or assault to cross-examine their accusers.

President Joe Biden with U.S. Secretary of Education Miguel Cardona. (Official White House photo by Adam Schultz)

In their complaint, the state attorneys general said that under the Biden rule, “Men who identify as women will, among other things, have the right to compete within programs and activities that Congress made available to women so they can fairly and fully pursue academic and athletic excellence — turning Title IX’s protections on their head … And anyone who expresses disagreement with this new status quo risks Title IX discipline for prohibited harassment.” 

Established in 1972, Title IX was created to prevent “discrimination based on sex in education programs or activities that receive federal financial assistance,” according to the Department of Education.

Reeves wrote in his opinion that “the Department of Education seeks to derail deeply rooted law” created by the implementation of Title IX. 

“At bottom, the department would turn Title IX on its head by redefining ‘sex’ to include ‘gender identity.’ But ‘sex’ and ‘gender identity’ do not mean the same thing,” he wrote. “The department’s interpretation conflicts with the plain language of Title IX and therefore exceeds its authority to promulgate regulations under that statute.” 

In a press release, Coleman’s office said Monday that schools that would fail to comply with the new rules would risk losing federal funding. Citing the Department of Education, the office said Kentucky’s public and private schools received a total of $1.1 billion in federal funding last year.

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“As a parent and as attorney general, I joined this effort to protect our women and girls from harm. Today’s ruling recognized the 50-plus years of educational opportunities Title IX has created for students and athletes,” Coleman said in the press release. “We’re grateful for the court’s ruling, and we will continue to fight the Biden administration’s attempts to rip away protections to advance its political agenda.”

A spokesperson for the department said it was reviewing the ruling.

“Title IX guarantees that no person experience sex discrimination in a federally-funded educational environment,” the spokesperson added. “The department crafted the final Title IX regulations following a rigorous process to realize the Title IX statutory guarantee. The department stands by the final Title IX regulations released in April 2024, and we will continue to fight for every student.”

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McKenna Horsley

McKenna Horsley covers state politics for the Kentucky Lantern. She previously worked for newspapers in Huntington, W.Va., and Frankfort, Ky. She is from northeastern Kentucky.

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The preceding story was previously published by the Kentucky Lantern and is republished with permission.

The Kentucky Lantern is an independent, nonpartisan, free news service based in Frankfort a short walk from the Capitol, but all of Kentucky is our beat.

We focus on how decisions made in the marble halls of power ripple through the lives of Kentuckians. We bring attention to injustices and hold institutions and officials accountable. We tell the stories of Kentuckians who are making a difference and shine a light on what’s working. Our journalism is aimed at building a fairer, healthier Kentucky for all. 

Kentucky Lantern is part of States Newsroom, the nation’s largest state-focused nonprofit news organization.

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U.S. Federal Courts

Federal court blocks Title IX transgender protections

Ruling applies to Idaho, La., Miss., and Mont.

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(Bigstock photo)

BY GREG LAROSE | A federal judge has temporarily halted enforcement of new rules from the Biden administration that would prevent discrimination based on gender identity and sexual orientation.

U.S. District Judge Terry Doughty of Louisiana issued a temporary injunction Thursday that blocks updated Title IX policy from taking effect Aug. 1 in Idaho, Louisiana, Mississippi, and Montana. 

In April, the U.S. Department of Education announced it would expand Title IX to protect LGBTQ students, and the four aforementioned states challenged the policy in federal court.

Doughty said in his order that Title IX, the 52-year-old civil rights law that prohibits sex-based discrimination, only applies to biological women. The judge also called out the Biden administration for overstepping its authority. 

“This case demonstrates the abuse of power by executive federal agencies in the rule-making process,” Doughty wrote. “The separation of powers and system of checks and balances exist in this country for a reason.”

The order from Doughty, a federal court appointee of President Donald Trump, keeps the updated Title IX regulations from taking effect until the court case is resolved or a higher court throws out the order.

Opponents of the Title IX rule changes have said conflating gender identity with sex would undermine protections in federal law and ultimately harm biological women. Gender identity refers to the gender an individual identifies as, which might differ from the sex they were assigned at birth.

Louisiana Attorney General Liz Murrill, who filed the suit in the state’s Western District federal court, had called the new regulations “dangerous and unlawful.” In a statement Thursday evening, she said the rules would have placed an unfair burden on every school, college and university in the country.

“This (is) a victory for women and girls,” Murrill said in the statement. “When Joe Biden forced his illegal and radical gender ideology on America, Louisiana said NO! Along with Idaho, Mississippi, and Montana, states are fighting back in defense of the law, the safety and prosperity of women and girls, and basic American values.”

Title IX is considered a landmark policy that provided for equal access for women in educational settings and has been applied to academic and athletic pursuits. 

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Doughty’s order comes a day after a similar development in Texas, where Judge Reed O’Connor, an appointee of President George W. Bush, declared that the Biden administration exceeded its authority, the Texas Tribune reported. 

Texas filed its own lawsuit against the federal government to block enforcement of the new rules, which Gov. Greg Abbott had instructed schools to ignore. Texas is one of several states to approve laws that prohibit transgender student-athletes from participating on sports teams that align with their gender identity.

Attorney generals in 26 states have originated or joined federal lawsuits to stop the new Title IX regulations from taking effect. 

Earlier Thursday, Republicans in Congress moved ahead with their effort to undo the revised Biden Title IX policy. Nearly 70 GOP lawmakers have signed onto legislation to reverse the education department’s final rule through the Congressional Review Act, which Congress can use to overturn certain federal agency actions.

Biden is expected to veto the legislation if it advances to his desk.

“Title IX has paved the way for our girls to access new opportunities in education, scholarships and athletics. Unfortunately, (President) Joe Biden is destroying all that progress,” U.S. Rep. Mary Miller (R-Ill.), author of the legislation, said Thursday.

States Newsroom Reporter Shauneen Miranda in D.C. contributed to this report.

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Greg LaRose

Greg LaRose has covered news for more than 30 years in Louisiana. Before coming to the Louisiana Illuminator, he was the chief investigative reporter for WDSU-TV in New Orleans. He previously led the government and politics team for The Times-Picayune | NOLA.com, and was editor in chief at New Orleans CityBusiness. Greg’s other career stops include Tiger Rag, South Baton Rouge Journal, the Covington News Banner, Louisiana Radio Network and multiple radio stations.

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The preceding article was previously published by the Louisiana Illuminator and is republished with permission.

The Louisiana Illuminator is an independent, nonprofit, nonpartisan news organization with a mission to cast light on how decisions in Baton Rouge are made and how they affect the lives of everyday Louisianians. Our in-depth investigations and news stories, news briefs and commentary help residents make sense of how state policies help or hurt them and their neighbors statewide.

We’re part of States Newsroom, the nation’s largest state-focused nonprofit news organization.

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