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SCOTUS Rules for Travel Ban, Against Abortion

By George Khoury, Esq. | Last updated on

In two highly contested and controversial cases, SCOTUS has ruled 5 to 4 along strict partisan lines, which perhaps explains the delays this term.

In short, the High Court struck down the preliminary injunction issued against the president's Executive Order travel ban. Also, the Court reversed and remanded a decision upholding a California law requiring anti-abortion "crisis pregnancy centers" to not intentionally mislead women about the nature of their services.

Below are highlights on both the Trump v. Hawaii and the NIFLA v. Becerra decisions.

Travel Ban Preliminary Injunction Lifted

As the Court laid out in the Syllabus for the 5 to 4 opinion, it held that:

"The President has lawfully exercised the broad discretion granted to him under §1182(f) to suspend the entry of aliens into the United States."

The decision goes on to explain that the president is granted "broad difference" in what is effectively, or maybe, an unreviewable matter: the suspension of the entry of foreign nationals if it "would be detrimental to the interests of the United States."

And while the Court did comment on President Trump and his advisors' separate statements reflecting religious animus toward Muslim individuals, the majority opinion believed that since an independent constitutional basis existed for the action, those "extrinsic" statements could not be used to invalidate a facially neutral law based upon a "comprehensive analysis" performed by DHS.

However, as Justice Breyer's well-reasoned dissent concludes:

"... I would, on balance, find the evidence of antireligious bias, including statements on a website taken down only after the President issued the two executive orders preceding the Proclamation, along with the other statements also set forth in JUSTICE SOTOMAYOR's opinion, a sufficient basis to set the Proclamation aside."

Crisis Pregnancy Centers Win First Amendment Battle

In NIFLA v. Becerra, the Supreme Court said crisis pregnancy centers are likely to succeed in their claim that their First Amendment rights are violated by the California law requiring them to disclose that they don't support abortion services, but in fact actively seek to counsel pregnant women away from seeking an abortion.

The FACT Act required these centers to provide information about abortions, whether the center is licensed, and state medical services, to the centers' clients. The centers challenged the act on First Amendment grounds and sought an injunction to avoid complying with it. The SCOTUS majority here held that the lower courts applied the wrong standards of scrutiny and created a never-before-used category of speech for First Amendment purposes: professional speech. The High Court rejected that analysis, and the majority never even reached the issue of whether the FACT Act was viewpoint discriminatory (though Justice Kennedy's concurrence seems to emphasize that issue).

In responding to the concurring majority's opinion, Justice Breyer, dissenting, argues that any viewpoint discrimination challenge is misplaced as the act is facially neutral:

"There is no cause for such concern here. The Act does not, on its face, distinguish between facilities that favor pro-life and those that favor pro-choice points of view. Nor is there any convincing evidence before us or in the courts below that discrimination was the purpose or the effect of the statute. Notably, California does not single out pregnancy-related facilities for this type of disclosure requirement."

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