Abortion access, the EPA’s ability to slow climate change, and gerrymandering
This update puts last month’s Supreme Court decisions and a case they have agreed to hear this fall in the context of over 150 years of striving to extend equal protection to all American citizens under the Fourteenth Amendment, as well as implications for the authority of the federal executive branch, state constitutions, and courts for protecting civil and human rights. This post also offers resources for your advocacy.
The cases in this update are:
- Dobbs v. Jackson Women’s Health, overturning the nationwide right to abortion, established in 1973 by Roe v. Wade. I’m sharing the Presiding Bishop’s statement and news of how Episcopalians are organizing a response.
- West Virginia v. EPA, forbidding the executive branch from adopting regulations to accelerate a transition away from fossil fuel electric generation without explicit legislation passed by Congress. This decision is widely seen as threatening the basis of federal agencies to make rules to protect public health, consumers, and myriad other aspects of the common good.
- Moore v. Harper asking the U.S. Supreme Court to throw out a decision by the North Carolina Supreme Court that invalidated an extremely gerrymandered legislative map drawn by the state legislature. This case has giant implications for Ohio voters. You can learn more Wednesday night, July 13, in the Ohio Fair Districts All Volunteer Huddle at 6 pm on Zoom. Register here.
The impact of the two decisions cited above, and the danger of Moore v. Harper, is to vastly strengthen the power of state legislatures and Congress at the expense of the executive and judicial branches. These cases build on previous Supreme Court decisions that have undercut the protections of the Voting Rights Act and ruled that it’s up to legislatures, not federal courts, to prevent partisan gerrymandering. Congress has failed to pass such standards, and partisan majorities of either party in state legislatures have frequently succumbed to the conflict of interest to preserve their own power.
Access to abortion
The Supreme Court’s June 24 ruling spread chaos across the country as access to abortion became a matter of state law and lawsuits proliferated. In Ohio, a ten-year old rape victim had to travel to Indiana to get an abortion because she was just days beyond the six-week limit that went into effect immediately when a judge lifted the injunction against Ohio’s “heartbeat bill,” which has no exceptions for rape or incest. Doctors in many states now face legal peril for treating emergencies like ectopic pregnancies that endanger the life of the mother. An opinion by Justice Clarence Thomas raises the question of whether rights guaranteed by previous Supreme Court rulings to contraception and marriage equality will endure.
“While I, like many, anticipated this decision, I am deeply grieved by it,” wrote Presiding Bishop Curry the day the ruling was published. “I have been ordained more than 40 years, and I have served as a pastor in poor communities; I have witnessed firsthand the negative impact this decision will have. We as a church have tried carefully to be responsive both to the moral value of women having the right to determine their healthcare choices as well as the moral value of all life. Today’s decision institutionalizes inequality because women with access to resources will be able to exercise their moral judgment in ways that women without the same resources will not.”
The Presiding Bishop cited General Convention resolutions supporting women’s equal right of access to health care, including the Episcopal Church’s “unequivocal opposition to any legislation on the part of the national or state governments which would abridge or deny the right of individuals to reach informed decisions [about the termination of pregnancy] and to act upon them’(2018-D032). As stated in the 1994 Act of Convention, the church also opposes any ‘executive or judicial action to abridge the right of a woman to reach an informed decision…or that would limit the access of a woman to safe means of acting on her decision’ (1994-A054).’
“The court’s decision eliminates federal protections for abortion and leaves the regulation of abortion to the states,” Bishop Curry adds. “The impact will be particularly acute for those who are impoverished or lack consistent access to health care service…We pray for the poor and vulnerable who may not have other options for access. We urge you to make your voice heard in the way you feel called but always to do so peacefully and with respect and love of neighbor.”
In her July 8 Letters from an American post, Boston College history professor Heather Cox Richardson explains how this decision undermines the protections for individual rights against state governments added to the US Constitution in 1868 in response to the Black Codes. “The Fourteenth Amendment gave the federal government the power to protect individuals even if their state legislatures had passed discriminatory laws. ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,’ it said. And then it went on to say that ‘Congress shall have power to enforce, by appropriate legislation, the provisions of this article.’
The Fourteenth Amendment was ratified in 1868. In 1870, Richardson adds, “the federal government set out to enforce national equality before the law with the creation of the Department of Justice, whose first job was to bring down the Ku Klux Klan terrorists in the South who were assaulting and murdering their Black neighbors.
“In the post–World War II era, the federal government again used the Fourteenth Amendment to protect citizens against discrimination at the state level when the Supreme Court began to use the equal protection clause and the due process clause of the Fourteenth Amendment aggressively to apply the protections in the Bill of Rights to the states. The civil rights decisions of the 1950s, 1960s, and 1970s, including the 1954 Brown v. Board of Education decision that outlawed segregation in public schools and the 1973 Roe v. Wadedecision, come from this doctrine. Under it, the federal government took up the mantle of protecting the rights of individual Americans in the states from the whims of state legislatures.
“Opponents of these new civil rights protections quickly began to object that such decisions were “legislating from the bench,” rather than permitting state legislatures to make their own laws. They began to call for “originalism,” the idea that the Constitution should be interpreted only as the Framers had intended when they wrote it, an argument that focused on the creation of law at the state level. That theory is now dominant in the Supreme Court. Two weeks ago, on June 24, 2022, it rejected the federal government’s power to protect civil rights in the states, and more than a dozen state legislatures have rushed to outlaw abortion procedures.”
The Episcopal Church Foundation issued a press release that they are setting up a Reproductive Rights Resource Hub “where people throughout the church could post their stories, strategies, communications, ideas, prayers and even worship services in support of a woman’s right to choose.” I will keep you posted on that.
The Supreme Court’s decision in West Virginia v. EPA took on a suit by several Republican attorneys-general and coal companies against an Obama clean energy regulation that was stayed and has never even gone into effect. The ruling preempts the EPA’s ability to adopt systemic regulations to transition the US electric power sector – one of our top sources of greenhouse gas emissions – towards renewable energy. Instead, the Court’s majority opinion cited a novel “major questions doctrine” that the concurring justices say require Congress to specifically authorize such regulations. This comes at a time when the Senate repeatedly fails, because of the filibuster rule, to pass significant action to reduce carbon emissions. The United States is the world’s second largest emitter of greenhouse gases and this decade is seen by scientists as crucial to preventing climate catastrophe.
Given the obstacles in Congress, the ruling pumps up the power of state legislatures to set energy policy. Several laws passed in recent years by the Ohio Legislature, including HB 6 ending Ohio’s renewable energy standards and energy efficiency programs, prove that the current majority party strongly favors fossil fuels and has an animus to renewable energy. The Supreme Court decision coincided with blackouts affecting hundreds of thousands of Ohioans for several days at a time of severe heat emergencies. Tornados and other extreme storms downed power lines in many counties. Surging power demand because of heat caused AEP to implement rolling blackouts across Central Ohio,
The Episcopal Church strongly supports action to slow climate change because of its huge impact on the entire world – but particularly on poor people. The poor worldwide also suffer most from the grievous harm of breathing particulates released by fossil fuel-fired plants. This link gives the Church’s action alert on climate change.
Your church can reduce emissions without waiting for government to act! Apply for the $10,000 diocesan energy conservation grant to reduce your church’s energy consumption. The cleanest energy is the energy you don’t use. By lowering your electric consumption, especially in summer heat, you will help prevent grid overload and surging prices that hammer poor people forced to pay a huge proportion of their income for utility bills. These grants are only available through June of 2023, so you should start now. The link to the very simple application is here. Members of the diocesan Creation Care and Environmental Justice Task Force are glad to help you identify eligible projects to help your church reduce consumption and save money. Contact us here: firstname.lastname@example.org.
Two other actions you can support are these:
The U.S. Supreme Court has agreed to hear Moore v. Harper, challenging a decision by the North Carolina Supreme Court to invalidate gerrymandered maps drafted by the state legislature and replace it with a map of its own. The petitioners’ argument “rests on an extreme reading of the elections clause of the U.S. Constitution that posits that only state legislatures and Congress have the authority to decide how federal elections are run. Under this school of thought, known as the “independent state legislature” theory, state courts would no longer be able to intervene — even when a legislature violated the state’s constitution, as was found to be the case in North Carolina,” explains an article in FiveThirtyEight.com.
This case has huge implications for Ohio, whose voters passed constitutional amendments by over 70% margins to prevent partisan gerrymandering in the last few years. The Ohio Supreme Court drew on these constitutional provisions to repeatedly invalidate each of the Congressional and state district maps drawn by staff of the majority leaders of the Ohio House and Senate, using statistics to show that these maps disproportionately favor the Republican Party. Republicans on the State Redistricting Commission, as well as the state legislature, have repeatedly defied very specific orders by the Ohio Supreme Court on the standards the maps must meet to be fair, and both the Congressional and state legislative elections of 2022 are proceeding with maps that have been found unconstitutional.
A ruling by the US Supreme Court in favor of the North Carolina petitioners could allow partisan majorities in any state legislature – including Ohio – to draw maps without any accountability to the state constitution or state courts. Needless to say, I’ll be watching this case and reporting to you. Civil rights, including the principal that each person’s vote should count equally, are a longstanding priority of the Episcopal Church.
Advocacy briefings are compiled by Ariel Miller, a member of Ascension & Holy Trinity, Wyoming, and a member of the diocesan Becoming Beloved Community Leadership Team. Connect with her at email@example.com