Vital Steps Forward at the Supreme Court in 2022

Last Term at the U.S. Supreme Court featured a set of major, even blockbuster victories for the Constitution and the rule of law. Let’s recap.

The biggest item was the Dobbs decision on abortion. In Dobbs v. Jackson Women’s Health Organization, the Supreme Court overruled two prior decisions – Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) – which had invented, and then retained, respectively, a supposed constitutional “right” to abort babies before birth.

The ACLJ had prepared and filed three different amicus briefs attacking the underpinnings of Roe and Casey. One, filed for the Elliot Institute, refuted the false claim that abortion is safer than childbirth.

Another ACLJ amicus brief, filed for the ACLJ itself as well as the Bioethics Defense Fund, made three points. First, fidelity to the Constitution takes priority over adherence  (“stare decisis”) to past erroneous decisions like Roe and Casey. Second, given the prohibitions on cruel and unusual punishment of even the worst criminals (in the Eighth Amendment to the Constitution) and even nonhuman animals (in animal cruelty laws), it makes no sense to enshrine the brutal slaying of tiny human children as a “right.” And third, abortion is often an instrument for the oppression of women in the service of irresponsible boyfriends, profit-seeking sex traffickers, heartless employers, and even eugenic proponents.

In a third Dobbs brief, the European Centre for Law and Justice (ECLJ) demonstrated how extreme the Roe/Casey abortion regime is compared with European law.

The Supreme Court decision in Dobbs was a tremendous – but partial – victory for life. While Dobbs did not outlaw abortion, it restored to states, at last, the power to protect mothers and their babies from the destruction and horror of abortion. But if overturning Roe was like destroying the Death Star in Star Wars, keep in mind that the Abortion Empire will strike back: There are now abortion fights all across the country. Indeed, we can even expect the abortion industry to try to build a bigger, more lethal Abortion Death Star, either in the form of a federal law or by packing the Supreme Court with pro-abortion Justices. But for now, at least, the pro-death handcuffs are off.

Another big victory was the repudiation of the Lemon test in Kennedy v. Bremerton School District. The Kennedy case involved a high school football coach disciplined for his silent post-game prayer. The so-called Lemon test, a cobbled-together trio of tests from prior Supreme Court religion cases under the Establishment Clause, had long been used as a weapon against religion, despite being roundly criticized for many years, by scholars and Supreme Court Justices alike. In our amicus brief in support of the coach, we attacked Lemon and said it was time to overrule the test. And when the Court issued its decision this past spring, just three days after Dobbs, the Court announced that Lemon was dead.

But that was not all. The Supreme Court also rebuffed a challenge to school choice in Carson v. Makin. That case vindicated the right of parents in a school choice program to select religious private schools whenever they have the right to select a comparable secular school. As we explained, excluding parents from the program just on the basis of religion is impermissible discrimination. We therefore had filed an amicus brief in Carson – one of several we filed over the course of the litigation – urging the Court to strike down the anti-religious discrimination. And that is exactly what the Court did.

There’s still more! The Supreme Court issued an important ruling supporting the Second Amendment rights of Americans in NY State Rifle & Pistol Association v. Bruen. Again, we had filed an amicus in the case and were delighted at the outcome.

In short, the 2021 Term represented the wonderful fruit of decades of effort by the ACLJ and others on the fronts of life, religion, and liberty. We thank God for such a blessing!

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 After such a string of major victories, one could fairly expect the Supreme Court Term covering 2022-23 to be a let-down. While it is true that the new Term begun in October of 2022 cannot be expected to produce as many blockbusters as last Term, there are already important cases coming before the Court, with others likely to follow. For example, the Court has already agreed to hear cases involving important questions about conscience and discrimination. And we’ve asked the Court to add a new prayer case, City of Ocala v. Rojas, involving the “offended observer” doctrine – the made-up rule that lets atheists and separationists challenge any religious display or speech that they disagree with.

Last Term was a wonderful Term. But the battle continues!

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