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This week the big event is a Special Session: the Senate was in session today, and the House will go in tomorrow. There are a number of items we will take up, mostly to help businesses deal with issues and opportunities that have arisen recently, several of which were in the Finance Committee bill we passed in the House on the last day of Regular Session in May, but which the Senate failed to vote on in the final hours. (More details on the Special Session bill are in the body of the newsletter.)
And finally, because of some recent news headlines, I thought I’d touch on a few recent Supreme Court decisions and their impact on CT. As many of you know, I was a federal prosecutor in an earlier chapter in my life, so the federal courts, and federal and constitutional law remain something I pay a lot of attention to. And they do have an impact on what we do in the state legislature.
This week was the two-year anniversary of the Supreme Court’s overturning of Roe v. Wade, ending 50 years of constitutional protections for reproductive health care. Their decision in Dobbs v. Jackson Women’s Health erased those protections, enabling government officials to overrule an individual woman’s decisions concerning her own body and healthcare. In its majority ruling, the Supreme Court claimed to be washing its hands of the issue and returning it to state legislative bodies.
The decision did enable states to impose their own restrictions immediately. In CT, because we had already codified the holding in Roe v. Wade, the law remained the same, though no longer buttressed by constitutional protection. One year after Dobbs, however, 20 states were enforcing more restrictive abortion bans than before the ruling, including 14 states that banned abortion at conception, and many that have made abortion less accessible in other ways.
But it clearly did not get the Supreme Court out of this area of law, with two big abortion-related cases on its docket this year alone. In FDA v. Alliance for Hippocratic Medicine, the court’s recent ruling ensured that the abortion drug mifepristone would remain available nationwide, but only by denying “standing” to the plaintiffs. “Standing” is the legal right to bring something to court, generally requiring that a plaintiff have, 1) an actual injury; 2) the ability to tie that injury to the law in question; and 3) be an injury the court can actually fix. The theory of standing in this case was, to use a legal term, bonkers, and it is no surprise (though perhaps a relief) that the Supreme Court found it did not exist and the case could not proceed. The ruling preserved access to abortion medication (which is safer than Tylenol), but only until another plaintiff is found that can bring the case again with a better claim of standing. If that happens, access for CT residents is also threatened.
The second abortion-related case on the docket this year is Idaho & Moyle, et al. v. United States, which involves a federal law known as EMTALA, and the doctrine of “preemption.” Generally speaking, the federal government outranks the state, and federal legislation can, at times, “preempt” a state from taking any action in the same area of law where the feds occupy the field. Questions about how and where preemption applies are at issue in several cases this term, but here the question is essentially whether EMTALA’s requirement that emergency medical care (including emergency abortion care) be provided outranks Idaho’s ban on abortions. More directly, can an Idaho physician care for a woman who is experiencing a medical emergency by giving her medically necessary care, or can the state stop them from doing that? (As I write this, I saw breaking news that a draft opinion was briefly (and mistakenly) posted suggesting a 6-3 ruling in favor of EMTALA’s emergency care protections, but stay tuned.)
Those two cases make it clear that the Supreme Court has not extricated itself from this arena, with issues concerning IVF and interstate travel, for example, waiting in the wings. Also, speaking of preemption, a national abortion ban would negate all of CT’s protections as they no longer enjoy constitutional protection from Roe.
A second area of law where the Supreme Court could have a big effect on CT law is gun safety. CT has some of the most effective gun safety laws in the country, which have in turn put us in the top 5 safest states in terms of gun violence. Two big cases gun-related cases were before the Supreme Court this term, both of which we have rulings on, neither of which affect CT law, for now.
The first, Garland v. Cargill, relates to “bump stocks,” which can turn a semi-automatic firearm into a machine gun, by allowing it to fire bullets more rapidly. The Trump administration banned bump stocks (following the violence in Las Vegas in which a gunman, using semi-automatic firearms outfitted with bump stocks, fired more than 1,000 rounds, killing 60 people and wounding at least 413), relying on a ruling by the Alcohol, Tobacco and Firearms agency (ATF) that found that bump stocks effectively created machine guns (which have been banned since 1934). The Supreme Court in Cargill invalidated that federal ban, relying on a narrow and tortured description of the trigger’s function in a machine gun, ignoring the reason they were banned in the first place, which is the speed with which they fire bullets and therefore vastly increase violence, injury, and death.
The decision defies common sense. To paraphrase Justice Sotomayor’s dissent, if it walks like a duck, quacks like a duck, and swims like a duck, it’s probably a duck. CT also bans bump stocks, but because the case above was about interpreting a federal statute, and did not invoke constitutional protections in the Second Amendment, CT’s laws are not invalidated and remain in place.
The second gun case, US v. Rahimi, is a Second Amendment case. It asked whether laws that allowed the removal of firearms from an individual who was found to be a danger to their domestic partner were constitutionally valid. I have much more to say about this one, but suffice it to say that the Supreme Court backed away from the clear and frightening implications of an earlier decision, New York State Rifle & Pistol Association, Inc. v. Bruen, and upheld these restrictions. The ruling was 8-1, but there were a total of six opinions filed (including a fiery dissent from the author of the Bruen decision, Justice Thomas), leaving a lot of question about how the lower courts are going to interpret its holding, and a lot of questions about which restrictions will pass this murky test.
The ruling in Rahimi means that CT’s similar laws, including “red flag” laws that allow the removal of firearms from someone found to be dangerous to themselves or others, have survived to continue to protect CT residents. For now.
Finally, sometimes a decision not to take up a case has a powerful effect on CT. This week the Supreme Court rejected a challenge to a 2021 CT law that eliminated religious exemptions from childhood immunization requirements for schools, colleges, and day care facilities. Click here to learn more: https://www.nbcconnecticut.com/news/local/u-s-supreme-court-rejects-challenge-to-ct-law-that-eliminated-religious-vaccination-exemption/3319663/.
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