Defending Immigrants’ Rights and Reproductive Freedom in the U.S. Supreme Court

The U.S. Supreme Court will hear a number of cases this term that will have a crucial impact on civil rights and civil liberties — from LGBTQ equality to reproductive freedom and immigrants’ rights. Earlier in the term, the ACLU had two cases asking whether workers can be fired for being LGBTQ. On March 2, we will be arguing a case on immigrants’ rights, and we have filed or will file friend-of-the-court briefs in major cases involving reproductive freedom, contraceptive access, and religious freedom.

We sat down with David Cole, the ACLU’s national legal director, to discuss what’s in store for the ACLU next week, and what’s at stake for civil liberties this SCOTUS term. 

Q: The ACLU is going to the Supreme Court next week. What is the case and what’s at stake?

We will be arguing Department of Homeland Security v. Thuraissigiam on Monday, March 2. It asks whether the Constitution guarantees judicial review of deportation orders. This is a fundamental question for every immigrant, and it’s all the more important because President Trump is seeking to deport as many people as quickly as he can, often with as little process as possible. To that end, the administration has expanded a program called “expedited removal,” which allows the government to order the deportation of foreign nationals while denying them the right to have their case reviewed in court. 

We’re defending Thuraissigiam, who is a Tamil, an ethnic minority group in Sri Lanka. He fled to the United States seeking asylum after being abducted and tortured by government agents. He applied for asylum, but the asylum officer found that he did not present a “credible fear of persecution at home,” even though the violent treatment he suffered fits precisely the pattern of government abuse of Tamils in Sri Lanka. 

We argue that Thuraissigiam has a constitutional right to have a court review whether the deportation was legal or not through “habeas corpus,” a writ allowing any person facing detention to challenge its legality before a judge. The government argues that the Constitution does not protect immigrants, like Thuraissigiam, who challenge the legality of their removal from this country. In so arguing, it asks the court to depart from over 100 years of Supreme Court precedent. At the end of the day, if immigrants can be deported without judicial review, regardless of the legality of their deportation, then the rule of law in immigration proceedings will mean nothing. Under the government’s view, our client would have no judicial recourse, even if the Department of Homeland Security denied his request for asylum because he is dark-skinned. 

Q: The court will also hear arguments on a Center for Reproductive Rights case related to abortion next week. What’s at stake there? 

A: In this case, June Medical Services v. Russo, we filed an amicus brief supporting the abortion providers. The court will hear arguments on March 4. It’s a challenge to a Louisiana state law that requires doctors who provide abortions to have admitting privileges at local hospitals. But what’s at stake is whether the new Supreme Court with two justices appointed by President Trump will give states the green light to push abortion care further and further out of reach. 

Four years ago, in Whole Woman's Health v. Hellerstedt, the Supreme Court struck down a Texas statute that was identical to the Louisiana law. In that case, the court said there is no medical rationale for requiring doctors who provide abortions to have admitting privileges in local hospitals. All the law did was make it harder for people to get abortions. Louisiana nonetheless argues that their identical law is constitutional. But to reach that result would likely either formally or as a practical matter overturn Whole Women’s Health, and if the court does that, it will be a very disturbing sign for the future viability of abortion rights.

Q: This is the first reproductive rights case that Justices Kavanaugh and Gorsuch will hear since being confirmed to the court. How do you think this will affect the decision? 

A: That’s the million-dollar question. No one knows for sure. What we do know, is that President Trump promised to put justices on the court to reverse Roe v. Wade. So we know what his intention was, but the question will be whether these justices abide by precedent or feel free to break from it. 

Q: Is there a common thread in both these cases? 

A: The common thread is that for the court to rule against the position we are advancing would require it to break from precedent. We’re asking the court to hold fast to core principles that have long been decided. The opposing sides, in both cases, are asking the court to ignore precedent and make new law. 

I think we’re well-positioned to address these issues, because we’ve been at the forefront of the struggles for immigrants’ rights and reproductive freedom for the last 50 years. We were involved in Roe v. Wade itself, and we’ve been involved in virtually all the court’s major immigrants’ rights and reproductive rights decisions for decades. Reproductive freedom and immigrants’ rights are two of the most important issues that we fight for every day, and never have they been more under attack than under the Trump administration. 

Q: What is the biggest challenge we face in these two cases?

A: The biggest challenge is that we now have a court that is dominated by very conservative justices. The question will be whether the court decides these cases in a partisan way, or whether it will rise above the partisan divide and act like a court. We rely on Supreme Court justices to apply the law, not to enforce partisan political views. These cases will be a real test of that principle. 

Q: The Supreme Court recently announced it will hear Fulton v. City of Philadelphia. What is at stake there?

A: This case, Fulton v. City of Philadelphia, involves the City of Philadelphia's taxpayer-funded foster care program and a nondiscrimination rule. Catholic Social Services, one of the nonprofits who contracted with the city to help carry out the city’s foster care program, refuses to certify same-sex couples as fit foster parents, even if they are otherwise fully qualified. Philadelphia’s law prohibits such discrimination. CSS claims that it has a constitutional right under the Free Exercise Clause to get government money to carry out a government program while violating the terms of the government program and engaging in discrimination with government money.

We represent two Philadelphia nonprofits that work with and for kids and families in the foster care system. We argue, alongside the City of Philadelphia, that if anyone wants to participate in a government program, they have to abide by the nondiscrimination rule and accept all qualified families. We won in the lower courts, but the Supreme Court has agreed to review the decision. This will be one of the most important cases argued next October. Catholic Social Services argues that they have a religious license to discriminate. We vehemently disagree. 

Q: What other SCOTUS cases is the ACLU involved with this year?

A: We are involved in many cases, but I’ll just mention a few. We directly represented Aimee Stephens and Don Zarda in two cases that ask whether firing someone because they are LGBTQ is a form of sex discrimination in violation of federal law. The cases were argued in October, and we’re awaiting a decision. We argue that under the plain language of the statute, when you fire a woman for being attracted to women, but wouldn’t fire a man for being attracted to women, you are discriminating on the basis of sex. The same holds true when you fire an employee for coming to work as a woman because she was assigned male at birth. That is also discrimination because of sex.  

We also filed an amicus brief challenging President Trump’s revocation of DACA, which provides legal status and work privileges to 700,000 undocumented young people who were brought to the U.S. as children. The lower courts held that the revocation was illegal. If the court rules otherwise, all DACA recipients will be in jeopardy of deportation.

Additionally, we are preparing an amicus brief in a Trump v. Pennsylvania, a case challenging a rule that would allow employers to deny insurance coverage to employees for contraception if the employer objects to contraception on religious or moral grounds. It essentially allows employees to impose their religious beliefs on their employees’ private lives. The lower courts ruled that the rule was illegal because the administration lacks the power to give employers the right to inflict their beliefs on their employees.

Q: What is the one key takeaway you want the public to know about the current SCOTUS term?

A: There is really one big thing to watch for this term: We have a new court with two new conservative justices. Are they going to apply the law and be bound by prior constitutional decisions, or are they going to break from those principles and use their majority power to make new law that undermines civil rights and civil liberties? Whatever happens, we can be sure of one thing: The ACLU will be there, advocating for the rights of us all.