RELIST WATCH - Restrictions on gender-affirming medical care – and assault weapons

[Elderberry]

SCOTUSblog by John Elwood 5/24/2024

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

After going two conferences without any new relists, the Supreme Court ended the relist drought this week with a vengeance. We have 12 new relists, several of which are potential blockbusters if the court grants review.

Gender-affirming care

Three of the cases involve constitutional challenges brought against state prohibitions on providing gender-affirming care to minors: United States v. Skrmetti, L. W. v. Skrmetti, and Jane Doe 1 v. Kentucky ex rel. Cameron. Last year, Tennessee and Kentucky were among a group of more than 20 states that enacted laws that prohibit giving transgender youths under the age of 18 medical treatment to align their appearance with their gender identity.

Tennessee’s law forbids medical treatments that are intended to allow a minor “to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” Kentucky’s law prohibits medical treatments “for the purpose of attempting to alter the appearance of, or to validate a minor’s perception of, [a] minor’s sex.” Both provisions outlaw a range of treatments, including gender-reassignment surgery. But the challenges before the court specifically concern two nonsurgical treatments: the administration of puberty blockers to stop physical changes brought on by puberty; and hormone therapy, which seeks to produce physiological changes to conform physical appearance with gender identity.

Transgender youths and their parents in both states quickly brought constitutional challenges in federal court, seeking to enjoin the laws before they went into effect. The challengers first argue that the restrictions discriminate on the basis of sex and therefore violate the 14th Amendment’s equal protection clause. They contend that the laws allow the use of puberty blockers and hormone therapy to conform a minor’s appearance to their birth sex, while barring transgender minors from using the same treatments. Second, the challengers argue that the prohibitions violate the 14th Amendment’s due process clause by infringing upon parents’ rights to make medical decisions for their children. The Biden administration intervened on the challengers’ side in the Tennessee case.-----

Assault weapons

In early 2023, Illinois adopted the Protect Illinois Communities Act, which prohibits the possession of assault weapons and high-capacity magazines. The state law’s definition of “assault weapon” essentially followed the federal-law definition. The act prohibits possession of certain semiautomatic pistols and rifles. A semiautomatic rifle falls under the law’s proscriptions if it has a detachable magazine and one or more of the following features: a pistol grip or thumbhole stock; any feature capable of functioning as a protruding grip for the non-trigger hand; a folding, telescoping, thumbhole, or detachable stock or a stock that otherwise enhances the concealability of the weapon; a flash suppressor; a grenade launcher; or a barrel shroud. The definition also includes a semiautomatic rifle with a fixed magazine capacity of more than 10 rounds (except those that accept only .22 caliber rimfire ammunition). Finally, there is a lengthy list of particular models that fall within the scope of the statute, notably all “AK” weapons (modeled after the Russian AK-47) and all “AR” weapons (those modeled after the AR-15). People who owned such weapons before the effective date of the law are permitted to retain them, subject to some geographic restrictions on use; otherwise, possession is a crime. Several Illinois municipalities adopted similar legislation.

Gun owners, dealers, and interest groups brought a number of lawsuits arguing that the law violated their rights under the Second Amendment to keep and bear arms and sought to block the state from enforcing the law. Roughly speaking, plaintiffs in northern Illinois, which is more urban, lost; plaintiffs in southern Illinois, which is more rural, were successful, and a judge there held that the statute was unconstitutional in all its applications and barred the state from enforcing it.-----

Environmental law

The Clean Water Act of 1972 regulates the discharge of pollutants into regulated waters. The city and county of San Francisco received a permit from the EPA under the law’s National Pollutant Discharge Elimination System that allowed San Francisco to discharge from its wastewater treatment facility into the Pacific Ocean. San Francisco challenged the terms of its permit, arguing that the permit contained terms so vague that it failed to tell the city how much it needed to limit or treat its discharges to comply with the act, while simultaneously exposing it to liability for violating the permit provisions. After exhausting administrative remedies, San Francisco petitioned the U.S. Court of Appeals for the 9th Circuit for review.

A divided panel of the 9th Circuit denied San Francisco’s petition, concluding that the provisions are not unduly vague and are “consistent with the CWA and its implementing regulations.” In dissent, Judge Daniel Collins concluded that those provisions were “inconsistent with the text of the CWA.” He argued that the permit violated the CWA by making the permittee responsible for maintaining water quality standards without specifying what limitations on discharges would satisfy its responsibility.-----

Yes, that Michael Avenatti

Michael Avenatti enjoyed his 15 minutes of fame representing porn star Stormy Daniels in her suit against then-President Donald Trump. Afterwards, while representing youth basketball coach Gary Franklin in sponsorship negotiations with sports clothing company Nike, Avenatti threatened to disclose certain documents (that his client had not authorized him to disclose) unless Nike paid him and a colleague more than $10 million to do an “internal investigation” into sports corruption. Based on the conduct, Avenatti was convicted in federal court of extortion and fraud for depriving his client of his “honest services,” prohibited by 18 U.S.C. § 1346. The U.S. Court of Appeals for the 2nd Circuit affirmed his conviction.

In his petition in Avenatti v. United States, Avenatti raises two claims. First, he argues that 18 U.S.C. § 1346 is void “both on its face and” as applied to him because, as Justice Neil Gorsuch said in his concurring opinion in last year’s Percoco v. United States, “[t]o this day, no one knows what ‘honest-services fraud’ encompasses.” Avenatti claims that he did not defraud his client – he “at worst … abus[ed] his fiduciary duty as Franklin’s attorney by leveraging Franklin’s claims to pursue compensation for himself.” Second, he argues that most courts besides the 2nd Circuit have held that civil litigation conduct — and in particular, an attorney’s settlement demand — cannot support federal criminal extortion liability. Avenetti argues that under the 2nd Circuit’s rule, what would normally be handled by bar discipline is converted into a 20-year felony. The government responds that Avenatti raised neither claim before the court of appeals and that they are therefore procedurally defaulted; and even if they weren’t, those claims are meritless.-----

Miranda

Last up is a capital case, Medrano v. Texas. Rodolfo Medrano was a member of a south Texas gang charged with capital murder for the shooting deaths of six rival gang members during a robbery. When Medrano was arrested, he invoked his Miranda rights and told police he wanted to speak to an attorney. Police then spoke to Medrano’s wife and told her (falsely) that he was not believed to be involved and would be released if he spoke to police. She persuaded Medrano to talk, and he confessed to providing the guns. Medrano protested that he only provided guns for a robbery and was not present and did not expect the shootings to occur, but the jury found him criminally responsible. That testimony was then introduced against him at trial, and he was convicted of murder and sentenced to death. His conviction and sentence were affirmed on appeal, and his first petition for state post-conviction relief was denied.

Medrano then filed a second petition for state post-conviction relief, alleging that his Miranda rights were violated because police responded to his invocation of his right to silence by persuading his wife to talk to him. He also argued that expert testimony introduced against him violated his due process rights. The Texas Court of Criminal Appeals concluded that Medrano’s application failed to satisfy a state rule of criminal procedure governing successive petitions, and therefore dismissed his application as an “abuse of the writ” of habeas corpus.-----

New Relists

L.W. v. Skrmetti, 23-466
Issues: (1) Whether Tennessee’s Senate Bill 1, which categorically bans gender-affirming healthcare for transgender adolescents, triggers heightened scrutiny and likely violates the 14th Amendment’s equal protection clause; and (2) whether Senate Bill 1 likely violates the fundamental right of parents to make decisions concerning the medical care of their children guaranteed by the 14th Amendment’s due process clause.
(rescheduled before the Mar. 15, Mar. 22, Mar. 28, Apr. 12, Apr. 19, Apr. 26 and May 9 conferences; relisted after the May 16 conference)

United States v. Skrmetti, 23-477
Issue: Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the equal protection clause of the 14th Amendment.
(rescheduled before the Mar. 15, Mar. 22, Mar. 28, Apr. 12, Apr. 19, Apr. 26 and May 9 conferences; relisted after the May 16 conference)-----

Much Much More: https://www.scotusblog.com/2024/05/restrictions-on-gender-affirming-medical-care-and-assault-weapons/