Supreme Court Issues Two Major Rulings
NOEL KING, HOST:
There were two major rulings from the Supreme Court today. In one, the court upheld the Trump administration's travel ban that affects people from several Muslim-majority countries. And in another, the court sided with crisis pregnancy centers in California against a state law that required that they fully disclose their anti-abortion-rights mission. Here to discuss both rulings is NPR's legal affairs correspondent, Nina Totenberg.
Good morning, Nina.
NINA TOTENBERG, BYLINE: Good morning, there, Noel. I hope we get to both. We don't have enough - a lot of time, so let's get to it.
KING: All right. We've heard a lot about the travel ban decision. You were in court when the decision was read. Could you summarize the opinion of the majority?
TOTENBERG: Chief Justice John Roberts wrote the opinion for a five-justice majority with four in dissent. This is another one of those conservative-liberal, or if you wish, Republican-appointee-versus-Democratic-appointee splits. The chief justice said that the admission and exclusion of foreign nationals is a fundamental attribute exercised by the government under the Immigration and Nationalization Act (ph) and that that act gives the president all the deference he needs to do what he did in his third version of the travel ban, that he had his Cabinet departments undertake a complete review of the process, that there were exceptions made and provisions for waivers for people who had connections to the United States or urgent needs to come to the United States or business needs to come to the United States, and that in that sense and in all others, this travel ban - the third version - meets all the both constitutional and the statutory requirements that the president had to meet. And in doing that, he said, and by the way, we want to do one other thing; we have a bunch of briefs in this case from people who analogize this ban to the Korematsu case during World War II, which upheld...
KING: The Japanese internment case.
TOTENBERG: ...Which upheld the Japanese internment. And he said, we do today what we should've done long ago; that was an explicit discrimination based on race, putting people in concentration camps based on race, and we disavow that decision and proclaim it wrongly decided, but this travel ban is not that.
KING: What did the dissenting justices say about the travel ban?
TOTENBERG: A lot. Two justices dissented from the bench. Justices Breyer and Kagan - Breyer speaking for them - dissented first. And then Justice Sotomayor dissented for herself and Justice Ginsburg. And it was a very passionate dissent that went on for about 20 minutes. And she began by saying that the United States is built upon the promise of religious liberty. The court's decision today fails to safeguard that fundamental principle. It leaves undisturbed a policy first advertised openly and unequivocally as a total and complete shutdown of Muslims entering the United States because the policy now masquerades, she said, behind a facade of national security concerns. But this repackaging, she went on to say, does little to cleanse the presidential proclamation of the appearance of discrimination that the president's words have created. Based on evidence in the record and - a reasonable observer would conclude that the proclamation was motivated by anti-Muslim bias. And I could go on, but I think I'll stop there.
KING: Well, I want to have a chance to ask you about the decision in the crisis pregnancy center case. That was also a 5-4 decision. What was the issue at the heart of that case, and how did the majority rule?
TOTENBERG: Well, crisis pregnancy centers are centers that the Supreme Court called largely pro-choice centers, centers that want to discourage people seeking abortions. And their critics have said that they masquerade as abortion clinics that suggest that they might provide abortion there when, in fact, they don't. So California passed a law that said every clinic has to post a sign that says the state provides low-cost family planning services, health services for women, including prenatal care and abortion, and if you are interested in those, you can call this number, which is the Medicaid office. And the second part of the law requires unlicensed clinics to say that there are no - this is not a licensed medical facility because lots of people have said that they go there; they - and they are - they think that they're a medical facility. Well, the court struck both these provisions down by a 5-4 vote, same alignment again, saying that these requirements were too burdensome on the right of free speech.
KING: So essentially, if you're a crisis pregnancy center, which is a place where a woman goes and is told about adoption or keeping the baby, and you're forced to put up posters saying there are other options, that is violating your right to free speech because it's forcing you to exhibit something that you don't agree with. Is that...
TOTENBERG: That's the essence of one provision. But the other provision said that you have to say that you're not a licensed medical facility, and that, the court also said, was too burdensome. And Justice Breyer, again speaking from the bench, said that the court was embarking on a very dangerous path that - he noted that the court had - in another abortion case had upheld the right of the state of Pennsylvania to require doctors to tell women seeking an abortion about adoption services. So he said this can be a two-edged sword. If a state can lawfully do that, he said, why should it not be able to require a medical counselor to tell a woman seeking prenatal care about childbirth and abortion services?
And there are a lot of states - largely, red states - that are trying to limit abortions, and they require doctors to say a script or they require you to say a script about the child's development, and even some - they require doctors to say some things that are patently untrue. And those are being challenged in the lower courts. So this is a two-edged sword. If that's - if this is compelled speech by the state, why not the script that anti-abortion activists also want?
KING: Just a lot there. NPR's legal affairs correspondent, Nina Totenberg. Nina, thank you so much.
TOTENBERG: You're welcome.
[POST-BROADCAST CORRECTION: In this report, crisis pregnancy centers are mistakenly referred to as centers that the Supreme Court has called largely pro-choice. In fact, the court has considered them to be centers that oppose abortion rights.]
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Correction July 6, 2018
In this report, crisis pregnancy centers are mistakenly referred to as centers that the Supreme Court has called largely pro-choice. In fact, the court has considered them to be centers that oppose abortion rights.