Background

The National Association of Social workers (NASW) partnered with the American Psychological Association (APA), and Kentucky Psychological Association (KPA) to file an amicus brief to the Supreme Court of the United States in the matter of United States of America v. Jonathan Skrmetti. This case will decide whether bans on gender affirming care violate the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. The Court’s decision will decide the legality of bans on gender-affirming care for minors imposed by state legislative regimes.

Amicus Brief

This case concerns Tennessee’s ban on gender affirming medical treatment for minors. Our brief argues the lower court relied on misleading and untrue information that created a distorted perception of medically necessary support transgender youth require. Furthermore, the lower court’s decision contradicts major medical and mental health organizations’ treatment standards of providing gender affirming care. Gender dysphoria is a recognized medical condition and gender-affirming is not only the accepted protocol for treating gender dysphoria but has shown substantial positive effects for transgender youth’s mental health and quality of life.

NASW, including its Tennessee Chapter, is committed to advancing policies and practices that improve the status and well-being of transgender, gender diverse, nonbinary people. NASW strongly advocates for the availability of culturally appropriate, comprehensive health and mental health services for transgender youth across their lifetime. To protect transgender youth from the irreputable physical and mental harm that banning gender affirming care would create, the Supreme Court must overturn the 6^th Circuit’s decision banning gender affirming care.

WASHINGTON, D.C. — The Bazelon Center for Mental Health Law, American Psychiatric Association, National Alliance on Mental Illness, National Association for Rural Mental Health, and National Association of Social Workers on June 28 released the following statement responding to the U.S. Supreme Court’s decision in Johnson v. Grants Pass:

Today the Supreme Court held that laws that criminalize sleeping in public when no safe and accessible shelter options are available are not cruel and unusual punishment. As we described in our amicus brief in this case, which Justice Sotomayor drew on in her dissent, this will have devastating consequences on the large and growing number of Americans experiencing homelessness, including people with mental health disabilities.

People with mental health disabilities are disproportionately injured in interactions with law enforcement, being 12 times more likely to experience police use of force and 16 times more likely to be killed by law enforcement. Additionally, criminal citations and incarceration impose serious burdens, increase financial instability, and create barriers to employment and housing.

Though the Supreme Court today removed a shield against cruel policies that criminalize nonviolent conduct associated with being homeless, it does not mean that such have to exist. Governments can – and many successfully have – put in place community-based services that meet the needs of everyone in the community, without resorting to criminal enforcement. As we described in our amicus (friend-of-the-court) brief, community-based housing and mental health services are a more effective and less expensive way to address homelessness than incarceration or hospitalization.

Research shows that scalable interventions, such as supportive housing, assertive community treatment, mobile crisis services, supported employment, and peer support services are proven solutions to homelessness and a more effective use of resources. By employing these community-based interventions, governments can address homelessness without resorting to criminal enforcement.

Everyone needs a safe place to sleep. As leading mental health organizations that work on behalf of people with mental health conditions across the country, we will continue to advocate for the housing and services that will truly end homelessness.

Read the U.S. Supreme Court Decision

The Arizona Supreme Court recently held that an 1864 law, which made nearly all abortions in that state illegal, was constitutional and could be enforced almost immediately.  Because of the national repercussions of the ruling, there have been an outcry over the disregard for the reproductive rights of Arizona women and women throughout America.

At present, at least 16 states in the United States have enacted laws that make performing an abortion a felony at any stage.

Unsurprisingly, the decision to allow a 160-year-old law to remain as the legal standard for abortion in Arizona became national headlines. But to some degree, the headlines overshadowed the fact that the ruling could have consequences– intended or unintended– that go beyond the singular focus on abortions.

This is in reference to language in the law that places an emphasis on criminalization of abortions. This language has a potential for triggering long-term consequences for women seeking abortions and reproductive health services. To be specific, the Arizona abortion law includes language that calls for 2-5 years prison sentences  for anyone who performs or helps a woman obtain an abortion in violation of this law.

On Aug. 24, 2024, the U.S. Supreme Court heard arguments in a case over emergency abortion care. Criminalization of abortions is not new. It dates back to the 19th Century.   While during that period, it was rare that a woman or abortion providers were actually imprisoned, abortion laws included such sanctions to – in the minds of lawmakers in 1864– to deter abortions. The concern is that today’s anti-abortion factions will view the Arizona Supreme Court’s actions as an “authorization” to make criminalization a standard for abortion prohibition laws across the country. In fact, it has been reported that  some anti-abortion leaders – in the aftermath of overturning Roe v. Wade– have suggested that criminal punishment of pregnant women who seek or obtain abortions is logical, morally justifiable, and required to end abortion.

At present, at least 16 states in the United States have enacted laws that make performing an abortion a felony offense at any stage of gestation. With respect to women who either induce their own abortions, and those who assist in completing an abortion, state laws and criminal penalties differ. For example in:

Texas – Anyone who performs, induces, or attempts an abortion where “an unborn child dies as a result of the offense” may be guilty of a first-degree felony — punishable by up to life in prison and up to a $10,000 fine.

Alabama – Anyone who performs an abortion, provides abortion pills or “aids, abets or prescribes for the same,” faces up to 12 months in county jail or hard labor and a fine of up to $1,000.

South Carolina – A woman who terminates their pregnancy – with a pill or by other means– faces up to two years in prison and a fine of up to $1,000.

Impact of Abortion Criminalization

With the proliferation of legislation that bans abortion, we can expect a corresponding surge of arrests and prosecutions of violators. With that in mind, it is understandable that many should be apprehensive. Given the history of life-altering collateral consequences  associated with people of color being over-represented in criminal legal system, it is not hyperbole to suggest that Women of color, particularly African American women, will be targeted for arrest and prosecution at higher rates than white women. Data reveals  that Black and Indigenous women are more likely  to be racially profiled and subjected to abortion over-surveillance – leading to higher rates of arrests related to abortion outcomes. In addition:

• Institutionalizing criminal sanctions for abortions will certainly reduce the number of providers willing to perform the procedure or work in reproductive health clinics. This mass exit of trained providers will lead to basic maternity care being more difficult to obtain for many pregnant women.
• Similarly, criminalization (and prosecution) of abortions will greatly exacerbate the growth of so-called maternity care deserts(counties lacking maternity care resources). At present more than 2 million women of reproductive age live in such counties. It should be noted that soon after the Supreme Court overturned Roe v. Wade, as many as  66 clinics in 15 states ceased providing abortions. Among these, 26 clinics have completely shut down.
• There are hardships associated with fewer women’s reproductive health services –partially due to criminalization. These hardships will fall on the most economically vulnerable Americans.
• Currently non-Latinx Black women nationwide have a maternal mortality rate three times that of white women, which is a clear health disparity issue likely caused by lack of access to reproductive health care. Criminalization will further compromise access to reproductive care for these groups.
• Criminalizing travel to seek an abortion has become a reality in several states. This, too, is an example of an attack on women’s reproductive freedom that is being codified in law. Criminalizing travel is particularly insidious– especially for minors– because it seeks to punish parents, relatives, or friends from helping women in desperate need of the procedure.

The decision by the Arizona Supreme Court is another example of judicial overreach  as far as abortion is concerned. The unambiguous truth is that the courts cannot and should not be the arbiters of the availability of women’s reproductive health care – including abortion. Reproductive health care is better managed within a public heath paradigm, not in the judiciary or the criminal legal system.

Every effort needs to be made to overturn the Arizona Supreme Court’s ruling. However, the struggle will not end there. It is essential that advocates, legislators, and the general public recognize that collateral consequences, driven by criminalization of abortions will be deeply harmful and long-lasting.

In the face of a period of national tension and uncertainty about the future of America’s democracy, voting rights activists were shaken by another attack on one of our fundamental rights – the unencumbered right to cast a ballot.

A panel of judges from the Eighth Circuit Court of Appeals on Nov. 20 dismissed a challenge to a gerrymandered Arkansas redistricting map. The plaintiff in the challenge asserted that the state violated Section 2 of the Voting Rights Act (VRA) – a key voting protection enforcement tool – by discriminating against Black voters in drawing the original map.

The Arkansas case was dismissed by the circuit court under the premise that Section 2 did not give private citizens or organizations the authority to directly challenge states in court for suspected violations of the VRA. The circuit court interpreted that Section 2 – as a device for regulating compliance with VRA – was available solely to U.S. Justice Department. The deeply erroneous reasoning behind this ruling centered on the intent of Congress when it wrote Section 2. The majority asserted that because the text does not explicitly give private persons or organizations the right to sue, Congress did not intend for the private sector to have that authority. This flies in the face of Congress’ true intent and years of precedent and practice that hold that private parties can indeed enforce the Voting Rights Act.

That interpretation and the circuit court’s decision was extraordinarily damaging in terms of its impact. It essentially eliminates one remaining provision in VRA that articulated specific consequences for states that are deemed to have denied voting rights to otherwise eligible voters due to their race or ethnicity. The other provision – Section 5 – had already been struck down by the Supreme Court (SCOTUS) in a monumental 2013 ruling.

If the Eighth Circuit’s decision prevails, the VRA will be stripped of its authority to enforce voter protections as intended by Congress. This would essentially mean that VRA will cease to exist.

Ruling could have impact far beyond Arkansas

The decision could likely have a significant role in determining the outcomes of the 2024 presidential election. Briefly, practices such as racial gerrymandering on the part of the states covered by the VRA can greatly dilute votes cast by African American and other minorities. Such distortions have historically guaranteed that white office seekers can potentially maintain political dominance in those states for decades.

The Eighth Circuit’s ruling comes at a time when there are challenges to congressional and legislative maps drawn by legislatures in Alabama, North Dakota, Louisiana and Georgia. It is important to note that all of those challenges were brought by individuals and groups — not the Justice Department. The Eighth Circuit’s disastrous ruling poses a real threat to voting rights within the Eighth Circuit and a looming threat elsewhere. Not coincidentally, within one day of the Eighth Circuit’s ruling, North Dakota announced its intention to appeal the district court’s ruling that it must redraw its voting map.

A compounding factor that makes this situation more ominous is the intersection with far-right politics and judicial activism on the part of some federal judges. The author of the opinion in the Arkansas case is a Trump appointee. Significantly, the district court judge who originally dismissed the case challenging the Arkansas map is also a Trump appointee. Both judges used the same legal reasoning to basically retrofit an opinion that allows them to achieve their true objectives –  which is to neuter the VRA.

Without a doubt, many far-right politicians became invigorated and emboldened when they became aware of the Eighth Circuit’s ruling. They anticipate a world where they are free to gerrymander, suppress votes, and use voter intimidation tactic with impunity. Absent the voting protections offered by Section 2, there will be nothing to stop them.

The U.S. Supreme Court may likely get involved

There is some likelihood that this issue will ultimately land before SCOTUS. How the Court will rule is unclear. However, it would be a mistake to automatically assume that because the SCOTUS is a conservative court, it will side with the Eighth Circuit. We need only to be reminded that Chief Justice John Roberts has a long history of being antagonistic to the Voting Rights Act. Yet, he joined the majority in ruling that Alabama’s 2022 redistricting map was in violation of the VRA. As a consequence, SCOTUS mandated that Alabama redraw its voting district maps to include two majority Black districts.

It is reasonable to speculate that there is skepticism about the Eighth Circuit’s interpretation of Congress’ intent when it wrote Section 2 of the VRA. As stated by a prominent legal scholar:

“Even by the standards of the last decade – hardly a decade that has been kind to voting rights – the Eighth Circuit’s decision is an extreme outlier. The decision is so extreme that even our contemporary, and historically radical, Supreme Court may seriously consider overturning it.”

No matter how SCOTUS rules on VRA, what is clear is that this crisis reaffirms that the National Association of Social Workers (NASW) and the rest of the voting rights community must mobilize fight against the effort to scuttle VRA.

There is a growing consensus that the only way to preserve free and fair voting rights ―the cornerstone of democracy― is by electing senators, congressmen and state-level legislators who are willing to pass voting rights legislation such as the John Lewis Voting Rights Advancement Act and the Freedom to Vote Act. Both pieces of legislation are designed to replace the Voting Rights Act of 1965 with legislation that clarify the intent of Congress and addresses the concerns raised by the SCOTUS.