A Lookback at the 2020 Supreme Court Term and its Impact on the AAPI Community

The 2020 Supreme Court term ended on July 9. Here, we analyze the decisions from this term using an intersectional reproductive justice lens for the Asian American and Pacific Islander (AAPI) community. While there have been other significant cases that are also related to reproductive rights and health, immigrant rights, and economic justice, here we focus on cases where the Court could have taken a more intersectional approach for AAPIs as it relates to our multi-issue priorities.

IMMIGRATION

What it’s about:

On Thursday, June 18, the Supreme Court upheld the Deferred Action for Childhood Arrivals (DACA) program, following the Trump administration’s attempts to rescind it. DACA provides protection from deportation and work permits for undocumented individuals who entered the United States as children.

The Court ruled the administration’s decision to rescind DACA was “arbitrary and capricious,” and that while it has the ability to end the program, it did not do so in compliance with the Administrative Procedure Act in this instance. DACA remains in place for the time being.

What we think:

This is an incredible victory for DACA recipients who have fought for years for their right to stay in their home. DACA is vital for AAPIs, as we make up 10 percent of the population eligible for the program. Four of the top 24 countries of origin for DACA recipients are Asian countries — South Korea, the Philippines, India, and Pakistan.

However, work still remains. The Court ruled that the President has the authority to strike down DACA but must do so in a lawful manner, meaning DACA is still at risk of being rescinded. The Court also rejected the argument DACA recipients brought that the administration ended a program that disproportionately affects certain ethnic groups motivated by animus.

Dreamers — or those eligible for the DACA program — need a path to citizenship and protection from deportation so they and their families are not forced to live in a state of uncertainty, as they did while waiting for the ruling to come down. The DREAM and Promise Act (H.R. 6) would provide some relief for Dreamers by providing current, former, and future students and GED recipients with a pathway to citizenship through college, work, or the armed services.

What it’s about:

This case arose from Vijayakumar Thuraissigiam’s asylum claim, based on abuse he faced as a Tamil in Sri Lanka. After being apprehended by border agents at the United States-Mexico border, Mr. Thuraissigiam was subjected to expedited removal. He then asked a federal judge to review his case to fight his deportation; however, the Supreme Court ruled he was not entitled to this review. Justices Breyer and Ginsburg agreed with the decision of the case but stated individual asylum seekers can continue to ask federal judges to review their petitions, narrowing the implication of this case.

What We Think:

SCOTUS’ ruling in Thuraissigiam is harmful for individuals seeking asylum who are subjected to expedited removal because it limits avenues to seek redress. According to the Department of Homeland Security, China is the leading country for individuals granted asylum (21 percent). The number of migrants from India who were apprehended at the Southwest border tripled between 2017 to 2018, and the number of migrants from Bangladesh doubled in the same time period.

Data from the U.S. Border Patrol shows that many Asian migrants enter from the Southern border as Mr. Thuraissigiam did. The journey across the border can often be dangerous, and there have been many deaths, including that of Gurupreet Kaur, a 6-year-old from India. This policy will further endanger the lives of migrants seeking refuge in the U.S. Further, the number of refugees and asylum seekers from Southwest Asian countries are greatly impacted by policies such as the Muslim Ban.

What it’s about:

Andre Barton, a legal permanent resident of the United States from Jamaica, sought a “cancellation of removal.” A cancellation of removal allows someone facing deportation charges to stay in the United States if the applicant has lived in the country for seven years and has demonstrated a “good moral character” during this time. However, if someone is convicted of an offense listed in the Immigration and Nationality Act, it stops the accrual of time toward the seven years. A decade after Barton’s arrest, the federal government began deportation proceedings and Mr. Barton applied for a cancellation of removal. On April 23, the Supreme Court ruled that his other conviction, which occurred six and a half years after his arrival to the United States, stopped the seven year accrual time and thus he was “inadmissible” to the United States.

What We Think:

This decision affects AAPI immigrants who may have been convicted of a crime long ago. This decision did not fully explore what this ruling would mean for immigrant communities and immigrants like Mr. Barton. This ruling would tear apart families and disrupt numerous lives in the AAPI community. For more information about how very old criminal records should not be used to tear families apart, please click here to read more about SEARAC’s work to prevent unjust removals.

What it’s about:

The Supreme Court ruled 7–2 in favor of a lawful permanent resident attempting to stop his deportation back to Lebanon under the Convention Against Torture, an international human rights treaty that is intended to prevent torture. The case involved Nidal Khalid Nasrallah, a member of the Druze religion who indicated that he had experienced torture in Lebanon as a result. As such, he asked the federal court to make factual findings on whether he did experience torture in Lebanon.

The federal appeal court ruled he could not contest the facts of whether his experience amounted to torture and could only argue constitutional and legal challenges. The Supreme Court ruled that the federal appeals courts could in fact review factual claims on appeal in certain cases. This is significant because before this decision, federal appeals courts typically only heard appeals on questions of law, not on whether the facts were correct, which limited types of cases going in front of the court.

What we think:

AAPI immigrants make up a large portion of the overall AAPI population and 27 percent of the entire foreign-born population. Now, individuals in situations similar to Mr. Nasrallah will have a greater chance at relief from deportation. Given that petitioners may disprove facts or prove facts to bolster their case, we hope that in the future, courts will take into consideration the petitioner’s lived experiences and intersecting identities while determining their future in this country.

VOTING RIGHTS

What it’s about:

Wisconsin’s governor signed an executive order requiring all Wisconsin residents to stay home until April 24 due to COVID-19 pandemic. However, Wisconsin’s election, which included the presidential primary, a seat on the State Supreme Court, along with more than 100 other judgeships, was set to take place on April 7. About one more million voters requested an absentee ballot compared to 2016 elections, which created a backlog of ballot requests and many voters did not promptly receive ballots. Lower court judges allowed a six day extension for ballots to be received by the state. The Supreme Court ruled in a 5–4 decision that a federal judge could not order the extension of a ballot receipt, in effect barring extension of ballots to be received by the state.

What we think:

This is a disheartening ruling, not just for Wisconsin voters but also for voters across the country. Given the restrictive voting laws that already exist in many states including Mississippi and Virginia, and the risks voters face while attempting to go to a polling place during the pandemic, access to the ballot box should be expanded to ensure that the right to vote is preserved.

AAPIs already face a number of barriers from voting such as language and resource constraints such as time, to be able to wait in line to vote. The Court’s decision in this case is a blow to our community, which in recent years is showcasing its power at the polls unlike ever before. For more information about AAPI women voters and women voters more broadly, please visit IntersectionsOfOurLives.org.

LGBTQ RIGHTS

What it’s about:

On June 15, the Supreme Court ruled 6–3 in favor of extending federal employment discrimination protections to LGBTQ people. The decision came from three consolidated cases concerning Title VII of the 1964 Civil Rights Act, which bars employment discrimination based on a number of characteristics, including “sex.” Through the Supreme Court’s ruling, LGBTQ people, regardless of which state they live in, are now protected by federal employment discrimination law.

What we think:

NAPAWF joined an amicus brief to the Supreme Court in favor of extending employment discrimination protections to LGBTQ people in partnership with 27 other civil rights organizations. This case is a landmark victory for LGBTQ individuals and the activists who have worked tirelessly, often behind the scenes, for this recognition by the courts.

As the law around LGBTQ discrimination grows in light of this ruling, courts are likely to take the traditional approach of analyzing LGBTQ discrimination cases based on the employee’s identity as LGBTQ, not based on other identities they may hold. Professor Kimberlé Crenshaw coined the term intersectionality to highlight how the court’s singular focus on one marginalized identity limits Black women, who hold multiple identities as women and as Black Americans, and ignores the unique challenges they face as a result of these intersecting identities.

Trans and gender nonconforming AAPI individuals are especially vulnerable to discrimination, including from health care providers. In future cases, we hope that courts take note of not just a person’s LGBTQ identity all of their intersecting identities. Congress can also take further action to enshrine such protections into statutory law by passing the Equality Act.

HEALTHCARE

What it’s about:

On June 29, the Supreme Court held that a Louisiana law restricting abortion access is unconstitutional. The law would have required abortion providers to obtain admitting privileges at a nearby hospital, a type of targeted regulation of abortion providers used to further limit abortion access. Requiring abortion providers to have admitting privileges does nothing to promote safety or health; it only set standards that are intended to be difficult, if not impossible, for providers to meet and harms people trying to access care, particularly people of color with low incomes who already face barriers to health care. The Louisiana law that was in question is also identical to a Texas law that the Court struck down in Whole Woman’s Health v. Hellerstedt just four years ago.

Justice Breyer wrote the majority decision and was joined by Justices Sotomayor, Ginsburg, and Kagan. Chief Justice Roberts agreed with their outcome but wrote a separate decision disagreeing with the other justices’ reasoning, indicating that the fight to protect abortion access is not over. The Court also sent back two similar cases for lower courts to decide in light of June Medical.

What we think:

NAPAWF joined an amicus brief led by Women with a Vision in this case. Justice Breyer notes that Louisiana’s law would have caused an undue burden on women in Louisiana seeking abortion. In so finding, Justice Breyer could have taken an intersectional approach and examined how the law would have disproportionately harmed women of color, LGBTQ people, and people with low incomes, while he looked to lower court’s finding for his analysis — but he did not. For AAPIs, language access, race, and immigration status can provide a further barrier to obtaining health care, including abortion. We hope the Court, in the future, will take these intersecting identities many individuals hold into consideration. Congress can take action to improve abortion access for communities of color, particularly with the Women’s Health Protection Act and the EACH Woman Act.

What it’s about:

On July 8, the Supreme Court upheld the Trump administration’s expansion of exemptions to the birth control mandate in a 7–2 decision in the consolidated cases of Trump v. Pennsylvania and Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania. This case concerns the Trump administration’s rule that expands which employers and entities can claim such exemptions and expands the exemption categories to include “moral” objections as well.

While the Court held that the Trump administration had the authority to issue these rules and that the rules could begin going into effect, it sent the question of whether the rules were valid back to the lower court. The Pennsylvania Attorney General stated that he will continue with the litigation in the lower court. While this decision is disappointing and harmful, this means that the fight is not completely over.

We submitted an amicus brief with the National Women’s Law Center, the National Latina Institute for Reproductive Justice, SisterLove, Inc., and law firm Lowenstein Sandler.

What we think:

This is a troubling expansion of the ACA exemption. Of the over 50 percent of AAPI women who are of reproductive age, data show that they are using less effective, cheaper contraceptive methods at much higher rates compared to women of other races and ethnicities. Access to contraception is particularly important for women in low-wage jobs, who are disproportionately women of color. Women in the low-wage workforce are less likely to have parental leave or predictable or flexible work schedules and are among the most impacted by pregnancy discrimination. Congress can take action to improve contraceptive access for AAPI women by supporting the Protect Access to Birth Control Act.

Certs denied:

Short for “writ of certiorari,” granting a “cert” means the justices have agreed to review the case and rule on it. If justices deny the cert, it means the holding from the lower courts stands. While less attention is paid to certs, they are important because they may allow unfavorable rulings to stand.

What it’s about:

A group of plaintiffs sued Texasover a law that limits mail-in voting only for people 65 or older without providing an excuse. The plaintiffs had family members who are at high risk for severe illnesses from COVID-19.

What we think:

The Court’s refusal to consider this case means that the lower court’s decision to let Texas’ law continue prevents many from voting while the pandemic is ongoing. Texas is home to a significant number of growing AAPIs. Women of color present a powerful voting bloc but one in three reported facing challenges when voting. As described in the case from Wisconsin described above, AAPIs already face a number of barriers from voting such as language and resource constraints such as time to be able to wait in line to vote. The Court’s refusing to hear this case is a blow to voting rights.

What it’s about:

This case is about equal pay, specifically whether a job applicant’s prior salary history is a valid “factor other than sex” for a potential employer to consider under the Equal Pay Act. This case is important because pay history is impacted by gender. We know that women, especially women of color, are paid less for the same work compared to white, non-Hispanic men. By deciding not to hear the case, this leaves the differing appeals courts’ rulings in place across the country.

What we think:

NAPAWF joined an amicus brief in this case when it was heard in the Ninth Circuit. On average, AAPI women make $0.90 to as low as $0.50 per dollar that white non-Hispanic men take home. Several AAPI ethnic subgroups experience some of the widest wage gaps among all women: Hmong and Cambodian women earn on average only 61 and 57 cents, respectively, for every dollar white, non-Hispanic men make. The Court’s declining to hear this case is a significant step for AAPI women to achieve their full earning potential.

What it’s about:

This case challenged California’s sanctuary law, which limits state and local law enforcement’s involvement with federal immigration agencies, reducing the threat of detainment and deportation for undocumented people. The Trump administration had sued the state of California, alleging that it was invalid under federal law. The Court refused to hear the case, meaning that the California sanctuary law can stand.

What we think:

California is home to numerous AAPI and undocumented individuals. There are estimated to be more than two million undocumented immigrants in California. Nationally, second most highest undocumented immigrants comes from Asia. The Court’s decision to let the law stand is great for the AAPI community but our laws must do more to ensure undocumented immigrants have rights so they can live from fear of deportation and discrimination.

NAPAWF is focused on building power with AAPI women and girls to influence critical decisions that affect our lives, our families and our communities.