Rule of Law

April 2024 Newsletter: CAC Resists Attempts to Turn Back the Clock

An unlikely figure was making headlines at the Supreme Court recently. It wasn’t one of the justices, litigators, or parties—it was Anthony Comstock, the Victorian “anti-vice” reformer for whom the Comstock Act was named. That legislation, enacted in 1873, prohibited the distribution of “obscene literature” and other materials perceived as promoting sex for pleasure rather than for procreation. At oral argument at the Supreme Court, in a case about access to abortion medication, Justice Alito and Justice Thomas both raised questions about the Comstock Act.

In a recent Slate op-ed, CAC Appellate Counsel Miriam Becker Cohen explained that “Comstock’s attack on non-procreative sex was closely linked to a growing fear that women, including those who were newly entering the workforce, would seek to free themselves from their obligations as wives and mothers.” As Miriam writes, this is what the “anti-abortion crusaders at the helm of the conservative legal movement really want for women: to turn the clock back to the 1800s.”

The conservative legal movement is returning to the Supreme Court in April to argue that Idaho’s near-total abortion ban preempts the Emergency Medical Treatment and Active Labor Act (EMTALA), the federal law requiring emergency departments to stabilize people experiencing medical emergencies. As Miriam also wrote in Slate, “In their view, when pregnant people show up in an emergency room in Idaho with, say, uncontrollable uterine hemorrhage or severe preeclampsia, they must suffer whatever consequences might flow from Idaho’s restriction of the treatments available to them—be it sepsis, irreversible kidney failure, or hypoxic brain injury.” If that seems hard to square with the anti-abortion movement’s claim to care about women’s health, that’s because they’ve always been more focused on taking the county back to the 1870s than protecting the life and health of pregnant people.

CAC was proud to file an amicus brief in the EMTALA case on behalf of over 250 Members of Congress explaining to the court that EMTALA protects emergency abortion care and preempts Idaho’s near-total abortion ban to the extent it conflicts with EMTALA.

Abortion access isn’t the only issue on which the conservative legal movement is trying to move us backward by more than a century. CAC recently filed briefs in two cases where businesses are trying to hollow out protections for workers. In Mayfield v. Department of Labor, a franchise owner is challenging the Department of Labor’s new salary threshold for exemptions from overtime pay, arguing that the Department doesn’t have the authority to reclassify his workers as newly eligible for overtime based on their salary. CAC filed an amicus brief in the Fifth Circuit explaining that the court should reject this attempt to expand the “major questions doctrine” and use it to attack the Department of Labor’s traditional authority in this area.

And at the Supreme Court, Starbucks is trying to overturn an injunction a district court granted at the request of the National Labor Relations Board to temporarily enjoin Starbucks’s alleged unfair labor practices. CAC filed an amicus brief showing how Starbucks’s argument is at odds with the text and history of the labor law at issue in that case.

The conservative legal movement is trying to turn back the clock, but CAC is proud to be using text and history arguments to fight back.

  • Trump v. United States— The Supreme Court is considering whether former President Donald Trump is immune from criminal prosecution for actions taken during his presidency. CAC’s brief, filed on behalf of an ideologically diverse group of legal scholars, explains that Trump’s sweeping claims of presidential immunity are not supported by the text and history of the Constitution. Supreme Court, filed April 8.


  • City of Grants Pass, Oregon v. Johnson— The Supreme Court is considering whether city ordinances that punish the status of being homeless impose “cruel and unusual punishment” in violation of the Eighth Amendment. CAC’s brief argues that inflicting any kind of punishment is disproportionate when people have no choice but to commit the prohibited offense, so Grants Pass’s ordinances violate the Eighth Amendment. Supreme Court, filed April 3.


  • Starbucks v. McKinney— The Supreme Court is considering what standards courts should apply when deciding whether to grant a National Labor Relations Board request for a temporary injunction to halt an alleged unfair labor practice. CAC’s brief argues that Congress passed the National Labor Relations Act to aid the Board’s exercise of its authority, and that Starbucks’s argument that courts must use a test that would not permit deference to the Board’s findings of fact is at odds with the Act’s text and history. Supreme Court, filed March 29.


  • Mayfield v. Department of Labor— The United States Court of Appeals for the Fifth Circuit is considering whether the Department of Labor’s new salary threshold for exemptions from overtime pay is authorized by federal law. CAC’s brief explains that the salary-level test for FLSA-exempt workers in the 2019 Rule is far from an “extraordinary” case that would require the application of the major questions doctrine, and the Fifth Circuit should reject this attempt to expand the major questions doctrine. Fifth Circuit, filed March 28.


  • Idaho v. United States— The Supreme Court is considering whether the Emergency Medical Treatment and Labor Act (EMTALA), a federal law requiring hospitals to provide stabilizing treatment to patients experiencing medical emergencies, preempts Idaho’s near-total abortion ban in situations where abortion constitutes the medically indicated stabilizing treatment. CAC’s brief on behalf of 258 Members of Congress explains how the text and history of EMTALA make clear that it mandates that hospitals offer abortion care when abortion constitutes the necessary stabilizing treatment for an individual’s “emergency medical condition,” as well as why EMTALA should be entitled to preemptive effect. Supreme Court, filed March 28.


  • Wilson v. Midland County— The en banc United States Court of Appeals for the Fifth Circuit is considering whether a procedural requirement the Supreme Court adopted in Heck v. Humphrey should apply to non-custodial plaintiffs, even when it functions as an absolute barrier to their ability to vindicate their constitutional rights in a federal forum. In this case, the plaintiff, Erma Wilson, discovered years later that one of the prosecutors who had worked to prosecute her had been moonlighting as a clerk for the judge in her case in a clear violation of her constitutional rights. CAC’s brief argues that depriving non-custodial plaintiffs of a federal forum to vindicate their constitutional rights fundamentally undermines Section 1983. Fifth Circuit, filed March 21.






CAC 11th Annual Home Stretch at the Supreme Court

On Tuesday, April 30, 2024, at 1:00 p.m. ET, CAC will host a virtual panel of legal experts as they discuss some of the most significant cases of this Supreme Court Term, as well as take questions from the audience.

CAC President Elizabeth Wydra will deliver opening remarks, followed by a discussion moderated by Slate senior writer Mark Joseph Stern. Featured panelists include: Easha Anand, Assistant Professor of Law and Co-Director of the Supreme Court Litigation Clinic at Stanford Law School; Khiara M. Bridges, Professor of Law at UC Berkeley School of Law; Kelsi Brown Corkran, Supreme Court Director at the Institute for Constitutional Advocacy & Protection and Senior Lecturer at Georgetown University Law Center; Deepak Gupta, Founding Principal of Gupta Wessler LLP and Lecturer at Harvard Law School; and CAC’s own Chief Counsel Brianne Gorod.

Click here to register.