Recent Supreme Court Decisions Impacting Domestic Violence Survivors
July 12, 2022
This term, the Supreme Court of the United States released a number of highly consequential decisions impacting people across the country, including domestic violence survivors. This Latest Update will discuss four cases from the 2021-2022 Supreme Court term.
The National Network to End Domestic Violence (NNEDV) is gravely concerned by the Court’s decisions in Dobbs v. Jackson Women’s Health Organization and New York State Rifle & Pistol Association, Inc. v. Bruen. We are committed to working with our membership of the 56 U.S. state and territorial coalitions against domestic violence and other allied anti-violence, civil rights, and reproductive justice organizations to respond to these decisions and prioritize survivors’ wellbeing.
In general, the current Supreme Court is overturning long-standing precedents and limiting civil and human rights. However, we are see there are two decisions—Golan v. Saada and Arizona v. City and County of San Francisco, California—that will have a positive impact on survivors. Below, we explain these four cases and discuss the effects they are likely to have on domestic violence survivors.
Dobbs v. Jackson Women’s Health Organization
Roe v. Wade is the landmark 1973 Supreme Court decision which established that the constitutional right to privacy protects the right to choose an abortion. This right was later affirmed in Planned Parenthood of Southeastern Pa. v. Casey. In the nearly fifty years since Roe was decided, a number of states have passed laws restricting abortion at various points during pregnancy. In 2018, Mississippi passed a law prohibiting abortion (with few exceptions) after 15 weeks. Jackson Women’s Health Organization—the only licensed abortion facility in the state—challenged the law as violating the right to abortion as established in Roe and Casey.
The Supreme Court ruled, in Dobbs v. Jackson Women’s Health Organization, against the facility, holding the Constitution does not protect the right to have an abortion. This decision overturns Roe and Casey and allows the states to determine their own laws around abortion. This case marks the first time in history that the Supreme Court has taken away a fundamental right, and it is an unconscionable rollback of constitutional privacy rights for all people.
Following the Dobbs decision, more than half the states may quickly ban abortion. Thirteen states have what are called “trigger laws,” which banned abortion immediately upon the overturning of Roe. In the coming days and weeks, we will see millions of people across the United States lose their access to abortion as more of these trigger laws begin to take effect. Other states will have legislative bans move forward through state legislative action.
Right now, some people are unsure about when and whether they can get abortion care where they live or if they need to travel to another state. The New York Times’ “Tracking the States Where Abortion is Now Banned” resource is continually updated to provide the latest information about abortion laws. Abortion funds, clinics, and support networks are available to help people who are seeking an abortion.
State bans and restrictions will be devastating for low-income survivors, survivors of color, survivors with disabilities, and others who already face substantial barriers to accessing the healthcare they need. Without access to abortion care, domestic violence survivors are at risk of reproductive coercion. All people, including domestic violence survivors, deserve full control over their lives and decisions, including the ability to safely and freely decide whether or not to become, or stay, pregnant.
NNEDV is gravely concerned by the Dobbs decision. Domestic violence is about power and control, and many abusers choose to weaponize a partner’s bodily autonomy and reproductive choices as tools of violence. Preventing a partner from having an abortion is abuse, and forcing a partner to stay pregnant is, unfortunately, an effective way of keeping them dependent and trapped in the relationship itself. When survivors are able to choose for themselves whether to continue pregnancies, it can mean they are safely able to leave abusers and create new lives for themselves.
Last week, President Biden signed an Executive Order Protecting Access to Reproductive Health Care Services. However, executive authority in this area is relatively limited in its scope. We urge Congress to act immediately to pass the Women’s Health Protection Act or other federal legislation that would provide a federal law protecting abortion access. Survivors’ lives depend on it. Keep reading in the Dobbs amicus brief we signed onto in 2021 as well as our full statement about the decision in this case.
New York State Rifle & Pistol Association, Inc. v. Bruen
Twenty-five states require individuals to have a permit in order to carry concealed weapons in public. Of these, eight states and the District of Columbia have “may issue” concealed carry laws, meaning that someone can be denied a concealed carry permit if they have not demonstrated a special need (“proper cause”) for having one. In 2021, two men, whose applications for concealed carry licenses were denied, challenged New York’s “may issue” law, arguing that having to demonstrate a special need for self-defense was a violation of their constitutional rights.
In a 6-3 decision, the Supreme Court in New York State Rifle & Pistol Association, Inc. v. Bruen held that New York’s “proper-cause” requirement violates the Fourteenth Amendment by preventing citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense. The Court struck down the New York handgun-licensing law that required New Yorkers who want to carry a handgun in public to show a special need to defend themselves.
In reaching this decision, Justice Thomas, writing for the Court, relied heavily on historical sources (from the 1200s to the early 1900s) to conclude there was no historical requirement that law-abiding citizens show a special need for self-defense, and that, moving forward, the government must show gun restrictions are consistent with the historical understanding of the Second Amendment.
NNEDV condemns the dangerous precedent that this case will likely set for survivors. Ending gun violence is critical to ending domestic violence. The presence of a firearm in an intimate partner violence situation increases the risk of homicide by 1,000%, and eliminating common-sense protections will only serve to exacerbate these alarming statistics and put more victims in danger. We are also concerned how this ruling may impact domestic violence-related gun safety laws by relying on the historical tradition of gun regulation rather than the government’s interest in preventing gun violence and protecting the safety of its citizens.
NNEDV supports firearms legislation to close existing loopholes and ensure dangerous abusers and others intent on harm cannot access firearms, including the House-passed Bipartisan Background Checks Act of 2021 (H.R.8) and the Enhanced Background Checks Act of 2021 (H.R.1446). We also strongly support closing the “boyfriend loophole” and were encouraged by President Biden’s recent signing of the Bipartisan Safer Communities Act, which will partially close this dangerous gap in the law and institute other common-sense gun safety measures.
Golan v. Saada
In 2018, Narkis Golan moved with her son from Italy to the United States to escape her abusive husband (and her son’s father), Isacco Saada. Saada asked a district court to return their son to Italy under the Hague Convention on the Civil Aspects of International Child Abduction, which requires that custody disputes must be resolved in the child’s country of residence—which, in this case, would have been Italy. However, the district court found returning Golan and Saada’s son to Italy would have exposed him to a “grave risk” of psychological harm, based on his father’s abuse of his mother.
The district court ruled that their son could be returned to Italy, as long as Saada complied with certain protective measures, like attending therapy and staying away from Golan until the case was resolved. Golan appealed this decision and argued the district court should not have even considered imposing these measures, because the risk to her son’s safety was too serious. The district court coordinated with an Italian court to enforce the measures, despite Golan’s objections, and the U.S. Court of Appeals for the Second Circuit affirmed this decision.
However, in a 9-0 decision vacating the lower court decision, the Supreme Court ruled in Golan v. Saada that courts may consider—but should not be required to consider—all protective measures, because there are certain “intolerable situations” (including “domestic violence in the home”) that are so severe no protective measures could possibly make them safe enough for a child to endure. This means that a court is not categorically required to examine all possible ameliorative measures before denying a Hague Convention petition for return of a child to a foreign country once the court has found that return would expose the child to a grave risk of harm.
Abuse is about power and control, and it can have severe, long-lasting impacts on not only a victim, but also on their children, who often carry trauma throughout their lives as a result of domestic violence. This trauma can occur whether the child is directly hurt or indirectly forced to witness one parent hurting another. NNEDV is pleased to see this decision in Golan because it sets an important precedent and prioritizes the safety of Saada and Golan’s son, based on an understanding of how witnessing abuse has already harmed (and may continue to harm) a child’s well-being and safety.
Arizona v. City and County of San Francisco, California
In 2019, the Trump Administration expanded the grounds under which an immigrant would be ineligible to enter or become a permanent resident of the United States by defining a “public charge” to include an immigrant who would likely depend on cash benefits and other government assistance (like housing, food, and insurance). Based on the Trump Administration’s expanded definition, a greater number of noncitizens could be denied entry or permanent residency based on their likely need for assistance.
The Biden Administration chose to stop enforcing the public charge rule in March 2021, and eventually rescinded it. Several states (including Arizona) attempted to continue enforcing the rule. The states went to the U.S. Court of Appeals for the Ninth Circuit, seeking to intervene there to defend the rule in the hope of having it reinstated. But the Ninth Circuit declined, prompting the states to appeal to the Supreme Court. They asked the Supreme Court to consider whether states with interests should be permitted to intervene to defend a rule when the United States ceases to defend it. The Court in Arizona v. City and County of San Francisco dismissed the case, indicating it was wrong to have taken up the dispute in the first place. As a result, the Ninth Circuit’s ruling (that states could not overrule the federal government and revive the policy) stands, and the Trump Administration’s expanded definition would not be enforced.
Many immigrant survivors escape to the United States with few resources, and having access to government assistance is often crucial to their journey to leave abusers, heal from trauma, and build safer lives for themselves and their children. For the past several years, when immigrant survivors feared that they would be denied permanent residency based on their need for help, it had a chilling, even life-threatening, effect on their ability to escape abuse. NNEDV is pleased to see that the lower court decision in Arizona stands and is grateful that enforcement of the Trump Administration’s expanded “public charge” definition has finally come to an end.
Learn more in letters from the Alliance for Immigrant Survivors that NNEDV signed onto in 2021 and 2022, and in a City and County of San Francisco v. United States Citizenship and Immigration Services amicus brief that NNEDV signed onto in 2020. Learn more about immigration for domestic violence survivors at WomensLaw.org.
While the Supreme Court did issue a few decisions that may support survivors this term, the Court’s direction and outlook has been to roll back fundamental and long-standing rights, which will have dangerous repercussions for many people, including survivors. NNEDV is committed to working with our membership and allied organizations to respond to these decisions and ensure survivors are supported. We encourage you to sign up for our emails to stay in the loop about what comes next.
For peace and safety,