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Supreme Court will hear cases on control, abortion rights in new term starting Monday

AYESHA RASCOE, HOST:

The U.S. Supreme Court has a big week ahead as it opens a new term with cases on everything from guns to abortion to government regulation. Joining us now to talk about what's coming up is NPR legal affairs correspondent Nina Totenberg. Thanks for being with us.

NINA TOTENBERG, BYLINE: My pleasure.

RASCOE: So, Nina, let's start with abortion. How is it back on the Supreme Court's docket so soon after the court overturned Roe v. Wade?

TOTENBERG: It's back because the 5th Circuit Court of Appeals - which includes Texas and some Deep South states - the 5th Circuit issued a decision that significantly restricts the availability of abortion pills, which now account for more than half of all abortions in the U.S. The pills, which are approved for use in the first 10 weeks of pregnancy, were approved by the FDA in 2000. And then in 2020 and 2021, the agency also approved them as safe and effective when obtained via telemedicine and by mail. But the 5th Circuit overrode the agency's more recent judgments, and the FDA appealed to the Supreme Court, which temporarily blocked the lower court decision from going into effect while the court considers the question.

RASCOE: All right. Let's move on to another issue - guns. There's an important gun rights case in front of the court this term. What is that?

TOTENBERG: In 2022, The court, by a 6-to-3 vote, issued this very broad decision declaring that the right to possess and carry a gun is a fundamental constitutional right, much like the First Amendment right of free speech. And importantly, the court said that laws and regulations about guns, in order to be constitutional, have to be analogous to laws on the books at the time of the founding. This was the quintessential originalist decision, Ayesha, written by Justice Clarence Thomas and hinged to the meaning of the Constitution at the time the Bill of Rights was written in 1789. But, of course, there are lots of situations involving guns that didn't exist at the time of the founding, and the case before the court this term presents one of them, namely a federal law that bans gun possession for anyone who's a subject of a domestic violence restraining order.

Now, although the government, in defending the federal statute, points to what it calls analogous laws at the founding, the fact is that there really weren't laws like this back then for the simple reason that women didn't have rights in 1789. They didn't have the vote or property rights, for the most part, and they had little to no recourse under the law from an abusive husband. So it's going to be very interesting to see how the Supreme Court deals with this case.

RASCOE: We've been talking about cases coming during the term that starts this week. And one of the first, one that's actually being argued this week, is about the Consumer Financial Protection Bureau. What is this case all about?

TOTENBERG: The CFPB was established by Congress after the 2008 financial crash. The agency is charged with establishing rules for lending, mortgages and a lot of other financial dealings. It has now been in existence for 13 years, but the 5th Circuit Court of Appeals ruled that its funding mechanism is unconstitutional. And that's really a threat to the very existence of the agency.

RASCOE: What is the CFPB's funding mechanism?

TOTENBERG: Its funding is capped by Congress. They can't spend any more than a given amount. But it comes from fees paid by banks to the Federal Reserve Board, so it doesn't get an annual appropriation.

RASCOE: Why would that be unconstitutional?

TOTENBERG: The 5th Circuit ruled that the Constitution requires an actual appropriation by Congress each year or every other year. And if that is so, if the 5th Circuit is right, it could put not just the CFPB out of business but lots of other agencies, including the Federal Reserve itself and the FDIC, which ensures bank deposits, both of which are funded in similar ways. In preparing a piece about this for next week, I talked to Elizabeth Warren, now a senator, who first proposed the CFPB to protect consumers in their future financial dealings. At the time, she was in the Obama administration, and she says this Supreme Court case is hugely important.

ELIZABETH WARREN: If this Supreme Court says that Congress doesn't have the power to set up government agencies and laws without going through appropriations, understand not only do all the banking regulators fall on their faces, Social Security and Medicare are now at risk. They don't run through appropriations. They are funded through a separate tax, a separate way to have an agency organized. So the implications of this case - this could echo through the lives of every person in America.

TOTENBERG: I should add that there are lots of other big issues coming before the court this term, including a slug of social media cases, so stay tuned.

RASCOE: That's NPR legal affairs correspondent Nina Totenberg. Nina, thank you so much.

TOTENBERG: Thank you, Ayesha. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Ayesha Rascoe is a White House correspondent for NPR. She is currently covering her third presidential administration. Rascoe's White House coverage has included a number of high profile foreign trips, including President Trump's 2019 summit with North Korean leader Kim Jong Un in Hanoi, Vietnam, and President Obama's final NATO summit in Warsaw, Poland in 2016. As a part of the White House team, she's also a regular on the NPR Politics Podcast.
Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
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