SCOTUS Says City’s Homeless Camping Ban Not ‘Cruel And Unusual’ Punishment


OPINION: This article may contain commentary which reflects the author's opinion.

The U.S. Supreme Court decided on Friday that an Oregon city’s policy prohibiting anybody without a permanent residence from sleeping outside did not violate the Eighth Amendment’s prohibition on “cruel and unusual” punishment.

Chief Justice Neil Gorsuch wrote the 6-3 opinion. The dissent came from the three liberal judges of the court, ABC News reported.

“Homelessness is complex. Its causes are many. So maybe the public policy responses required to address it,” Gorsuch wrote. “At bottom, the question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising those responses. It does not.”

Justices Elena Kagan and Ketanji Brown Jackson joined Justice Sonia Sotomayor in dissent, arguing that the ordinance penalizes homeless people who have nowhere else to go because of their status.

“It is possible to acknowledge and balance the issues facing local governments, the humanity and dignity of homeless people, and our constitutional principles,” Sotomayor wrote. “Instead, the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.”

“The Constitution provides a baseline of rights for all Americans, rich and poor, housed and unhoused,” Sotomayor said.

The Supreme Court has been busy this week as the term nears an end.


The Supreme Court ruled on Thursday that, to comply with a federal provision requiring emergency rooms to provide “stabilizing treatments” to patients in severe condition, doctors in Idaho must, at least for the time being, be permitted to perform emergency abortions, despite the state’s nearly complete ban.

The Court invalidated stays it had issued earlier this year and concluded that writs of certiorari in two legal matters were “improvidently granted,” according to an unsigned opinion. The case may eventually come back before the Supreme Court, as it will continue to be heard on the merits in lower courts.

A draft of the ruling was inadvertently uploaded on the court’s website on Wednesday before it was removed. With the identical conclusion but omitting a few phrases from the earlier draft, Thursday’s opinion seems to be fairly close to the inadvertent draft.

Chief Justice Roberts, Justice Brett Kavanagh, and Justice Amy Coney Barrett concurred in the very rare decision made by the Court “because the shape of these cases has substantially shifted” since the Court granted certiorari, Fox News reported.

But Justice Clarence Thomas, joining Justice Samuel Alito, referred to the Court’s ruling as “baffling.”

“Recognizing the flaws in the Government’s theory and Idaho’s ‘strong’ likelihood of success, this Court stayed the preliminary injunction pending appeal on January 5. And, wisely or not, the Court also took the unusual step of granting certiorari before Idaho’s appeal was heard by the Ninth Circuit. Now the Court dismisses the writ and, what is worse, vacates the stay,” Alito wrote.

“This about-face is baffling,” he continued. “Nothing legally relevant has occurred since January 5. And the underlying issue in this case—whether EMTALA requires hospitals to perform abortions in some circumstances—is a straightforward question of statutory interpretation. It is squarely presented by the decision below, and it has been exhaustively briefed and argued.”

“Altogether, we have more than 1,300 pages of briefing to assist us, and we heard nearly two hours of argument,” Alito added.


“Everything there is to say about the statutory interpretation question has probably been said many times over. That question is as ripe for decision as it ever will be. Apparently, the Court has simply lost the will to decide the easy but emotional and highly politicized question that the case presents. That is regrettable,” Alito said.

Justice Ketanji Brown Jackson wrote a separate concurrence with the Court’s decision to lift the stay but dissented against its decision to dismiss the cases as improvidently granted.

“This months-long catastrophe was completely unnecessary. More to the point, it directly violated federal law, which in our system of government is supreme,” Jackson wrote.

Except for rape, incest, and motherhood, any medical professional performing an abortion is prohibited by Idaho’s recently passed Defense of Life Act.

The state’s law, according to the Justice Department, does not go far enough to permit abortions in more extreme medical situations.


“The Supreme Court sent the case back to the 9th Circuit today after my office won significant concessions from the United States that Justice Barrett described as ‘important’ and ‘critical,'” Idaho Attorney General Raúl Labrador said in a statement.

“Today, the court said that Idaho will be able to enforce its law to save lives in the vast majority of circumstances while the case proceeds. The Biden administration’s concession that EMTALA will rarely override Idaho’s law caused the Supreme Court to ask the 9th Circuit for review in light of the federal government’s change in position. Justice Barrett wrote those concessions mean that Idaho’s Defense of Life Act ‘remains almost entirely intact.’ The 9th Circuit’s decision should be easy,” he said.

When providing “stabilizing treatment”—including abortions—to patients in need of immediate medical attention, the Department of Justice (DOJ) sued the state because the federal Emergency Medical Treatment and Labor Act (EMTALA) compels healthcare providers to do so, even if doing so might violate a state’s abortion prohibitions.

The government had contended that “construing EMTALA as a federal abortion mandate raises grave questions under the major questions doctrine that affect both Congress and this Court.”

A supporter of the state’s abortion ban cited Dobb’s ruling, which permitted states to control access to abortion, to accuse the Biden administration of “subverting states’ rights.”

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