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Texas Lt. Gov. Dan Patrick (pictured), along with state Sen. Bryan Hughes, was a key architect of the state’s recent voter restriction and anti-abortion bills.

The Christian right’s ability to mobilize its own voters has long made it one of the most potent forces in American politics. But this year, evangelical leaders have embraced a new strategy, one with direct roots in the outcome of the 2020 election: Religious activists have taken up the cause of “election integrity,” pushing bills to crack down on voter fraud, even though no evidence of widespread fraud in US elections exists. In the process, they’ve helped restrict ballot access for millions of Americans — the most regressive wave of voting measures since the Jim Crow era — and drawn a direct connection between their new cause and their core religious beliefs.

The goal is to protect the gains made by the Christian right during Donald Trump’s presidency, especially in the federal courts, and to restore the White House and Congress to Republican control. The biggest prize, of course, is the US Supreme Court, where — not coincidentally — all three of Trump’s appointees declined to block the Texas abortion bill from taking effect, signaling their willingness to overturn Roe v. Wade.

White evangelicals were Trump’s most loyal supporters in 2020, giving him 84 percent of their vote, according to the Pew Research Center. Many saw Trump as anointed by God to save America at a critical juncture in its history, and they viewed his loss in cataclysmic terms. A January survey by the American Enterprise Institute found that evangelical conservatives were far more inclined than other Republicans to believe Trump’s lies about widespread election fraud, as well as wild conspiracy theories about QAnon, antifa, and the “deep state.” The fervent evangelical support for Trump during his presidency has now morphed into support for his “big lie” — and for voter suppression bills that are a direct outgrowth of Trump’s continued insistence that the election was stolen from him.

Across the country, Christian-right groups that saw their influence bloom during Trump’s presidency have taken up the cause not just in statehouses and fundraising appeals but also in churches and prayer calls with followers. The Christian voter mobilization group My Faith Votes, for example, has launched an initiative called Election Integrity Now, complete with a prayer guide with seven ways to ask God “to protect America’s elections and deliver trustworthy results.”

“The 2020 elections revealed genuine concerns in the election process that could threaten election integrity and the very foundation of our Constitutional Republic. Yet, even more dangerous than election fraud is that many Christians have lost confidence in the election system,” the group’s CEO, Jason Yates, said in announcing the initiative.

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Attendees pray at an “Evangelicals for Trump” event in Miami, Florida, on January 3.

It is also becoming evident to pollsters, demographers, and religious-right leaders themselves that the model first pioneered by the Christian Coalition in the Reagan era — ensuring that religious conservatives registered to vote and turned out in overwhelming numbers on Election Day — isn’t working as well as it used to.

White evangelical Protestants now make up 14 percent of Americans, down from 23 percent in 2006, “the most precipitous drop in affiliation” for any religious group, according to a 2020 survey from the Public Religion Research Institute. Even though white evangelicals made up 34 percent of Trump’s voters, according to a Pew Research Center analysis of election data, their support wasn’t sufficient to propel him to reelection. “Without such broad support for Trump among White evangelicals, [Joe] Biden would have beaten him by more than 20 points,” the Pew analysts wrote earlier this year.

Trump’s defeat proves that even massive conservative Christian turnout is no longer enough to win. The strategy white evangelical supporters have coalesced around to supplement it: election laws built on the lie that the other side’s ability to turn out voters must be “fraudulent.”

The new battlefront opened in Georgia immediately after the 2020 election.

As Trump tried to strong-arm state election officials to throw out the ballots of 11,780 Georgians and declare him the winner of the state’s 16 Electoral College votes, the Family Policy Alliance of Georgia sent a fundraising email to its supporters in December: “Election reform is coming to Georgia, and we are all in!”

Cole Muzio, the group’s executive director, acknowledged that this was new territory for his organization. “As you know, this is not one of our ‘core issues’,” he wrote. “However, issues like life, religious freedom, and school choice will never win if the vote is being diluted by radical leftists exploiting the system to cheat.”

Muzio’s organization is affiliated with Focus on the Family, the Christian-right icon known for opposing LGBTQ and reproductive rights. Elsewhere, Muzio acknowledged launching his group in 2017 after “seeing that our state was rapidly moving ‘blue’ and that the Church had been weakened greatly.”

Throughout Georgia’s runoff elections for two Senate seats, which would determine control of the legislative body, the Family Policy Alliance repeatedly attacked Democrats Jon Ossoff and Raphael Warnock as hostile to Christians, but particularly Warnock, a minister who leads the Ebenezer Baptist Church, where Rev. Martin Luther King Jr. once presided.

“Raphael Warnock holds the title of ‘pastor’,” the group wrote in one Facebook post. (The group has recently rebranded itself as the Frontline Policy Council.) “Yet, he OPPOSES what God’s Word clearly says about Life. His radical pro-abortion views are disgusting, wrong, anti-science, and anti-Scripture. Quite simply, he’s Unfit for the Pulpit and Unfit for the Senate.” A voter guide titled “Which Candidate Stands Firm on the Word of God?” accused Warnock of being a Marxist, anti-Semitic, and anti-Israel — all lies — and attacked his views supporting abortion and transgender rights. Muzio initially agreed to an interview for this story but ultimately didn’t respond to requests to speak.

When Democrats stunned even themselves by winning both seats in the January 5 runoff, Georgia Republicans sprang into action, introducing a slate of bills that would, among other things, eliminate drop-box sites, impose more restrictive rules for absentee ballots, and prohibit judges from extending voting hours at precincts experiencing long waits, all under the guise of stopping fraud. Another objective was to defeat Warnock, who is up for reelection in 2022.

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President Trump campaigns for Republican Sens. Kelly Loeffler and David Perdue ahead of the Senate runoffs in Dalton, Georgia, on January 4.

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US Sens. Jon Ossoff (right) and Raphael Warnock won Georgia’s runoff election on January 5.

The flurry of legislation overtly became about religion and race, pitting white evangelical Republicans against Black church leaders, whose flocks are predominantly Democratic. One provision would have eliminated Sunday voting, a potentially dire blow to get-out-the-vote efforts of Black churches and their “souls to the polls” events that have been at the core of Black voter mobilization for decades.

A national outcry led legislators to nix that provision. But Republican lawmakers ignored the objections of the state’s Black pastors to the bill’s many other restrictive provisions. Black leaders couldn’t even get a meeting with GOP leaders, said Rev. Timothy McDonald III, senior pastor of the First Iconium Baptist Church in Atlanta. “They didn’t pay any of us any mind.”

Less than two months after the bill was introduced, Gov. Brian Kemp signed a 98-page law that criminalizes providing water or food to voters standing in line and empowers state officials to replace local election officials — for example, the Democratic registrar of voters in Fulton County, which includes Atlanta — with appointees from their own party. The impact would be greatest on Black voters. “It is How to Steal an Election 101,” McDonald said.

The ceremonial signing served only to highlight the bill’s racial overtones. It took place behind closed doors, with Kemp flanked by six white male legislators, sitting under a painting of a plantation. When state Rep. Park Cannon, a Black Democrat, knocked on the door to gain entry to the event, she was arrested for obstructing law enforcement and disrupting the General Assembly.

On the Family Policy Alliance website, Muzio denounced “the deranged media” and “Pretend-governor Stacey Abrams” — the Democratic candidate who narrowly lost to Kemp in 2018 — for their “outlandish and inflammatory rhetoric.” He called the claim that the bill is racist “wrong, disingenuous, a form of voter suppression, and, in fact, racist on its face.”

His words signaled a subtle reframing, echoing the Christian right’s perspective on almost every other issue in the culture wars: Progressives were the real overreachers, and evangelical Christians the true victims. The Georgia law didn’t suppress the votes of Democrats and people of color, Muzio was saying; it prevented the votes of religious conservatives from being suppressed.

Even as Black church leaders mobilized to contest the Georgia law in court, conservative groups were gearing up to replicate it in other states.

National organizations aligned with the Christian right embraced “election integrity” with fervor. In March, Heritage Action for America, a sister organization of the right-wing policy hub the Heritage Foundation, announced it would pour at least $10 million into lobbying and TV and online ads about the urgent need to “protect the rights of every American to a fair election.” In a video obtained by Mother Jones, a Heritage Action official admitted that the organization drafted the legislation in many states, including Georgia, and helped organize support.

At the same time, evangelical leaders opposed measures that would make it easier to vote. Advocates particularly targeted the For the People Act, which would create nationwide automatic voter registration, restore voting rights of the formerly incarcerated, and expand voting by mail and early voting, while shoring up the security of election infrastructure. The Phyllis Schlafly Eagles — an offshoot of the group once headed by the late conservative figure best known for helping kill the Equal Rights Amendment — claimed (falsely) that the bill “would enshrine Democrat ballot stuffing into federal law forever.” The Family Research Council called it “a federal power grab that cripples states’ ability to run elections and increases the likelihood of voter fraud” (another lie). Other conservative activists contended that the act’s financial disclosure requirements violated First Amendment protections for religious speech.

In early February, the Family Research Council’s president, Tony Perkins, led a discussion at the influential megachurch Cornerstone Chapel in Virginia with Michael Farris, a longtime conservative activist and now president of the Christian- right legal powerhouse Alliance Defending Freedom.

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Then-Senate Majority Leader Mitch McConnell (left) was welcomed to the stage by Family Research Council President Tony Perkins during the Value Voters Summit in 2018.

David Goldman/AP

Trump supporters protest the presidential election results outside the central counting board in Detroit, Michigan, on November 5, 2020.

Declaring election integrity “vital for our future,” Farris claimed to have undertaken a “thorough study” of the 2020 election and to have found “constitutional irregularities in many, many states,” particularly in those where the election was close. He claimed the “central problem was the failure to follow the preestablished process in counting the votes” and insisted that if votes had been properly tallied, Trump would have won. Neither Farris nor his organization has ever provided proof of those accusations, and they did not respond to Reveal’s requests for Farris to share them.

The Family Research Council also deployed Kenneth Blackwell, its senior fellow for human rights and constitutional governance, who has long been a central player in the movement to limit voting access, dating back to his tenure as Ohio secretary of state, when civil rights advocates accused him of suppressing voters of color in the 2004 presidential election and helping Republicans keep the White House.

In a March appearance in the Family Research Council’s video series “Pray Vote Stand,” Blackwell, who is Black, called the For the People Act a “heist” and a “power grab” that would “stifle individual religious liberty and the centrality of God in our lives.” Mostly, Blackwell urged religious voters to stay engaged. “We must claw back the responsibility and the authority of local governments and state legislatures” to control elections or else, he contended, Democrats would create “one-party control much like they have in Cuba, Venezuela, and Russia.”

My Faith Votes’ national honorary chair, talk show host and former Arkansas Gov. Mike Huckabee, took credit for helping get 9 million new Christian voters to the polls in 2020 and promised, “in 2021, we will be doubling down.” Ralph Reed, chair of the national Faith & Freedom Coalition, beseeched potential donors: “Though news of the radical left’s scheming is hard to read, remember that — thanks to your support and the support of Christian patriots like you — we still have a chance to save America in the 2022 midterm elections, and we will make the most of it.”

Republican lawmakers did their part to stoke the fires. At the Faith & Freedom Coalition’s national Road to Majority conference in June, for example, South Carolina Sen.  Lindsey Graham portrayed Democratic victories in 2022 and 2024 as an existential threat that would lead to statehood for the District of Columbia and Puerto Rico and the end of the Electoral College. “Winning in 2022 is the only option available for conservatism,” he said. “We need you to get people out of your churches into that voting booth.”

There were plenty of true believers. A June Washington Post/ABC News poll found that while only 30 percent of all respondents favored passing “new laws making it harder for people to vote fraudulently,” 51 percent of white evangelicals supported such legislation. While 62 percent of all Americans expressed support for “new laws making it easier for people to vote,” only 43 percent of white evangelicals did.

By that time, according to the Brennan Center for Justice, 17 states already had enacted 28 new laws suppressing voting rights. And then came Texas.

During this year’s Texas legislative session, it wasn’t the anti- abortion Heartbeat Act that was deemed the greater threat by Texas Democrats, but voter integrity legislation. The abortion bill, targeting not just abortion but anyone helping a woman in the state obtain one, made it through the legislature relatively unscathed and was signed into law May 19. Republicans’ attempt to pass a voter bill — including criminal penalties on election officials who send unsolicited mail-ballot applications and new powers for partisan poll watchers — required two special legislative sessions, after Democrats ran out the clock on the first bill, then fled the state for a month in protest.

At the first special session in July, many of the demonstrators on the statehouse grounds opposed the voting legislation. But Lori Gallagher of Williamson County, Texas, was there to show her support. The group she co-founded, the Texas Constitutionalists, describes itself as “grassroots conservatives with a mission to educate ourselves and our neighbors to be actively involved in Texas State and County government to secure our vote and restore our representational Republic.” But she saw its mission in starkly religious terms.

“I believe that the divine hand of providence was present when our constitutional and founding documents were formed,” she said. “I believe that’s the divine intersection between voting rights. The people’s voice — that comes from God. Your freedom comes from God. Liberty comes from God.”

Inside the hearing room, with just two minutes to speak, Don Garner, executive director of the Texas Faith & Freedom Coalition, focused more on politics, echoing Christian- right talking points that have become familiar this year. Election integrity is “foundational to the freedoms we enjoy,” he declared. “Nothing suppresses voting more than the erosion of trust or confidence in the election process itself.”

But Garner’s brief remarks had far less impact than his relationships. For 10 years, he served as the state director and national field director of the Capitol Commission, a network of organizations in state capitols that hosts Bible studies and other events with lawmakers. The goal: “making disciples of Jesus Christ in the Capitol communities of the world,” according to its website. His current organization, formed in March 2020, keeps voters informed “about important issues relevant to faith-based communities” and “supports Biblical principles.”

Republican state Sen. Bryan Hughes, an author of the voting restriction and anti-abortion bills, is one of about a dozen Texas legislators who serve on Garner’s advisory council. In an interview, Garner said Hughes is “a close friend and someone that I work very closely with on all kinds of things.”

LM Otero/AP

Texas Gov. Greg Abbott (right) and state Sen. Bryan Hughes smile for photographs after Abbott signed Senate Bill 1, also known as the election integrity bill, on September 7, 2021.

The Texas House sponsor of the voting bill, state Rep. Briscoe Cain, is another close ally. As the legislation was moving, Garner said he talked to Cain or his staff “every couple of days, all session long.” Garner said his coalition’s clout comes from its grassroots volunteers who show up when needed, canvassing 310,000 homes in the last election cycle and planning to hit twice as many next year. Lawmakers know “we’re actually getting out there and knocking on doors.”

Conservative Christian voters, Garner said, have always had concerns about election integrity, but especially so after the 2020 election.

“Obviously, there were a lot of concerns afterward and among people on the right that maybe there had been improprieties, and certainly, people felt like it at least needed to be investigated,” Garner said. “Because of everything that — the way everything fell out, certainly it raised the level of concern.”

Even as Trump and his evangelical allies basked in their legislative victories in Texas, they used those concerns to promote their future political prospects. In a conference call for the national religious group Intercessors for America the day after the abortion law took effect, Trump wasted no time in lambasting the Biden administration, saying, without specificity or evidence, that “what they’re doing to Christianity, it’s a very sad, sad thing for our country.”

Robert Morris, pastor of the Gateway megachurch in Dallas, closed the call with a plea: “I pray, Lord, that you will do something … for our election system, that we’ll never have another election stolen from us,” he intoned. “So, Lord, whatever we need to do to fix the electoral process, I pray for that, I pray for our country, and I pray for President Trump and his family … in Jesus’s mighty name.”

CREDITS
Additional reporting: Alexandra Villarreal
Editors: Nina Martin and Andrew Donohue, Reveal; Libby Nelson, Vox
Copy editors: Nikki Frick, Reveal; Kim Eggleston and Tim Williams, Vox
Visuals editor: Kainaz Amaria, Vox

Sarah Posner can be reached at sarahposner1@gmail.com. Find her on Twitter @sarahposner.

Abortion, guns, regulation — conservatives are poised for a big year as a Supreme Court heavily tilted toward their side returns to work.

For four decades, anti-abortion activists have dreamed of the day when the Supreme Court would overrule Roe v. Wade. That day could be just months away, as the Court will hear a case this winter asking it to destroy Roe.

The National Rifle Association, like other, even more strident gun rights groups, spent those decades dreaming of an expansive Second Amendment that sweeps even the most venerable firearms regulations into the trash bin. This fall, the Court will hear a challenge to a 108-year-old law laying out who may obtain a license to carry a firearm in New York.

A more obscure issue, but one that could have even more sweeping consequences, is the question of when federal agencies — acting pursuant to a statute enacted by Congress — may regulate private businesses and individuals. The conservative Federalist Society has long obsessed over plans to strip federal agencies of this regulatory power. This month, right-wing groups flooded the Supreme Court with briefs asking the justices to overrule a seminal precedent preventing judges from sabotaging agencies such as the Environmental Protection Agency.

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President Trump’s three Supreme Court justice appointees: Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh.

It remains to be seen whether the Supreme Court, with its 6-3 conservative majority, will make all these groups’ dreams come true. But Republican advocacy organizations of all stripes appear convinced that now is the time to shoot for the moon, and so these issues — along with a host of others ranging from anti-discrimination law to partisan gerrymandering — are on the docket this coming Supreme Court term, which starts Monday, October 4.

By the time the justices head off for their next summer break, the Court may well have revolutionized much of American law — and turned many of the Republican Party’s fondest wishes into reality.

1) Roe v. Wade could be ended

The parties in Dobbs v. Jackson Women’s Health Organization, which the Court will hear in early December, agree on just one thing: The case is an existential threat to Roe v. Wade.

Dobbs involves a Mississippi law that bans abortions after 15 weeks of pregnancy. (Notably, this 15-week clock starts on “the first day of the last menstrual period of the pregnant woman” — meaning that, in practice, the law functions as something much closer to a 13-week abortion ban.)

Technically, the justices say they took up this case to answer a slightly narrower question than whether the constitutional right to an abortion should be eliminated in its entirety. But Mississippi spends the lion’s share of its brief arguing that Roe should be overruled and the constitutional right to an abortion eliminated.

Meanwhile, the abortion providers challenging the law argue that there is no practical difference between a decision repealing Roe and a superficially narrower decision permitting states to ban abortions prior to viability. According to their brief, “Any abandonment of viability would be no different than overruling Casey and Roe entirely.”

The 15th week of pregnancy is well before viability. According to a paper published in the journal Pediatrics in 2019, “Infants born at 22 weeks’ gestation can achieve survival rates of 25% to 50%.”

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Demonstrators seen at a “March for Reproductive Freedom” in Birmingham, Alabama, in 2019.

I could spend some time summarizing the legal arguments in the two sides’ briefs, but really, what’s the point? For most justices, the question of whether the Constitution protects a right to abortion ceased to have anything to do with legal doctrines and Latin maxims such as stare decisis — the doctrine that courts should generally be bound by their prior decisions — long ago.

The bottom line is that Republican elected officials generally oppose abortion, Democrats typically support the right to have one, and six of the nine justices were appointed by Republican presidents. Five of those justices already allowed a Texas law that effectively bans abortions after six weeks to take effect.

Barring extraordinary events, the right to an abortion is probably doomed.

  1. The Court could eviscerate America’s gun laws

Like Dobbs, the most salient factor in New York State Rifle & Pistol Association Inc. v. Bruen — a challenge to a New York state law requiring anyone who wishes to carry a handgun in public to demonstrate “proper cause” to obtain a license — isn’t the legal arguments in the case. It is the identity of the justices who will hear it.

For many years, the Supreme Court read the Second Amendment narrowly. As the Court explained in United States v. Miller (1939), the “obvious purpose” of this amendment was to “render possible the effectiveness” of militias, not to permit individuals to carry guns for other purposes.

All of that changed in District of Columbia v. Heller (2008), which held for the first time that the Second Amendment protects an individual right to bear arms.

That said, the Court’s opinion in Heller includes a great deal of language limiting the scope of gun rights. For example, it suggests that bans on “carrying concealed weapons” are lawful, as are laws banning “the possession of firearms by felons and the mentally ill,” “the carrying of firearms in sensitive places such as schools and government buildings,” or “the carrying of ‘dangerous and unusual weapons.’”

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Gun safety advocates rally in front of the US Supreme Court before oral arguments in the Second Amendment case NY State Rifle & Pistol v. City of New York on December 2, 2019, in Washington, DC.

This mitigating language was inserted into the Heller opinion at Justice Anthony Kennedy’s insistence — Heller was a 5-4 decision, so the other conservatives in the majority needed Kennedy’s vote to avoid winding up in dissent.

But Kennedy is now retired, and his replacement, Justice Brett Kavanaugh, is a hard-liner on the Second Amendment even by the standards of other Republican-appointed judges. In a 2011 dissenting opinion, for example, Kavanaugh disagreed with two very conservative judges who upheld much of a District of Columbia gun law. Kavanaugh would have struck down the law’s ban on semiautomatic assault weapons and its requirement that gun owners register their firearms.

Similarly, the late Justice Ruth Bader Ginsburg, who dissented in Heller, was replaced by Justice Amy Coney Barrett, who also takes an unusually expansive view of the Second Amendment. Although Heller indicates that “longstanding prohibitions on the possession of firearms by felons and the mentally ill” are constitutional, Barrett claimed in a 2019 dissent that the rule should apply “only to people who are dangerous,” not to all people with felony convictions.

So, while it is not entirely clear just how much the Court will expand the Second Amendment, it is very likely it will hand down a new rule that could endanger wide swaths of state and federal laws regulating firearms.

  1. The Court could seize significant new authority to veto federal policies

American Hospital Association v. Becerra is a testament to how the Court’s most consequential decisions often come from cases that are complex enough to make your brain bleed.

The specific issue in American Hospital Association is whether a 2017 regulation changing the amount Medicare pays for certain drugs is lawful. Under the pre-2017 rule, Medicare reimbursed hospitals for the full price of these drugs, even though certain hospitals that treat low-income and underserved populations may purchase them at a significant price break.

Under the new rule, Medicare reimburses hospitals that buy discounted drugs at a lower rate. (It should be noted that many low-income patients also paid higher copays under the pre-2017 rule, so there are plausible arguments that either policy leads to better outcomes for low-income people.)

The most important question in American Hospital Association, however, stretches far beyond Medicare to touch on a fundamental issue: When Congress gives federal agencies the power to set policy, how much leeway do those agencies enjoy? It’s a consequential question that bears on situations as diverse as whether the EPA can fight climate change, or whether the Department of Labor can encourage workers to get vaccinated against Covid-19.

Numerous federal laws lay out a broad policy. Somewhat simplified examples of such policies are “power plants should use the best available technology to reduce emissions” or “Medicare should pay a reasonable market rate for prescriptions.” But such laws then empower a federal agency to implement those policies through binding regulations that can be updated as technology evolves or as drug prices fluctuate.

Historically, the Supreme Court warned judges to be very reluctant to second-guess federal agencies when they issue such regulations. As the Court explained in Chevron USA Inc. v. Natural Resources Defense Council (1984), specialized agencies have far more policy expertise than judges. What’s more, federal agencies are accountable to an elected president, while federal judges are unelected and lack the democratic legitimacy that comes from an electoral mandate.

The Court’s right flank, however, is increasingly hostile to agencies exercising this kind of power. Indeed, a majority of the Court has, at various times, suggested that the judiciary should have an effective veto power over all federal regulations.

The plaintiffs in American Hospital Association primarily argue that federal law unambiguously prohibits the post-2017 reimbursement rates. And everyone agrees that if the relevant federal statute is, in fact, unambiguous, then those rates must be struck down. Chevron held that when a law permitting an agency to regulate is ambiguous, courts should defer to the agency’s interpretation of the statute so long as it is reasonable.

But the Court was also flooded with amicus briefs from conservative advocacy groups claiming that Chevron should be overruled. If that happens, it would be an earthquake.

Chevron is one of the foundational precedents governing federal regulatory agencies, and one of the most cited cases in the Court’s history. Overruling it would be a clear sign that the Court plans to aggrandize policymaking authority within itself.

  1. The Court is likely to carve a new hole into the wall between church and state

The state of Maine’s public school system is more than a little bizarre.

Maine divides itself into 260 “school administrative units,” more than half of which do not have their own public secondary school. Instead, they either contract with a nearby public or private school to educate their school-age residents, or they agree to pay private school tuition for such residents. Significantly, these private school vouchers can only be used to pay tuition at a “nonsectarian” school.

(Maine’s arrangement, where some areas do not maintain their own public high schools, is unusual but not unheard of in other parts of the country. At least two other states, Illinois and Washington, provide for “non-high school districts” where the local government contracts with nearby schools to educate students.)

Only a few years ago, Maine’s exclusion for religious schools would have been completely unproblematic, at least as a constitutional matter. The courts turned aside multiple lawsuits seeking to force Maine to pay for religious education. The most recent of these suits, Carson v. Makin, is currently before the justices.

Carson, however, arrives at the Court shortly after its 5-4 decision in Espinoza v. Montana Department of Revenue (2020), which held that “a State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

Given Espinoza, it’s hard to see how Maine’s ban on state funding for religious education survives. That said, a federal appeals court did uphold that ban.

Derek Davis/Portland Press Herald via Getty Images
An empty middle school classroom in Scarborough, Maine. Some areas of the state do not maintain their own public high schools, and the Court will hear a suit seeking to force Maine to pay for religious education.

The thrust of the lower court’s opinion is that Espinoza prohibits discrimination only on the basis of religious “status” (meaning a school identifies with a particular faith), and does not ban state funding for religious “use” (meaning the school actively teaches religious doctrine). Significantly, Maine does not prohibit private schools affiliated with a church or other religious institution from receiving payments from the state. Only schools with overly religious curriculums are excluded.

If the Supreme Court rejects this distinction and orders Maine to fund religious schools, Carson will also reveal just how much the Court’s decisions can turn on its membership, rather than on the strength of either party’s legal arguments.

By coincidence, one of the judges who heard this case in the lower court was retired Justice David Souter, a critic of the Court’s rightward turn in religion cases (retired justices occasionally hear cases in lower courts). If the Court were now dominated by justices who share Souter’s views, the Carson plaintiffs would have no chance of prevailing.

But the deciding votes on the Supreme Court are now held by conservatives like Kavanaugh and Barrett.

  1. The Court will reveal whether its sympathy for “religious liberty” claims extends to death row

A little more than two years ago, in Dunn

  1. Ray (2019), the Court handed down a widely criticized decision holding that a Muslim death row inmate could not have an imam present during his execution.

    Significantly, the state of Alabama, which executed this inmate, permitted Christian inmates to have a spiritual adviser present during their execution, but not Muslims, a clear violation of the Constitution’s prohibition on religious discrimination. As Justice Elena Kagan explained in her dissenting opinion in Ray, “‘the clearest command of the Establishment Clause,’ this Court has held, ‘is that one religious denomination cannot be officially preferred over another.’”

    Ray sparked a bipartisan backlash (a piece in the conservative National Review labeled the decision a “grave violation of the First Amendment”), and it raised serious questions about just how far the Roberts Court’s commitment to religious freedom extended beyond conservative Christians.

    Last February, the Court signaled in a different case, Dunn v. Smith, that it was backing away from the decision in Ray.

    Then the Court agreed to hear Ramirez v. Collier, a case involving a Texas inmate who is allowed to have a pastor present during his execution — but the pastor may neither lay hands on the dying man nor audibly pray.

    There’s a good chance that Ramirez will reject Ray and allow death row inmates of all faiths to have a spiritual adviser present during their executions. It is less clear whether the Court will permit clergy to touch a person who is being executed or speak during the execution.

    1. The Court could further dismantle anti-discrimination laws

    CVS Pharmacy Inc. v. Doe involves a difficult dispute over just how much protection the Affordable Care Act gives to people with disabilities. The plaintiffs in this case are HIV-positive individuals who claim that their health plan (or, more specifically, the company that manages prescription drug benefits for their health insurer) effectively prevents them from receiving adequate care for their condition.

    Because the HIV virus continuously mutates, HIV- positive patients frequently need to change their medications. New medications can mean new side effects that need to be managed; they can also have negative interactions with other medications the patient already takes.

    The CVS Pharmacy plaintiffs’ health plan requires them to use a specific specialty pharmacist to obtain some drugs, while simultaneously requiring many of these plaintiffs to obtain non-specialty drugs at other pharmacies (“specialty” pharmacies typically dispense drugs that are unusually expensive or have particularly difficult handling requirements). The plaintiffs fear that requiring them to obtain drugs from two different sources “makes it difficult, if not impossible, for CVS Caremark to track potentially life-threatening drug interactions.”

Caroline Brehman/CQ Roll Call/Bloomberg via Getty Images
Images of people helped by the Affordable Care Act (ACA) occupy the seats of Democratic senators boycotting the advancement of Amy Coney Barrett’s nomination to the Supreme Court.

The specific question before the Court in CVS Pharmacy is whether a provision of the ACA that prohibits many health insurers and providers from discriminating against people with disabilities permits “disparate impact” suits against those insurers and providers. These suits allow plaintiffs to challenge practices that impose outsize burdens on people with disabilities, even if those practices do not deny health benefits to such individuals explicitly.

The Court’s conservative majority tends to be hostile toward disparate impact suits in other contexts. In Brnovich v. Democratic National Committee (2021), for example, all six Republican appointees voted to rewrite the Voting Rights Act to effectively neutralize disparate impact suits alleging race discrimination in elections.

Similarly, in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project (2015), the four most conservative justices voted to eliminate disparate impact suits brought by plaintiffs alleging race discrimination in housing. Justices Kennedy and Ginsburg, who voted with the majority in Inclusive Communities, have since been replaced by justices who are well to their right.

  1. The Court will decide whether Puerto Ricans can be denied benefits

People born in Puerto Rico are citizens of the United States, even though the island neither votes in presidential elections nor sends voting representatives to Congress. Additionally, while a program known as “Supplemental Security Income” (SSI) provides financial assistance to low-income older, blind, and disabled people living in the 50 states, as well as in DC and the Northern Mariana Islands, residents of Puerto Rico may not receive SSI benefits.

Which brings us to United States v. Vaello-Madero, an almost gratuitously cruel case brought by the federal government.

José Luis Vaello-Madero is an American who lived in New York for nearly three decades. During that period, he developed serious health conditions, and started receiving SSI benefits in 2012. He moved to Puerto Rico in 2013, apparently unaware that his relocation rendered him ineligible for SSI.

Nevertheless, the Social Security Administration, which administers SSI benefits, did not discover that Vaello-Madero had moved until 2016. When that happened, the government cut off his benefits and sued him for $28,081 — the amount of SSI benefits Vaello-Madero received while living in Puerto Rico.

The crux of Vaello- Madero’s lawsuit is that, by discriminating against Puerto Rican residents, SSI violates the Constitution’s guarantee that no one shall be denied the “equal protection of the laws.” Realistically, however, he faces an uphill battle under existing law. In Harris v. Rosario (1980), the Supreme Court held that the United States “may treat Puerto Rico differently from States so long as there is a rational basis for its actions.”

The term “rational basis” ordinarily requires courts to uphold a law. As the Court held in FCC

  1. Beach Communications Inc. (1993), laws subject to this extremely deferential standard “may be based on rational speculation unsupported by evidence or empirical data.”

    The federal government, for what it’s worth, claims that denying SSI benefits to Puerto Rican residents is rational because many Puerto Ricans do not pay federal income taxes, as well as because providing these benefits to residents of the island would cost too much. That’s not a particularly persuasive justification for the exclusion, but it is probably enough to survive rational basis review.

    That said, an appeals court did rule in Vaello-Madero’s favor. Among other things, it noted that many low-income Americans who do not live in Puerto Rico do not pay federal income taxes. Indeed, as the lower court noted, “any individual eligible for SSI benefits almost by definition earns too little to be paying federal income taxes.”

    1. The Court will decide whether the US can hide evidence that it tortured people

    Zayn al-Abidin Muhammad Husayn (often referred to as “Abu Zubaydah”) is a Palestinian man currently being held at the US military prison at Guantanamo Bay, Cuba. The US government believed him to be a high-level al-Qaeda operative; following his 2002 capture in the Palestine territories, CIA officials sent him to several so-called black sites, where he was tortured. One of these secret torture sites, where Abu Zubaydah was held for several months in 2002 and 2003, is in Poland.

    You may notice that the word “allegedly” does not appear at all in the previous paragraph. That is because the basic facts of Abu Zubaydah’s detention and torture in Poland aren’t seriously contested. Many of these facts have been reported by the press, and the European Court on Human Rights determined in 2015 that Abu Zubaydah was detained and tortured at the CIA facility in Poland. In addition, a 2014 report by the Senate Intelligence Committee confirmed that he was tortured.

    US Central Command/AP
A European Court on Human Rights determined in 2015 that Abu Zubaydah was detained and tortured at a CIA facility in Poland.

Nevertheless, in United States v. Zubaydah, the CIA claims these facts are “state secrets” and therefore cannot be disclosed to Polish prosecutors investigating which Polish nationals and government officials were complicit in Abu Zubaydah’s torture.

The Supreme Court established in United States v. Reynolds (1953) that, in cases where “compulsion of the evidence will expose military matters,” the requested evidence “should not be divulged” for reasons of national security. A lower appeals court determined that some of the information sought in the Zubaydah case, such as “the identities of foreign nationals who work with the CIA,” should not be disclosed because doing so “risks damaging the intelligence relationship [between the United States and Poland] and compromising current and future counterterrorism operations.”

At the same time, the appeals court also recognized that “in order to be a ‘state secret,’ a fact must first be a ‘secret.’” And thus the court handed down a nuanced decision holding that the CIA may need to turn over information — including “the fact that the CIA operated a detention facility in Poland in the early 2000s; information about the use of interrogation techniques and conditions of confinement in that detention facility; and details of Abu Zubaydah’s treatment there” — that is already largely available.

Yet the Justice Department is now asking the Supreme Court to prevent even this limited degree of disclosure, claiming that courts should show “a particularly high degree of deference to the CIA Director’s assessment” that certain information should remain secret when that information is sought in a “foreign proceeding that is investigating alleged clandestine activities of the CIA abroad.”

  1. The Court could make partisan gerrymandering even worse

While the Court has not yet announced that it will hear a case involving partisan gerrymandering this upcoming term, it is likely the justices will weigh in on this issue soon. State legislatures are currently drawing maps that will be used in the next decade’s worth of federal and state elections, and it is inevitable that some of these maps will be litigated.

Evelyn Hockstein/Washington Post via Getty Images
Demonstrators protest gerrymandering at a rally at the Supreme Court in 2019.

In October 2020, four members of the Supreme Court endorsed the view that state legislatures should have broad (and, potentially, unchecked) authority to determine how federal elections are conducted in their state: “The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,” Justice Neil Gorsuch wrote in a concurring opinion.

Taken to its logical extreme, this position could prohibit Democratic governors from vetoing congressional maps drawn by Republican state legislatures. It could also prevent state supreme courts from enforcing limits on gerrymandering imposed by their state’s constitution, as well as forbid states from using nonpartisan restricting commissions to draw congressional lines.

It remains to be seen whether the Court will go this far. Notably, Barrett was not on the Court when Gorsuch laid out his position, and her views on the question of whether state legislatures can ignore other political actors within their state are unknown.

Still, there is tremendous risk that a Court — one that has historically been sanguine about partisan gerrymandering and hostile toward plaintiffs in voting rights cases — will give Republican state legislatures expanded authority to draw gerrymandered congressional maps.

Now, it seems to some like a no-brainer that drugmakers should be churning out variant-specific vaccines, which could be used as boosters for people who’ve already gotten two doses, or theoretically as a first dose for unvaccinated people.

And in fact, the effort to make a delta-specific vaccine is in full swing. Pfizer/BioNTech and Moderna are on the case, and we may see these vaccines become available in the coming months. But here’s the thing: We might not actually need them.

Delta-specific boosters are in clinical trials

The quick answer to the question, “Where are the delta-specific vaccines?” is simple: Pfizer/BioNTech and Moderna have already produced customized, delta-targeted vaccines.

But figuring out how to create bespoke spike proteins is just the first step. Now the drugmakers are testing how well these retooled vaccines can work as boosters.

Pfizer/BioNTech is testing out a reformulated vaccine candidate specifically targeting delta. Clinical trial results are anticipated in the fourth quarter of the year. A vaccine to target the beta variant is also under investigation. (First identified in South Africa, beta proved alarmingly adept at evading immunity, though the hyper-transmissible delta is now more dominant.) “Both trials are ongoing,” a Pfizer/BioNTech spokesperson told me.

Likewise, Moderna recently announced that it’s testing reformulated vaccine candidates to target the beta and delta variants. The company has already started testing three out of its four candidates in a Phase 2/3 trial, which will determine their efficacy. It plans to start testing the fourth — a combo candidate that targets both beta and delta — in the next few weeks. “The Company’s strategy is to develop booster vaccines against current variants of concern and against potential future variants of concern,” Moderna explained in a news release for investors.

While progress on delta-specific boosters is a good thing, it does raise the question of whether we need them at all.

Both drugmakers have also been testing their original vaccines for their effectiveness as boosters. Pfizer, per its second-quarter earnings report, found that administering a third dose of its vaccine led to a fivefold increase in antibodies against delta in 18- to 55-year-olds, and an 11-fold increase in 65- to 85-year-olds.

And according to a Moderna press release, when the company tried out a third dose of its original vaccine, the results were stellar: It produced a 42-fold increase in antibodies against delta.

Antibodies are a signal that the human immune system can recognize and fight a virus, and while they’re not the only measure of immunity, robust antibody counts are a great sign.

Results like these are part of why some experts aren’t sure we need delta-specific vaccines. As Florian Krammer, a Mount Sinai virologist, said in an interview with physician and researcher Eric Topol:

Trials of mRNA vaccines against the beta variant are being done in people who got the regular mRNA vaccine first. Some of these studies also have arms in which the same vaccine was given a third time, and it looks like that gives you as much protection or as-good antibody levels against beta, but also against delta, as the switched vaccine. So right now, it’s not clear whether there is even a benefit in changing the vaccine strain.

Dan Barouch, an immunologist at Beth Israel Deaconess Medical Center in Boston, reasons that delta-specific vaccines probably won’t be that much better than the original vaccines because delta’s spike protein is pretty similar to the ancestral coronavirus’s in terms of its look and shape. That means the antibodies created by the original formulation of the vaccine, if we’re given third shots of it, should work well to attack the virus.

Angela Rasmussen, a virologist at the University of Saskatchewan, agrees. “We don’t need delta-specific vaccines,” she told me. Even for the huge swathes of the world that haven’t gotten any shots yet, and that could theoretically take a delta- specific vaccine as their first dose, she’s not sure it’s worth developing that tailored vaccine. “It would take a while to get through regulatory approval and manufacture and vaccines are needed now.”

To mass-produce delta-specific vaccines and use them as first doses for the unvaccinated, drugmakers would likely have to take some manufacturing plants offline from producing the original vaccine to start producing the tweaked vaccine instead, noted Celine Gounder, an infectious disease specialist and epidemiologist at NYU and Bellevue Hospital. Keeping them separate helps avert unfortunate mixups, she added.

“Then the question is, is that really the best use of your manufacturing capacity when it hasn’t been proven that you really need to do that to protect against delta?” Gounder said. “You’re going to have, one, the delay of manufacturing and having to allocate specific manufacturing plants for that purpose, and two, the FDA review that would go into it, so that creates a delay. I don’t think that trade-off makes sense for the delta variant.”

Was the promise of mRNA vaccines for Covid-19 overhyped?

It’s extremely helpful that mRNA vaccines are faster to make than traditional vaccines, and that the clinical trial process for tweaked mRNA vaccines is shorter than for the original vaccines. But between testing, manufacturing, and regulatory approval, retooling a vaccine still takes months.

Does that mean the initial optimism about mRNAs’ adaptability was overstated?

“I think the optimism is great outside of urgent Covid times — this [mRNA technology] could make vaccines easier to develop long term. For seasonal flu, where there’s already a process for rapidly evaluating reformulated vaccines, great!” Rasmussen said. “But in the urgent situation we face now with Covid, the regulatory process still takes time that right now we don’t have.”

In other words, an incredible technology (and make no mistake, mRNA is an incredible, world-changing technology) is all well and good — but it can only be used to its full potential in a scenario where regulatory pathways allow tweaked vaccines to be evaluated efficiently.

Even though Gounder doesn’t think we need a delta-specific vaccine, “It makes sense for [the drugmakers] to move forward on this even if that particular reformulation does not go into widespread use,” she said. “It really helps them figure out what may be the issues with updated vaccines,” in terms of manufacturing hiccups and regulatory pathways.

Given that variants may yet arise that dramatically escape our vaccines, she said, “It’s like a practice run.”

As the Pfizer/BioNTech spokesperson said in an emailed statement:

The trials are aimed at studying the variants and shall enable the companies to rapidly react if an escape variant should require an updated vaccine. The companies are exploring the development, manufacturing, and regulatory pathway that BioNTech and Pfizer would pursue in this case to be able to adapt the vaccine within 100 days if necessary. This approach is part of BioNTech and Pfizer’s comprehensive strategy to address variants should the need arise in the future.

There’s one other reason why making a reformulated vaccine to fight delta might have gotten off to a slow start, according to Benjamin Linas, an epidemiologist at Boston University. There are lots of unused doses of the original vaccines, which public health officials and drugmakers may have feared would go to waste if people decide they only want the “new and improved” version.

“I don’t know what message it would give if [Pfizer or Moderna] said, ‘Oh we have a specially engineered vaccine for delta.’ Would that generate concern that the original vaccine didn’t work? Which is absolutely not true,” Linas said. The vaccines are still really effective against delta, especially at preventing severe illness and hospitalization.

It’s possible that this winter, delta-specific vaccines may be on offer. But that does not mean there’s anything wrong with the original vaccines — and those who are eligible for boosters now and have waited at least six months since their second shot would do well to remember that the original vaccines are working perfectly well as a third dose.

“This is especially true for high-risk people,” Rasmussen said. “They should get the third shot now rather than wait.”

The FDA and CDC have endorsed giving booster shots to some Americans who got the Pfizer/BioNTech vaccine — namely, people over age 65 and nursing home residents, people who have medical conditions that raise the risk of severe Covid-19, and people whose job puts them at higher risk of contracting the virus.

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