SCOTUS may take up cases on abortion and LGBT rights

New 6-3 conservative majority on the court relies less on Chief Justice John G. Roberts Jr.

Supreme Court in October as a protester awaits the confirmation of Supreme Court nominee Amy Coney Barrett. (Bill Clark/CQ Roll Call)
Supreme Court in October as a protester awaits the confirmation of Supreme Court nominee Amy Coney Barrett. (Bill Clark/CQ Roll Call)
Posted November 18, 2020 at 10:50am

The addition of Justice Amy Coney Barrett to the Supreme Court increases the likelihood that the justices could hear challenges related to abortion or religious liberty, potentially as soon as this term, legal experts say.

The court’s new 6-3 conservative majority means a case’s fate is less likely to lie in the hands of Chief Justice John G. Roberts Jr., who earlier this year joined the liberal wing in June Medical Services v. Russo, which blocked a Louisiana requirement for abortion providers.

Liberals worry that any case that rises to the high court may undermine abortion access under the landmark 1973 Roe v. Wade case, which established a right to abortion, or undercut rights for LGBT individuals seeking health care services.

Mary Ziegler, a Florida State University College of Law professor, said a chipping away of precedent under Roe v. Wade is still more likely than a complete reversal.

“It allows them to make their case as to why Roe should be overturned in a more gradual way rather than simply just, you know, in one fell swoop,” Ziegler said, with the caveat that a 6-3 majority makes an outright overruling more possible than before.

The Supreme Court could soon choose to weigh in on abortion restrictions in Dobbs v. Jackson Women’s Health Organization, a case about a Mississippi law. The court will take up the case if four of the nine justices vote to do so. The court has repeatedly delayed a decision on whether to review the case this term, but that could happen as early as this month.

At issue is whether Mississippi should be allowed to enforce a ban on abortion after 15 weeks of pregnancy. States have enforced some limits on when in pregnancy an abortion can be performed, but the Supreme Court has not ruled on this.

The law, which never took effect, was previously blocked by both the U.S. District Court for the Southern District of Mississippi Northern Division and the 5th U.S. Circuit Court of Appeals.

Most experts are skeptical that the high court would choose this case because there has not been a split circuit court decision in a similar case, which is one of the ways cases make it to the Supreme Court. Opponents of Mississippi's law argue it clearly would violate the precedent in Roe, which said a woman has a right to abortion until a fetus could viably survive outside the womb, because 15 weeks is too early for viability.

“Every other federal appeals court to consider a similar ban has also ruled them unconstitutional. Mississippi, nonetheless, has asked the court to review that case, and we’re waiting for the court to make a decision" on whether to consider the case, said Hillary Schneller, a senior staff attorney for the Center for Reproductive Rights, which is litigating the case against the state.

The 1992 Supreme Court case Planned Parenthood v. Casey clarified that states have the right to implement restrictions on abortion after the point of viability. The Supreme Court has not said what the point of viability is, which conservatives argue is a reason to bring up a case like the Mississippi ban.

Alliance Defending Freedom (ADF), a conservative Christian legal organization, says while a split circuit decision is a “golden ticket,” it’s not the only consideration as the justices weigh whether to take the case.

“Various justices and concurring or dissenting opinions over the years have been highly critical of the viability line as the test for when abortion restrictions can take place because it’s artificial and constantly changing based on science,” said John Bursch, ADF’s vice president of appellate advocacy and senior counsel.

Other abortion cases

On Nov. 20, the justices are scheduled to discuss whether to take two other abortion-related cases.

Bruni v. City of Pittsburgh challenges the legality of a city ordinance that prohibits picketing or demonstrating within a 15-foot buffer zone of an abortion clinic. Opponents of the law, such as ADF, say it violates free speech.

The other case, Judy Doe v. Michael L. Parson, challenges a Missouri law that requires a patient to acknowledge a set of conditions and go through a waiting period before receiving an abortion. The plaintiff argues these requirements violate her religious beliefs.

Another case to watch is Food and Drug Administration v. American College of Obstetricians and Gynecologists. The American College of Obstetricians and Gynecologists (ACOG) challenged an FDA policy that requires patients to visit a provider in person to receive a medication abortion during the COVID-19 public health emergency.

The U.S. District Court for the District of Maryland blocked the requirement in July, leading the Trump administration to ask the 4th U.S. Circuit Court of Appeals for a stay, which was denied. The administration then asked the Supreme Court to step in.

The Supreme Court sent the case back to the district court in October, with a 40-day deadline to reconsider the case with additional facts. But the lower court’s decision could make its way back through the system to the high court.

The American Civil Liberties Union, representing ACOG, suspects the Supreme Court could accept this case because it is on a fast track. “The case is very likely to travel back up to the Supreme Court,” said Jennifer Dalven, director of the ACLU Reproductive Freedom Project.

Americans United for Life (AUL), a legal advocacy group that opposes abortion, says President-elect Joe Biden could affect the case.

“I expect that one of the first things he will do is is direct the secretary of [Health and Human Services] to review and then rescind the 'protect life' rule that will ultimately be moot before it reaches the Supreme Court. But for now it's living and active,” said Steven Aden, AUL’s chief legal officer.

Pending possibilities

More than a dozen other cases also may see future Supreme Court action. Predicting which is the most likely remains challenging, even for experts.

Most advocates expect Barrett to rule against abortion rights, citing her opinions on two abortion-related cases during her time on the 7th U.S. Circuit Court of Appeals. It’s less clear if Barrett will be eager to move quickly on this issue or take a more cautious approach like Roberts.

Roberts, in a concurrence in June Medical Services, said that while he disagreed with blocking the Louisiana law, his decision was based on precedent from a similar case, opening the door for him to rule in favor of restricting abortion in different circumstances.

Justice Clarence Thomas hinted in 2019 that the high court will need to weigh in on the constitutionality of allowing abortions based on certain reasons like sex, disability or race.

Legal experts are watching several cases in particular.

Kentucky passed a law in 2017 that would require abortion clinics to have written agreements with hospitals, which opponents say jeopardizes the fate of the state’s only clinic. In October, a panel of judges from the 6th U.S. Circuit Court of Appeals reinstated the law after a lower court blocked it in the case of EMW Women’s Surgical Center v. Friedlander.

The law has been compared to a set of state laws on hospital admitting privileges that were blocked in two Supreme Court cases: June Medical Services this year, and Whole Woman’s Health v. Hellerstedt in 2016.

“The Supreme Court could view it as enough of a challenge to those other laws that it could decide to take it up,” said Noel Leon, interim director of state abortion access at the National Women’s Law Center, a liberal nonprofit. “I think it's important because it could provide an opportunity for the court to narrow in if it wants even further [as to] what constitutes an undue burden on women’s right to have an abortion.”

Experts are also watching Whole Woman’s Health v. Ken Paxton, about a 2017 Texas law that never took effect. The law would restrict the most common type of abortion used in the second trimester, known as dilation and evacuation or D&E.

In October, the 5th U.S. Circuit Court of Appeals upheld a lower court decision blocking the law. The 6th U.S. Circuit Court of Appeals blocked a similar D&E ban in Kentucky earlier this year, and in late October, Kentucky Attorney General Daniel Cameron asked the high court to overturn the appellate decision.

Ziegler of Florida State University said those could be easier cases for abortion opponents if they cite the precedent of Gonzales v. Carhart, which blocks what critics called “partial birth abortion.”

“Those could be likely candidates because one, they would be very consequential,” said Ziegler. “It's the most common or safe procedure used later in pregnancy. If it’s off the table, that could have a lot of consequences.”

Gender, sexuality and religion

Conflicts over policies that some advocates say would lead to health care discrimination based on sexual orientation or gender identity are pitting conservative religious groups against LGBT advocacy organizations.

Cases affecting sexual orientation are getting fresh attention after Justice Samuel A. Alito Jr. commented on the issue in a speech last week.

“You can’t say that marriage is a union between one man and one woman,” Alito lamented Nov. 12. “Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.”

Both sides are watching Minton v. Dignity Health, a lawsuit that considers whether a medical facility’s refusal to perform a hysterectomy for a transgender man qualifies as sex discrimination.

“The hospital, because of the ethical and religious directives promulgated by the United States Conference of Catholic Bishops, was forced to say no to that, because according to the Catholic teaching, you’re not allowed to perform any surgery or use any artificial contraception that would artificially, using science, prevent fertility,” said the ADF’s Bursch.

Lambda Legal, which supports LGBT rights, argues that when many U.S. hospitals are controlled by religiously affiliated institutions, it effectively deprives people of equitable access to care. “Nobody is seeking to limit the activities of the church nor what they believe in,” said Omar Gonzalez-Pagan, a Lambda Legal senior attorney. “From a legal standpoint, that is not something that is being asked of anyone.”

Both sides say this case’s future could be influenced by the eventual decision in a case heard two weeks ago by the high court, Fulton v. Philadelphia, which concerns whether the city can deny funding to foster care agencies that use religious criteria and exclude same-sex couples.

During oral arguments, the Supreme Court seemed to lean in favor of the Catholic agency’s right to operate under its tenets. The court is expected to announce its ruling by June.