Abortion Cases in the SCOTUS Pipeline: What Can We Anticipate?
October 30, 2020
We have arrived at a turning point in the Supreme Court’s consideration of cases important for protecting women’s rights and health. With the confirmation of Amy Coney Barrett, which has clinched a 6-3 majority on the high court, we should not expect to win many cases related to women’s rights. Those cases that pertain to reproductive rights are clearly in peril.
With the other five conservative justices, including the Chief Justice John Roberts Jr., we fear that a wide array of various protections we enjoy today will be weakened or overturned. Broad speculation has it that the conservative majority will take up abortion-related cases in the very near future. There are 28 cases in various courts around the country; not all will make it to the high Court and some have already been decided in a lower court.
The case most likely to be heard soon is Jackson Women´s Health Organization et al. v. Thomas Dobbs et a., a Mississippi case which asks whether a ban on abortions performed later than the fifteenth week of pregnancy constitutes an undue burden. It is currently pending before the Supreme Court and awaiting a scheduled date.
There are 17 cases in the pipeline that have reached the appellate courts; five of those would ban abortion at various gestational stages. These include: a North Carolina 20-week ban, an Arkansas 19-week ban, Georgia’s six-week ban, and a Tennessee law that bans the procedure at various points during a pregnancy. The remaining cases deal with various regulations that restrict a woman’s access, such as parental notification laws, requirements of providers, and restrictions on specific termination methods.
It is important to keep in mind that these cases did not appear out of the blue. They are the product of a broad network of conservative funders and right-wing legal advocacy organizations that have been pushing conservatives’ cases up through the courts for years. They are part of a larger effort to promote arch-conservative jurist, such as Amy Coney Barrett, Bret Kavanaugh, Neil Gorsuch, John G. Roberts Jr., and others, to federal judicial posts. These legal advocacy entities operate with “dark money” sources and have spent several hundred million dollars over the last few decades to promote judges and cases that erode reproductive and civil rights, consumer protections, labor rights and environmental protections. The more than 1,000 anti-reproductive rights laws that have been passed by state legislatures since1995 are also products of this dark money, right-wing advocacy.
With an uncertain future surrounding the legality of abortion in the United States, the following list tracks recent abortion cases, many of which have the potential to reach the Supreme Court.
Status of Abortion Cases
Recent Supreme Court Decisions
June Medical Services v. Russo
Docket No: 18-1323
Description: The Supreme Court held that Louisiana’s Unsafe Abortion Protection Act, which required doctors who performed abortions to have admitting privileges at a nearby hospital, to be unconstitutional. As nearly identical to the Texas law in Whole Women’s Health v. Hellerstedt, the Louisiana law placed an undue burden on women without providing any health-related benefit.
Box v. Planned Parenthood of Indiana and Kentucky
Docket No: 18-483
Description: The Court held that Indiana’s law requiring disposition of fetal remains is constitutional. However, it denied certiorari on the question whether abortions based on sex, race, or disability are constitutional, citing that the Seventh Circuit is the only appeals court to have addressed the issue (the Seventh Circuit struck down Indiana’s provision).
Cases in the Supreme Court
Azar v. Mayor and City Council of Baltimore
Case No: 19-1614
Docket No: 20-454
Case Last Heard: United States Court of Appeals, Fourth District
Status: Petition pending to Supreme Court
Description: This case is linked with AMA v. Azar (see below) and concerns 1) Whether the Department of Health and Human Services’ rule, which prohibits Title X projects from providing referrals for abortion as a method of family planning, falls within the agency’s statutory authority; and (2) whether the rule is the product of reasoned decision making.
American Medical Association v. Azar
Docket No: 20-429
Case Last Heard: United States Court of Appeals, Ninth District
Status: Petition pending to Supreme Court
Description: This case seeks to overturn the Department of Health and Human Services (HHS) gag rule that dictates what physicians practicing at facilities funded under Title X family planning grant program are allowed to say to patients. The American Medical Association filed a petition requesting that the Supreme Court review the case.
Jackson Women´s Health Organization et al. v. Thomas Dobbs et al.
Case Number: 18-60868
Case last Heard: United States Court of Appeals, Fifth Circuit
Status: Petition pending to Supreme Court
Description: This case deals with a Mississippi ban on abortions after fifteen weeks and the constitutionality of pre-viability prohibitions. The Fifth Circuit ruled that Mississippi’s ban violates that Constitution by imposing an undue burden on women receiving abortions. The case is pending before the Supreme Court and is waiting to be scheduled.
Cases Denied by the Supreme Court
American College of Obstetricians & Gynecologists et al. v. U.S. Food & Drug Administration et al.
Docket No: 20A34
Case Number: 20-1824; 20-1970
Case Last Heard: Fourth Circuit – District Court for the District of Maryland
Status: Petition Denied, referred back to District Court
Description: This case is a challenge to the FDA’s nationwide Risk Evaluation and Mitigation Strategy (REMS) requirement that mifepristone be dispensed in-person at a health center during the COVID-19 pandemic. The government is seeking a stay of an injunction on the District Court’s ruling that prevents the FDA from enforcing in-person dispensation requirements for mifepristone.
Gee v. Planned Parenthood of Gulf Coast, Inc.
Docket No: 17-1492
Case No: 18-30699
Case Last Heard: U.S. Court of Appeals, Fifth Circuit
Status: Petition Denied
Description: The case regards an individual’s right to sue to challenge a state’s disqualification of a Medicaid provider. It originated because Planned Parenthood Louisiana was removed from a list of Medicaid providers. A district court issued an injunction, and the Fifth Circuit affirmed. Petition of the case in the Supreme Court was denied in December 2018.
Whole Woman’s Health et al. v. Charles Smith
Case Number: 18-50730
Case Last Heard: U.S. Court of Appeals, Fifth Circuit
Status: Petitioned Denied
Description: This case surrounds a Texas law that healthcare providers who perform abortions in the state have to provide cremation or burials of fetal tissues. The plaintiffs alleged that this process places and undue burden on women seeking an abortion as there is only one facility in the state able to process the fetal tissue. The Supreme Court declined to review the petition for writ of certiorari in February 2019.
EMW Women’s Surgical Center et al. v. Adam Meier et al.
Case Number: 18-6161
Case Last Heard: U.S. Court of Appeals, Sixth Circuit
Status: Petition Denied
Description: This case concerns a Kentucky law that required a “speech-and-display requirement” with an ultrasound before administration of an abortion, as well as use of a fetal heart rate monitor. The law was struck down in a U.S. District Court in 2017. The case was appealed in the Sixth Circuit Court of Appeals and on April 4, 2019, the Sixth Circuit upheld the law, despite the fact that a similar law was struck down by the Fourth Circuit in 2014. On September 25, 2019 a petition for writ of certiorari was filed in the Supreme Court but the Court denied the petition on December 9, 2019.
Whole Woman’s Health Alliance v. Hill
Docket No: 19-743
Case Last Heard: U.S. Court of Appeals, Seventh Circuit
Status: Petition Denied
Description: This case concerns the 2016 Indiana Law and the provision in it that requires an 18-hour waiting period between having an ultrasound and an abortion procedure. The Seventh Circuit upheld a U.S. District Court Injunction, and the state has filed a petition with the Supreme Court to overturn that injunction.
Cases Pending in U.S. Court of Appeals
Amy Bryant, et al. v. Jim Woodall
Case No: 19-1685
Case Last Heard: U.S. District Court for the Middle District of North Carolina
Case To be Heard: U.S. Court of Appeals, Fourth District
Description: This case deals with a challenge to North Carolina’s twenty-week abortion ban. On March 25, 2019, the district court permanently enjoined the State from enforcing the abortion ban. Since then, the State filed an appeal within the Fourth Circuit and is currently pending
Planned Parenthood of Indiana & Kentucky, Inc. v. Commissioner of the Indiana State Department of Health et al
Case No: 20-2407
Case Last Heard: U.S. District Court for the Southern District of Indiana
Case to be Heard: United States Court of Appeals, Seventh Circuit
Description: In 2018, the Indiana General Assembly passed SEA 340 which required physicians, hospitals, and abortion clinics to report cases involving abortion complications. On July 7, 2020, the District Court struck down this las as medically unnecessary and a cruel intimidation tactic. The Attorney General of Indiana has since filed an appeal asking the Seventh Circuit to reverse the District Court’s decision.
Reproductive Health Services et al. v. Michael Parson
Case No: 19-2882
Case Last Heard: U.S. District Court for the Western District of Missouri
Case to be Heard: U.S. Court of Appeals, Eighth Circuit
Description: This case challenges a Missouri law that bans abortion after eight, fourteen, eighteen, and twenty weeks of pregnancy and if the reason for abortion is the fetus’s sex, race, or diagnosis of Down Syndrome. Similar to Memphis Center for Reproductive Health v. Slatery, this case pushes the limits of at what point abortion can be constitutionally banned.
Reproductive Health Services et al. v. Daryl Bailey
Case No: 17-13561
Case Last Heard: United States District Court for the Middle District of Alabama
Case to be Heard: U.S. Court of Appeals, Eleventh Circuit
Description: This case challenges an Alabama law that requires a court to allow a minor’s parents and the district attorney to participate in judicial bypass. By requiring parental involvement, the Alabama law puts minors in abusive households at a greater risk for future abuse and manipulation. The case is pending review in the Eleventh Circuit.
SisterSong v. Brian Kemp
Case No: 20-13024-G
Case Last Heard: United States District Court for the Northern District of Georgia, Atlanta Division
Case to be Heard: U.S Court of Appeals, Eleventh Circuit
Description: Governor Kemp of Georgia is asking the Eleventh Circuit to undo the District Court’s block on the state law that banned abortions after six weeks or after a heartbeat was detected. The District Court found the law to be unconstitutional.
Planned Parenthood of Southwest Ohio et al. v. Amy Acton et al.
Case Number: 18-3329
Case Last Heard: U.S. Court of Appeals, Sixth Circuit
Description: This case deals with a constitutional challenge to Ohio HB 214 which bans pre-viability abortions if a provider learns that the reason for an abortion is a diagnosis of Down Syndrome. The district court ruled that it violated decades of precedent, holding that “[a] State may not prohibit any woman from making the ultimate decision to terminate her pregnancy.” Ohio, arguing that this bill is not a ban at all, filed a petition in the Sixth Circuit. The case is still pending.
South Wind Women’s Center, et al v. Stitt, et al
Case No: 20-6045
Case Last Heard: U.S. District Court for the Western District of Oklahoma
Case to be Heard: U.S. Court of Appeals, Tenth Circuit
Description: At the beginning of the COVID-19 pandemic, Oklahoma issued an executive order that banned abortion in the state. On April 6, 2020, the district court prevented the State from blocking abortions that could not be delayed by issuing a temporary restraining order. Oklahoma then filed a petition for writ of mandamus in the Tenth Circuit where the Circuit denied the lifting of the TRO. On April 20, the district court ordered for abortion access to be fully restored. Since then, the State has requested that the Tenth Circuit grant vacatur of the preliminary injunction, effectively trying to overturn the reasoning behind blocking the executive order.
Cases Pending in District Courts
Memphis Center for Reproductive Health v. Slatery
Case Number: 20-5969
Case to be heard: United States District Court for the Middle District of Tennessee
Description: This case challenges a Tennessee law that bans abortion after six weeks of pregnancy. However, if the six weeks law is found to be unconstitutional, the law then takes effects at eight-weeks, then ten weeks, twelve, fifteen, eighteen, twenty, twenty-one, twenty-two, twenty-three, and twenty-four weeks of pregnancy. In addition to banning abortion based off of sex, race, or diagnosis of Down Syndrome, this case pushes the limit on what week of pregnancy is considered unconstitutional to place an abortion ban on.
Hopkins v. Jegley
Case No: 17-2879
Case Last Heard: U.S. Court of Appeals, Eighth Circuit
Case to Be Heard: U.S. District Court, E.D. Arkansas, Western Division
Description: This case challenged four abortion restrictions passed in Arkansas in 2017, including a ban on D&E procedure, the most common abortion procedure after sixteen weeks, and the disposition of fetal remains. In light of the Supreme Court’s rulings on June Medical Services v. Russo and Box v. Planned Parenthood of Ind. & Ky., Inc., the Eighth Circuit sent the case back to the district court for reconsideration.
Little Rock Family Planning Services et al. v. Leslie Rutledge et al.
Case No: 19-2690; 20-0470
Case Last Heard: U.S. District Court, E.D. Arkansas, Western Division
Case to be Heard: U.S. Court of Appeals, Eighth Circuit
Description: This case challenges three Arkansas abortion restrictions including their eighteen-week abortion ban, ban on abortion based off Down Syndrome diagnosis, and requirement that all abortion providers be board-certified or board-eligible OB-GYNs. Since then, the case has expanded to challenge the Arkansas Health Department’s directive the restricts abortion access during the COVID-19 pandemic to only those who received a negative COVID test result 48 hours before the procedure. The second case was denied a temporary restraining order on the basis that abortions were elective and non-necessary. The underlying case remains in the district court.
Tulsa Women’s Reproductive Clinic, LLC, et al v. Hunter, et al
Case No: 19-2176
Case to be Heard: District Court of Oklahoma County
Description: This case challenges an Oklahoma law that requires doctors to tell patients seeking abortions that an abortion can be “reversed,” despite no scientific evidence upholding that claim. On October 24, 2019, a district court judge temporarily blocked the law from taking effect. The case is currently in discovery.
Chelius v. Azar
Case No: 17-0493
Case Last Heard: U.S District Court for the District of Hawaii
Description: In this case, the ACLU is challenging the FDA’s Risk Evaluation and Mitigation Strategy (REMS) which places limits on where women can get the abortion pill mifepristone. The rule requires that women must receive the bill from a clinic, but in places such as Hawaii (where the case originated), that places an undue burden on women who would have to travel to clinics that are sometimes hundreds of miles away. This case is pending in the District Court.
Cases Recently Decided
Planned Parenthood Center for Choice, et al. v. Abbott, et al.
Case No: 20-50314
Case Last Heard: U.S. Court of Appeals, Fifth Circuit
Description: This case challenges Texas Governor Greg Abbott’s executive order regarding COVID-19 that banned all abortions except in cases of medical emergency. On March 30, the district court granted a temporary restraining order, blocking the implementation of the order. After multiple attempts in the Fifth Circuit to overturn the TRO and emergency requests with the Supreme Court, the Fifth Circuit granted the State’s two mandamus petitions, allowing the State to prohibit medical abortion. On April 22, Texas issued a new executive order that allowed abortion clinics to resume providing care.
Planned Parenthood of Maryland, Inc. et al. v. Azar et al.
Case No: 20-2006
Case Last Heard: The U.S. District Court for the District of Maryland
Description: blocked a Trump administration rule designed to make insurance companies stop offering coverage for abortion. district court vacated and enjoined a Trump administration rule that would have required separate insurance payments for abortion care and all other health care for people insured by certain plans under the Affordable Care Act.
Whole Women’s Health v. Paxton
Case Number: 17-51060
Case Last Heard: U.S. Court of Appeals, Fifth Circuit
Description: This case concerns a July 2017 Texas law that forces the burial or cremation of embryonic and fetal tissue when a woman has a miscarriage management procedure, ectopic pregnancy surgery, or an abortion. The law also requires a waiting period, ultrasounds, and a ban on dilation and evacuation (D&E). A federal district court filed an injunction against the law, the State appealed. On October 13, 2020, the Fifth Circuit ruled that the Texas law violates the 14th Amendment by overburdening women who want to obtain a pre- viability abortion.
EMW Women’s Surgical Center et al. v. Andrew Beshear et al.
Case No: 17-6183
Case Last Heard: U.S. Court of Appeals, Sixth Circuit
Description: This case concerns a Kentucky law that required a “speech-and-display requirement” with an ultrasound before administration of an abortion, as well as use of a fetal heart rate monitor. The law was struck down in a U.S. District Court in 2017. The case was appealed in the Sixth Circuit Court of Appeals and on April 4, 2019, the Sixth Circuit upheld the law, despite the fact that a similar law was struck down by the Fourth Circuit in 2014.
Planned Parenthood of Indiana and Kentucky v. Adams
Case No: 17-2428
Case Last Heard: U.S. Court of Appeals, Seventh Circuit
Description: On August 27, 2019, the Seventh Circuit ruled that the Indiana law requiring parental consent for minors seeking abortions, where parents must provide government ID to the court, did not address any problem it was attempting to solve and created a burden for minors trying to seek an abortion.
Planned Parenthood of the Great Northwest and the Hawaiian Islands v. Lawrence G. Wasden et al.
Case No: 18-318
Case Last Heard: United States District Court, District of Idaho
This case concerns an Idaho law that creates a list of “abortion complications” and requires health professional to document and report when they occurred. The case was dismissed by the district court in May 2019.
Written/compiled by Jan Erickson, NOW Government Relations Director and Stephanie Glascock, NOW Government Relations Intern