ISSUE ADVISORY: Two Years into Trump’s Presidency

Cases Challenging Roe v. Wade Approach Supreme Court – Part One

February 13. 2019

Trump’s Supreme Court Justices Brett Kavanaugh and Neil Gorsuch showed their true colors and antagonism towards abortion rights in the Supreme Court’s February 7th decision of granting a stay on the Louisiana law in June Medical Services v. Gee. The case may be the first to be considered in full by the Court that would dramatically limit access to abortion care and coming at a time when there will likely be four – and possibly five — votes against abortion rights. At the moment, there is a minimum of 13 and possibly as many 20 cases in the lower courts which have Roe in their sights. In this Issue Advisory, we provide updates and some speculation on what might happen.

The earliest case, June Medical Services v. Gee is an easy one, considering the Louisiana law at stake mirrors the Texas law declared unconstitutional in Whole Woman’s Health v. Hellerstadt, which challenged an array of TRAP or Targeted Regulation of Abortion Providers laws. This is not the same Supreme Court as 2016 though, even with the same law in question.  The law in this case, like the law in Whole Woman’s Health v. Hellerstadt concerns the imposition of a requirement for “active admitting privileges” for abortion providers at nearby hospitals. Despite its unconstitutionality, the Fifth Circuit refused to issue an injunction, and the law was originally set to go into effect on February 4th.

Chief Justice Joins Abortion Rights Supporters – Two Louisiana abortion providers requested that the Supreme Court block the lower court ruling temporarily so they can file a petition for official review. This would allow the case to be fully argued in front of the Supreme Court. Justice Samuel Alito blocked the law until February 7th to give the court time to decide whether to issue a temporary injunction. On February 7th, in a 5-4 split, Justice John Roberts sided with the majority (Justices Ruth Bader Ginsberg, Elena Kagan, Stephen Beyer, and Sonya Sotomayor) in granting a temporary stay on the law. Justice Kavanaugh was the only justice from the minority to write a dissent.

Will Thomas Retire? – It is almost certain that June Medical Services v. Gee will appear before the Supreme Court for a full hearing as early as January 2020, more likely June 2020 during the height of the presidential campaign season. The decision on this case could be damaging to abortion rights in the United States, and could put Roe v. Wade at risk. The four justices in the minority have already indicated their intent on their decision of the stay, and Justice Roberts’ vote in this case is not likely the same as he would vote in a full hearing, considering this was merely a petition for review. Additionally, there is a rumor that Associate Justice Clarence Thomas may announce his retirement this spring.

The Supreme Court now has an anti-abortion rights majority, and its decision on Gee will set the tone for how it will respond to future abortion rights cases. Considering the imminence of this issue, and Donald Trump’s disturbing desire to strip women of their abortion rights, it is important to give an update of where Roe v. Wade stands in today’s political discourse.

ANTI-ABORTION JUSTICES IN THE SUPREME COURT MAJORITY

During the 2016 presidential campaign, then-nominee Donald Trump told an interviewer that he believed women who had abortions should be punished. Since entering office, Trump has made it clear that one of his top goals is to overturn Roe v. Wade, promising his supporters that all judicial nominees will have to pass a litmus test for overturning the law. His nomination of two conservative, anti-abortion rights justices to the Supreme Court will be one of the many lasting impacts of his presidency.  

Though Justices Neil Gorsuch and Brett Kavanaugh remained fairly tight-lipped on the subject during their respective confirmation hearings, their judicial histories speak volumes. Kavanaugh supported the Trump administration’s blocking of an abortion for an undocumented immigrant minor in Garza v. Hargan, and Gorsuch’s rulings in two cases on the intersection of religion and reproductive rights indicate his stance. In Burwell v. Hobby Lobby Stores, Inc., as a Tenth Circuit Justice, Gorsuch sided with the plaintiff that closely-held, for-profit corporations are exempt from regulations if owners object to them citing their religious beliefs. In this case, that objection was to contraception coverage in insurance. Little Sisters of the Poor Home for the Aged v. Burwell concerned coverage of contraception by employers, and Gorsuch was again sympathetic to the religious freedom argument. His attitudes on both cases indicate his likelihood to rule against laws that he believes violate religious freedom or belief, which often comes up in abortion rights cases.

Even without their records though, Trump has said enough for Gorsuch and Kavanaugh; “The judges will be pro-life.” Their decisions on the petition for a stay in June Medical Services v. Gee only confirms this affirmation.

Justices Samuel Alito, John Roberts, and Clarence Thomas have already demonstrated their anti-abortion rights stances in their case opinions of Whole Woman’s Health v. Hellerstedt (2016). Hellerstedt concerned a controversial Texas law that added restrictions to clinics and abortion services, putting an undue burden on both clinic operations and women seeking those services. This was the first major abortion-related decision since Planned Parenthood v. Casey in 1992, which established the idea of the “undue burden”. This essentially dictates that states can impose regulations on abortions, so long as these regulations don’t place an undue burden on the woman. If Gorsuch and Kavanaugh had been on the bench in 2016, it’s likely that the decision on Whole Woman’s Health v. Hellerstedt would have gone the other way. That is the certain risk for any future abortion case that reaches the Supreme Court.

Roberts May Vote Against Abortion Rights – Chief Justice Roberts’ vote on the petition for a stay in June Medical Services v. Gee is not a good indication of how he would vote in a full oral hearing of the case, and does not mean that he is suddenly a “swing vote” on abortion rights. His past votes still show a good indication of his take on abortion. Amy Howe from SCOTUSblog explains to NPR that, “[Roberts] is an institutionalist, so if may well be that even if he didn’t agree with the court’s ruling [on Whole Women’s Health] he may believe that it’s now settled law and the court needs to respect that…We’re likely to find out in a year or so [his real reasoning].” Justice Roberts likely does not want to defy court precedent, especially in a court that he is Chief Justice of, which could tarnish his legacy and the court’s integrity. Roberts can later overturn Whole Woman’s Health v. Hellerstedt or other abortion rights cases in a full hearing of June Medical Services v. Gee, but in this case, he was not willing to defy precedent for an emergency request.

All these cases have been advanced by a coordinated effort between conservative religious organizations at the forefront of opposing abortion rights and birth control access for decades and right-wing legal advocacy firms. Many of these groups were active in organizing the more than 100 cases that challenged the Affordable Care Act’s mandate of no copay insurance coverage for contraceptives that resulted in the very unfortunate ruling in Burwell v. Hobby Lobby Stores, Inc. That 2014 decision elevated corporate owners’ religious beliefs to permit denial of insurance coverage for employees’ contraceptives. The Trump administration has further expanded religious and moral exemptions in the provision of health care.

TRUMP RE-SHAPING THE FEDERAL JUDICIARY

The Supreme Court is not the only court we are concerned about while Donald Trump is in the White House. Since the Supreme Court hears only a fraction of cases that are requested to be heard, federal appeals courts are especially important in reviewing challenges to abortion rights cases. As of early December, Trump had already appointed 29 justices to circuit courts. According to Lambda Legal, five of the twelve circuit courts now have at least 25 percent of their judges who were appointed by Trump. The total number of Trump’s judicial appointments rises to 84 when federal trial courts are added.

All Nominees Oppose Abortion Rights – Trump has held firm to his stance of assuring that all his judicial appointees oppose Roe v. Wade. Justice Amy Coney Barrett, a Trump-appointee now sitting on the Court of Appeals for the Seventh Circuit, has said that judges should not respect Roe if the ruling is in conflict with their religion. Justice Leonard Steven Grasz, who now sits on the Court of Appeals for the Eighth Circuit, was deemed unqualified by the American Bar Association (ABA) for his position as a board member in an anti-women’s health group and for his history as a supporter of ‘fetal rights’ legislation.

With the incoming 116th Congress, Trump has re-nominated 51 judges who failed to receive confirmation votes in the 115th. These judges, nine of whom are nominated for federal circuit positions, include Neomi Rao who has a history of blaming women for date rape. Wendy Vitter, who led an anti-abortion panel at a conference in 2013, is also present among the list of nominated justices. NOW continues to be opposed the nominations of Rao and Vitter, as well as the other judicial nominees.

Most abortion rights-related cases will not reach the Supreme Court, making Circuit Court decisions the end of the line. This increase in conservative lower court judges has the potential to impact the outcome of countless cases. The Fifth Circuit stands as an example of how antagonistic a conservative-controlled court can become towards abortion. Widely known to be one of the most conservative courts in the country, the Fifth Circuit has ten of fifteen active judges appointed by Republicans. It upheld the Texas law in contention that was later reversed in Whole Woman’s Health v. Hellerstedt, concerning Targeted Regulation of Abortion Providers (TRAP) laws. The Fifth Circuit also upheld a similar Louisiana law in June Medical Services v. Gee, the case that was petitioned to the Supreme Court by two abortion providers with help from the Center for Reproductive Rights, which the Supreme Court issued a stay on yesterday.

FUTURE SUPREME COURT CASES COULD CHALLENGE ROE

The Supreme Court could decide on the status of Roe v. Wade as early as this summer, thanks to several abortion rights related cases making their way through the courts (although, some close observers believe that the first case may not be heard until 2020 during presidential campaign season). There are serious risks to abortion rights even if Roe v. Wade is not overturned. A decision on any one of these cases could put seropis restrictions on abortion, or overturn other important abortion-rights cases, such as Whole Woman’s Health v. Hellerstedt or Planned Parenthood v. Casey.

Listing of Pending Cases – Many of the Roe challenge cases relate to state laws that would require practices that intervene between patient and provider, override sound medical practice and violate generally-accepted patient privacy standards. These potential future Supreme Court cases include:

  • EMW Women’s Surgical Center v. Glisson
  • The case concerns a Kentucky law that effectively banned abortion in the state by shutting down the last health center that offers safe and legal abortion.
  • Comprehensive Health of Planned Parenthood Great Plains v. Hawley
    • This case concerns a Missouri law that requires specific requirements for abortion facilities relating distances to hospitals and physical requirements.
  • Box v. Planned Parenthood of Indiana and Kentucky Inc.
    • This case pertains a 2016 Indiana Law (signed by then Gov. Mike Pence), that would dictate that women cannot terminate a pregnancy for the fetus’ race, gender, national origin, ancestry or genetic abnormality. Also, healthcare facilities would have to bury or cremate the fetus.
  • Whole Woman’s Health Alliance v. Hill
    • This case concerns five Indiana laws that prevent abortion, such as one that limits clinicians from providing abortions, and “reporting” requirements that make abortion providers report information about their patients to the state.
  • Whole Women’s Health v. Paxton

This case concerns a 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, etc. and a ban on D&E.

  • EMW Women’s Surgical Center et al. v. Andrew Beshear et al.

This case concerns a Kentucky law that necessitates a “speech-and-display requirement” with an ultrasound before administration of an abortion, as well as use of a fetal heart rate monitor.

  • Preterm-Cleveland et al. v. Lance Himes et al.

This case concerns an Ohio law that would make it a fourth-degree felony for an abortion provider to administer abortion if they had sufficient knowledge that the woman was seeking the abortion due to knowledge of Down Syndrome.

  • Frederick W. Hopkins v. Larry Jegley et al.

This case concerns an Arkansas law that requires doctors to obtain a woman’s entire pregnancy history before an abortion, and a ban on D&E.

  • Reproductive Health Services v. Marshall

This case concerns the rights of minors in getting an abortion, and an Alabama law that would complicate the process of judicial bypass by appointing a legal guardian to the fetus in the court.

  • West Alabama Women’s Center v. Miller

This case concerns a 2016 ban in Alabama on D&E.

  • Planned Parenthood of Indiana & Kentucky v. Adams et al.

This case concerns a 2017 Indiana law that requires parental consent for minors seeking abortions, where the parents must provide a government I.D. to the court.

  • June Medical Services v. Gee.

This case concerns a Louisiana law like the Texas 2016 case by the Supreme Court that requires doctors who administer abortions to have “active admitting privileges” at a nearby hospital.

  • Comprehensive Health of Planned Parenthood Great Plains et al. v. Williams et al.

This case regards a Missouri law that expanded restrictions on facilities that administer medication abortion. Abortion rights opponents are undertaking several efforts to limit access to medication abortion (Ru-486)

Watch for the upcoming Part Two – Laws in the States and What To Expect in a Post-Roe World

Trump’s Supreme Court Justices Brett Kavanaugh and Neil Gorsuch showed their true colors and antagonism towards abortion rights in the Supreme Court’s February 7th decision of granting a stay on the Louisiana law in June Medical Services v. Gee. The case may be the first to be considered in full by the Court that would dramatically limit access to abortion care and coming at a time when there will likely be four – and possibly five — votes against abortion rights. At the moment, there is a minimum of 13 and possibly as many 20 cases in the lower courts which have Roe in their sights. In this Issue Advisory, we provide updates and some speculation on what might happen.

The earliest case, June Medical Services v. Gee is an easy one, considering the Louisiana law at stake mirrors the Texas law declared unconstitutional in Whole Woman’s Health v. Hellerstadt, which challenged an array of TRAP or Targeted Regulation of Abortion Providers laws. This is not the same Supreme Court as 2016 though, even with the same law in question.  The law in this case, like the law in Whole Woman’s Health v. Hellerstadt concerns the imposition of a requirement for “active admitting privileges” for abortion providers at nearby hospitals. Despite its unconstitutionality, the Fifth Circuit refused to issue an injunction, and the law was originally set to go into effect on February 4th.

Chief Justice Joins Abortion Rights Supporters – Two Louisiana abortion providers requested that the Supreme Court block the lower court ruling temporarily so they can file a petition for official review. This would allow the case to be fully argued in front of the Supreme Court. Justice Samuel Alito blocked the law until February 7th to give the court time to decide whether to issue a temporary injunction. On February 7th, in a 5-4 split, Justice John Roberts sided with the majority (Justices Ruth Bader Ginsberg, Elena Kagan, Stephen Beyer, and Sonya Sotomayor) in granting a temporary stay on the law. Justice Kavanaugh was the only justice from the minority to write a dissent.

Will Thomas Retire? – It is almost certain that June Medical Services v. Gee will appear before the Supreme Court for a full hearing as early as January 2020, more likely June 2020 during the height of the presidential campaign season. The decision on this case could be damaging to abortion rights in the United States, and could put Roe v. Wade at risk. The four justices in the minority have already indicated their intent on their decision of the stay, and Justice Roberts’ vote in this case is not likely the same as he would vote in a full hearing, considering this was merely a petition for review. Additionally, there is a rumor that Associate Justice Clarence Thomas may announce his retirement this spring.

The Supreme Court now has an anti-abortion rights majority, and its decision on Gee will set the tone for how it will respond to future abortion rights cases. Considering the imminence of this issue, and Donald Trump’s disturbing desire to strip women of their abortion rights, it is important to give an update of where Roe v. Wade stands in today’s political discourse.

ANTI-ABORTION JUSTICES IN THE SUPREME COURT MAJORITY

During the 2016 presidential campaign, then-nominee Donald Trump told an interviewer that he believed women who had abortions should be punished. Since entering office, Trump has made it clear that one of his top goals is to overturn Roe v. Wade, promising his supporters that all judicial nominees will have to pass a litmus test for overturning the law. His nomination of two conservative, anti-abortion rights justices to the Supreme Court will be one of the many lasting impacts of his presidency.  

Though Justices Neil Gorsuch and Brett Kavanaugh remained fairly tight-lipped on the subject during their respective confirmation hearings, their judicial histories speak volumes. Kavanaugh supported the Trump administration’s blocking of an abortion for an undocumented immigrant minor in Garza v. Hargan, and Gorsuch’s rulings in two cases on the intersection of religion and reproductive rights indicate his stance. In Burwell v. Hobby Lobby Stores, Inc., as a Tenth Circuit Justice, Gorsuch sided with the plaintiff that closely-held, for-profit corporations are exempt from regulations if owners object to them citing their religious beliefs. In this case, that objection was to contraception coverage in insurance. Little Sisters of the Poor Home for the Aged v. Burwell concerned coverage of contraception by employers, and Gorsuch was again sympathetic to the religious freedom argument. His attitudes on both cases indicate his likelihood to rule against laws that he believes violate religious freedom or belief, which often comes up in abortion rights cases.

Even without their records though, Trump has said enough for Gorsuch and Kavanaugh; “The judges will be pro-life.” Their decisions on the petition for a stay in June Medical Services v. Gee only confirms this affirmation.

Justices Samuel Alito, John Roberts, and Clarence Thomas have already demonstrated their anti-abortion rights stances in their case opinions of Whole Woman’s Health v. Hellerstedt (2016). Hellerstedt concerned a controversial Texas law that added restrictions to clinics and abortion services, putting an undue burden on both clinic operations and women seeking those services. This was the first major abortion-related decision since Planned Parenthood v. Casey in 1992, which established the idea of the “undue burden”. The essentially dictates that states can impose regulations on abortions, so long as these regulations don’t place an undue burden on the woman. If Gorsuch and Kavanaugh had been on the bench in 2016, it’s likely that the decision on Whole Woman’s Health v. Hellerstedt would have gone the other way. That is the certain risk for any future abortion case that reaches the Supreme Court.

Roberts May Vote Against Abortion Rights – Chief Justice Roberts’ vote on the petition for a stay in June Medical Services v. Gee is not a good indication of how he would vote in a full oral hearing of the case, and does not mean that he is suddenly a “swing vote” on abortion rights. His past votes still show a good indication of his take on abortion. Amy Howe from SCOTUSblog explains to NPR that, “[Roberts] is an institutionalist, so it may well be that even if he didn’t agree with the court’s ruling [on Whole Women’s Health] he may believe that it’s now settled law and the court needs to respect that…We’re likely to find out in a year or so [his real reasoning].” Justice Roberts likely does not want to defy court precedent, especially in a court that he is Chief Justice of, which could tarnish his legacy and the court’s integrity. Roberts can later overturn Whole Woman’s Health v. Hellerstedt or other abortion rights cases in a full hearing of June Medical Services v. Gee, but in this case, he was not willing to defy precedent for an emergency request.

All these cases have been advanced by a coordinated effort between conservative religious organizations at the forefront of opposing abortion rights and birth control access for decades and right-wing legal advocacy firms. Many of these groups were active in organizing the more than 100 cases that challenged the Affordable Care Act’s mandate of no copay insurance coverage for contraceptives that resulted in the very unfortunate ruling in Burwell v. Hobby Lobby Stores, Inc. That 2014 decision elevated corporate owners’ religious beliefs to permit denial of insurance coverage for employees’ contraceptives. The Trump administration has further expanded religious and moral exemptions in the provision of health care.

TRUMP RE-SHAPING THE FEDERAL JUDICIARY

The Supreme Court is not the only court we are concerned about while Donald Trump is in the White House. Since the Supreme Court hears only a fraction of cases that are requested to be heard, federal appeals courts are especially important in reviewing challenges to abortion rights cases. As of early December, Trump had already appointed 29 justices to circuit courts. According to Lambda Legal, five of the twelve circuit courts now have at least 25 percent of their judges who were appointed by Trump. The total number of Trump’s judicial appointments rises to 84 when federal trial courts are added.

All Nominees Oppose Abortion Rights – Trump has held firm to his stance of assuring that all his judicial appointees oppose Roe v. Wade. Justice Amy Coney Barrett, a Trump-appointee now sitting on the Court of Appeals for the Seventh Circuit, has said that judges should not respect Roe if the ruling is in conflict with their religion. Justice Leonard Steven Grasz, who now sits on the Court of Appeals for the Eighth Circuit, was deemed unqualified by the American Bar Association (ABA) for his position as a board member in an anti-women’s health group and for his history as a supporter of ‘fetal rights’ legislation.

With the incoming 116th Congress, Trump has re-nominated 51 judges who failed to receive confirmation votes in the 115th. These judges, nine of whom are nominated for federal circuit positions, include Neomi Rao who has a history of blaming women for date rape. Wendy Vitter, who led an anti-abortion panel at a conference in 2013, is also present among the list of nominated justices. NOW continues to be opposed the nominations of Rao and Vitter, as well as the other judicial nominees.

Most abortion rights-related cases will not reach the Supreme Court, making Circuit Court decisions the end of the line. This increase in conservative lower court judges has the potential to impact the outcome of countless cases. The Fifth Circuit stands as an example of how antagonistic a conservative-controlled court can become towards abortion. Widely known to be one of the most conservative courts in the country, the Fifth Circuit has ten of fifteen active judges appointed by Republicans. It upheld the Texas law in contention that was later reversed in Whole Woman’s Health v. Hellerstedt, concerning Targeted Regulation of Abortion Providers (TRAP) laws. The Fifth Circuit also upheld a similar Louisiana law in June Medical Services v. Gee, the case that was petitioned to the Supreme Court by two abortion providers with help from the Center for Reproductive Rights, which the Supreme Court issued a stay on yesterday.

FUTURE SUPREME COURT CASES COULD CHALLENGE ROE

The Supreme Court could decide on the status of Roe v. Wade as early as this summer, thanks to several abortion rights related cases making their way through the courts (although, some close observers believe that the first case may not be heard until 2020 during presidential campaign season). There are serious risks to abortion rights even if Roe v. Wade is not overturned. A decision on any one of these cases could put seropis restrictions on abortion, or overturn other important abortion-rights cases, such as Whole Woman’s Health v. Hellerstedt or Planned Parenthood v. Casey.

Listing of Pending Cases – Many of the Roe challenge cases relate to state laws that would require practices that intervene between patient and provider, override sound medical practice and violate generally-accepted patient privacy standards. These potential future Supreme Court cases include:

  • EMW Women’s Surgical Center v. Glisson
  • The case concerns a Kentucky law that effectively banned abortion in the state by shutting down the last health center that offers safe and legal abortion.
  • Comprehensive Health of Planned Parenthood Great Plains v. Hawley
    • This case concerns a Missouri law that requires specific requirements for abortion facilities relating distances to hospitals and physical requirements.
  • Box v. Planned Parenthood of Indiana and Kentucky Inc.
    • This case pertains a 2016 Indiana Law (signed by then Gov. Mike Pence), that would dictate that women cannot terminate a pregnancy for the fetus’ race, gender, national origin, ancestry or genetic abnormality. Also, healthcare facilities would have to bury or cremate the fetus.
  • Whole Woman’s Health Alliance v. Hill
    • This case concerns five Indiana laws that prevent abortion, such as one that limits clinicians from providing abortions, and “reporting” requirements that make abortion providers report information about their patients to the state.
  • Whole Women’s Health v. Paxton

This case concerns a 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, etc. and a ban on D&E.

  • EMW Women’s Surgical Center et al. v. Andrew Beshear et al.

This case concerns a Kentucky law that necessitates a “speech-and-display requirement” with an ultrasound before administration of an abortion, as well as use of a fetal heart rate monitor.

  • Preterm-Cleveland et al. v. Lance Himes et al.

This case concerns an Ohio law that would make it a fourth-degree felony for an abortion provider to administer abortion if they had sufficient knowledge that the woman was seeking the abortion due to knowledge of Down Syndrome.

  • Frederick W. Hopkins v. Larry Jegley et al.

This case concerns an Arkansas law that requires doctors to obtain a woman’s entire pregnancy history before an abortion, and a ban on D&E.

  • Reproductive Health Services v. Marshall

This case concerns the rights of minors in getting an abortion, and an Alabama law that would complicate the process of judicial bypass by appointing a legal guardian to the fetus in the court.

  • West Alabama Women’s Center v. Miller

This case concerns a 2016 ban in Alabama on D&E.

  • Planned Parenthood of Indiana & Kentucky v. Adams et al.

This case concerns a 2017 Indiana law that requires parental consent for minors seeking abortions, where the parents must provide a government I.D. to the court.

  • June Medical Services v. Gee.

This case concerns a Louisiana law like the Texas 2016 case by the Supreme Court that requires doctors who administer abortions to have “active admitting privileges” at a nearby hospital.

  • Comprehensive Health of Planned Parenthood Great Plains et al. v. Williams et al.

This case regards a Missouri law that expanded restrictions on facilities that administer medication abortion. Abortion rights opponents are undertaking several efforts to limit access to medication abortion (mifepristone and misoprostol).

Watch for the upcoming Part Two – Laws in the States and What To Expect in a Post-Roe World