In June and July, the U.S. Supreme Court issued several rulings with major impacts on reproductive freedom. The Court ended legal discrimination against LGBTQ workers, reaffirmed the right to abortion, and refused to hear challenges to buffer zones around reproductive health clinics. But they also gutted contraception access and undermined federal employment discrimination laws by allowing religious institutions to freely discriminate against their employees.
Below, we’ve outlined these rulings and what they could mean for you.
While we celebrate the victories we won this term, we can’t forget the work we still have to do. We need to hold the Senators who put Justice Brett Kavanaugh on the Court accountable and make sure that the Trump/Pence administration doesn’t get four more years to keep nominating anti-choice judges and pushing regressive policies. We also have to fight back against efforts to restrict reproductive healthcare access disguised as expansions of religious liberty – religious freedom doesn’t mean freedom to discriminate.
In Maryland, we have to continue supporting pro-choice policies and electing pro-choice politicians. We can’t rely on the U.S. Supreme Court to protect our right to make our own choices about our reproductive health – we have to be proactive and take action here. As always, NARAL Pro-Choice Maryland is committed to fighting for your reproductive rights, despite the Supreme Court’s new conservative majority (thanks to two Trump appointments) greenlighting discrimination and restricting contraception access.
June Medical Services, LLC v. Russo | Argued March 4, 2020, decided June 29, 2020
In a 5-4 decision in June Medical Services, LLC v. Russo, the Supreme Court upheld the right to abortion across the country. In an opinion written by Justice Stephen Breyer, the Court reaffirmed that anti-choice laws designed to close clinics are unconstitutional and that abortion providers have the right to challenge those laws on behalf of their patients. This decision is a major victory that protects abortion access nationwide and patients’ right to freely make decisions about their reproductive healthcare.
In June, the Supreme Court struck down a Louisiana law that would have required doctors who perform abortions to have admitting privileges at a hospital within 30 miles of where they practice. If the law had gone into effect, Louisiana would have been left with just one abortion provider to serve the entire state, making abortion almost entirely inaccessible. The Supreme Court ruled that the law is thus unconstitutional, finding that it “places a substantial obstacle in the path of women seeking an abortion.”
The Louisiana law at the center of June is an example of what’s known as a targeted restriction on abortion providers, or TRAP law. TRAP laws are deceptive anti-choice policies that impose medically unnecessary, costly requirements on abortion providers. TRAP laws are marketed as efforts to protect patients’ health, but they’re actually designed to shut down reproductive healthcare clinics. Examples of TRAP laws include requiring clinics to meet building requirements for ambulatory surgical centers, requiring clinics to be located near hospitals or away from schools, and requiring clinics to give private medical information about their patients to the state government.
By invalidating Louisiana’s law, the Supreme Court has reaffirmed that TRAP laws constitute an unconstitutional barrier to abortion access. They undermine the right to abortion guaranteed by Roe v. Wade by making it impossible for providers to continue serving patients and forcing clinics to close.
In their June ruling, the Supreme Court also upheld providers’ right to sue on behalf of their patients. Louisiana argued that abortion providers didn’t have the standing to challenge the state’s TRAP law because they are “third parties” that have“conflicts of interest” and “insufficiently close relationships with their patients.” This argument, of course, was nonsense. Itrelied on stigmatizing and unfounded stereotypes about abortion providers’ motivations and professionalism. Plus, the Supreme Court previously ruled that abortion providers can sue on behalf of their patients because patients themselves often cannot go to court due to privacy concerns and the time constraint of pregnancy. By striking down Louisiana’s challenge, the Supreme Court has recognized what should already be clear – abortion providers care for their patients like all healthcare professionals do, and they have the right to fight to keep providing care.
This case shouldn’t have been contentious, or even heard – just four years ago, in 2016’s Whole Woman’s Health v. Hellerstedt, the Supreme Court struck down a Texas TRAP law identical to Louisiana’s, ruling that the law placed an “undue burden” on patients’ access to abortion without producing any health benefits. While we celebrate this victory, it’s important to remember that it doesn’t mean that attacks on abortion access are over. The Supreme Court upheld precedent this time, but June won’t be the end of attacks on the right to abortion or underhanded anti-choice efforts to restrict abortion access. The Supreme Court’s new conservative majority has signaled that they’re ready to gut Roe v. Wade if they’re given another chance. We have to continue advocating for pro-choice policies, holding anti-choice politicians accountable, and defending everyone’s right to control their own body.
NARAL Pro-Choice Maryland celebrates this ruling and remains committed to defending the right to legal, safe abortion care in Maryland. We’ve fought for pro-choice policies that both protect Marylanders’ right to abortion care and make our state a safe harbor for patients traveling from states with restrictive, anti-choice laws. While June is a major victory for reproductive justice advocates, there’s still plenty of work to be done in Maryland and across the country to ensure that everyone has the freedom to control their own reproductive health.
Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania | Argued May 6, 2020, decided July 8, 2020
On July 8, the Supreme Court gutted the Affordable Care Act’s guarantee of no-co-pay contraception, ruling that any employer can claim an exemption to the contraception mandate if they have a “religious” or “moral” opposition to contraception. The Supreme Court’s decision in these two consolidated cases has the potential to eliminate insurance coverage of contraception for hundreds of thousands of Americans and is the culmination of years of efforts by the religious right to restrict birth control access.
As part of its effort to make preventative reproductive healthcare more accessible, the Affordable Care Act (ACA) guarantees co-pay-free contraception coverage to most employees through their employer-provided health insurance — what’s known as the contraception mandate. But in 2017, the Trump administration enacted a rule that severely undermines that mandate by allowing any employer to claim an exemption to providing contraception coverage, as long as they claim they have a religious or “moral” reason for doing so. And since the rule doesn’t actually specify what counts as a moral objection, that means virtually any employer can claim an exemption for virtually any reason. This Supreme Court ruling upholds that rule, stripping contraception access from thousands of workers under the guise of “religious freedom.”
Don’t be fooled – this ruling isn’t about finding a compromise between religious liberty and reproductive rights. It’s an extremist, anti-choice move that allows employers to impose their beliefs on their employees and undermines your right to make your own reproductive health decisions. The ACA has balanced reproductive healthcare access and religious freedom from the start: churches were exempted entirely from the contraception mandate and religious nonprofits and for-profit companies were eligible for a workaround that would allow them to avoid directly paying for birth control. But these compromises weren’t enough to satisfy anti-choice conservatives. With the Supreme Court’s decision to uphold the Trump rule, they’ve achieved their goal of completely undermining the contraception mandate and making birth control inaccessible for thousands of workers.
With this rule in effect, the contraception coverage millions of people gained through the ACA could disappear for many. And for low-income people who can’t afford the out-of-pocket costs of birth control — hormonal birth control pills, for example, can cost $600 per year — losing coverage means losing access. This decision is particularly devastating given the current economic crisis.
Your boss shouldn’t be making decisions about your birth control. In Maryland, we’re lucky to have elected officials who understand that and who are working to pass proactive legislation to counter anti-choice efforts to restrict birth control access. NARAL Pro-Choice Maryland will continue advocating to make every form of birth control accessible, affordable, and available for everyone who asks for it. But this ruling is a reminder that we need massive change in our national healthcare system – your healthcare access shouldn’t depend on your employer. We need to fight for a healthcare system that gives everyone the freedom to make their own decisions about their health.
R.G. & G.R. Harris Funeral Homes v. EEOC, Bostock v. Clayton County and Altitude Express v. Zarda | Argued October 8, 2019, decided June 15, 2020
In a landmark 6-3 decision, the Supreme Court ruled that Title VII of the Civil Rights Act prohibits employment discrimination based on sexual orientation and gender identity, a major advance for LGBTQ rights in the United States.
The Supreme Court issued a combined opinion authored by Justice Neil Gorsuch for R.G. & G.R. Harris Funeral Homes v. EEOC, Bostock v. Clayton County and Altitude Express v. Zarda, three cases brought by employees who were fired on the basis of their LGBTQ identities. The Court unequivocally stated that Title VII, which bans sex discrimination in employment, applies to sexual orientation and gender identity: “An employer who fires an individual merely for being gay or transgender violates Title VII.”
Finally, with this ruling, no one can legally be fired for being LGBTQ. This is huge win for LGBTQ Americans, especially those who live in any of the 25 states that don’t have laws explicitly banning employment discrimination based on sexual orientation or gender identity.
R.G. & G.R. Harris Funeral Homes v. EEOC was the first major trans rights case to reach the Supreme Court. It was brought by Aimee Stephens, a transgender woman who was fired from her job as a funeral director after she told the company’s owner she would be transitioning. Stephens passed away in May, so she didn’t see the final outcome of her case, but her family was determined to carry on her fight to advance the rights of transgender people. “Aimee is an inspiration,” said her wife, Donna Stephens. “She has given so many hope for the future of equality for LGBTQ people in our country, and she has rewritten history.”
NARAL Pro-Choice Maryland was thrilled to celebrate Pride Month with this victory and is committed to continue working with our allies to fight for the rights of LGBTQ Marylanders, especially in the face of attacks by the Trump-Pence administration. Just last month, the administration has eliminated anti-discrimination protections for LGBTQ people in healthcare and health insurance and proposed a rule to block transgender people from accessing single-sex homeless shelters. These two measures are just the latest in the years-long series of efforts by the administration to undermine LGBTQ rights in the US.
Espinoza v. Montana Department of Revenue | Argued January 22, 2020, decided June 30, 2020
On June 30th, in a 5-4 decision, the U.S. Supreme Court ruled that states cannot exclude religious schools from tuition assistance programs for students attending private schools. This ruling is another attack on the long-standing principal of separation of church and state disguised as an effort to protect religious freedom and hinders efforts to strengthen public education.
Espinoza v. Montana Department of Revenue was brought by a group of parents with children enrolled at Stillwater Christian School seeking tuition assistance from Montana’s tax-credit scholarship program. To comply with the state constitution’s ban on direct or indirect public funding of religious education, Montana’s legislature prohibited the use of the program’s scholarship funds at religious schools. The Supreme Court has ruled that the exclusion of religious schools from that program is unconstitutional, requiring Montana to redirect public funds to religious education and opening other states with similar policies to lawsuits.
As Justice Sonia Sotomayor wrote in her dissent, this ruling “weakens this country’s longstanding commitment to a separation of church and state beneficial to both.” It undermines public education by redirecting state funds to private, religious schools. It also mandates the use of taxpayer dollars to support schools that freely discriminate against vulnerable populations, including LGBTQ+ students and families, and pregnant or parenting staff and students. We should be supporting public schools, not defunding them to support private institutions that often discriminate against members of the communities they supposedly serve.
The Maryland General Assembly has considered bills during the past two legislative sessions that would halt state funding for any private school that discriminates against students, faculty, or staff. We need to continue pushing for this policy and others to prevent private schools from using public dollars to fund discrimination. Taxpayers shouldn’t have to see their money used to help schools that don’t offer evidenced-based sex education and that discriminate against pregnant or parenting students, unmarried pregnant or parenting staff and faculty, LGBTQ+ students, and students with LGBTQ+ parents.
Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel | Argued May 11, 2020, decided July 8, 2020
In addition to undermining birth control access, the Supreme Court also used “religious freedom” as an excuse to give religious employers broad discretion to discriminate against their employees. In their ruling in Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, the Supreme Court expanded what’s known as the “ministerial exception” — a policy established by a previous Supreme Court decision that says that religious institutions don’t have to comply with federal anti-discrimination laws when dealing with employees deemed “ministers.”
These two cases were brought by two Catholic school teachers, Agnes Deirdre Morrissey-Berru and Kristin Biel, who were fired in violation of federal anti-discrimination laws. After their firings, Morrissey-Berru sued her employer for age-based discrimination, and Biel sued for disability discrimination. However, both their schools argued that the teachers were “ministers” and therefore subject to the “ministerial exception.” Since the original court case establishing the ministerial exception didn’t lay out any clear rules for deciding which employees count as ministers, these two cases presented an opportunity for the Supreme Court to broaden the exception to cover most employees at religious institutions.
And that’s exactly what the Supreme Court did. The Court ruled that if an employee at a religious institution carries out religious duties, they can’t sue for employment discrimination, regardless of whether or not their job title officially designates them as ministers or if they have any formal religious training. Under this newly expanded ministerial exception, teachers and other employees at religious schools aren’t covered by federal anti-discrimination laws, meaning they don’t have legal protection from sexual harassment, pregnancy discrimination, unfair pay, and sex discrimination. This ruling also means that the Court’s June ruling in Bostock v. Clayton County (expanding employment discrimination laws to cover LGBTQ people) doesn’t apply to religious institutions. This ruling robs people of the workplace protections key to shaping their economic wellbeing and their ability to freely make choices about their reproductive health and family formation. We should never be greenlighting discrimination, especially in the midst of a pandemic and economic crisis.
This ruling, along with Little Sisters of the Poor v. Pennsylvania and Trump v. Pennsylvania, make it clear that we can’t afford to reelect an anti-choice majority in the Senate this November. Given the opportunity, they’ll put more extremist, anti-choice justices like Brett Kavanaugh and Neil Gorsuch on the Supreme Court, guaranteeing decades of future attacks on reproductive freedom.
In addition to pushing for change at the national level, NARAL Pro-Choice Maryland will keep fighting for workplace policies that promote reproductive freedom here in Maryland, like paid leave, fair scheduling, and accommodations for pregnant workers. Everyone has the right to work without facing discrimination. We’ll continue advocating for policies that turn that ideal into a reality.
In addition to issuing the important opinions discussed above, this term the Supreme Court upheld some lower court rulings that protect abortion access in Indiana, Illinois, and Pennsylvania. The Court denied petitions for certiorari for the following three cases, meaning the lower courts’ rulings will remain in place:
- Hill v. Whole Woman’s Health Alliance – the Seventh Circuit ruled that Indiana has to grant a provisional license to Whole Woman’s Health South Bend after years of the state Department of Health delaying and obstructing approval of the clinic’s license application. The Seventh Circuit found that Indiana misused its licensing requirements to block the clinic from opening, thereby imposing an unconstitutional burden on abortion access in the state.
- Reilly v. City of Harrisburg – the Third Circuit upheld a Harrisburg, Pennsylvania ordinance banning anti-choice picketing within 20 feet of reproductive health clinics. Buffer zones like this are vital to preventing anti-choice intimidation and obstruction that restricts patients’ access to clinics.
- Price v. Chicago – the Seventh Circuit upheld Chicago’s ordinance establishing a 50-foot “bubble zone” around clinics, within which anti-choice protesters cannot come within eight feet of patients or staff.
In two other abortion access cases, both Box v. Planned Parenthood of Indiana and Kentucky, Inc., the Supreme Court vacated the lower courts’ rulings and sent the cases back to be reconsidered in light of their decision in June Medical Services, LLC v. Russo. With that ruling’s affirmation of the unconstitutionality of TRAP laws, these two cases could result in victories for abortion access:
- In the first case, the Seventh Circuit nullified an Indiana law requiring patients to get an ultrasound before their abortion, a requirement that’s costly and medically unnecessary.
- In the second, the Seventh Circuit invalidated another Indiana law that requires parental notice when a minor receives authorization from a court to get an abortion. In this case, the Seventh Circuit also considered the third-party standing issue that came up in June – whether abortion providers can challenge laws restricting abortion access. The Supreme Court’s ruling in June reaffirmed that providers do have the right to bring these kinds of suits, so this shouldn’t be a further issue.
The Seventh Circuit should once again recognize these restrictive, deceptive laws as barriers to abortion access and strike them down.
Written by Olivia Graziano, Shurberg Legal & Policy Research Intern