The latest US Supreme Court decisions on contraception, transgender discrimination, more

OBG Manag. 2020 November; 32(11): 38-42, 44-46. Published online first September 16, 2020, updated September 22, 2020 | doi: 10.12788/obgm.0037

Steven R. Smith, MS, JD

Joseph S. Sanfilippo, MD, MBA

Abortion, contraception, gay and transgender discrimination, and the ACA (again!). Here’s what every ObGyn should know about the most recent decisions of the Supreme Court.

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References

1. Liptak A. In a term full of major cases, the Supreme Court tacked to the center. The New York Times. July 10, 2020.
2. June Medical Services LLC v Russo, 591 US 140 S. Ct. 2103, 2112 (2020).
3. Whole Woman’s Health v Hellerstedt, 579 US ___ (2016).
4. Planned Parenthood of Southeastern PA v Casey, 505 US 833, 874 (1992).
5. Brief of the American College of Obstetricians and Gynecologists, the American Academy of Family Physicians, the American Academy of Pediatrics, the American College of Nurse-Midwives, the American College of Osteopathic Obstetricians and Gynecologists, the American College of Physicians, the American Society for Reproductive Medicine, the National Association of Nurse Practitioners in Women’s Health, the North American Society for Pediatric and Adolescent Gynecology, and the Society for Maternal-Fetal Medicine Amici Curiae In Support of Petitioners, June Medical Services v Russo. May 20, 2019. https://www.supremecourt.gov/DocketPDF/18/18-1323/100434/20190520175434029_18-1323%20ACOG%20et%20al.%20cert.%20amicus%20brief.pdf. Accessed August 31, 2020.
6. Brief of Amici Curiae American College of Obstetricians and Gynecologists, American Medical Association, American Academy of Family Physicians, American Academy of Nursing, American Academy of Pediatrics, American College of Nurse-Midwives, American College of Osteopathic Obstetricians and Gynecologists, American College of Physicians, American Osteopathic Association, American Public Health Association, American Society for Reproductive Medicine, North American Society for Pediatric and Adolescent Gynecology, Society for Maternal-Fetal Medicine, and the Society of Ob/Gyn Hospitalists, In Support of June Medical Services, June Medical Services v Russo. December 2, 2019. https://www.supremecourt.gov/DocketPDF/18/18-1323/124091/20191202145531124_18-1323%2018-1460%20tsac%20American%20College%20of%20Obstetricians%20and%20
Gynecologists%20et%20al.pdf [https://perma.cc/8T8V-4D6S]. Accessed August 31, 2020.
7. Brief of Amicus Curiae American Association of Pro-Life Obstetricians and Gynecologists In Support of [Russo] Louisiana Department of Health and Hospitals, June Medical Services v Russo. December 27, 2019. https://www.supremecourt.gov/DocketPDF/18/18-1323/126927/20191227154424488_AAPLOG%20Amicus%20Brief.pdf. Accessed August 31, 2020.
8. Brief of Association of American Physicians and Surgeons as Amicus Curiae in Support of Respondent–Cross-Petitioner, June Medical Services v Russo 2. December 27, 2019. https://www.supremecourt.gov/DocketPDF/18/18-1323/126828/20191227104605915_18-1323%20-1460%20bsac%20AAPS--PDFA.pdf. Accessed August 31, 2020.
9. Ky. Rev. Stat. § 311.727(2).
10. Brief for the American College of Obstetricians and Gynecologists, the American Medical Association, the North American Society for Pediatric and Adolescent Gynecology, the American College of Osteopathic Obstetricians and Gynecologists, and the American Academy of Family Physicians Amici Curiae Supporting Petitioners, EMW Women’s Surgical Center v Meier. October 28, 2019. https://www.supremecourt.gov/DocketPDF/19/19-417/120550/20191028184956458_19-417%20ACOG%20et%20al.%20-%20cert.%20amicus%20brief.pdf. Accessed August 31, 2020.
11. EMW Women’s Surgical Center, PSC v Meier, 140 S. Ct. 655 (2019).
12. Codified at 26 U. S. C. §5000A(f )(2); §§4980H(a), (c)(2) requires employers to provide women with “preventive care and screenings” without “any cost sharing requirements.”
13. Little Sisters of the Poor Saints Peter and Paul Home v Pennsylvania, 140 S. Ct. 2367 (2020).
14. Brief of Amici Curiae American College of Obstetricians and Gynecologists, American Nurses Association, American Academy of Nursing, Physicians for Reproductive Health, and Nurses for Sexual and Reproductive Health, In Support of Respondents and Affirmance, Little Sisters of the Poor Saints Peter and Paul Home v Pennsylvania. April 8, 2020. https://www.supremecourt.gov/DocketPDF/19/19-431/141177/20200408152340136_19-431%20and%2019-454%20Amici%20Curiae.pdf. Accessed August 31, 2020.
15. Little Sisters of the Poor Saints Peter and Paul Home v Pennsylvania, 140 S. Ct. 2367, 2400–12 (2020).
16. Brief for the Association of American Medical Colleges (and more than 30 other organizations, including the American Medical Association, and the American College of Obstetricians and Gynecologists) Amici Curiae, In Support of Respondents, Department of Homeland Security v Regents of University of California. October 4, 2019. https://www.supremecourt.gov/DocketPDF/18/18-587/118129/20191004130646281_Brief%20for%20AAMC%20et%20al%20
Supporting%20Respondents.pdf. Accessed August 31, 2020.
17. Department of Homeland Security v Regents of The University of California, 140 S. Ct. 1891 (2020).
18. United States v Texas, 136 S. Ct. 2271 (2016).
19. Title VII of the Civil Rights Act of 1964, 42 U.S.C §2000e–2(a)(1).
20. Bostock v Clayton County, 140 S. Ct. 1731, 1741 (2020).
21. Brief of the American Medical Association, the American College of Physicians, and 14 additional medical, mental health, and health care organizations as Amici Curiae In Support of the Employees, Bostock v Clayton County. July 3, 2019. https://www.supremecourt.gov/DocketPDF/17/17-1618/107177/20190703172548842_Amicus%20Brief.pdf. Accessed August 31, 2020.
22. Our Lady of Guadalupe School v Morrissey-Berru, 140 S. Ct. 2049 (2020).
23. United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act (“the Leadership Act”), 22 U. S. C. §7601 et seq.
24. Agency for International Development v Alliance for Open Society, 140 S. Ct. 2082, 2086 (2020).
25. 42 U.S.C. §1342, §18063.
26. Maine Community Health Options v United States, 140 S. Ct. 1308 (2020).
27. Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention or Convention), implemented in the United States by the International Child Abduction Remedies Act, 22 U. S. C. §9001 et seq.
28. Monasky v Taglieri, 140 S. Ct. 719 (2020).
29. Monasky v Taglieri, 140 S. Ct. 719, 723, 729 (2020).
30. Feldman A. Final stat pack for October term 2019 (upated). July 10, 2020. https://www.scotusblog.com/2020/07/final-stat-pack-for-october-term-2019/. Accessed August 31, 2020.
31. Hejmanowski D. Flush heard around the world. Delaware Gazette. May 8, 2020. https://www.delgazette.com/opinion/columns/83610/flush-heard-around-the-world. Accessed August 31, 2020.
32. SCOTUSblog.com. California v Texas. https://www.scotusblog.com/case-files/cases/california-v-texas/. Accessed August 31, 2020.

The 2019-2020 term of the US Supreme Court was remarkable by any standard. An extraordinary number of important cases made it “a buffet of blockbusters.”¹

We look first at several cases that will be of particular interest to ObGyns. Then we look briefly at a number of other important cases that affect the medical profession as a whole and the direction of the country (see “Other significant US Supreme Court decisions”), and finally we conclude with an analysis of this term and a forecast for the next.

We chose cases in which specialty organizations, such as the American College of Obstetricians and Gynecologists (ACOG), or organized medicine (the American Medical Association [AMA], the Association of American Medical Colleges [AAMC], or the American Hospital Association [AHA]), took a special interest by filing “amicus curiae” (friend of the court) briefs with the Supreme Court. These briefs are filed by an organization or person who is not a party to the case but who may have important information to convey to the Court. Because these briefs represent a significant commitment of money, time, and effort, they are usually not undertaken lightly.

Decisions concerning abortion

June v Russo

Decided June 29, 2020, June v Russo involved a Louisiana statute that required abortion providers have “active admitting privileges at a hospital” within 30 miles of where the abortion is performed.² The Court decided a case in 2016 (from Texas) that involved almost the same statutory provision, so it might seem like an easy ruling.³ But Justice Kennedy (the deciding vote in 2016) has been replaced by Justice Gorsuch, so the outcome was uncertain. It was a difficult case, with a total of 5 opinions covering 138 pages and a “surprise” from the Chief Justice.

The Court, in a 5-4 decision, struck down the Louisiana law, but there was no majority opinion. Four justices in the plurality emphasized that the Louisiana law (like the Texas law) substantially burdened the right to abortion without any corresponding benefit to the health of the women seeking abortions. (Under earlier Court precedents, “undue burdens” on abortion are unconstitutional.⁴) Justice Breyer noted that the state could not present even one example in which a woman would have had better treatment if her doctor had admitting privileges. For a variety of reasons, admitting privileges were cumbersome for abortion providers to obtain; therefore, enforcing the law had little or no benefit, but significant risk of reduced availability of abortion services.

In June v Russo, Chief Justice Roberts literally became the “swing vote”—the fifth vote to strike down the Louisiana law. In 2016, he had voted the other way—to uphold essentially the same law (in Texas) that he struck down here. He attributed his switch to precedent (the general obligation of courts to follow prior decisions). He disagreed with the earlier decision, but felt bound by it.

This should be the end of the abortion provider “hospital privileges requirements” that a number of states have passed. States seeking to nibble away at abortion rights will undoubtedly look elsewhere. Beyond that, it is difficult, from this case, to discern the future of abortion rights.

ACOG was the lead in amicus briefs urging the Court to strike down the Louisiana law. ACOG (with others) was one of only a handful of organizations filing a brief urging the Court to agree to hear the case.⁵ When the Court did agree to hear the case (“granted certiorari”), ACOG and a number of other medical organizations filed a formal amicus brief on the merits of the case.⁶ The brief made 2 arguments: First, that this case was essentially decided in Whole Woman’s Health in 2016 (the Texas case) and, second, that “an admitting privileges requirement is not medically necessary” and “clinicians who provide abortions are unable to obtain admitting privileges for reasons unrelated to their ability to safely and competently perform abortions.” Justice Breyer cited the ACOG brief twice.

The American Association of Pro-Life Obstetricians and Gynecologists also filed an amicus brief.⁷ The brief was directed solely at arguing that ACOG was not presenting reliable science. It summarized, “The American College of Obstetricians and Gynecologists has always presented itself to the Court as a source of objective medical knowledge. However, when it comes to abortion, the College today is primarily a pro-abortion political advocacy organization.” That brief concluded that the “Court should read ACOG’s amicus brief not as an authoritative recitation of settled science, but as a partisan advocacy paper on behalf of a mere subset of American obstetricians and gynecologists.”

The Association of American Physicians and Surgeons (which should not be confused with the “National Board of Physicians and Surgeons”) also filed an amicus brief. The brief argued, “Abortion, like other outpatient surgical procedures, sometimes results in patient hospitalization. Requiring abortion providers to maintain admitting privileges will improve communication between physicians in the transfer of patients to the hospital and allow them to participate in the care of their patients while in the hospital, in line with their ethical duty to ensure their patients’ continuity of care.”⁸

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The latest US Supreme Court decisions on contraception, transgender discrimination, more

References

Decisions concerning abortion

June v Russo

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