The Supreme Court’s rulings from a momentous just-completed term already are altering the nation’s legal landscape, almost assuring that issues such as abortion and transgender rights will be returning to the high court.
In the past week, lower courts have resurrected controversial abortion restrictions in Arkansas, stopped a Vermont program that disfavored students at religious high schools and ordered a Florida school district to change its policy banning transgender students from the restrooms of their choice.
All were based on the Supreme Court’s decisions reached just weeks ago. And especially on transgender rights and abortion, they raise issues that seem to warrant the justices’ continued attention.
The most consequential regards abortion, and whether Chief Justice John G. Roberts Jr.’s pivotal vote striking down a Louisiana law actually paved the way for courts to approve restrictions that have been enacted elsewhere.
The chief justice has drawn fire from those on both sides of the issue for his vote in the 5-to-4 decision in June Medical Services v. Russo, the court’s first look at abortion since President Trump’s nominees, Neil M. Gorsuch and Brett M. Kavanaugh, joined the bench.
Antiabortion forces were enraged that Roberts voted with liberals to strike down the law, which would have imposed requirements on abortion providers that they said would close all but one of the state’s clinics. Roberts said the law was identical to a Texas law the court had declared unconstitutional in 2016, and thus could not be upheld under the court’s precedents.
Vice President Pence was among those calling Roberts a “disappointment to conservatives,” specifically citing the abortion decision.
“That’s a very modest restriction on abortion providers, but a narrow majority in the Supreme Court still said it was unacceptable,” Pence said in an interview with the Christian Broadcasting Network. “And I think it’s been a wake-up call for pro-life voters around the country who understand, in a very real sense, the destiny of the Supreme Court is on the ballot in 2020.”
But Roberts based his vote on precedent alone. He did not join the opinion by Justice Stephen G. Breyer that said courts should balance the burdens imposed by state restrictions against their purported benefits in determining whether a law violates a woman’s right to an abortion.
Robert said he continued to believe the Texas case was wrongly decided. He said courts should look only at whether a restriction places an “undue burden” on a woman’s access to the procedure.
Abortion rights supporters were alarmed. Roberts’s opinion “preserves the outer shell of the earlier decision while gutting its substance,” New York University law professor Melissa Murray wrote in an op-ed in The Washington Post. “And in so doing, it invites states to push the envelope on abortion legislation, secure that, regardless of the benefits to patients, courts will bless the laws so long as they do not pose a substantial obstacle.”
It didn’t take long for lower courts to take notice.
Roberts “emphasized the ‘wide discretion’ that courts must afford to legislatures in areas of medical uncertainty,” a unanimous panel of judges on the U.S. Court of Appeals for the 8th Circuit wrote, lifting the injunction against four controversial measures passed by the Arkansas legislature in 2017. The laws had never gone into effect because of legal challenges.
Because Roberts and the court’s four dissenting justices did not agree with the reasoning in the 2016 Texas case, the panel said, it was no longer controlling law. It instructed a district judge to evaluate the Arkansas restrictions according to Roberts’s opinion about whether they constituted a “substantial obstacle” to abortion rights.
The laws include a ban on dilation and evacuation, the standard method of conducting second-trimester abortions; requirements that doctors review a woman’s medical records to assure she is not seeking an abortion because of the sex of the fetus; and restrictions on the disposal of fetal remains, which challengers said was really a way to provide notice to a woman’s partner and family that she was seeking an abortion.
“If allowed to take effect, these restrictions would completely block many people from obtaining abortion care, and would eventually leave the state with even more limited abortion care,” the American Civil Liberties Union and Center for Reproductive Rights said in a statement.
Hillary Schneller, a senior attorney at the center, said the injunction will remain in place through most of August, and the challengers are still deciding their legal strategy going forward.
But she said she did not believe Roberts’s opinion doomed the challenge to the Arkansas provisions and other restrictions imposed around the nation.
“I’ve heard and seen some of that chatter,” Schneller said in an interview. “But nothing in June Medical changed the basic legal standard that courts are applying to abortion restrictions. They have to ask the same questions now as they did before.”
Roberts “still looked at both the benefits and burdens and was clear that the facts matter here and that district courts are important arbiters of those facts.”
She pointed out another case had gone the other way. Maryland U.S. District Judge Theodore D. Chuang, in a case involving medication–induced abortions, said that the Supreme Court’s 2016 decision in the Texas case was still the standard courts should look to, because the court’s June Medical decision did not overturn it.
When the Supreme Court ruled 6 to 3 that LGBTQ workers were covered under the federal law that prohibits sex discrimination in the workplace, it passed over the contentious issue of which bathrooms transgender individuals could use.
“Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind,” Gorsuch wrote in Bostock v. Clayton. “The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex.’ ”
But dissenters said the reasoning in the decision would be applied by lower courts to the controversy, and a panel of the U.S. Court of Appeals for the 11th Circuit last week became the first to do so.
In a 2-to-1 vote, it affirmed a lower-court ruling that required a suburban Florida school district to allow a transgender student access to the restroom that matches his gender identity.
The panel relied heavily on the Bostock decision to rule for Drew Adams, who was denied access to the boys bathroom at Nease High School near Jacksonville. The panel said the St. Johns County school board policy violated the Constitution and Title IX.
“Bostock confirmed that workplace discrimination against transgender people is contrary to law. Neither should this discrimination be tolerated in schools,” wrote Judge Beverly B. Martin, who was joined by Judge Jill A. Pryor. “The school board’s bathroom policy, as applied to Mr. Adams, singled him out for different treatment because of his transgender status. It caused him psychological and dignitary harm.”
Martin wrote that “the school board argues that Title IX’s ban on sex discrimination is somehow different from Title VII’s because ‘schools are a wildly different environment than the workplace’ and education ‘is the province of local governmental officials.’ We are not persuaded.”
The decision drew a sharp dissent from the circuit’s chief judge, William H. Pryor.
He noted that Bostock did not take on the issue of restrooms, and that Title IX “permits schools to act on the basis of sex through sex-separated bathrooms.”
Quoting former Supreme Court Justice Thurgood Marshall and the works of Justice Ruth Bader Ginsburg when she was a professor, Pryor added: “The majority misunderstands the policy at issue, ignores decades of precedent, dismisses any sex-specific interest in bathroom privacy, and flouts foundational principles of statutory interpretation … There is nothing unlawful, under either the Constitution or federal law, about a policy that separates bathrooms for schoolchildren on the basis of sex.”
The 11th Circuit is one of the country’s most conservative, and if the school board wants to continue to fight, it might ask all of the court’s judges to reconsider the panel decision.
A panel of the U.S. Court of Appeals for the 2nd Circuit indicated there was little ambiguity in the Supreme Court’s decision in Espinoza v. Montana Department of Revenue, which concerned whether religious schools must be included in public programs that benefit other private schools.
“A state need not subsidize private education,” Roberts wrote for the five-member majority. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”
That seems to doom a Vermont program that provides funding for high school juniors and seniors to dual-enroll in college courses before they graduate. Students at religious high schools were barred from the program, but not those at secular private schools or those who are home-schooled.
A panel of judges said the challengers “have a strong likelihood of success on the merits of their claims” because of the Espinoza decision, and halted the exclusion of students at religious schools while the lawsuit went forward.
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