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

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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.

Ultrasonography requirement for abortion

In another abortion case, the Court was asked to review a Kentucky abortion statute requiring that an ultrasound image be shown to the woman as part of informed consent for an abortion.⁹ ACOG filed an amicus brief in favor of a review, but the Court declined to hear the case.^10,11

Contraception considerations

The Affordable Care Act (ACA) has an ambiguous provision regarding no-cost “preventive care and screenings” for women. The ACA does not, however, specify contraceptive coverage.¹² Several departments and the Health Resources and Services Administration (collectively referred to as “HRSA”) interpreted the provision to include contraception, but from the start there were religious objections. HRSA eventually provided an exemption regarding contraception for employers (nonprofits and for-profits with no publicly traded components) that had “sincerely held moral” objections to providing forms of contraceptive coverage. That regulation was again before the Court this term in Little Sisters of the Poor Saints Peter and Paul Home v Pennsylvania.¹³

In a 7-2 decision, the Court held that the ACA gave HRSA authority to adopt regulations related to the undefined term “preventive care.” Therefore, it found that HRSA could exempt those with religious objections from participation in providing contraceptive coverage. ACOG and other medical groups filed an amicus brief arguing that contraception is an essential preventive service. “Contraception not only helps to prevent unintended pregnancy, but also helps to protect the health and well-being of women and their children.”¹⁴ It was cited only by Justice Ginsburg in her dissent.¹⁵

Deferred Action for Childhood Arrivals (DACA)

The AAMC, ACOG, AMA, and many other organizations filed an amicus brief¹⁶ in Department of Homeland Security v Regents of University of California.¹⁷ The case raised the question of whether a decision to end the DACA program followed the appropriate administrative procedures. In 2012, the Obama administration issued a “memorandum” establishing DACA (without congressional approval or formal rulemaking). A lower court decision barring implementation of DACA was upheld by the Supreme Court in 2016 on a 4-4 vote.¹⁸ In 2017, the Trump administration moved to end DACA.

In a 5-4 decision, the Court held that the explanation for ending DACA was inadequate, and violated the Administrative Procedures Act, so DACA could continue until the administration redid the repeal, following the proper procedures. The decision of the Court dealt solely with the process by which the rescission took place—there was general agreement that the administration had the right to rescind it if the procedure (with legitimate reasons) was proper.

The brief for the medical groups argued that the failure of the regulation to consider “reliance interests” would have especially difficult consequences in the medical fields. It noted, “At this moment, an estimated 27,000 health care workers and support staff depend on DACA for their authorization to work in the United States. Among those 27,000 are nurses, dentists, pharmacists, physician assistants, home health aides, technicians, and others. The number also includes nearly 200 medical students, medical residents, and physicians who depend on DACA for their eligibility to practice medicine.”¹⁶ The brief was not cited by the Court, but the reliance interest the brief spoke about was an important part of the case.

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

References

Ultrasonography requirement for abortion

Contraception considerations

Deferred Action for Childhood Arrivals (DACA)

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