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Legal advocates turn attention to Supreme Court abortion cases

No major LGBTQ rights cases before court this term

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With the new term for the U.S. Supreme Court underway, justices for the first time in years won’t have to consider a major case specifically impacting LGBTQ rights, which legal advocates say will lead to them to focus their attention on high-profile cases that challenge a woman’s right to access abortion.

At the top of the watch list for court, which now has 6-3 conservative majority as a result of appointments under former President Trump, is Dobbs v. Jackson Women’s Health Organization, which will determine the constitutionality of the Mississippi law banning abortion after 15 weeks and is widely considered a direct challenge to long-standing precedent established by Roe v. Wade guaranteeing a right to abortion. The Texas law banning any abortion after six weeks, which the Supreme Court allowed to take effect as litigation against it proceeds, is still pending in lower courts, but will likely reach the high court soon.

For many LGBTQ legal advocates, the abortion cases are important because they say the outcome could directly impact legal precedent underpinning major Supreme Court decisions in favor, including the 2003 decision of Lawrence v. Texas, which struck down state bans on sodomy, and the 2015 decision of Obergefell v. Hodges in favor of same-sex marriage nationwide.

Camilla Taylor, director of constitutional litigation for Lambda Legal, said the outcome abortion cases is crucial not only because LGBTQ people need access to abortion.

“Just as importantly, there are a lot of ways in which the landmark precedents that we obtained that vindicate the rights of LGBT people rely upon a foundation of substantive due process precedent that includes Roe v. Wade, and other cases dealing with reproductive health,” Taylor said. “So, if Roe versus Wade crumbles, then the foundation on which our own cases also crumbles.”

As such, a coalition of LGBTQ legal groups—including the National Center for Lesbian Rights, the National Center for Transgender Equality and Equality California—was among those who filed a friend-of-the-court brief in September arguing the Mississippi law is unconstitutional.

Key among the arguments is the denial of abortion access is a form of sex discrimination, just as the Supreme Court determined last year in Bostock v. Clayton County that anti-LGBTQ discrimination is a form of sex discrimination, this illegal under the Civil Rights Act of 1964.

“By the same logic, laws that restrict abortion also facially discriminate based on sex,” the brief says, “Like being LGBTQ, pregnancy is a sex-based characteristic; it is ‘inextricably bound up with’ an individual’s sex. Accordingly, laws that force a pregnant woman to bear a child necessarily discriminate based on sex, as would a law that barred a reproductive medical procedure available only to men.”

It’s true that both Roe v. Wade and the Supreme Court’s decision for LGBTQ were based on principals of due process and equal protection under the 5th and 14th Amendments of the U.S. Constitution. But not all legal experts agree LGBTQ rights are on the line depending on the outcome of abortion litigation.

Dale Carpenter, a conservative law professor at the SMU (Southern Methodist University) Dedman School of Law who’s written in favor of LGBTQ rights, said the Supreme Court is “probably going to write a narrower opinion, if it even overrules Roe,” but won’t issue a radical decision “that reaches out and destroys all unenumerated rights.”

“Obergefell relies on the fundamental right to marry,” Carpenter said. “There’s no chance the Supreme Court is going to say there is no right to a fundamental right to marry. The doctrine upon which Obergefell rests is on much more solid footing than abortion rights. The basic doctrine underlying Obergefell has never seriously been challenged; abortion rights have been for 50 years.”

Other key differences between the right to abortion and same-sex marriage, Carpenter said, are an arguable state interest in protecting fetal life and reliance interests in the case of marriage rights given thousands of same-sex couples have wed in the wake of the Obergefell decision.

But what about Lawrence v. Texas, which were both that LGBTQ rights decision and Roe v. Wade decided at least in part on finding an unenumerated right to privacy in the constitution? Carpenter said a Supreme Court decision undoing a right to privacy would mean undoing nearly 60-year precedent that began with the 1965 decision in Griswold v. Connecticut, which overturned a state ban on contraceptives.

“There’s not even a single brief in the case, that I know of, on the anti-abortion side that’s supporting that,” Carpenter said.

Carpenter concluded with a wry jab: “By the way, the LGBT rights advocates who are now saying that these LGBT rights decisions are in danger will be the same people say after Roe is a overruled that those decisions are not affected.”

Indeed, the Supreme Court under its current 6-3 conservative makeup had an opportunity to take up an Indiana birth certificate case, Box v. Henderson, that was a direct challenge to the Obergefell marriage decision, but declined to take up the case. No state is any where close to recriminalizing sexual relations for same-sex couples, which in 2021 would widely be seen as a human rights violation.

But legal advocates for the LGBTQ community aren’t limiting the relationship between abortion and LGBTQ rights to legal principles. Additionally, the identify solidarity with another minority group under siege, in this case women seeking access to abortion, and need among certain members of the LGBTQ community—lesbian and bisexual women, transgender men and non-binary people—to have the access to abortion.

Shannon Minter, legal director for the National Center for Lesbian Rights, echoed the sense LGBTQ legal advocates are focused on abortion cases, but cited “overlap between the reproductive rights, and justice movement and the LGBTQ movements.”

“What we see is the primary impact of this case on our community is a very direct one,” Minter said. “It’s extremely direct. The ability to obtain abortions is of great importance to women in our community, and also to transgender men and non-binary people as well.”

Minter cited data finding upwards of 80 percent of bisexual women will experience pregnancy over their lives and said LGBTQ women “are significantly more likely to have unintended pregnancies as a result of sexual violence, which is very distressing, but that is a reality for our community.”

Lesbian young adults and adolescents are at particular risk for unwanted pregnancy, Minter added, because there’s still “so much stigma and discrimination that they tried to sort of hide their sexual orientation, and prove that they’re straight when they’re not, so they actually have high rates of unprotected sex.”

Religious schools funding, gun control, Obamacare on docket

The abortion cases aren’t the only litigation on the radar for LGBTQ legal advocates. Also on the list are cases that will determine whether Maine religious schools have access to public funds, the legality of New York State gun regulations and disparate impact claims under Obamacare.

Taylor said the case of CVS Pharmacy v. Doe before the Supreme Court, which was brought by people living with HIV/AIDS, will determine whether disparate impact claims are cognizable in the context of disabilities under the Affordable Care Act.

“That’s really important for people living with HIV and other people with disabilities,” Taylor said. “It could do a lot of harm.”

The oral arguments in the Dobbs case are set to take place before the Supreme Court on Dec. 1.

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Pennsylvania

Malcolm Kenyatta could become the first LGBTQ statewide elected official in Pa.

State lawmaker a prominent Biden-Harris 2024 reelection campaign surrogate

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President Joe Biden, Malcolm Kenyatta, and Vice President Kamala Harris (Official White House Photo by Adam Schultz)

Following his win in the Democratic primary contest on Wednesday, Pennsylvania state Rep. Malcolm Kenyatta, who is running for auditor general, is positioned to potentially become the first openly LGBTQ elected official serving the commonwealth.

In a statement celebrating his victory, LGBTQ+ Victory Fund President Annise Parker said, “Pennsylvanians trust Malcolm Kenyatta to be their watchdog as auditor general because that’s exactly what he’s been as a legislator.”

“LGBTQ+ Victory Fund is all in for Malcolm, because we know he has the experience to win this race and carry on his fight for students, seniors and workers as Pennsylvania’s auditor general,” she said.

Parker added, “LGBTQ+ Americans are severely underrepresented in public office and the numbers are even worse for Black LGBTQ+ representation. I look forward to doing everything I can to mobilize LGBTQ+ Pennsylvanians and our allies to get out and vote for Malcolm this November so we can make history.” 

In April 2023, Kenyatta was appointed by the White House to serve as director of the Presidential Advisory Commission on Advancing Educational Equity, Excellence and Economic Opportunity for Black Americans.

He has been an active surrogate in the Biden-Harris 2024 reelection campaign.

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The White House

White House debuts action plan targeting pollutants in drinking water

Same-sex couples face higher risk from environmental hazards

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President Joe Biden speaks with reporters following an Earth Day event on April 22, 2024 (Screen capture: Forbes/YouTube)

Headlining an Earth Day event in Northern Virginia’s Prince William Forest on Monday, President Joe Biden announced the disbursement of $7 billion in new grants for solar projects and warned of his Republican opponent’s plans to roll back the progress his administration has made toward addressing the harms of climate change.

The administration has led more than 500 programs geared toward communities most impacted by health and safety hazards like pollution and extreme weather events.

In a statement to the Washington Blade on Wednesday, Brenda Mallory, chair of the White House Council on Environmental Quality, said, “President Biden is leading the most ambitious climate, conservation, and environmental justice agenda in history — and that means working toward a future where all people can breathe clean air, drink clean water, and live in a healthy community.”

“This Earth Week, the Biden-Harris Administration announced $7 billion in solar energy projects for over 900,000 households in disadvantaged communities while creating hundreds of thousands of clean energy jobs, which are being made more accessible by the American Climate Corps,” she said. “President Biden is delivering on his promise to help protect all communities from the impacts of climate change — including the LGBTQI+ community — and that we leave no community behind as we build an equitable and inclusive clean energy economy for all.”

Recent milestones in the administration’s climate policies include the U.S. Environmental Protection Agency’s issuance on April 10 of legally enforceable standard for detecting and treating drinking water contaminated with polyfluoroalkyl substances.

“This rule sets health safeguards and will require public water systems to monitor and reduce the levels of PFAS in our nation’s drinking water, and notify the public of any exceedances of those levels,” according to a White House fact sheet. “The rule sets drinking water limits for five individual PFAS, including the most frequently found PFOA and PFOS.”

The move is expected to protect 100 million Americans from exposure to the “forever chemicals,” which have been linked to severe health problems including cancers, liver and heart damage, and developmental impacts in children.

An interactive dashboard from the United States Geological Survey shows the concentrations of polyfluoroalkyl substances in tapwater are highest in urban areas with dense populations, including cities like New York and Los Angeles.

During Biden’s tenure, the federal government has launched more than 500 programs that are geared toward investing in the communities most impacted by climate change, whether the harms may arise from chemical pollutants, extreme weather events, or other causes.

New research by the Williams Institute at the UCLA School of Law found that because LGBTQ Americans are likelier to live in coastal areas and densely populated cities, households with same-sex couples are likelier to experience the adverse effects of climate change.

The report notes that previous research, including a study that used “national Census data on same-sex households by census tract combined with data on hazardous air pollutants (HAPs) from the National Air Toxics Assessment” to model “the relationship between same-sex households and risk of cancer and respiratory illness” found “that higher prevalence of same-sex households is associated with higher risks for these diseases.”

“Climate change action plans at federal, state, and local levels, including disaster preparedness, response, and recovery plans, must be inclusive and address the specific needs and vulnerabilities facing LGBT people,” the Williams Institute wrote.

With respect to polyfluoroalkyl substances, the EPA’s adoption of new standards follows other federal actions undertaken during the Biden-Harris administration to protect firefighters and healthcare workers, test for and clean up pollution, and phase out or reduce use of the chemicals in fire suppressants, food packaging, and federal procurement.

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Maine

Maine governor signs transgender, abortion sanctuary bill into law

Bomb threats made against lawmakers before measure’s passage

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Maine Gov. Janet Mills congratulates members of Maine Women's Basketball. In March the team won the America East championship. (Photo courtesy of Mills’s office)

BY ERIN REED | On Tuesday, Maine Gov. Janet Mills signed LD 227, a sanctuary bill that protects transgender and abortion providers and patients from out-of-state prosecution, into law.

With this action, Maine becomes the 16th state to explicitly protect trans and abortion care in state law from prosecution. This follows several bomb threats targeting state legislators after social media attacks from far-right anti-trans influencers such as Riley Gaines and Chaya Raichik of Libs of TikTok.

An earlier version of the bill failed in committee after similar attacks in January. Undeterred, Democrats reconvened and added additional protections to the bill before it was passed into law.

The law is extensive. It asserts that gender-affirming care and reproductive health care are “legal rights” in Maine. It states that criminal and civil actions against providers and patients are not enforceable if the provision or access to that care occurred within Maine’s borders, asserting jurisdiction over those matters.

It bars cooperation with out-of-state subpoenas and arrest warrants for gender-affirming care and abortion that happen within the state. It even protects doctors who provide gender-affirming care and abortion from certain adverse actions by medical boards, malpractice insurance, and other regulating entities, shielding those providers from attempts to economically harm them through out-of-state legislation designed to dissuade them from providing care.

You can see the findings section of the bill here:

The bill also explicitly enshrines the World Professional Association of Transgender Health’s Standards of Care, which have been the target of right-wing disinformation campaigns, into state law for the coverage of trans healthcare:

The bill is said to be necessary due to attempts to prosecute doctors and seek information from patients across state lines. In recent months, attorneys general in other states have attempted to obtain health care data on trans patients who traveled to obtain care. According to the U.S. Senate Finance Committee, attorneys general in Tennessee, Indiana, Missouri, and Texas attempted to obtain detailed medical records “to terrorize transgender teens in their states … opening the door to criminalizing women’s private reproductive health care choices.”

The most blatant of these attempts was from the attorney general of Texas, who, according to the Senate Finance Committee, “sent demands to at least two non-Texas entities.” One of these entities was Seattle Children’s Hospital, which received a letter threatening administrators with arrest unless they sent data on Texas patients traveling to Seattle to obtain gender-affirming care.

Seattle Children’s Hospital settled that case out of court this week, agreeing to withdraw its Texas business registration in return for Texas dropping its investigation. This likely will have no impact on Seattle Children’s Hospital, which has stated it did not treat any youth via telemedicine or in person in Texas; the hospital will be able to continue treating Texas youth who travel outside of Texas to obtain their care. That settlement was likely compelling due to a nearly identical law in Washington that barred out-of-state investigations on trans care obtained solely in the state of Washington.

The bill has faced a rocky road to passage. A similar bill was debated in January, but after coming under intense attack from anti-trans activists who misleadingly called it a “transgender trafficking bill,” the bill was voluntarily withdrawn by its sponsor.

When LD 227 was introduced, it faced even more attacks from Gaines and Libs of TikTok. These attacks were followed by bomb threats that forced the evacuation of the legislature, promising “death to pedophiles” and stating that a bomb would detonate within a few hours in the capitol building.

Despite these threats, legislators strengthened both the abortion and gender-affirming care provisions and pressed forward, passing the bill into law. Provisions found in the new bill include protecting people who “aid and assist” gender-affirming care and abortion, protections against court orders from other states for care obtained in Maine, and even protections against adverse actions by health insurance and malpractice insurance providers, which have been recent targets of out-of-state legislation aimed at financially discouraging doctors from providing gender-affirming care and abortion care even in states where it is legal.

See a few of the extensive health insurance and malpractice provisions here:

Speaking about the bill, Gia Drew, executive director of Equality Maine, said in a statement, “We are thrilled to see LD 227, the shield bill, be signed into law by Gov. Mills. Thanks to our pro equality and pro reproductive choice elected officials who refused to back down in the face of disinformation. This bill couldn’t come into effect at a better time, as more than 40 percent of states across the country have either banned or attempted to block access to reproductive care, which includes abortions, as well as transgender healthcare for minors. Thanks to our coalition partners who worked tirelessly to phone bank, lobby, and get this bill over the finish line to protect community health.” 

Related

Destie Hohman Sprague of the Maine Women’s Lobby celebrated the passage of the bill despite threats of violence, saying in a statement, “A gender-just Maine ensures that all Mainers have access to quality health care that supports their mental and physical wellbeing and bodily autonomy, including comprehensive reproductive and gender-affirming care. We celebrate the passage of LD 227, which helps us meet that goal. Still, the patterns of violence and disinformation ahead of the vote reflected the growing connections between misogyny, extremism, and anti-democratic threats and actions. We must continue to advocate for policies that protect bodily autonomy, and push back against extremist rhetoric that threatens our states’ rights and our citizens’ freedoms.”

The decision to pass the legislation comes as the Biden administration released updated HIPAA protections that protect “reproductive health care” from out-of-state prosecutions and investigations.

Although the definition of “reproductive health care” is broad in the new HIPAA regulations, it is uncertain whether they will include gender-affirming care. For at least 16 states, though, gender-affirming care is now explicitly protected by state law and shielded from out-of-state legislation, providing trans people and those seeking abortions with protections as the fight increasingly crosses state lines.

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Erin Reed is a transgender woman (she/her pronouns) and researcher who tracks anti-LGBTQ+ legislation around the world and helps people become better advocates for their queer family, friends, colleagues, and community. Reed also is a social media consultant and public speaker.

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The preceding article was first published at Erin In The Morning and is republished with permission.

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