National
Legal advocates turn attention to Supreme Court abortion cases
No major LGBTQ rights cases before court this term
![](https://www.washingtonblade.com/content/files/2021/10/Abortion_Justice_insert_by_E_David_Luria.jpg)
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 groupsāincluding the National Center for Lesbian Rights, the National Center for Transgender Equality and Equality Californiaāwas 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 individualās 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 whoās 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 communityālesbian and bisexual women, transgender men and non-binary peopleāto 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.
![](https://www.washingtonblade.com/content/files/2024/04/20210303_Estuardo_Cifuentes_in_Brownsville_Texas_insert_courtesy_Estuardo_Cifuentes.jpg)
The U.S. has granted asylum to a Guatemalan LGBTQ activist who fled his country in 2019.
Estuardo Cifuentes and his partner ran a digital marketing and advertising business in Guatemala City.
He previously told the Washington Blade that gang members extorted from them. Cifuentes said they closed their business after they attacked them.
Cifuentes told the Blade that Guatemalan police officers attacked him in front of their home when he tried to kiss his partner. Cifuentes said the officers tried to kidnap him and one of them shot at him. He told the Blade that authorities placed him under surveillance after the incident and private cars drove past his home.
Cifuentes arrived in Matamoros, a Mexican border city that is across the Rio Grande from Brownsville, Texas, in June 2019. He asked for asylum in the U.S. based on the persecution he suffered in Guatemala because of his sexual orientation.
The Trump administration forced Cifuentes to pursue his asylum case from Mexico under its Migrant Protection Protocols program that became known as the “remain in Mexico” policy.
Cifuentes while in Matamoros ran Rainbow Bridge Asylum Seekers, a program for LGBTQ asylum seekers and migrants that the Resource Center Matamoros, a group that provides assistance to asylum seekers and migrants in the Mexican border city, helped create.
The Biden-Harris administration in January 2021 suspended enrollment in MPP. Cifuentes entered the U.S. on March 3, 2021.
“We are profoundly relieved and grateful that my husband and I have been officially recognized as asylees in the United States,” Cifuentes told the Blade on Monday in an email. “This result marks the end of a long and painful fight against the persecution that we faced in Guatemala because of our sexual orientation.”
Vice President Kamala Harris is among those who have said discrimination and violence based on sexual orientation are among the root causes of migration from Guatemala and other countries in Central America.
Cifuentes is now the client services manager for Lawyers for Good Government’s Project CorazĆ³n, a campaign that works “hard to reunite and defend the rights of families impacted by inhumane immigration policies.” He told the Blade he will continue to help LGBTQ asylum seekers and migrants.
“In this new chapter of our lives, we pledge to work hard to support others in similar situations and to contribute to the broader fight for the rights and acceptance of the LGBTQ+ migrant community,” said Cifuentes. “We are hopeful that our story will serve as a call to action to confront and end persecution based on gender identity and sexual orientation.”
U.S. Supreme Court
US Supreme Court rules Idaho to enforce gender care ban
House Bill 71 signed in 2023
![](https://www.washingtonblade.com/content/files/2022/12/United_States_Supreme_Court_building_insert_c_Washington_Blade_by_Michael_Key.jpg)
![](https://www.washingtonblade.com/content/files/2024/04/IDAHO-Capital-Sun-Logo-250x31.jpg)
BY MIA MALDONADO | The U.S. Supreme Court has allowed Idaho to enforce House Bill 71, a law banning Idaho youth from receiving gender-affirming care medications and surgeries.
In an opinion issued Monday, the U.S. Supreme Court granted the state of Idahoās request to stay the preliminary injunction, which blocked the law from taking effect. This means the preliminary injunction now only applies to the plaintiffs involved in Poe v. Labrador ā a lawsuit brought on by the families of two transgender teens in Idaho who seek gender-affirming care.
Mondayās Supreme Court decision enforces the gender-affirming care ban for all other trans youth in Idaho as the lawsuitĀ remains ongoing in the Ninth Circuit Court of Appeals.
![Idaho Attorney General RaĆŗl Labrador](https://idahocapitalsun.com/wp-content/uploads/2023/03/221108r1-9774-med-300x200.jpg)
The American Civil Liberties Union and the ACLU of Idaho, both of whom represent the plaintiffs, said in a press release Monday that the ruling ādoes not touch upon the constitutionalityā of HB 71. The groups called Mondayās ruling an āawful resultā for trans Idaho youth and their families.
āTodayās ruling allows the state to shut down the care that thousands of families rely on while sowing further confusion and disruption,ā the organizations said in the press release. āNonetheless, todayās result only leaves us all the more determined to defeat this law in the courts entirely, making Idaho a safer state to raise every family.ā
Idaho Attorney General RaĆŗl Labrador in a press release said the state has a duty to protect and support all children, and that he is proud of the stateās legal stance.
āThose suffering from gender dysphoria deserve love, support and medical care rooted in biological reality,ā Labrador said. āDenying the basic truth that boys and girls are biologically different hurts our kids. No one has the right to harm children, and Iām grateful that we, as the state, have the power ā and duty ā to protect them.ā
Recap of Idahoās HB 71, and what led to SCOTUS opinion
Mondayās Supreme Court decision traces back to when HB 71 was signed into law in April 2023.
The law makes it a felony punishable for up to 10 years for doctors to provide surgeries, puberty-blockers and hormones to trans people under the age of 18. However, gender-affirming surgeries are not and were not performed among Idaho adults or youth before the bill was signed into law, the Idaho Capital Sun previously reported.
One month afterĀ it was signed into law, the families of two trans teens sued the state in a lawsuit alleging the bill violates the 14th Amendmentās guarantee of equal protection under the law.
In late December, just days before the law was set to take effect in the new year, U.S. District Judge B. Lynn Winmill blocked the law from taking effect under a preliminary injunction. In his decision, he said he found the families likely to succeed in their challenge.
The state of Idaho responded by appealing the district courtās preliminary injunction decision to the Ninth Circuit, to which the Ninth Circuit denied. The state of Idaho argued the court should at least enforce the ban for everyone except for the plaintiffs.
After the Ninth Circuitās denial, the Idaho Attorney Generalās Office in February sent an emergency motion to the U.S. Supreme Court, the Idaho Press reported. Mondayās U.S. Supreme Court decision agrees with the stateās request to enforce its ban on trans health care for minors, except for the two plaintiffs.
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![Mia Maldonado](https://idahocapitalsun.com/wp-content/uploads/2023/03/ID-Mia-Maldonado-300x300.jpg)
Mia Maldonado joined the Idaho Capital Sun after working as a breaking news reporter at the Idaho Statesman covering stories related to crime, education, growth and politics. She previously interned at the Idaho Capital Sun through the Voces Internship of Idaho, an equity-driven program for young Latinos to work in Idaho news. Born and raised in Coeur d’Alene, Mia moved to the Treasure Valley for college where she graduated from the College of Idaho with a bachelor’s degree in Spanish and international political economy.
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The preceding piece was previously published by the Idaho Capital Sun and is republished with permission.
The Idaho Capital Sun is the Gem Stateās newest nonprofit news organization delivering accountability journalism on state politics, health care, tax policy, the environment and more.
Weāre part of States Newsroom, the nationās largest state-focused nonprofit news organization.
Kansas
Kansas governor vetoes ban on health care for transgender youth
Republican lawmakers have vowed to override veto
![](https://www.washingtonblade.com/content/files/2024/04/P1140392-KS-GOV-KR.jpg)
![](https://www.washingtonblade.com/content/files/2024/04/Kansas-Reflector-LOGO-600x78.jpg)
BY TIM CARPENTERĀ | Gov. Laura Kelly flexed a veto pen to reject bills Friday prohibiting gender identity health care for transgender youth, introducing a vague crime of coercing someone to have an abortion and implementing a broader survey of women seeking abortion that was certain to trigger veto override attempts in the Republican-led House and Senate.
The decisions by the Democratic governor to use her authority to reject these health and abortion rights bills didnāt come as a surprise given her previous opposition to lawmakers intervening in personal decisions that she believed ought to remain the domain of families and physicians.
Kelly saidĀ Senate Bill 233, which would ban gender-affirming care for trans minors in Kansas, was an unwarranted attack on a small number of Kansans under 18. She said the bill was based on a politically distorted belief the Legislature knew better than parents how to raise their children.
She said it was neither a conservative nor Kansas value to block medical professionals from performing surgery or prescribing puberty blockers for their patients. She said stripping doctors of their licenses for serving health interests of patients was wrong. Under the bill, offending physicians could be face lawsuits and their professional liability insurance couldnāt be relied on to defend themselves in court.
āTo be clear, this legislation tramples parental rights,ā Kelly said. āThe last place that I would want to be as a politician is between a parent and a child who needed medical care of any kind. And, yet, that is exactly what this legislation does.ā
Senate President Ty Masterson (R-Andover) and House Speaker Dan Hawkins (R-Wichita) responded to the governor by denouncing the vetoes and pledging to seek overrides when legislators returned to the Capitol on April 26. The trans bill was passed 27-13 in the Senate and 82-39 in the House, suggesting both chambers were in striking distance of a two-thirds majority necessary to thwart the governor.
āThe governor has made it clear yet again that the radical left controls her veto pen,ā Masterson said. āThis devotion to extremism will not stand, and we look forward to overriding her vetoes when we return in two weeks.ā
Cathryn Oakley, senior director of the Human Rights Campaign, said the ban on crucial, medically necessary health care for trans youth was discriminatory, designed to spread dangerous misinformation and timed to rile up anti-LGBTQ activists.
āEvery credible medical organization ā representing over 1.3 million doctors in the United States ā calls for age-appropriate, gender-affirming care for transgender and nonbinary people,ā Oakley said. āThis is why majorities of Americans oppose criminalizing or banning gender-affirming care.ā
Abortion coercion
Kelly also vetoed House Bill 2436 that would create the felony crime of engaging in physical, financial or documentary coercion to compel a girl or woman to end a pregnancy despite an expressed desire to carry the fetus to term. It was approved 27-11 in the Senate and 82-37 in the House, again potentially on the cusp of achieving a veto override.
The legislation would establish sentences of one year in jail and $5,000 fine for those guilty of abortion coercion. The fine could be elevated to $10,000 if the adult applying the pressure was the fetusesā father and the pregnant female was under 18. If the coercion was accompanied by crimes of stalking, domestic battery, kidnapping or about 20 other offenses the prison sentence could be elevated to 25 years behind bars.
Kelly said no one should be forced to undergo a medical procedure against their will. She said threatening violence against another individual was already a crime in Kansas.
āAdditionally, I am concerned with the vague language in this bill and its potential to intrude upon private, often difficult, conversations between a person and their family, friends and health care providers,ā the governor said. āThis overly broad language risks criminalizing Kansans who are being confided in by their loved ones or simply sharing their expertise as a health care provider.ā
Hawkins, the House Republican leader, said coercion was wrong regardless of the circumstances and Kellyās veto of the bill was a step too far to the left.
āItās a sad day for Kansas when the governorās uncompromising support for abortion wonāt even allow her to advocate for trafficking and abuse victims who are coerced into the procedure,ā Hawkins said.
Emily Wales, president and CEO of Planned Parenthood Great Plains Votes, said HB 2436 sought to equate abortion with crime, perpetuate false narratives and erode a fundamental constitutional right to bodily autonomy. The bill did nothing to protect Kansas from reproductive coercion, including forced pregnancy or tampering with birth control.
āPlanned Parenthood Great Plains Votes trusts patients and stands firmly against any legislation that seeks to undermine reproductive rights or limit access to essential health care services,ā Wales said.
Danielle Underwood, spokeswoman for Kansas for Life, said āCoercion Kellyā demonstrated with this veto a lack of compassion for women pushed into an abortion.
The abortion survey
The House and Senate approved a bill requiring more than a dozen questions be added to surveys of women attempting to terminate a pregnancy in Kansas. Colorful debate in the House included consideration of public health benefits of requiring interviews of men about reasons they sought a vasectomy birth control procedure or why individuals turned to health professionals for treatment of erectile dysfunction.
House Bill 2749 adopted 81-39 in the House and 27-13 in the Senate would require the Kansas Department of Health and Environment to produce twice-a-year reports on responses to the expanded abortion survey. The state of Kansas cannot require women to answer questions on the survey.
Kelly said in her veto message the bill was āinvasive and unnecessaryā and legislators should have taken into account rejection in August 2022 of a proposed amendment to the Kansas Constitution that would have set the stage for legislation further limiting or ending access to abortion.
āThere is no valid medical reason to force a woman to disclose to the Legislature if they have been a victim of abuse, rape or incest prior to obtaining an abortion,ā Kelly said. āThere is also no valid reason to force a woman to disclose to the Legislature why she is seeking an abortion. I refuse to sign legislation that goes against the will of the majority of Kansans who spoke loudly on Aug. 2, 2022. Kansans donāt want politicians involved in their private medical decisions.ā
Wales, of Planned Parenthood Great Plains Votes, said the bill would have compelled health care providers to āinterrogate patients seeking abortion careā and to engage in violations of patient privacy while inflicting undue emotional distress.
Hawkins, the Republican House speaker, said the record numbers of Kansas abortions ā the increase has been driven by bans or restrictions imposed in other states ā was sufficient to warrant scrutiny of KDHE reporting on abortion. He also said the governor had no business suppressing reporting on abortion and criticized her for tapping into āirrational fears of offending the for-profit pro-abortion lobby.ā
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![Tim Carpenter](https://kansasreflector.com/wp-content/uploads/2022/09/065A3667-300x300.jpg)
Tim Carpenter has reported on Kansas for 35 years. He covered the Capitol for 16 years at the Topeka Capital-Journal and previously worked for the Lawrence Journal-World and United Press International.
The preceding story was previously published by the Kansas Reflector and is republished with permission.
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The Kansas Reflector is a nonprofit news operation providing in-depth reporting, diverse opinions and daily coverage of state government and politics. This public service is free to readers and other news outlets. We are part of States Newsroom: the nationās largest state-focused nonprofit news organization, with reporting from every capital.
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