Across the United States, state lawmakers are passing increasingly restrictive abortion laws that directly challenge the fundamental civil rights of women and child-rearing individuals. States including Texas, South Dakota, Georgia, Montana, Mississippi, New Hampshire, Florida, Ohio, and West Virginia have introduced legislation that limit access to abortion seekers and pose a direct threat to the precedential decision in Roe v. Wade.
One such state law from Mississippi has come before the Supreme Court this term. The case, Dobbs v. Jackson Women’s Health Organization, involves the Mississippi Gestational Age Act, which prohibits all abortions, with few exceptions, after 15 weeks’ gestational age. Jackson Women’s Health Organization, the only licensed abortion facility in Mississippi, and one of its doctors filed a lawsuit in federal district court challenging the law and requesting an emergency temporary restraining order. The state of Mississippi has appealed the lower court’s unconstitutionality ruling to the Supreme Court to address and rule on the issue of whether all pre-viability prohibitions on elective abortions are unconstitutional.
In light of the recent argument at the Supreme Court in the Dobbs case, the Barbara McDowell Foundation (BMF) caught up with 2021 grantee Gender Justice’s (GJ) Legal Director, Jess Braverman, and Senior Staff Attorney, Christy Hall, to discuss updates on their grant-funded case, other litigation they are currently pursuing, and the implications of the Supreme Court’s consideration and potential ruling on the Dobbs case.
BMF: Since you last submitted your organization’s final report to the Foundation, can you provide an update on the status of your case, Anderson v. Grand St. Paul CVS, for which you received a grant?
GJ: On January 18, 2022, we will start a jury trial against Thrifty White and George Badeaux, the pharmacist, who refused to fill Ms. Anderson’s prescription for Emergency Contraception.
BMF: What is your anticipated outcome for the case and why?
GJ: We believe we will be successful at trial. The question is whether the pharmacy denied Ms. Anderson full and equal enjoyment of their goods and services because of her sex. “Sex” under the Minnesota Human Rights Act includes pregnancy, childbirth, and related conditions. It would thus include access to emergency contraception.
The pharmacy owner was fully aware that its chief pharmacist was refusing to fill emergency contraception prescriptions before he refused to fill Ms. Anderson’s prescription. The pharmacy put no measures in place to ensure that Ms. Anderson and others like her with an emergency contraception prescription can get the medication they need in a timely manner.
We expect that this case will set an important precedent about the rights of pharmacy patients to access care with no barriers. That precedent will be important for all pregnancy-related care, including abortion care.
BMF: What additional cases are Gender Justice currently working on?
GJ: We are suing the government of Minnesota in state court (Doe v. Minnesota) over harmful abortion restrictions in a state law that violate our state constitution.
The restrictions being challenged include:
1. Physician Only Law: A law that prohibits advanced-practice clinicians, physician assistants, and nurse practitioners from providing abortions.
2. Hospitalization Requirement: A law that requires abortions performed after the first trimester to be performed in a hospital.
3. Two-Parent Notification: A law that requires minors to notify both parents of their decision to have an abortion regardless of what relationship, if any at all, the minor has with those parents.
4. Reporting Requirements: A law that requires abortion providers to send the government nine pages of detailed information about abortion patients, procedures, and providers for each abortion.
5. Mandatory Physician Disclosure and Delay Law: A law that requires physicians to give patients medically irrelevant information and then wait at least 24 hours from that point before performing the abortion.
6. Fetal Tissue Disposition: A law that requires providers to dispose of fetal tissue through burial or cremation.
7. Felony penalties for abortion providers for inadvertent regulatory infractions and for failing to provide informed consent.
8. A law that bans any advertisements on sexually transmitted infection treatments.
This case is currently in the summary judgment stage. If there is a trial, it will start around the end of June. We are confident that the outcome will increase access to abortion in Minnesota.
We are also suing USA Powerlifting (JayCee Cooper v. USA Powerlifting and USA Powerlifting Minnesota) over their ban on transgender women athletes who are competing in the women’s division. This case is currently in discovery. We recently started taking depositions.
BMF: The Supreme Court recently heard oral arguments in the Dobbs v. Jackson Women’s Health Organization case. Many believe that a decision in that case may result in Roe v. Wade being overturned. Based on oral arguments, to what extent – if any – do you think Roe could be overturned?
GJ: The oral arguments were extremely troubling. We are very concerned that the Supreme Court will decide that the right to abortion is no longer protected by our constitution. As much as we want Roe v. Wade to be upheld, it does not go far enough to ensure people who want abortion care are able to access it without medically irrelevant, government-imposed obstacles.
BMF: If the Supreme Court were to overturn Roe partially or fully, on what grounds would they do so?
GJ: It’s possible that the Court might ultimately rule that that abortion is protected to some degree but hold that banning abortion pre-viability is arbitrary. They could also overturn Roe altogether. If they do that, individual judges might have different rationales. Some Justices might claim Roe was incorrectly decided to begin with. They might claim that abortion is not encompassed under the liberty or privacy interest of the Constitution, or that the original framers of the constitution would not have intended to protect the right to abortion. Other Justices might claim that something has changed since Roe v. Wade was originally decided that makes it no longer good law for the present day, though I can’t imagine what that thing would be.
It is clear that abortion is a procedure so important to people who want or need it that many are willing to endure stigma, protestor gauntlets, death threats, and substantial government interference to obtain or provide this type of healthcare. Of course, no one should have to endure any of that to obtain an abortion. We also know that abortion is a safe and common medical procedure, and regardless of what the Supreme Court decides, abortions will not stop. Clinics, abortion funders, and advocates will keep working tirelessly to get care to those that seek it.
BMF: If the Supreme Court were to overturn Roe partially or fully, what implications would the decision have on other constitutional rights under the equal protection clause, such as marriage equality or family protection?
GJ: Some judges who believe Roe was wrongly decided also believe Obergefell v. Hodges (marriage equality), Lawrence v. Texas (declaring criminal sodomy law unconstitutional), and Griswold v. Connecticut (access to contraception) were all wrongly decided as well. They claim that none of these rights are explicitly in the Constitution and therefore are not protected by it. We know that many advocates pushing to overturn Roe are also pushing to overturn Obergefell. If the Court were to overturn Roe there are concerns that these other rights would be in jeopardy as well.
BMF: Are there other decisions – either at the state or federal level – that would be jeopardized should the Court overturn Roe (and, by implication, Casey v. Planned Parenthood which reaffirmed Roe in the Pennsylvania Supreme Court)?
GJ: I don’t think any of our civil rights are safe if the Supreme Court is willing to eschew stare decisis and overturn long-standing precedent to advance the political will of the current majority of the Court.
BMF: Based on your work in the Anderson case, what is next in terms of how legal advocates can get creative to protect the right to an abortion?
GJ: Given the direction the Supreme Court seems to be heading, access to civil rights might be even more of a state-by-state patchwork than it currently is. More often than not, anti-abortion legislation comes from the state-level. It is important to pay closer attention to state and local elections and politics and come up with state-level litigation strategies like the ones we are implementing in the Anderson case and in our Doe v. Minnesota abortion case as well, which is a lawsuit we brought under our state constitution.
BMF: If the Court were to overturn Roe and Casey fully or partially what would be the implications on access to reproductive health services such as contraception?
GJ: Griswold v. Connecticut, which cemented our constitutional right to access contraception, is one of the underpinnings of Roe. Griswold involved a challenge to Connecticut’s law making it a crime to use contraception. The dissent argued that there is no general constitutional right to privacy and there is nothing in the Constitution that would prohibit a state from banning contraception. I’m not exactly sure how a judge who claims Roe was wrongly decided would also claim Griswold was correctly decided. That judge would instead have to argue that there is something different about abortion and contraception that would warrant overturning Roe but upholding Griswold on some principle such as stare decisis.