Author: Skylar Clawson

Georgetown Law Unpacks the Supreme Court’s 2024 Term: Civil Rights, Reproductive Health, and the Fight for Democracy

Posted on by Skylar Clawson

Georgetown Law’s O’Neill Institute for National and Global Health Law hosted an event, sponsored by Ms and Feminist Majority Foundation, on July 1st reviewing the Supreme Court’s 2024 term and discussing the current crisis of health and democracy due to the Dobbs decision. 

In honor of the 70th anniversary of Brown v. Board of Education, the event opened with a conversation on the state of civil rights today. Georgetown Dean William H. Treanor and Janai Nelson, President and Director-Counsel of the NAACP Legal Defense Fund, joined Ms Magazine’s own Michele Bratcher Goodwin for the discussion. The speakers emphasized that we cannot take for granted the previous Supreme Court decisions that created a more equal society, warning that the current court is on track to reverse as many as possible and has already effectively overturned Affirmative Action. They stressed the ongoing importance of fighting for civil rights, especially as the United States approaches a demographic shift where it will no longer have a majority white population. 

The discussion shifted to focus on the health and legal crises post-Dobbs. In June 2022, the Supreme Court ruled on the landmark case, Dobbs v. Jackson Women’s Health Organization, overturning the constitutional right to access abortion that had been in place for nearly half a century due to Roe v. Wade. Since the decision, abortion laws and policies have been left to the states, resulting in many states banning or heavily restricting access. 

Panelists examined the negative health implications of these restrictions on patients and healthcare providers, from immediate concerns for safe reproductive healthcare to the criminalization of patients and providers. They also explored two recent Supreme Court abortion cases: FDA v. Alliance for Hippocratic Medicine and Moyle v. United States. The FDA case involved access to the abortion pills, mifepristone and misoprostol, with the Supreme Court ruling that the plaintiffs had no standing, keeping mifepristone accessible. The Moyle case, challenging the EMTALA law’s requirement for hospitals to provide necessary stabilizing treatment in emergencies, including abortions, was sent back to lower courts for further proceedings. The discussion highlighted the broad, intersectional impacts of the anti-abortion movement, which affects not only women but also racial minorities and transgender individuals.

The event concluded with a sobering discussion on maternal mortality. The panelists shared personal experiences and discussed the alarming rise in maternal mortality rates post-Dobbs. They highlighted how restrictive abortion laws have led to inadequate care for pregnancy-related emergencies, with states like Texas prohibiting abortions even when the baby will not survive. The lack of access to reproductive healthcare is forcing women to travel out of state or avoid travel while pregnant. The panel emphasized that minority mothers are dying at higher rates, framing the issue as a critical civil rights concern. With 83% of maternal mortality deaths being preventable, urgent action is needed to address this crisis.

Supreme Court Agrees To Hear Case On Transgender Affirming Care For Minors

Posted on by Skylar Clawson

On Monday, June 24th, the Supreme Court inserted itself into the fight over transgender rights. The court agreed to hear a Biden administration appeal to a Tennessee law that bans gender-affirming care to transgender minors. The state law, enacted last year, restricts puberty blockers, hormone therapy, and surgery for minors and imposes civil penalties for doctors who violate the law. The federal appeals court in Cincinnati allowed bans in Tennessee and Kentucky to take effect after they had been blocked by lower courts. The Supreme Court only agreed to act on the appeal to the Tennessee law, not the Kentucky law.

Plaintiffs, including transgender teens and their families, say the law violates the Constitution’s 14th Amendment by barring medical treatments for transgender people that are available to others. They argue that the amendment is clearly violated as the law is not applied equally to everyone. They also say it violates the right of parents to make healthcare decisions for their own children. However, the Supreme Court will not weigh in on that issue. Lawyers for the plaintiffs said, “without this Court’s prompt intervention, transgender youth and their families will remain in limbo, uncertain of whether and where they can access needed medical care.”

Gender-affirming care, which this law is attempting to ban, includes a range of medical and mental health services to support a person’s gender identity. It encompasses counseling and treatment with medications that block puberty and hormone therapy to produce physical changes like stopping periods and increasing or decreasing hair growth. It can also include surgery like operations to transform genitals and chests. These surgeries are rarely offered to minors. These services are offered to treat gender dysphoria which is the unease a person may have because their assigned gender and gender identity don’t match. This condition has been linked to depression and suicidal thoughts. These treatments have been available for over a decade and every major U.S. medical group, including the American Academy of Pediatrics and the American Medical Association, has opposed the bans. These medical groups said that gender-affirming treatments can be medically necessary and are supported by evidence.

This lawsuit comes as many red states have enacted a variety of restrictions on health care for transgender people, school sports participation, bathroom usage, and drag shows. Just last week, South Carolina became the 25th state to pass a law restricting gender-affirming medical care for minors. The Biden administration and blue states have expanded protections for transgender people. Now, the Supreme Court will weigh in. 

Most of the state restrictions face lawsuits. In April, the Supreme Court allowed Idaho to mostly enforce a similar law after it had been previously blocked by lower courts. This case probably won’t be the last time the court weighs in on transgender rights. Arguments for this case will take place in the fall with a decision issued by June 2025. We will have to wait until then to see how the Court rules on gender-affirming care for transgender minors.

Thailand to be the first Southeast Asian country to legalize same-sex marriage

Posted on by Skylar Clawson

On Tuesday June 18th, Thailand’s Senate overwhelmingly passed a marriage equality law, paving the way for it to become the first country in Southeast Asia to legalize same-sex marriage. It will now become the third Asian country to allow same-sex marriage. The legislation labels marriage as a partnership between two individuals and changes references to “men,” “women,” “husbands,” and “wives” to gender-neutral terms. It would also give LGBTQ+ couples inheritance and adoption rights equal to those in heterosexual marriages. 

The bill was passed by the lower house in March, before passing in the Senate on Tuesday. It still needs the endorsement of King Maha Vajiralongkorn, which is expected to be granted. Then, it must be published in the royal gazette, before it is officially passed into law. It will take effect 120 days after that. This means the first same-sex marriages could happen later this year.

The government was confident of this bill’s passage, announcing several days in advance that it would host a celebration on Tuesday at the Government House. Rainbow flags, carpets, and a giant balloon in the shape of two hands making a heart sign were set up in front of the main building. Politicians, diplomats, celebrities, and activists from the LGBTQ+ community joined the party. 

Supporters of this new law were very excited to see its passage after decades of activism. Prime Minister Srettha Thavisin posted on X, “Today we celebrate another significant milestone in the journey of our Equal Marriage Bill. We will continue our fight for social rights for all people regardless of their status.” LGBTQ+ advocates called the move a “monumental step forward.” Plaifah Kyoka Shodladd, who identifies as non-binary, thanked everyone who supported the legislation and said “Today, love trumps prejudice.” 

This legislation is a major step towards equality in Asia and hopefully more countries will follow Thailand’s example.

Supreme Court Unanimously Upholds Full Access To Mifepristone

Posted on by Skylar Clawson

On Thursday, June 13th, the Supreme Court unanimously rejected a challenge to the abortion pill mifepristone. The FDA v. Alliance for Hippocratic Medicine case was brought by the Alliance for Hippocratic Medicine against the Food and Drug Administration in an attempt to restrict mifepristone access. Mifepristone was approved by the FDA in 2000 and is used in over half of all U.S. abortions. 

In 2016, the FDA expanded access to allow medical practitioners to prescribe mifepristone and extended the usage period. Then, in 2021, due to the COVID-19 pandemic, the FDA permitted mail distribution from certified sources and in 2023 approved pharmacies also began distributing it. However, following the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which eliminated the constitutional right to abortion, several states sought to restrict the sale of mifepristone. The Alliance for Hippocratic Medicine and other anti-abortion groups challenged the FDA’s approval, claiming inadequate consideration of evidence in 2000. These groups were represented by the conservative Christian legal group, Alliance Defending Freedom.

Last year, Texas U.S. District Judge Matthew Kacsmaryk, a Trump appointee, completely invalidated the FDA’s approval of the pill. However, the Supreme Court put that ruling on hold, so the pill remained widely available while litigation continued. Then, the 5th U.S. Circuit Court of Appeals in New Orleans overruled Kacsmaryk’s decision, but upheld restrictions on pill access, including by mail. Both sides then appealed to the Supreme Court. In December, the Supreme Court took up the Biden administration’s appeal in defense of the later FDA decisions. However, it opted against hearing the challenge to the original approval of mifepristone in 2000. The Supreme Court focused only on the later FDA action, including the decision that made the drug available by mail.

The Supreme Court unanimously rejected this challenge to the FDA’s approach to regulating the abortion pill mifepristone. It asserted that the plaintiffs did not have sufficient standing to even challenge the FDA. Justice Brett Kavanaugh, writing for the court, wrote that while plaintiffs have “sincere legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone,” that does not mean they have a federal case. The plaintiffs failed to show they had suffered any injury, meaning that “the federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions.” He continued, “under Article III of the Constitution, a plaintiff’s desire to make a drug less available for others does not establish standing to sue.” Their ruling will continue to allow mifepristone to be mailed to patients, not require an in person doctor’s visit to be prescribed, allow women to obtain the pill within ten weeks of gestation, and allow health care providers other than physicians to dispense the pill. Overall, their ruling will allow the commonly used drug to remain widely available. 

It is important to note that by throwing out the case on such grounds, the court avoided reaching a decision on the legal merits of whether the FDA acted lawfully in lifting various restrictions. This means the same issues could return to the court in another case in the future. There is another abortion case currently before the court, Idaho v. United States, which focuses on whether to enforce Idaho’s Defense of Life Act, which prohibits abortions unless necessary to save the mother’s life. Even though the court suggested it was removing itself from the debate over abortion, litigation is continuing to rage over abortion access and the justices are continuing to play a pivotal role.

Florida Law Restricting Treatment for Transgender People is Thrown Out by a Federal Judge

Posted on by Skylar Clawson

On June 11th, a federal judge struck down a 2023 Florida law which blocked gender-affirming care for transgender minors and restricted this treatment for adults. For minors, this law stopped puberty blocking treatments and cross-sex hormones. For adults, this law still allowed treatment, but it could only be done by a physician, not an advanced practice registered nurse or other professional. It also required the patient to sign a consent form in person while in the same room with the doctor. Hence, the treatment couldn’t be done online. This is not something normally required with other medical procedures. Violators could be charged criminally and medical providers could lose their licenses. This law clearly has major implications and is forcing transgender Floridians to jump through unnecessary hoops. 

Federal Judge Robert Hinkle, appointed by Democratic President Bill Clinton in 1996, called the statute unconstitutional. He said the state went too far when it barred transgender minors from being prescribed hormonal treatments and puberty blockers with their parents’ permission. He also stopped the state’s requirement that transgender adults only receive treatment from a doctor and banned online treatment for transgender adults. 

In his decision, Judge Hinkle said transgender people are constitutionally entitled to the legitimate treatment they need. He quoted Reverend Martin Luther King Jr. by comparing those who oppose it to those who were also against equality for minorities and women. “Some transgender opponents invoke religion to support their position, just as some once invoked religion to support their racism or misogyny,” Hinkle wrote in his decision. “Transgender opponents are of course free to hold their beliefs. But they are not free to discriminate against transgender individuals just for being transgender. In time, discrimination against transgender individuals will diminish, just as racism and misogyny have diminished.” Hinkle wrote that Florida had long allowed treatment for gender dysphoria, but now the political winds have changed so many people disapprove of all things transgender. 

Florida Governor Ron DeSantis, who has made anti-LGBTQ+ legislation a big part of his agenda, blasted this ruling. His office issued a statement calling it erroneous and vowing to appeal. Their statement said “Through their elected representatives, the people of Florida acted to protect children in this state and the Court was wrong to override their wishes. As we’ve seen here in Florida, the United Kingdom, and across Europe, there is no quality evidence to support the chemical and physical mutilation of children. These procedures do permanent, life-altering damage to children and history will look back on this fad in horror.” When Governor DeSantis signed the bill last year he was quoted saying “We never did this through all of human history until like, what, two weeks ago? Now this is something? They’re having third graders declare pronouns? We’re not doing the pronoun Olympics in Florida.” However, at trial Florida’s attorneys conceded the state cannot stop someone from pursuing a transgender identity and presenting themselves as they wish. Instead, they insisted the state could regulate medical care. Governor DeSantis reiterated this and reaffirmed his plan to appeal this decision in a press conference on Wednesday. 

Those who sued the state of Florida welcomed this decision. Lucien Hamel, a transgender adult, issued a statement saying “I’m so relieved the court saw there is no medical basis for this law. It was passed just to target transgender people like me and try to push us out of Florida.” He continued “This is my home. I’ve lived here my entire life. This is my son’s home, too. I can’t just uproot my family and move across the country. The state has no place interfering in people’s private medical decisions and I’m relieved that I can once again get the healthcare that I need in Florida.” A mother of one of the children plaintiffs, Susan Doe (to protect her privacy), said “This ruling means I won’t have to watch my daughter needlessly suffer because I can’t get her the care she needs. Seeing Susan’s fear about this ban has been one of the hardest experiences we’ve endured as parents. All we’ve wanted is to take that fear away and help her continue to be the happy, confident child she is now.”

This is not just an issue in Florida. At least 25 states have adopted laws restricting or banning gender-affirming medical care for transgender minors and most of those states face lawsuits. The only other ban to be struck down as unconstitutional so far is the ban in Arkansas. However, the state has appealed that decision to the 8th U.S. Circuit Court of Appeals. Currently, advocates are asking the U.S. Supreme Court to block Tennessee’s ban on gender-affirming care for minors and judges’ orders are temporarily in place blocking the enforcement of a ban in Montana and some aspects of the ban in Georgia. Clearly, transgender rights are being intentionally targeted by Republicans and we must act to protect them from this discrimination. 

Kansas Abortion Providers Sue to Block New Intrusive Reporting Law

Posted on by Skylar Clawson

Kansas abortion providers have filed a legal challenge against House Bill 2749, a new law that mandates abortion providers to report patients’ reasons for seeking an abortion to the state.

House Bill 2749 requires each patient to specify the most important factor influencing their decision to have an abortion. The options include: interference with education, employment, or career; inability to provide for the child; having enough or too many children; abusive partner or husband; partner’s insistence on abortion; lack of support from family or others; pregnancy resulting from rape or incest; threats to the patient’s physical or mental health; or the child having a disability. Providers must report how many times each reason was given as the “most important” and how many times patients were asked but did not answer, if they decline. 

Requested by Kansans for Life, the law also demands detailed reporting on the patient’s age, marital status, state of residence, race, highest level of education completed, and more. This is a clear invasion of privacy and it is unclear why it is necessary for the government to collect this information or how it will be used. This type of interrogation of patients is simply an attempt to further shame and stigmatize reproductive healthcare. 

Despite Kansans’ overwhelming rejection of a proposed amendment to the Kansas Constitution in 2022, which would have removed the constitutional right to abortion, and Governor Laura Kelly’s veto of HB 2749, the Kansas Legislature passed the bill into law. It is set to take effect on July 1st.

The lawsuit filed by Kansas abortion providers argues that HB 2749 infringes upon Kansans’ fundamental right to make their own health care decisions and maintain bodily autonomy. The suit also challenges other Kansas abortion restrictions, such as state-mandated abortion counseling, which providers claim is medically inaccurate; a law requiring providers to inform patients about the possibility of reversing medication abortions; and a state-required 24-hour waiting period before accessing care.

The lawsuit contends that HB 2749 aims to harass, intimidate, and shame those seeking abortions, directly disregarding the will of Kansans, jeopardizing provider-patient relationships, and violating patients’ privacy.

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