Last week, noted Supreme Court analyst Jeffrey Toobin wrote a piece for The New Yorker predicting that the court will hear an abortion case next term. As Toobin notes, there has been a dramatic increase in the number of anti-abortion provisions passed by state legislatures since 2011.
What reproductive justice issues will the court likely take up? Here are four possibilities.
1. Challenges to the Contraceptive Rule of the Affordable Care Act
The court is likely to hear one of the more than 50 challenges to the Affordable Care Act’s contraceptive rule next term.
Three circuit courts (the Third, Seventh, and Tenth) heard oral arguments in May in cases involving for-profit corporations who refuse to provide health insurance for contraceptives to their employees because of the business owners’ religious beliefs. Though this may not seem like a direct challenge to abortion rights, many of the corporations (including the most notable, Hobby Lobby Stores) are only challenging the component of the rule that requires them to cover emergency contraceptives like Plan B and Ella, which the owners believe are abortifacients.
The right to refuse care because of deeply held religious beliefs is a growing issue in the field of reproductive health care. For one, religious refusals further stigmatize family planning and abortion care. Religious refusals also adversely affect low-income and rural women, who may be unable to access a different provider after they are refused care.
Attorneys for these corporations claim that in light of the court’s ruling in Citizens United, for-profit corporations are entitled to First Amendment free religious exercise rights as well as free speech rights. They also hold that the corporations’ religious freedoms should outweigh the government’s interest in ensuring women have equal access to comprehensive preventative health care.
2. Mandatory Ultrasound Laws
The state of Oklahoma has asked the Supreme Court to review the state’s high court ruling that the a mandatory ultrasound law is an unconstitutional, undue burden on access to abortion care under the precedent set by the court in Planned Parenthood v. Casey.
Anti-abortion proponents in states across the country have lobbied to make ultrasounds a mandatory component of abortion care, though it is not considered medically necessary for first-trimester abortions. Six states currently require doctors to perform an ultrasound before providing a woman with an abortion, but many of these laws have been challenged in the courts.
Not only are these laws a veiled attempt to dissuade women from receiving abortion care, they also increase the costs of abortion procedures for women. Most also do not include an exception for women who are the victims of rape and incest or for women who know their fetus has a fatal deformity, in which cases the ultrasound can be an extremely emotionally traumatic experience.
3. Abortion Bans
Anti-abortion legislators are not only passing laws that make it more expensive for women to procure abortion procedures, they are also passing all-out bans on abortion.
Eight states have passed bans on abortion after 20 weeks, citing the faulty science of fetal pain. The challenge to Arizona’s ban on abortions after 20 weeks was recently struck down by the Ninth Circuit Court of Appeals, and it seems likely that the state will seek an appeal to the U.S. Supreme Court. Challenges are also pending in Idaho and Georgia.
With states like North Dakota and Arkansas banning abortion at even earlier points in pregnancy (six weeks and 12 weeks, respectively), it seems likely the court will have to revisit the debate over at what point the state’s interest in preserving a pregnancy begins to trump a woman’s desire to end one.
4. Planned Parenthood Defunding
Last week the Supreme Court refused to hear an appeal of the Seventh Circuit ruling that struck down Indiana’s law banning Medicaid funding for Planned Parenthood. Lawmakers across the country are seeking to defund all Planned Parenthood facilities, relying on the theory that any funds that go to Planned Parenthood “indirectly subsidize” the provision of abortion care. While the court refused to hear Indiana’s appeal, they may end up hearing a challenge to similar laws in Arizona or Texas.
These four issues are likely contenders to reach the Supreme Court next year. However, there are many more issues the court could eventually hear as a result of the wave of anti-abortion laws recently passed. Bans on medication abortion have been challenged in Oklahoma and North Dakota. Targeted regulations of abortion providers are being challenged in North Dakota and Mississippi. These challenges are not yet at the stage where Supreme Court review seems imminent, but their day in court may be coming soon.