The Supreme Court is no ally to reproductive rights

Many people were surprised last month after the conservative-leaning Supreme Court issued several decisions that will have a favorable impact on reproductive health rights and justice. But reproductive rights remain at risk.

On June 29, Bush-appointed Chief Justice John Roberts sided with his more liberal colleagues in the court’s 5-4 decision in June Medical Services v. Russo, ruling that a Louisiana law requiring physicians to have admitting privileges at hospitals — a law which forces abortion clinics to shut down — is impermissible. This marked an important victory for people in Louisiana, and for abortion rights around the country. 

And, in a 6-3 decision, Justice Neil Gorsuch delivered an opinion ruling that Title VII prohibits discrimination against gay, lesbian, bisexual and transgender employees. Bostock v. Clayton County, a consolidation of three cases, found definitively that discrimination against someone for their sexual orientation or gender identity is clearly sex discrimination and thus prohibited by federal law. Decisions such as these, on whether a person can be discriminated against for being who they are, are central to bodily autonomy and freedom — reproductive rights concerns.

In both cases, the court’s decisions to uphold decades of precedent signaled that — for now, at least — the conservative majority installed by Senate Majority Leader Mitch McConnell (R-Ky.) and President Trump is not fully willing to embrace the far-right upheaval in American law the administration hopes the court will permit. 

Despite this, some justices proved they will be steadfast in their refusal to respect women’s rights, regardless of the case before them. Brett Kavanaugh, Donald Trump’s most recent nominee with a significant political history, voted against women and reproductive rights dogmatically throughout the term despite the long lines of precedent noted above. And unfortunately, Kavanaugh is set to play a significant role in American jurisprudence for decades to come. 

For this and many other reasons, advocates and lawmakers should not be fooled by recent good news — we cannot leave it to the judiciary to protect reproductive health rights and justice. In addition to ensuring future judges and justices will not use their gavel to advance their personal politics, we need proactive legislative policies to advance health care access and equality for all.

Specifically, Chief Justice Roberts’s concurrence in June Medical made it clear that despite his favorable ruling, Roberts is no ally to reproductive health, rights, or justice. The chief justice stated in his concurrence that he was striking down the Louisiana law solely because of the precedent the court set just four years ago in Whole Woman’s Health v. Hellerstedt (a precedent he continues to disagree with), where it struck down an identical Texas law. In other words, he was not striking down the Louisiana law out of respect for a person’s right to an abortion. This raises questions about the next inevitable state abortion restriction that comes before the court. 

Even more, less than two weeks later the Supreme Court proved that it would not be the savior for reproductive health, rights and justice when it issued a decision that could undermine birth control access for thousands of women. In Trump v. Pennsylvania, the state challenged regulations promulgated by the Trump administration that seek to grant employers and universities broad flexibility not to cover birth control, as required under the Affordable Care Act (ACA). The court sided with the Trump administration, allowing virtually any employer or university to deny women birth control coverage based on the entity’s — not the woman’s — moral or religious beliefs, thereby threatening the health and financial security of women.  

The court’s 7-2 ruling made it clear that their decision was not the final answer on this issue — pushing the case back to the lower federal courts. But, we cannot rely upon the lower courts either — where many of Trump’s most extreme judicial appointments await. 

It is clear that far-right extremists will continue to try to use the courts to threaten reproductive rights and justice, and subsequently the health and financial security of women, LGBTQ people and people of color. And while the June Medical and the Title VII decision delivered welcome news in this regard, this court still poses a significant threat not only to civil rights, but to the very legitimacy of the court as a whole.

Lawmakers, too, have a responsibility to protect civil rights and go beyond the status quo to ensure meaningful access to reproductive health services; Congress must only support fair-minded judges who are committed to the rule of law and enact proactive policies that guarantee access to birth control and abortion — and more importantly, bodily autonomy and reproductive freedom.

Jamille Fields Allsbrook is the director of women’s health and rights with the Women’s Initiative at the Center for American Progress. Maggie Jo Buchanan is the director of Legal Progress at the Center for American Progress.