The 2021–2022 US Supreme Court Term was a blockbuster medical Term. The bookends of the Term were COVID-19 vaccinations and abortion rights. Between the bookends were Medicare reimbursement, criminal liability for prescribing controlled substances, gun control, and carbon dioxide emissions. In this article, we focus on the significant medical issues, briefly note other important decisions, and consider the implications of this Term.
Dobbs v Jackson Women’s Health Organization1 was the most controversial decision and, for ObGyns, perhaps the most important decision in decades. The basic holding of the case can be stated simply: Roe v Wade2 and Planned Parenthood of Southeastern Pennsylvania v Casey3 (which essentially created a constitutional right to abortion) are overruled. The law related to abortion is for the states and Congress to determine, not federal courts. (For a review of earlier reproductive freedom cases in the Court, see our previous article, “The Supreme Court and reproductive rights.”4)
Dobbs arose from a Mississippi statute that made it illegal to perform abortions after 15 weeks of gestation, well before viability. Six members of the Court held that the Mississippi law was constitutional and 3 would have struck down the state law. There were 5 opinions, covering a total of 213 pages in the U.S. Reports. The Court fell into 4 camps, ranging from the most to the least protective of abortion rights, as follows:
- Three justices (Breyer, Kagan, and Sotomayor) voted to strike down the Mississippi statute and uphold Roe and Casey and wrote a joint dissent. They believe the Constitution makes abortion an issue “off limits to majority rule.” They also warned that other areas of “substantive due process” (discussed below), including contraception and same-sex marriage, might be under threat.
- The Chief Justice voted to uphold the statute but wanted an incremental approach; that is, not to overturn Roe and Casey entirely in this case because the Dobbs case required the Court only to determine the more limited question of whether the 15-week limit on abortion was constitutional. He found that the viability standard did not make sense, but he suggested that the Court “leave for another day” whether to overturn Roe.
- Five justices joined the opinion to uphold the statute and overturn Roe. Justice Alito wrote the decision joined by Justices Thomas, Kavanaugh, Gorsuch, and Barrett. They found that a right to abortion was not “deeply rooted in our Nation’s history,” as evidenced by the fact that when the 14th Amendment was adopted, abortion was a criminal offense in most states and not a protected right in any state. In 2 lengthy appendices, the Court reviewed the criminalization of abortion in the states in 1868 and in the territories that later became states. Even when Roe was decided in 1973, abortion was not “deeply rooted” because it was not generally legal in the states. Justice Kavanaugh joined this opinion and wrote separately to emphasize that the majority opinion does not outlaw abortion, but rather leaves the issue to “the people and their representatives.” He also emphasized that the case did not overturn all of the substantive due process cases.
- Justice Thomas would have gone further and abandoned “substantive due process” completely.
The constitutional issue
The majority said that the issue before the Court was not whether the law should permit or prohibit abortions—that is a question for the political branches. Rather, the question was only whether the Constitution precludes the political branches from allowing abortions. There is no mention of abortion in the Constitution and no specific reference to a right to privacy that includes medical decisions. A central constitutional question has been to identify where exactly in the Constitution the right to privacy resides. The Court has generally used “substantive due process” to locate privacy rights. The 14th Amendment provides, in part, that no state may “deprive any person of life, liberty, or property, without due process of law.” “Process” generally refers to procedural protections, but the Court sometimes has used it to encompass substantive rights (for example, privacy)—hence, “substantive due process.”
Over the decades, the legitimacy of substantive due process has remained controversial. Justice Thomas called it an “oxymoron” to turn “process” into substantive rights. And its use has a somewhat checkered history. For nearly 50 years (1890–1937), it was used to preclude states from protecting employees (for example, hour and wage laws violated “the right to contract”) and was discredited. More recently the Court has used substantive due process to protect contraception access, abortion, and same-sex marriages.
A critical question is knowing what rights substantive due process protects. The Court sometimes has said that it protects rights “deeply rooted in the Nation’s history and traditions” and “implicit in the concept of ordered liberty,”5 although in other cases suggested a more ambiguous definition.6 The next constitutional question is how to state or define the right to be protected. For example, is it the right to intimately personal decisions, bodily integrity, reproductive choice, abortion, or late-term abortion? Some of those may be deeply rooted in history and traditions (intimate decisions), and others not so much (late-term abortion). Finally, a question is whether a substantive right is defined at the time the 14th Amendment was adopted (1868) or now—is it a “living Constitution” that, without much guidance, means whatever 5 justices believe at the moment, or is it a Constitution grounded in the distant past?
The future of substantive due process is uncertain following Dobbs. Although the majority said it was not disclaiming substantive due process, the dissent said it doubted that claim because other rights are “part of the same constitutional fabric” (substantive due process). The Court might, in future cases, find some other constitutional provision in which to ground rights. The source of those rights might be the 9th Amendment (in addition to the Constitution’s enumerated rights, there are “others retained by the people”) or another provision of the 14th (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…”). Each of these possibilities has its problems, many of which are similar to substantive due process, but they avoid the “oxymoron” issue.
Among the other important cases this Term, the Court made these determinations:
- Held that the 2nd Amendment, as applied to the states through the 14th Amendment, includes a general right to carry a gun for self-defense outside the home.1 It struck down a New York law that required people to show a special need to have and carry a gun.
- Determined that the US Environmental Protection Agency exceeded the authority Congress had granted it with a “Clean Power Plan” that was intended to reduce carbon dioxide emissions.2 It is up to Congress, not the agency, to expand agency authority.
- Gave trial courts discretion in determining whether (and under what conditions) children in international custody disputes must be returned to their home countries where there is a serious risk of harm to them.3
- Held that there is an implied right of action to sue medical providers for disability discrimination, but under the Rehabilitation Act and the Affordable Care Act the damages do not include emotional harm.4
- Decided several “free exercise of religion” cases, and in each found the state had violated religious rights, holding that: A state improperly prevented religious schools from being eligible for a state tuition grant system,5 a coach was wrongfully fired for kneeling in prayer following football games,6 Boston denied free speech in allowing other organizations to fly their flags but denying a Christian flag to be displayed,7 and a state must permit prisoners to have a spiritual advisor to be present and pray and touch them during their execution.8
- Held that the administration’s rescission of the “stay in Mexico” immigration policy was permitted by existing statutes.9
1. New York State Rifle & Pistol Association, Inc. v Bruen, 20-843, decided June 23, 2022. https://www.supremecourt.gov/opinions/21pdf/20-843_7j80.pdf
2. West Virginia v Environmental Protection Agency, 20-1530, decided June 30, 2022. https://www.supremecourt.gov/opinions/21pdf/20-1530_new_l537.pdf
3. Golan v Saada, 20-1034, decided June 15, 2022. https://www.supremecourt.gov/opinions/21pdf/20-1034_b8dg.pdf
4. Cummings v Premier Rehab Keller, 20-219, decided April 28, 2022. https://www.supremecourt.gov/opinions/21pdf/20-219_1b82.pdf
5. Carson v Makin, 20-1088, decided June 21, 2022. https://www.supremecourt.gov/opinions/21pdf/20-1088_dbfi.pdf
6. Kennedy v Bremerton School District., 21-418, decided June 27, 2022. https://www.supremecourt.gov/opinions/21pdf/21-418_new_onkq.pdf
7. Shurtleff v Boston, 20-1800, decided May 2, 2022. https://www.supremecourt.gov/opinions/21pdf/20-1800_7lho.pdf
8. Ramirez v Collier, 21-5592, decided March 24, 2022. https://www.supremecourt.gov/opinions/21pdf/21-5592_feah.pdf
9. Biden v Texas, 21-9 54, decided June 30, 2022. https://www.supremecourt.gov/opinions/21pdf/21-954_7l48.pdf
Continue to: ObGyn briefs in the case...