SCOTUS’ Upcoming Term: What To Expect

Next week, the Supreme Court term will begin. While there are no abortion cases on the docket yet, there are many cases that concern sexual and reproductive health, rights, and justice and the rights of the LGBTQI+ community. Jessica Mason Pieklo, Senior Vice President and Executive Editor at Rewire News Group and co-host of Rewire News Group's podcast Boom! Lawyered, sits down to talk with us about some cases that face SCOTUS this term, as well as potential cases to keep a careful eye on.  

United States v. Skrimetti, which will be before the Court this term, involves challenges to Kentucky and Tennessee’s ban on gender-affirming care for minors, and whether those bans violate the equal protection clause of the Constitution. In addition, some cases that could make their way up the docket include a grouping of conservative attorneys general are attempting to bring back challenges to mifepristone access, Idaho’s resurrection of EMTALA challenges, and Oklahoma’s appeal to challenge the Biden administration on requirements for Title X funding. Lastly, a petition currently sits before the Supreme Court that could potentially end the case that green-lit wrongful death suits related to invitro fertilization in Alabama.

Links from this episode

Jessica Mason Pieklo on X
Rewire.News on X
Rewire.News on Facebook
Boom! Lawyered podcast archives
The New Protections Added to Title IX—and the New Challenges it Faces

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Transcript

Jennie: Welcome to rePROs Fight Back, a podcast on all things related to sexual and reproductive health, rights, and justice. [music intro]

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Jennie: Hi rePROs. How's everybody doing? I'm your host Jennie Wetter, and my pronouns are she/her. So y'all, I am recording this way in advance because I was out all last week and actually today is my first day back in the office after some time off. I went to a leadership training course that was for I don't know, it was, like, four days. And then I added on a fun vacation with a friend at Disney because I was in Orlando. So like I said, I'm recording this in advance, so I can't tell you that it was amazing, although I'm sure it was, but I'm very much looking forward to it. It's the Food and Wine Festival at Epcot. So, looking forward to going and eating all of the amazing food from around the world. So, that sounds really exciting. And it's also that time of year where Magic Kingdom has their big Halloween party. And so when I was home this summer visiting my mom, we spent some time putting together a costume for Mickey's not-so-scary Halloween party. And so, I am dressing up as Ursula, so I'm very much excited and looking forward to that. I'm only a little, worried is not the right word, but I have like this big tulle skirt that we put together that's super fun, but also it's gonna be so hot that I'm just, like, worried I'm going to die from all of the heat with all of the layers of things I need to wear. But I am super excited. It should be a lot of fun and I'm excited to eat all the amazing food and see the Disney characters and their Halloween costumes. Just all the things to look forward to. And then, like I said, today's my first day back in the office, so I'm sure I am buried under a pile of email trying to get through all of the things. And looking forward to the rest of the year. Now that I have that big thing out of the way, it's time to move on to my next big project, which is getting ready to go to the American Public Health Association. And I have to finish my presentation for that 'cause I'm doing a presentation on our 50 state report card. So, gotta get that PowerPoint all put together. So busy, busy, it's always just onto the next thing. But yeah, I can't believe when this comes out, it'll be October next week, which is wild to think about. So, because it's gonna be October next week, it seems like it's time to do a SCOTUS preview episode. And if I'm talking about the Supreme Court, you know I'm going to turn to one of my favorite people and that's Jessica Pieklo at Rewire News Group and co-host of the Boom! Lawyered podcast. So, so excited to dig into all the things to be keeping an eye out for this upcoming term of the Supreme Court. With that, let's turn to my interview with Jess.

Jennie: Hi Jess! Thank you so much for being here today.

Jess: Oh, thank you so much for having me again. It is always a pleasure to join your show.

Jennie: I always love having you on. And just for any newbies, maybe we should do a quick, Hey Jess, would you like to introduce yourself before we get started?

Jess: Oh, sure. I'm Jess Pieklo. I am executive editor and SVP at Rewire News Group and co-host of the Boom Lawyered podcast Boom! Lawyered with Imani Gandy.

Jennie: I am excited to talk to you 'cause I'm always excited to talk to you, but like also, oh my God, are we really talking about the Supreme Court again, already? It just feels like, ugh.

Jess: Here we are again. A new term is upon us in a matter of weeks when we're recording this. Just, like, snap of our fingers, they're back.

Jennie: I know. Ugh, I'm not ready. I'm never ready, but like, I'm feeling extra not ready this year for some reason.

Jess: Well, the good news is, we don't have an abortion case on the docket yet.

Jennie: That's true. That's true.

Jess: We could start with that.

Jennie: Yes. Okay. So that's like, we'll call it good news for the moment. So, I was looking through like what was already there and, like, worth us talking about and-

Jess: Mm-hmm.

Jennie: -the case that I think is looming very large for us that's already on the docket, is the Skrmetti case. Do you maybe wanna talk a little bit about what that case is?

Jess: Sure. United States v. Skrmetti is probably right now the biggest case on the court's docket in the issue spaces that we really care about. And that is a case that involves challenges to Kentucky and Tennessee's ban on gender affirming care for minors. And at the heart of that case is whether those bans violate the equal protection clause of the Constitution. Both of those bans in particular single out transgender youth for being transgender and targeting their healthcare as a rest of it. So, it's a real test of how the court views the humanity of trans folks.

Jennie: Yeah, I'm real worried about this case.

Jess: Yeah. I mean, you know, so advocates from the ACLU are the ones challenging those bans. And Chase Strangio is working, you know, as hard as anybody in this country times 12 on-

Jennie: Oh, for sure.

Jess: -justice for trans folks and trans kids in particular. And I'm, you know, I'm always concerned whenever anything gets before this court, but I do believe in the advocacy efforts behind it in terms of the, you know, the need to do this. Right. Chase talks a lot about how litigation at this current moment is about mitigating harms and creating space for political change, because lawsuits often take time, you know, so whatever the Supreme Court does in this case is not going to be the end of the conversation at any stretch. And depending on the advocacy, there is the possibility that it doesn't go as poorly as maybe we're braced for. I will say that the Biden administration submitted their initial brief and it was a full throated defense of trans kids and their families, which was a really lovely thing to see. Solicitor General Prelogar has been phenomenal before the court. And so, there are a few reasons to not think that this is the end of the world. The Court also did not take in that case a question of- parental rights questions. So, one of the ways that we have talked about on the show that conservatives are starting to reimagine their attacks on healthcare of all kinds is through the lens of parental rights. And the court stayed out of that for now. So, that's another silver lining.

Jennie: That's good. Yeah. Yeah. I have full faith in Solicitor General Prelogar and Chase Strangio. Like, I know they're going to be absolutely amazing.

Jess: Mm-hmm.

Jennie: I feel like just anything concerning rights in front of this court will make me nervous for a while.

Jess: Really, truly. I think that's the right approach. And you know, the reality is Solicitor General Prelogar and Chase will be making their arguments to maybe one or two justices, right? There are a few just, you know, and that's it. They don't have to convince Sam Alito of anything. They can just ignore him. I mean, they can't, but you know what I mean. They should. Everybody should ignore Sam Alito.

Jennie: I mean, we did get the, like, a good trans decision out of them before. So, it's not...even though I'm nervous.

Jess: Yeah.

Jennie: Like, that's just inherent nervousness. I definitely don't feel like it's, like, a for sure, like, gonna be terrible.

Jess: Yeah. And I mean, the reality is, there are a lot of trans rights cases that are percolating in the lower courts as well. And so, we are gonna have to get comfortable being discomfort- or uncomfortable for right now because it is a legal issue that is gonna come up again and again and again as conservatives continue to bully trans kids.

Jennie: Well, I mean, this is gonna be a short podcast. Those are the only, that's the only one I saw on the docket. So, I guess there's nothing else I need to think about?

Jess: Yeah, we can talk about cats. No-

Jennie: Oh no.

Jess: I mean we can, but sadly I'm here to report that there are a few more cases that we should be paying attention to because just 'cause they're not on the docket yet doesn't mean they won't be. Let's start with some familiar faces. So, last term, the court had not one, but two abortion cases, as you well remember, that feels like it was literally just a couple days ago. One involving…

Jennie: But also forever ago?

Jess: Like, lifetimes.

Jennie: Yes.

Jess: It'll be lifetimes by the time this episode actually airs, who knows.

Jennie: [laughs]

Jess: But so last, last term, we had the challenge to mifepristone access and the court basically kicked the can on that a couple ways. That case has been revived by a collection of conservative state attorneys general led by Idaho. And that case is currently before the Ninth Circuit Court of Appeals since Idaho's leading it. And they are looking to basically piggyback on the arguments that the physicians who didn't have standing made that first time around. So, since the court didn't decide the mifepristone case on the merits last time, these conservative attorney generals want them to the second time. Idaho is up to some nonsense also—again at the Ninth Circuit—in the EMTALA case. So, the real bad case from last term, I think the one that we were, that folks were really the most nervous about because of the damage it could doing a couple different ways, was this case challenging where the court looked at the conflict between EMTALA's requirements that hospitals that received Medicare funding emergency rooms provide stabilizing care, including abortion, if that is required for a patient and states like Idaho that have total abortion bans that would not allow that or that have meaningless exceptions so narrow that it functions as a total ban. The court also kicked the can on that case. And Idaho has said it would like the Ninth Circuit to rule and finish the job. So, those are both cases that could conceivably find their way before the court again, before this term is over. The court also had a little kerfuffle on the shadow docket recently involving Oklahoma and its fight with the Biden administration and HHS over Title X funding. So, Title X has requirements that it places on states that get its money that they do certain things and or not do certain things when it comes to reproductive healthcare. And Oklahoma has a list of things that it is doing in terms of not wanting to refer folks, not wanting to mention abortion, just really, like, the Redux around that. And the Biden administration was like, you can't do that, so we're not gonna give you money. And Oklahoma said, whoa, hold up and appealed right to the Supreme Court and the Supreme Court stayed out of it for now. That's not...that's still a live fight. And so, those conflicts between the Biden administration on Title X and states that want to do their own thing with family planning monies that go against those sort of scientific evidence-based requirements—that could come up. And that looks a lot like the EMTALA fight, right? What we're seeing is a lot of bubbling up between federal- or conflicts around federal protections or requirements around reproductive healthcare and gender affirming care—'cause we can talk about that in section 1557 in a second—and states that wanna ban it or restrict it or regulate it.

Jennie: It's always like wild to me, the states, but also grantees in, like, not just Title X, but in other areas that are like, "we want your money, but we're not actually gonna do some of this service stuff you want us to do, but, like, we're owed your money."

Jess: Yeah. Yeah. I mean, you know, and it's kind of rich when conservatives talk about an entitlement mentality when literally that is what that is.

Jennie: Yeah.

Jess: I have a sleeper case for you.

Jennie: Oh, no. Okay.

Jess: Do you remember the fight in Alabama over IVF and that Supreme Court decision declaring fetuses as people, and that means no more IVF storage?

Jennie: I do remember that, and I was really kinda hoping it was, like, gone. I didn't have to worry about it anymore.

Jess: There is currently a petition before the United States Supreme Court that they'll conference on to start on September 30th. That would hopefully end that case. But, you know, the fight has continued. And so, I think this is like a really interesting one just to dive into for a second. So, I'm sure folks remember that—I think it was what, February, March sometime around there—the Alabama Supreme Court issued its ruling that basically greenlit wrongful death suits against IVF clinics under the state's amendment that says life begins at conception. The legislature did a fix. There's problems with the fixes. Everybody kind of forgot about it and figured it was more or less like an electoral question now, right? Like, a campaign issue. But one of the plaintiffs have kept their lawsuit going; Felicia Burdick-Aysenne and Scott Aysenne are still trying to convince a jury that a mobile fertility clinic negligently caused the destruction of one of their fertilized eggs. So, they're still suing and they claim that the legislative fix that Alabama did after that Supreme Court, Alabama Supreme Court ruling actually violates the state constitution. Same arguments. And so, the clinic is like, whoa, whoa, whoa, whoa, whoa. And normally the Supreme Court doesn't step in and issue or take up cases from state Supreme Courts because they're kind of the final word on state law, right? This is one of those cases where they might, because of all of the chaos that has ensued in Alabama and elsewhere as a result of folks understanding what fetal personhood really means when it's put in place and enforced. And so, this one makes me nervous for a lot of reasons. I think, you know, we definitely need an end to the fetal personhood conversation. I dunno that I want the Supreme Court to have the last word on it though, Jennie.

Jennie: Yeah. What has always been like, all these words feel wrong of, like, "surprising" and whatever, but like, consequences...actions meet consequences, right? Like, I feel like the fetal personhood conversation was like, this is a great idea, we need to do it. And like, duh duh duh duh. And all the people in the repro space were like, okay, but we're like, what about duh duh duh duh? Like, all these things, and then, and then it, like, gets enacted in Alabama and they're like, wait, what? Oh, IVF what? We didn't think about that. And like, yeah, but we've been talking about it for...it feels like a decade.

Jess: Yeah. And some folks even longer, you know? So it's really, I mean that case for obvious reasons has me concerned. Although, you know, it could be an opening for the court to, I mean, do we think Amy Coney Barrett really wants to be the person who helped end IVF considering how many Republican women rely on fertility services? I don't think she does. So, and I don't know that John Roberts wants that either. So, they may not be able to stop the nonsense around...or I mean, they can, but they won't. Like, they may not be able to stop whatever legal opinion nonsense comes out of Sam Alito, Clarence Thomas, doubtful maybe Neil Gorsuch on this, I don't know. I don't know. And so, we'll see, the court may take that case up, they may ignore it, they may conference. If they conference on it multiple times, then I think we know that they're eventually gonna take it and that, so I'm gonna be watching that one closely. And then, the Biden administration, as much as we have been difficult and critical of them for not doing nearly enough, they have done some things, they've done some rulemaking around Section 1557 in the Affordable Care Act, and they've done some rulemaking around Title IX with regard to sex discrimination so that Title IX is aligned with that good ruling that we were talking about earlier. Naturally, conservatives have challenged both of those sets of rulemaking, and that's in the litigation pipeline as well. And given the topics and given the fights between states and federal law there, I wouldn't be surprised if at some point the Supreme Court steps in to those issues as well, particularly the Title IX rulemaking one. And that is, you know, that's a whole…

Jennie: That has been like chaos watching that unfold over, honestly, August. But it wasn't really the whole summer. It was, like-

Jess: Yeah.

Jennie: -every other day there was a new thing in August. And if people want the deep dive into that, we do have an episode where I talked to Schiwali Patel at the National Women's Law Center-

Jess: Oh, perfect.

Jennie: -about Title IX and what was going on. So, definitely check that out for the deep dive version.

Jess: Yeah. And so, I think what feels like a quiet or low-key start to the Supreme Court term is really gonna be an extension of the close of the last term where they didn't decide any of the hard cases...well, we have the agency case, like...there were bad ones. I don't wanna suggest that there, but for abortion purposes, they didn't do anything in the cases before them because of politics, because of the election. And the beginning of the term is October and the election is November. I don't anticipate for things to start getting spicy at the court until December or January. And the other thing to consider is that a change of administrations, whether it's to a Harris administration or not at all, in the other direction, almost guarantees at least one Supreme Court retirement and the circus that is around a nominee and replacement.

Jennie: Oh, yeah. That's always so much to go through. The other thing I was thinking of like that you touched on briefly was the other bad decision that was from last term, the agency one. And like I'm sure we're gonna start seeing again, consequences for your actions of how that's gonna unfold.

Jess: Yeah. And we already are actually, I mean, you know, for me to say it's a quiet start to the Supreme Court term makes it sound like they're not doing anything.

Jennie: Yeah, yeah.

Jess: But there are several, there's some EPA cases given, so there's a lot of climate justice cases and some death penalty cases. So, obviously, still big issues. But last term in Loper Bright, the court basically upended the entire relationship between how federal agencies and federal courts operate. And in particular, who has the final say over agency regulations. And guess what folks, it's not the agency anymore, it's federal judges like Reed O'Connor and Matt Kacsmaryk. And so, chaos has ensued, as you might imagine, this is a huge opening for the conservative legal movement to challenge regulations that they don't like and challenge the evidence on it. And again, we talk about abortion and repro being sort of the tip of the sphere of the conservative attacks. What are they using in those challenges to environmental protections like the Clean Air Act and the Clean Water Act and nothing but a bunch of junk science, right? Like, studies sponsored by Chevron kind of thing.

Jennie: Ugh. The thing that has followed me through all the versions of my career...junk science.

Jess: Unfortunately, what Loper Bright does, among other things, is really greenlight that industry. So, there is a financial incentive for people to publish nonsense on the right. I mean, there was always a little bit, but now it's like that's a cottage industry. Yeah.

Jennie: And it has been amazing how much of that has gotten into all the things: Supreme Court opinions, lower court opinions, like...the mife case had so much junk science in it.

Jess: I mean, the current Republican nominee for president is nothing but a conspiracy theorist huffing man. He has an entire ideolog bench that he has instilled. You're telling me they're not all reading the same nonsense from the same Reddit thread? Of course they are.

Jennie: Man, so many things and thinking through this term, and then possible retirements, like, there's just so much to keep an eye on for the next, I mean, year.

Jess: Yeah. Plus. You know, so I think we'll see really after the presidential election and whatever shakes out there, I think we'll see the role that the court wants itself to play, and whether that's a spoiler for progressives and their policies or/and an enabler to the conservative legal movement. And frankly, a lot of the Project 2025 goals. I mean, that's Leonard Leo all over the place.

Jennie: Yeah. [sighs] October's so soon. Okay. Is there anything else you're keeping an eye on even like, that's not gonna get to the Supreme Court? Because I feel like there have been a couple other things that have been like, oh, gotta keep an eye on this.

Jess: So, do you remember Deanda, the Deanda case? Yes. So, the Deanda case out of Texas involved a challenge to Title X requirements for access to contraception for minors without parental notification and consent. And the Fifth Circuit Court of Appeals said that Texas's parental consent law, which requires parents be told if their kids are getting anything actually trumps Title X and the Biden administration did not appeal that decision. And I understand the strategic reasons why they did not. That decision stays on the books and because the Fifth Circuit covers Louisiana, Mississippi arguably extends there. Well, would it surprise you that Louisiana has legislation working its way through to amend its parental consent laws so that it mirrors Texas' for purposes of evading Title X's requirements?

Jennie: No, I would not be surprised at all.

Jess: This is gonna be a, this is gonna be the new thing. I mean, we've seen-

Jennie: I've seen this play before.

Jess: The conservative legal movement. We've seen them take little nibbles with parental rights, but now we're really going to see it. Right? Tennessee has been- it was the only state to successfully enact a travel ban in this recent, or for abortion care in this recent legislative session. I think, like, four other states tried it, Idaho already had its, so there's, you know, and the guise of that is a re-imagining of the parental rights movement as dictated by Moms of Liberty type groups. So, that's really something that I'm keeping an eye on. And the degree to which the Trump judges are successful in really having their thumbs on the scale on these issues. Court reform has to be a major policy issue for Democrats and progressives from here until it's done. Because as you've heard me say anytime I'm on the show, none of the priorities we care about—forget abortion for a second—literally none of the priorities that we care about as human beings stand a chance with this Supreme Court, let alone the law that's getting shaped by the jamokes in the appeals courts and district courts below.

Jennie: Yeah. And I think, you know, people may hear some of this parental consent stuff and not quite see how big it is, but this is how, early in the, like, after Roe, how they started chipping away at abortion was.

Jess: Yes.

Jennie: Putting in place parental consent. You're seeing this with the gender affirming care stuff with minors. So, this is just like starting to chip open that door so that they can take it all away.

Jess: Yeah. And we've seen that, right? Parental consent around abortion care is in the same breath as spousal consent and bans on gender affirming care for minors have no problem being extended by courts and legislators to adults as well. That's the whole point for conservatives of introducing them against minors in the first place.

Jennie: Okay. So that's a lot of court stuff to think about. Let's think about, like, what are some things people can do right now to get involved? 'Cause there are so many different cases happening, but there's gotta be a way that people can get involved.

Jess: Absolutely. Well, you know, courts and lawmakers aren't gonna save us. Community is where the real work is. So, always and truly invest in your community, whether that's your time, your resources, your emotional labor, whatever that is—start there. So, local abortion funds, city councils, state elections, school boards, these are places to put your organizing and activist energy and then work your way up. The national orgs right now are well funded, they're well taken care of. They are, they got it. It's the local folks particularly doing direct aid that need the most help. And selfishly, it feels great to give to those organizations when you can see directly where that is going as opposed to being another faceless contributor to a national org at for 25 bucks. Like, so really start there and then if folks want to, you know, I always say the advocacy at your dining room table at your grocery stops, the places where you talk to people who aren't in your online communities or in your very advocacy focused spaces are where we can really start to move the needle right now. And people are receptive.

Jennie: Yeah. And for some of the things like I think particularly around gender affirming care and some of these areas is, like, people are just not as familiar and they may just have questions and things get presented as reasonable to them. And, and so it, sometimes it's not even a heavy lift to just clarify like, yeah, why this is problematic and it can make a huge difference.

Jess: It really can. And so I think, you know, starting from a place of grace with folks is good because, you know, you'll know right away if they're worth your time.

Jennie: Yeah. Yep. For sure. Well, Jess, as always, it is so lovely to talk to you. Thank you for being here.

Jess: My pleasure. Always, always. I look back, I look forward to coming back and seeing if any of my predictions on these cases pipelining their way up, prove to be true.

Jennie: Okay, y'all, I hope you enjoyed my conversation with Jess. Like I said, she's one of my favorite people to have on. It's always so great to talk about all the legal things with her. And if you aren't already listening, I cannot recommend Boom! Lawyered enough. I am not a lawyer, so whenever there is anything touching anything legal in the reproductive health space, reproductive rights space, reproductive justice space, like I always listen to Jess and Imani's podcast, Boom! Lawyered. Like, I listen to it as soon as it comes out. And it is how I figure out my way through all of these things. So if you are not listening, you absolutely should be. It's really amazing. And you should definitely be reading Jess's reporting as well at Rewire News Group. Okay. With that, I think I will just say, I will see you all next week. Bye.

Jennie: [music outro] If you have any questions, comments, or topics you would like us to cover, always feel free to shoot me an email. You can reach me at jennie@reprosfightback.com or you can find us on social media. We're at @RePROsFightBack on Facebook and Twitter or @reprosfb on Instagram. If you love our podcast and wanna make sure more people find it, take the time to rate and review us on your favorite podcast platform. Or if you wanna make sure to support the podcast, you can also donate on our website at reprosfightback.com. Thanks all!