Connect with us

National

Legal advocates turn attention to Supreme Court abortion cases

No major LGBTQ rights cases before court this term

Published

on

With the new term for the U.S. Supreme Court underway, justices for the first time in years won’t have to consider a major case specifically impacting LGBTQ rights, which legal advocates say will lead to them to focus their attention on high-profile cases that challenge a woman’s right to access abortion.

At the top of the watch list for court, which now has 6-3 conservative majority as a result of appointments under former President Trump, is Dobbs v. Jackson Women’s Health Organization, which will determine the constitutionality of the Mississippi law banning abortion after 15 weeks and is widely considered a direct challenge to long-standing precedent established by Roe v. Wade guaranteeing a right to abortion. The Texas law banning any abortion after six weeks, which the Supreme Court allowed to take effect as litigation against it proceeds, is still pending in lower courts, but will likely reach the high court soon.

For many LGBTQ legal advocates, the abortion cases are important because they say the outcome could directly impact legal precedent underpinning major Supreme Court decisions in favor, including the 2003 decision of Lawrence v. Texas, which struck down state bans on sodomy, and the 2015 decision of Obergefell v. Hodges in favor of same-sex marriage nationwide.

Camilla Taylor, director of constitutional litigation for Lambda Legal, said the outcome abortion cases is crucial not only because LGBTQ people need access to abortion.

“Just as importantly, there are a lot of ways in which the landmark precedents that we obtained that vindicate the rights of LGBT people rely upon a foundation of substantive due process precedent that includes Roe v. Wade, and other cases dealing with reproductive health,” Taylor said. “So, if Roe versus Wade crumbles, then the foundation on which our own cases also crumbles.”

As such, a coalition of LGBTQ legal groups—including the National Center for Lesbian Rights, the National Center for Transgender Equality and Equality California—was among those who filed a friend-of-the-court brief in September arguing the Mississippi law is unconstitutional.

Key among the arguments is the denial of abortion access is a form of sex discrimination, just as the Supreme Court determined last year in Bostock v. Clayton County that anti-LGBTQ discrimination is a form of sex discrimination, this illegal under the Civil Rights Act of 1964.

“By the same logic, laws that restrict abortion also facially discriminate based on sex,” the brief says, “Like being LGBTQ, pregnancy is a sex-based characteristic; it is ‘inextricably bound up with’ an individual’s sex. Accordingly, laws that force a pregnant woman to bear a child necessarily discriminate based on sex, as would a law that barred a reproductive medical procedure available only to men.”

It’s true that both Roe v. Wade and the Supreme Court’s decision for LGBTQ were based on principals of due process and equal protection under the 5th and 14th Amendments of the U.S. Constitution. But not all legal experts agree LGBTQ rights are on the line depending on the outcome of abortion litigation.

Dale Carpenter, a conservative law professor at the SMU (Southern Methodist University) Dedman School of Law who’s written in favor of LGBTQ rights, said the Supreme Court is “probably going to write a narrower opinion, if it even overrules Roe,” but won’t issue a radical decision “that reaches out and destroys all unenumerated rights.”

“Obergefell relies on the fundamental right to marry,” Carpenter said. “There’s no chance the Supreme Court is going to say there is no right to a fundamental right to marry. The doctrine upon which Obergefell rests is on much more solid footing than abortion rights. The basic doctrine underlying Obergefell has never seriously been challenged; abortion rights have been for 50 years.”

Other key differences between the right to abortion and same-sex marriage, Carpenter said, are an arguable state interest in protecting fetal life and reliance interests in the case of marriage rights given thousands of same-sex couples have wed in the wake of the Obergefell decision.

But what about Lawrence v. Texas, which were both that LGBTQ rights decision and Roe v. Wade decided at least in part on finding an unenumerated right to privacy in the constitution? Carpenter said a Supreme Court decision undoing a right to privacy would mean undoing nearly 60-year precedent that began with the 1965 decision in Griswold v. Connecticut, which overturned a state ban on contraceptives.

“There’s not even a single brief in the case, that I know of, on the anti-abortion side that’s supporting that,” Carpenter said.

Carpenter concluded with a wry jab: “By the way, the LGBT rights advocates who are now saying that these LGBT rights decisions are in danger will be the same people say after Roe is a overruled that those decisions are not affected.”

Indeed, the Supreme Court under its current 6-3 conservative makeup had an opportunity to take up an Indiana birth certificate case, Box v. Henderson, that was a direct challenge to the Obergefell marriage decision, but declined to take up the case. No state is any where close to recriminalizing sexual relations for same-sex couples, which in 2021 would widely be seen as a human rights violation.

But legal advocates for the LGBTQ community aren’t limiting the relationship between abortion and LGBTQ rights to legal principles. Additionally, the identify solidarity with another minority group under siege, in this case women seeking access to abortion, and need among certain members of the LGBTQ community—lesbian and bisexual women, transgender men and non-binary people—to have the access to abortion.

Shannon Minter, legal director for the National Center for Lesbian Rights, echoed the sense LGBTQ legal advocates are focused on abortion cases, but cited “overlap between the reproductive rights, and justice movement and the LGBTQ movements.”

“What we see is the primary impact of this case on our community is a very direct one,” Minter said. “It’s extremely direct. The ability to obtain abortions is of great importance to women in our community, and also to transgender men and non-binary people as well.”

Minter cited data finding upwards of 80 percent of bisexual women will experience pregnancy over their lives and said LGBTQ women “are significantly more likely to have unintended pregnancies as a result of sexual violence, which is very distressing, but that is a reality for our community.”

Lesbian young adults and adolescents are at particular risk for unwanted pregnancy, Minter added, because there’s still “so much stigma and discrimination that they tried to sort of hide their sexual orientation, and prove that they’re straight when they’re not, so they actually have high rates of unprotected sex.”

Religious schools funding, gun control, Obamacare on docket

The abortion cases aren’t the only litigation on the radar for LGBTQ legal advocates. Also on the list are cases that will determine whether Maine religious schools have access to public funds, the legality of New York State gun regulations and disparate impact claims under Obamacare.

Taylor said the case of CVS Pharmacy v. Doe before the Supreme Court, which was brought by people living with HIV/AIDS, will determine whether disparate impact claims are cognizable in the context of disabilities under the Affordable Care Act.

“That’s really important for people living with HIV and other people with disabilities,” Taylor said. “It could do a lot of harm.”

The oral arguments in the Dobbs case are set to take place before the Supreme Court on Dec. 1.

Advertisement
FUND LGBTQ JOURNALISM
SIGN UP FOR E-BLAST

U.S. Military/Pentagon

Pentagon urged to reverse Naval Academy book ban

Hundreds of titles discussing race, gender, and sexuality pulled from library shelves

Published

on

U.S. Defense Secretary Pete Hegseth (Washington Blade photo by Michael Key)

Lambda Legal and the Legal Defense Fund issued a letter on Tuesday urging U.S. Defense Secretary Pete Hegseth to reverse course on a policy that led to the removal of 381 books from the Nimitz Library of the U.S. Naval Academy in Annapolis, Md.

Pursuant to President Donald Trump’s executive order 14190, “Ending Radical Indoctrination in K-12 Schooling,” the institution screened 900 titles to identify works promoting “diversity, equity, and inclusion,” removing those that concerned or touched upon “topics pertaining to the experiences of people of color, especially Black people, and/or LGBTQ people,” according to a press release from the civil rights organizations.

These included “I Know Why the Caged Bird Singsā€ by Maya Angelou, ā€œStone Fruitā€ by Lee Lai,Ā ā€œThe Hate U Giveā€ by Angie Thomas, ā€œLies My Teacher Told Me: Everything Your American History Textbook Got Wrongā€ by James W. Loewen, ā€œGender Queer: A Memoirā€ by Maia Kobabe, and ā€œDemocracy in Black: How Race Still Enslaves the American Soulā€ by Eddie S. Glaude, Jr.Ā 

The groups further noted that “the collection retained other books with messages and themes that privilege certain races and religions over others, including ‘The Clansman: A Historical Romance of the Ku Klux Klan’ by Thomas Dixon, Jr., ‘Mein Kampf’ by Adolf Hitler, and ‘Heart of Darkness’ by Joseph Conrad.

In their letter, Lambda Legal and LDF argued the books must be returned to circulation to preserve the “constitutional rights” of cadets at the institution, warning of the “danger” that comes with “censoring materials based on viewpoints disfavored by the current administration.”

“Such censorship is especially dangerous in an educational setting, where critical inquiry, intellectual diversity, and exposure to a wide array of perspectives are necessary to educate future citizen-leaders,”Ā Lambda Legal Chief Legal Officer Jennifer C. PizerĀ andĀ LDF Director of Strategic Initiatives Jin Hee Lee said in the press release.

Continue Reading

Federal Government

White House sues Maine for refusing to comply with trans athlete ban

Lawsuit follows months-long conflict over school sports in state

Published

on

U.S. Attorney General Pam Bondi (Washington Blade photo by Michael Key)

The Justice Department is suing the state of Maine for refusing to comply with President Donald Trump’s executive order banning transgender athletes from participating in school sports, U.S. Attorney General Pam Bondi announced on Wednesday.

DOJ’s lawsuit accuses the state of violating Title IX rules barring sex discrimination, arguing that girls and women are disadvantaged in sports and deprived of opportunities like scholarships when they must compete against natal males, an interpretation of the statute that reverses course from how the law was enforced under the Biden-Harris administration.

ā€œWe tried to get Maine to comply” before filing the complaint, Bondi said during a news conference. She added the department is asking the court to ā€œhave the titles return to the young women who rightfully won these sports” and may also retroactively pull federal funding to the state for refusing to comply with the ban in the past.

Earlier this year, the attorney general sent letters to Maine, California, and Minnesota warning the blue states that the department “does not tolerate state officials who ignore federal law.ā€

According to the Maine Principals’ Association, only two trans high school-aged girls are competing statewide this year. Conclusions from research on the athletic performance of trans athletes vis-a-vis their cisgender counterparts have been mixed.

Trump critics and LGBTQ advocates maintain that efforts to enforce the ban can facilitate invasive gender policing to settle questions about an individual athlete’s birth sex, which puts all girls and women at risk. Others believe determinations about eligibility should be made not by the federal government but by school districts, states, and athletics associations.

Bondi’s announcement marked the latest escalation of a months-long feud between Trump and Maine, which began in February when the state’s Democratic governor, Janet Mills, declined to say she would enforce the ban.

Also on Wednesday, U.S. Education Secretary Linda McMahon said the findings from her department’s Title IX investigation into Maine schools — which, likewise, concerned their inclusion of trans student-athletes in competitive sports — was referred to DOJ.

Earlier this month, the Justice Department pulled $1.5 million in grants for Maine’s Department of Corrections because a trans woman was placed in a women’s correctional facility in violation of a different anti-trans executive order, while the U.S. Department of Agriculture paused the disbursement of funds supporting education programs in the state over its failure to comply with Title IX rules.

A federal court last week ordered USDA to unfreeze the money in a ruling that prohibits the agency from ā€œterminating, freezing, or otherwise interfering with the state’s access to federal funds based on alleged Title IX violations without following the process required by federal statute.ā€Ā 

Continue Reading

Federal Government

Expert warns Trump’s drastic cuts to HHS will have far-reaching consequences

HRC’s HIV and LGBTQ health policy advocate shared his concerns with the Blade

Published

on

HHS Secretary Robert F. Kennedy Jr. (Washington Blade photo by Michael Key)

Ten years ago, as the opioid epidemic ripped through communities across the United States, the recreational use of oxymorphone with contaminated needles led to an explosion of new HIV infections in southern Indiana’s Scott County.

In places like Austin, a city with about 4,000 residents, the rate of diagnoses quickly ballooned to levels seen in some of the hardest-hit nations of sub-Saharan Africa, more than 50 times higher than the national average.

Thankfully, by 2020, NPR reported that the area was rebounding from what was the most devastating drug-fueled HIV epidemic that rural America had ever experienced, with three-quarters of patients managing the disease so well with antiretroviral therapies that their viral loads were undetectable.

Five years after officials called a public health emergency over the outbreak in Scott County, Austin had opened new addiction treatment centers, support groups, and syringe exchanges. 

Initially, Indiana’s response was sluggish. The state’s governor at the time, Mike Pence, opposed clean needle exchanges for 29 days before ultimately signing an executive order allowing for a state-supervised program. 

The administration in which he would go on to serve as vice president, however, launched an ambitious initiative designed around the objective of ending the HIV epidemic in the U.S. by the end of the decade, using proven public health strategies including syringe exchanges. 

NPR further noted ā€œthe administration’s HIV goals were championedā€ by Pence along with Trump’s U.S. Surgeon General, Jerome Adamsthe, who was Indiana’s health commissioner during the outbreak in Austin. 

Still, the news service warned, the Centers for Disease Control and Prevention determined that 220 U.S. counties were vulnerable to outbreaks of HIV and other blood borne infectious diseases like hepatitis C. 

“When you have these outbreaks, they affect other states and counties. It’s a domino effect,” Dr. Rupa Patel, an HIV prevention researcher at Washington University in St. Louis, told NPR. “We have to learn from them. Once you fall behind, you can’t catch up.”

Trump’s approach to public health, including efforts to prevent, detect, mitigate, and treat  outbreaks of infectious diseases, looks radically different in his second term.   

ā€˜I don’t know why they hate public health so much’

The Washington Blade spoke with Matthew Rose, senior public policy advocate for the Human Rights Campaign, during a recent interview about the the administration’s dramatic cuts and mass layoffs that will totally reshape the way America’s health agencies are run under Trump’s secretary of the U.S. Department of Health and Human Services, Robert F. Kennedy, Jr.  

ā€œThey’re dismantling all the things aroundā€ the first Trump administration’s Ending the HIV Epidemic in the U.S. effort, he said, eliminating key positions and offices within America’s health agencies that support this effort, including by tracking progress toward — or movement away from — the 2030 goalposts. 

Rose said there is no evidence to suggest the initiatives combatting HIV that were begun when Trump was in office the first time were ineffective,  either in terms of whether their long term cost-savings justified the investment of government resources to administer them or with respect to data showing measurable progress toward ending the epidemic within the decade. 

Therefore and in the absence of an alternative explanation,, Rose said he is left with the impression that the Trump-Vance administration does not care about Americans’ public health, especially when it comes to efforts focused on disfavored populations, such as programs supporting access to PrEP to reduce the risk of HIV transmission through sex. 

The outbreak in Scott County ā€œcan happen over and over again, if we don’t have CDC surveillance,ā€ he warned. ā€œWe’re still having a fentanyl crisis in the country that we don’t seem to really want to deal with, but you end up with outbreaks that bloom and bloom very quick and very fast.ā€ 

Rose added, ā€œThe really crazy thing is that they got rid of disease intervention and branch and response,ā€ referring  to the CDC’s National Center for HIV, Viral Hepatitis, STD, and Tuberculosis Prevention, specifically its Division of HIV Prevention, and the various branches within that division that are responsible for different aspects of HIV prevention, care, and research. They include HIV Research, Behavioral and Clinical Surveillance, and Detection and Response. 

ā€œThese are literally the disease detectives that chase down outbreaks,ā€ Rose added. ā€œWhen there’s a syphilis outbreak in an area, when COVID came along and we had to trace COVID outbreaks, like, those folks are the folks who do this.ā€

If (or perhaps when) communities experience an outbreak, ā€œWe wouldn’t truly know what’s going on until probably 10 years later, when those folks’ CD4 counts finally crash to an AIDS diagnosis level,ā€ he said, at which point ā€œthey’re very, very sick.ā€

ā€œThey’ll start looking like we haven’t seen people look since probably 30, 40 years ago,ā€ Rose said, a time well before the advent of highly effective medicines that from the perspective of many patients turned HIV from a death sentence to a manageable disease.Ā Ā Ā 

Additionally, ā€œevery person that we lose to follow up and care, if they don’t know their status, that’s where the majority of new diagnoses come from,ā€ he said, noting that without the CDC’s work ā€œbringing people back into care,ā€ there is ā€œno way of tracking that.ā€ HIV positive people will continue to potentially transmit the disease to others as ā€œtheir own health deteriorates at levels that it doesn’t need to deteriorate at,ā€ Rose said, ā€œso, we make it worse.ā€ 

Along with the breakthroughs in drug discovery that led to the introduction of highly efficacious and well tolerated antiretrovirals, the use of PrEP by those who are HIV-negative to drastically reduce the risk that they may contract the virus through sex has put the goal of eliminating the epidemic within reach. 

ā€œOne of the things we learned from things like the PROUD study,ā€ Rose said, referring to randomized placebo-controlled HIV trials conducted in the U.K. in  2016 ā€œ is that if you can get to the highest impacted folks, the most vulnerable folks, for every one person you get on PrEP, you’re getting anywhere from 16 to 23 infections averted.ā€ 

Disparities in health outcomes are likely to worsen 

Rose noted that ā€œwe’re finally starting to stabilizeā€ the disproportionately high rate of new infections among gay and bisexual Black men who have sex with men thanks in large part to the federal government’s work by employees and divisions that were cut by Kennedy’s restructuring of HHS, initiatives like culturally competent public health messaging campaigns for vulnerable populations, addressing subjects like PrEP, other prevention methods, the importance of regular HIV/STI screenings, and the availability of treatments for HIV and other sexually transmitted infections. 

There is no way of knowing if any intervention was effective in the absence of “surveillance unitsā€ to monitor the disease’s spread through communities and track mitigation efforts, he said, adding that the gutting of these positions comes as ā€œLatin men have actually been catching [up to] Black men in terms of new diagnosesā€ while rates among Black and Latina trans women remain high. 

Along with NCHHSTP’s Prevention Communication Branch, the health secretary’s near 20 percent cut to CDC staff also eliminated the center’s  Division of Behavioral & Clinical Surveillance Branch, its Capacity Development Branch, its Quantitative Sciences Branch, and its HIV Research Branch. 

As a result, Rose said ā€œYou’re going to see these populations get hit hardest again,ā€ communities that have long suffered disproportionately from the HIV epidemic due to factors like racial or income-based disparities in access to testing and treatment. 

Broadly, the CDC is distinguished from other agencies because the Atlanta-based agency’s remit is focused to a significant extent on the population level implementation of public health interventions, endeavoring to change health outcomes, he explained. With respect to PrEP, for example, once the drug was shown safe and effective in clinical research and the evidence supported its use as a critical tool in the federal government’s effort to stop the epidemic, the CDC is responsible for work like making sure at-risk populations who are disinclined to use condoms can stick with (or are sticking with) the medication regimen.  

The administration’s cuts encompass programs on the research side as well as the implementation side, Rose said. For example, he pointed to the ā€œdecimationā€ of divisions within the National Institutes of Health’s National Institute of Allergy and Infectious Diseases, which conducts studies on HIV interventions from the preclinical basic science stage to double blind clinical trials such as those that led to the introduction of injectable PrEP, which can be administered once every other month after the first two doses. 

In fact, Rose said he worked alongside Dr. Jeanne Marrazzo, who succeeded Dr. Anthony Fauci as head of NIAID, on the Microbicide Trials Network board looking for behaviorally congruent HIV prevention products for populations that might not wish to take an oral or injectable formulation of PrEP. He added that she is a ā€œbrilliant scientistā€ who helped him better understand the vaginal microbiome as well as the ways in which ā€œwe fall short on women’s health and women’s sexual health, and what that means in the context of HIV prevention.ā€ 

Together with other top officials like Dr. Jonathan (ā€œJonoā€)  Mermin, who led the NCHHSTP, on or around April 1, Marrazzo was reportedly offered the chance to either be placed on administrative leave or relocate to Indian Health Service outposts in rural American Indian or Native Alaskan communities located in states like Montana, Oklahoma, and Alaska. 

Rose stressed the risks presented by the  administration’s decision to shutter divisions within NCHHSTP that were responsible for communications, education and behavioral studies around tuberculosis, especially provided how the disease is underdiscussed as a public health issue within U.S, borders — where rates of infection are elevated in certain communities, like unhoused and incarcerated populations, where queer folks are disproportionately represented. 

The restructuring of NCHHSTP and NIAID also raises the chances of outbreaks of viral and bacterial infections spread through sex that these public health workers could have prevented or better contained, Rose said. 

Instead, ā€œfor some reason, someone thought it was a good idea to get rid of labs at the Division of STIs,ā€ at a time when ā€œwe’ve had increases in STIs for the last, like, six years,ā€ including rising rates of congenital syphilis, ā€œthe one that kills babiesā€ and increased diagnoses of the disease among gay men.

Additionally, Rose noted disparities in health outcomes for people living with hepatitis C are likely to worsen by the cessation of federal government initiatives to slow the spread of the disease  — which co-infects one of every four patients with HIV and can be fatal if untreated because the virus can cause cirrhosis, cancer, failure of the liver — because direct acting antivirals that cure 95 percent of all cases are covered by most insurance plans only when the policyholder has already sustained severe liver damage. 

Broadly, ā€œthe fact that we’re like, getting rid of the labs to test people means that we’re literally choosing to go backwards, stick our heads in the sand, and hope that no one has the ability to want to say anything,ā€ he added. 

Even populations who are less susceptible to infection with diseases like HIV stand to benefit from basic and clinical science research into the disease, Rose said. 

He pointed to such examples as the drug discovery studies targeting a vaccine for HIV that ultimately led to the identification of combinations of antivirals that were capable of curing most cases of hepatitis C, the inclusion of participants with HIV in clinical trials that led to the introduction of Ebola vaccines, and breakthroughs in the biomedical understanding of aging that were reached through research into why patients with untreated HIV age more rapidly. 

ā€œWe continuously find new scientific endeavors that are able to help the general population, but also able to help the LGBTQ population,ā€ Rose said, as ā€œthe things that happen in the HIV space spill over to other places.ā€

ā€œFrom the LGBTQ health perspective, and especially from the research side,ā€ he said, ā€œwe have just, in the last decade, started to really think about what interventions those populations need — not just [with respect to] HIV, but [other health issues like] smoking, alcohol and substance use and abuse,ā€ including ā€œcrystal meth, which is always the number two drug in most major cities.ā€ 

Likewise, as large swaths of America’s public health infrastructure are unraveled under the direction of the president and his health secretary, the dissolution of each position or each division should not be considered in isolation given (1) the interdisciplinary nature of the work in which these individuals and entities are engaged and (2) the administration’s efforts elsewhere to restrict access to healthcare, especially for disfavored populations like trans and gender-diverse communities. 

ā€œThere’s first the attack on the research pipeline,ā€ Rose said, such as the HIV Vaccine Trials Network’s identification of an urgent or unmet need (behaviorally congruent methods of HIV prevention for women) and its discovery of a new intervention through research and clinical trials (a ring worn inside the vagina that releases an antiretroviral drug to stop the virus from entering the body during sex). 

ā€œThen there’s the destruction of key health interventions,ā€ he said. For example, ā€œSTI testing is a public health intervention. It keeps people healthy, and we’re able to reduce the amount of STI floating in populationsā€ through regular testing and monitoring of new diagnoses. ā€œGetting rid of programs that look at and support these [efforts] is really, really bad,ā€ Rose said. 

He noted that the administration has endeavored to restrict healthcare access along a variety of fronts, especially when it comes to transgender medicine for youth, Rose said, from working to pass regulations circumscribing the scope of the ACA’s coverage mandate to gutting the HHS Office of Civil Rights such that vulnerable populations have less recourse when they are denied access to care or experience unlawful discrimination in healthcare settings, and conditioning the government’s federal funding for providers and hospital systems on their agreement not to administer guideline directed, evidence based interventions for the treatment of gender dysphoria in youth. 

ā€œLast year, CDC documented that we had reduced new HIV infections by 6% and by 23% and 26% in counties that were in the Ending the Epidemic jurisdictions,ā€ Rose said.  

In the face of these challenges shortly into the president’s second term, he said, ā€œwe will stand up to a scientific rigorous process every time, because we’ve done it every time, and every time we’ve done it, the world has been better for it.ā€

Continue Reading
Advertisement
Advertisement

Sign Up for Weekly E-Blast

Follow Us @washblade

Advertisement

Popular