Case: California v. Texas

Status: Before the Supreme Court; oral arguments set for November 10

Impact: California v. Texas is a legal challenge against the Affordable Care Act brought by the state of Texas and other states governed by Republicans that asks the Supreme Court to declare the ACA unconstitutional. As explained by Kaiser Health News, if the ACA is struck down, consequences will include elimination of “protections for people with pre-existing conditions, subsidies to make individual health insurance more affordable, expanded eligibility for Medicaid, coverage of young adults up to age 26 under their parents’ insurance policies, coverage of preventive care with no patient cost-sharing, closing of the doughnut hole under Medicare’s drug benefit, and a series of tax increases to fund these initiatives.” 

Case: Planned Parenthood of Maryland v. Azar

Status: Before the 4th Circuit Court of Appeals

Impact: This case is a “challenge to the Trump administration’s nationwide separate-billing rule, which forces insurers offering state exchange plans with abortion coverage to bill consumers separately for abortion services.” A conservative-majority court may well find that the ACA requires separate billing, which would “prompt insurers to drop coverage for abortions.”

Trump, who has repeatedly cast doubt on the legitimacy of the upcoming election, has openly argued that having a Supreme Court nominee confirmed in short order will benefit his reelection prospects. Trump said, “I think this will end up in the Supreme Court, and I think it's very important that we have nine Justices," and “I think having a 4-4 situation is not a good situation.” The Supreme Court does not require nine members to resolve a dispute. In the event of a 4-4 tie, the ruling issued by the lower court is affirmed. Barrett “provided research and briefing assistance” for Bush v. Gore, the Supreme Court decision that handed the election to George W. Bush. The decision has been widely derided as a case of “judicial activism” by the conservative justices who ruled in Bush’s favor. Justices Brett Kavanaugh and John Roberts also worked for the Bush legal team in Bush v. Gore.

Case: Food and Drug Administration v. American College of Obstetricians and Gynecologists

Status: Pending petition before the Supreme Court

Impact: In August, health care providers, including the American College of Obstetricians and Gynecologists, petitioned the court to continue the injunction put in place stopping the FDA from enforcing the numerous burdensome requirements for the distribution of medication abortion during the coronavirus pandemic. As the American Civil Liberties Union explained, “The FDA has continued to enforce those requirements, including one in particular — the in-person dispensing requirement  — that puts patients’ health and lives at risk as a condition of obtaining abortion and miscarriage care.” With another conservative justice on the court, the FDA’s requirements will likely stay in place and continue to put patients in harm’s way, even though medication abortion can be easily administered via telemedicine.

Case: Dobbs v. Jackson Women’s Health Organization

Status: Pending petition before the Supreme Court

Impact: This case concerns an 15-week abortion ban passed by Mississippi in 2018 in the hopes of bringing a challenge to Roe v. Wade before the court. Banning abortion at 15 weeks is currently unconstitutional under Roe, but Trump’s court would likely uphold this law, which will then lead to a cascade of states passing earlier and complete bans without the Roe framework in place. 

Cases: SisterSong Women of Color Reproductive Justice Collective v. Kemp; Little Rock Family Planning Services v. Rutledge; Bryant v. Woodall

Status: Before the 11th, 8th, and 4th Circuit Courts of Appeals

Impact: These cases concern a six-week abortion ban in Georgia, an 18-week ban in Arkansas, and a 20-week abortion ban in North Carolina, respectively. The conservative majority on the Supreme Court would likely uphold these laws and chip away at Roe.

Cases: Memphis Center for Reproductive Health v. Slatery; Reproductive Health Services v. Parson

Status: Before the 6th and 8th Circuit Courts of Appeals

Impact: The Memphis Center for Reproductive Health case involves a Tennessee law that “bans abortion at six, eight, ten, twelve, fifteen, eighteen, twenty, twenty-one, twenty-two, twenty-three, and twenty-four weeks of pregnancy.” As the Tennessean explained, “If the courts strike down the six-week ban, the legislation goes on to automatically enact abortion bans in conjunction with the detection of a fetal heartbeat at” each subsequent week indicator. As Ms. Magazine wrote, “Multiple lawmakers in Tennessee have made it clear one of the goals of the bill is to bring a court case to the Supreme Court in the hopes of overturning Roe v. Wade.” A Tennessee state senator stated “that the bill will create ‘multiple shots’ for Tennessee to bring the case to the Supreme Court.” Similarly, in Reproductive Health Services, the Missouri law at the center of this case “bans abortions after eight, fourteen, eighteen, and twenty weeks of pregnancy,” with each ban being enacted if the previous earlier ban fails.

Cases: Whole Woman’s Health v. Paxton; Hopkins v. Jegley

Status: Before the 5th and 8th Circuit Courts of Appeals

Impact: Paxton is a “challenge to a Texas law that bans the use of the dilation and evacuation (D&E) abortion procedure, the most common abortion procedure used after sixteen weeks of pregnancy.” Trump’s new Supreme Court justice will likely vote to ban this procedure — the safest type of second-trimester abortion — and ensure more risky abortions. Hopkins concerns an Arkansas law that would also ban the D&E abortion procedure.

Case: Planned Parenthood of Southwest Ohio v. Acton

Status: Before the 6th Circuit Court of Appeals

Impact: This Ohio law would ban abortions “if a provider learns the reason for seeking abortion services is a diagnosis of Down syndrome.” As the ACLU’s Susan Mizner and Alexa Kolbi-Molinas explained for The Hill in 2019, “Proponents of these bans claim that their goal is to protect the rights of people with disabilities. Such attempts to co-opt the mantle of disability rights to ban abortion are not only hypocritical but also deeply offensive.” In addition, as Politico noted, “A provider who performed such an abortion would face felony charges.” The court voting to uphold this law would serve as another strike at abortion access and make doctors afraid to provide abortions at all.

Case: Gee v. Planned Parenthood Gulf Coast

Status: Before the 5th Circuit Court of Appeals

Impact: This case concerns Louisiana’s “inaction” in granting an abortion license to a clinic in New Orleans. The failure to grant the license is based on a favorite right-wing media myth that Planned Parenthood “profited from sales of fetal tissue for medical research.” Currently, Louisiana has three clinics -- a new conservative justice would be unlikely to rule in this case that the state needed another.

Case: EMW Women’s Surgical Center v. Meier

Status: Before the 6th Circuit Court of Appeals

Impact: This case concerns a Kentucky law that puts unnecessary requirements on abortion clinics to have “agreements with local ambulance services and hospitals to transport and admit patients in the event of a complication.” As Politico explained, the abortion providers argue “that abortion-related complications that require hospitalization are extremely rare and the ambulances and hospitals are already required to care for patients in an emergency.” Barrett ruling for the state in this case would likely mean that the only abortion clinic in Kentucky would have to close, which was the likely intent of this law.

Case: Whole Woman’s Health v. Smith

Status: Before the 5th Circuit Court of Appeals

Impact: This Texas law requires the burial or cremation of fetal tissue. As Rewire News Group wrote, the “intent” of the law “is crystal clear: to help advance fetal ‘personhood’ across the  country, even incrementally, as a way to recriminalize abortion.” Barrett would likely recognize “fetal personhood” with this case, which not only would undo Roe, but may also make it “unconstitutional for any state to allow abortions at all.” This outcome would ensure only illegal abortion access in the United States.

Case: Planned Parenthood of Indiana & Kentucky v. Box

Status: Before the 7th Circuit Court of Appeals

Impact: At issue in this case is an Indiana parental consent law that “would have required every female under 18 to have at least one parent's written permission to end a pregnancy” and removed any means of obtaining a judicial bypass. In 2017, the American Academy of Pediatrics wrote that “legislation mandating parental involvement does not achieve the intended benefit of promoting family communication, and it increases the risk of harm to the adolescent by delaying access to appropriate medical care.”

Case: Reproductive Health Services v. Bailey

Status: Before the 11th Circuit Court of Appeals

Impact: This Alabama case is about judicial bypass proceedings for minors seeking abortions. The law in question “ allows judges to appoint an advocate for the fetus to question the young woman in such court hearings about ‘the negative consequences of undergoing an abortion.’”

Case: Planned Parenthood of Indiana & Kentucky v. Commissioner of the Indiana State Department of Health

Status: Before the 7th Circuit Court of Appeals

Impact: The 2018 Indiana law at question in this case “requires health providers to submit a report to the state when” anyone having an abortion experiences “a wide range of health conditions.” As the ACLU explained, “The lawsuit asserts that the law violates due process and equal protection by singling out abortion procedures and requiring invasive reporting.” In addition, physicians are targeted with “criminal penalties and possible jail time” if they do not report.

Case: Roe v. Wade

Status: Resolved; at risk

Impact: The Supreme Court decided Roe in 1973 and established the right to abortion as a matter of privacy under the Constitution. A 6-3 majority court would likely overturn Roe, which will result in immediate bans in states with “trigger” laws and an avalanche of other states passing bans or first or second trimester abortion bans. While the court normally gives deference to a decision like Roe that was decided long ago, and people have relied on its presence, Barrett and the conservative majority would likely not view Roe in this way. As Alliance for Justice wrote, Roe was not included in Barrett’s “discussion of ‘superprecedents,’ or cases that have gained such widespread support in society that they should not be revisited.”

Case: New York State Rifle & Pistol Association v. City of New York

Status: Resolved; at risk

Impact: Though the Supreme Court resolved this case in April 2020, the opinions issued indicate an appetite from conservative justices to take up a Second Amendment case that could be used to strike down myriad gun safety laws. The Supreme Court ruled that the issue in the case -- which related to transportation of firearms in New York City -- was moot, but in a dissenting opinion Justice Samuel Alito argued that lower courts have been misapplying the landmark Second Amendment ruling District of Columbia v. Heller, which has been cited by lower courts in upholding numerous laws regulating firearms. In a concurring opinion, Justice Brett Kavanaugh indicated his agreement with Alito.

Case: Rogers v. Grewal and others

Status: Resolved; at risk

Impact: On June 15, the Supreme Court declined to take up 10 Second Amendment challenges to state and federal gun laws. Justice Clarence Thomas dissented from the court’s decision not to hear Rogers v. Grewal, which challenged New Jersey’s concealed carry law. Thomas argued at length that lower courts have been misapplying Heller in largely rejecting Second Amendment challenges to gun safety laws and explicitly argued that there is a Second Amendment right to carry a gun in public. Kavanaugh concurred in part with the dissent.

Case: Students for Fair Admissions (SFFA) v. Harvard

Status: Before the 1st Circuit Court of Appeals

Impact: This case is a challenge to constitutional race-conscious admissions policies. It claims Harvard University discriminates against Asian American applicants in favor of applicants from other minority groups. Several conservative justices have already expressed their willingness to reverse seminal civil rights precedent and declare affirmative action in education unconstitutional and could use SFFA v. Harvard to do this. SFFA is an anti-civil rights group whose leader Edward Blum has “ orchestrated more than two dozen lawsuits challenging affirmative action practices and voting rights laws across the country,” including the voting rights decision Shelby v. Holder that gutted the Voting Rights Act.

Case: Massachusetts v. Environmental Protection Agency

Status: Resolved; at risk

Impact: This landmark decision was issued in 2007 and gave the federal government the authority to regulate greenhouse gas emissions under the Clean Air Act including the ability to curb pollutants from power plants and vehicles, which are the two largest sources of climate change-causing emissions. The ruling also determined that states have standing to sue over the changing climate. The case was decided in a narrow 5-4 vote, with Justice Anthony Kennedy joining the four liberal justices. A 6-3 conservative supermajority on the Supreme Court places the ruling in this case at grave risk. In addition to threatening rules allowing the reduction of carbon, rules protecting water and other foundational environmental law would also be threatened with a solidly conservative court. As E&E News explained, “if Trump wins a second term, legal experts largely expect heated high court brawls over the administration's new rules governing implementation of the National Environmental Policy Act, carbon dioxide emissions from power plants and pollution in federally protected waters,” and a 6-3 majority could make conservatives on the court feel more “free to embrace more extreme interpretations of the environmental laws."

Case: American Lung Association v. EPA

Status: Before the U.S. Court of Appeals for the District of Columbia Circuit

Impact: This case is a challenge to the Trump administration’s repeal of the Obama administration’s Clean Power Plan (CPP), which would have reduced carbon emissions from power plants by a level equivalent to “the annual carbon emissions from 70 percent of the nation’s cars.” The Trump administration’s replacement of the CPP, the Affordable Clean Energy rule, is projected to “reduce carbon dioxide emissions by just 11 million short tons in 2030, whereas the CPP would have delivered emissions reductions of 415 million tons.” The New York Times pointed out that “[t]he administration’s own analysis, however, revealed [] that the new rules could also lead to as many as 1,400 premature deaths annually by 2030.” Barrett’s judicial philosophy makes it likely that during a potential Biden administration she will uphold Trump-era EPA regulations and otherwise limit the ability of a Biden administration to use the EPA to battle climate change.

Case: BP P.L.C. v. Mayor and City Council of Baltimore

Status: Pending before the Supreme Court

Impact: This case and multiple similar ones could have a profound impact on the ability of municipalities to sue businesses that contribute to climate change. The city of Baltimore is arguing that major oil companies knew that their operations were causing climate change but reacted by “discrediting publicly available scientific studies” and by “undermining public support for federal and state regulation” and thus are liable to the city for damages. When sued in state court, oil companies have typically been successful in moving lawsuits to federal court, which they see as a more advantageous venue. The Supreme Court will determine whether the move to federal court was proper.

Case: Fulton v. City of Philadelphia

Status: Before the Supreme Court; oral arguments set for November 4

Impact: As NBC News explained, “The court will decide whether faith-based child welfare organizations can reject same-sex couples and others whom they consider to be in violation of their religious beliefs.” The Catholic Social Service of Philadelphia sued the city in 2018 after Philadelphia terminated its contract with the group for refusing to comply with the city’s policy banning discrimination against same-sex couples in child welfare programs. As Katelyn Burns wrote for Vox, Barrett “has not said how she would rule in cases about LGBTQ rights, but she has spoken and written extensively about her conservative view on reproduction and sexuality. And these past remarks have some of her critics concerned that she will swing the balance of the Court toward a more conservative agenda on issues of LGBTQ rights.”

Case: Arlene's Flowers Inc. v. Washington

Status: Pending petition before the Supreme Court

Impact: In this case, a florist refused to provide flowers for a same-sex wedding, claiming a religious objection. The refusal violated Washington state’s nondiscrimination law. The florist is represented by the influential and extreme anti-LGBTQ group Alliance Defending Freedom (ADF).

Case: Soule v. Connecticut Association of Schools

Status: Pending before the U.S. District Court, District of Connecticut

Impact: Three cisgender high school athletes challenged the Connecticut Interscholastic Athletic Conference and multiple school boards over a policy that allows trans student athletes to compete as the gender with which they identify. The cisgender athletes are represented by ADF. The Trump-Pence administration’s Department of Education issued a statement in support of the case and threatened to withhold federal funding to schools in the state if it continued to allow trans students to compete. Trans student athletes’ right to play on teams that align with their gender identity will be at risk with a 6-3 conservative majority.

Case: Idaho Dept. of Correction v. Edmo

Status: Pending petition before the Supreme Court

Impact: Idaho originally appealed a ruling in favor of a trans prisoner who sued for transition-related medical care, including gender confirmation surgery. As the National Center for Lesbian Rights wrote, Idaho “denied Ms. Edmo surgery for nearly five years despite Ms. Edmo’s clear and urgent need for it. In July 2020, however, Ms. Edmo received surgery after the U.S. Supreme Court refused to stay the injunction while the prison seeks review from that Court.” However, the court “is expected to grant or deny review of the underlying orders in the Fall of 2020.”

Case: Otto v. City of Boca Raton, Florida

Status: Before the 11th Circuit Court of Appeals

Impact: As the National Center for Lesbian Rights explained, “In 2017, the City of Boca Raton, Florida, and the County of Palm Beach, Florida, each enacted local ordinances prohibiting state-licensed therapists from trying to change the sexual orientation or gender identity of a patient under 18 years old,” otherwise known as the harmful and discredited practice of conversion therapy. Extreme anti-LGBTQ group Liberty Counsel sued against Boca Raton and Palm Beach County over the ordinances seeking to make it legal to put youth through the dangerous practice. Conversion therapy protections in cities and municipalities across the country, as well as laws in 20 states and Washington, DC, will be at risk with a 6-3 conservative majority. 

Case: Grimm v. Gloucester County School Board

Status: The 4th Circuit Court of Appeals ruled in favor of the trans plaintiff Gavin Grimm; the school board has appealed the decision

Impact: The ACLU filed a lawsuit in 2015 on behalf of Gavin Grimm, a trans student who graduated high school in 2017, “against the Gloucester County School Board for adopting a discriminatory bathroom policy that segregates transgender students from their peers. The policy effectively expels trans students from communal restrooms and requires them to use ‘alternative private’ restroom facilities.” This decision could be at risk with a 6-3 conservative majority.

Cases: Doe v. Trump, Karnoski v. Trump, and Stockman v. Trump

Status:  Before various federal district courts

Impact: In January 2019, as Lambda Legal reported, “The U.S. Supreme Court today denied petitions from the U.S. Department of Justice (DOJ) asking that the Court review preliminary federal district court rulings that have kept the Trump administration from implementing its discriminatory plan to prevent transgender people from serving openly in the U.S. Armed Services. However, in a 5-4 decision, the Supreme Court granted the DOJ’s request for a stay on the preliminary rulings, allowing the administration to begin kicking openly transgender troops out of the armed services and to deny transgender people the opportunity to enlist.” Though the military currently bans trans service members, federal district court rulings against the ban could be at risk with a 6-3 conservative majority.

Cases: Bostock v. Clayton County, R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, Altitude Express Inc. v. Zarda

Status: Resolved; at risk of being limited

Impact: The Supreme Court ruled earlier this year that the term “sex” in Title VII of the Civil Rights Act covers sexual orientation and gender identity in employment anti-discrimination law. The expansion of this decision to other similar anti-discrimination laws could be at risk with a 6-3 conservative majority.

Case: Obergefell v. Hodges

Status: Resolved; at risk

Impact: The Supreme Court ruled in 2015 to legalize same-sex marriage across the country. This ruling will be at risk with a new conservative justice, especially in light of the Republican Party’s hostility to the precedent.

Case: Lawrence v. Texas

Status: Resolved; at risk

Impact: In 2003, the Supreme Court overturned state sodomy laws and, as Vox explained, “placed strict limits on the government’s ability to prohibit sexual activity between consenting adults.” This ruling could also be at risk as the conservatives who joined the liberals in the majority have since left the court and Barrett is a protegee of the late Justice Antonin Scalia, whose dissent in Lawrence is infamous.

Case: Arizona Republican Party v. Democratic National Committee

Status: Pending before the Supreme Court

Impact: On April 27, the Arizona Republican Party petitioned for the Supreme Court to hear this case involving the Equal Protection Clause, the First Amendment, and the Voting Rights Act. The two issues in the case are (1) “whether Arizona's allegedly insufficient number of polling places disenfranchised voters” and (2) “whether an Arizona law prohibiting individuals from collecting the early ballots of others (aka ‘ballot harvesting’) violates the” Constitution “because it disproportionately and adversely impacts minorities, unjustifiably burdens the right to vote, and interferes with freedom of association.” As the NAACP explained, “Although Amy Barrett has yet to rule in voting rights cases, there is every reason to believe she poses a grave threat to the right to vote for people of color,” particularly considering that her “role model is Justice Antonin Scalia, who was notoriously opposed to voting rights.”

Case: Trump, President of U.S., et al. v. New York et al.

Status: Pending before Supreme Court

Impact: This case concerns an attempt by the Trump administration to radically alter how the U.S. Census is used to apportion the seats in the U.S. House of Representatives. Since the census was first completed in 1790, it has counted all residents and non-residents for apportionment purposes. Trump has issued a memorandum that asks the Department of Commerce, which conducts the census, to report the data in a way that would exclude undocumented immigrants from the apportionment calculations. A legal challenge was filed against the memorandum and the Supreme Court is hearing the case in an expedited manner. New York has been ordered to respond to the Trump administration by October 7. A conservative Supreme Court could legitimize Trump’s memorandum, depriving areas of the country where more immigrants live of fair representation in the U.S. House. 

Case: Pennsylvania Democratic Party v. Boockvar

Status: Pending petition before the Supreme Court

Impact: Forbes identified this case as a likely “first test of how [the court] will handle voting rights cases affecting the November election without Justice Ruth Bader Ginsburg.” Pennsylvania lawmakers “asked the U.S. Supreme Court to review a Pennsylvania Supreme Court ruling that extended the mail-in voting deadline past election day and ruled ballots must be accepted even without a legible postmark.” The parties will have to file responses on the case by October 5.

Due to the complications and health risks of voting during a once-in-a-century pandemic, there are an abundance of voting rights-related cases related to in-person, mail-in voting, and absentee voting. Justin Levitt, a professor at Loyola Law School, maintains an updated list at the Election Law Blog. As of September 28, Levitt had identified 262 coronavirus election cases “in 45 states, DC, and Puerto Rico.” Depending on the timing of her confirmation, Barrett could vote on some of these cases and would likely rule in a way favorable to Trump -- including on his effort to delegitimize mail-in ballots. As CBS News noted, Trump’s campaign has already filed a number of lawsuits disputing mail-in voting, and the president has repeatedly refused to accept the results or legitimacy of an election he loses.

Case: Vidal v. Wolf

Status: Before the District Court for the Eastern District of New York

Impact: This case concerns the Deferred Action for Childhood Arrivals (DACA) program and the attempts by the Department of Homeland Security to rescind the program. In June 2020, the Supreme Court ruled against the administration’s efforts to stop new applications and “limit the renewals for more than 640,000 so-called ‘Dreamers’ enrolled in the program.” In August, as CNN reported, “Acting Homeland Security Secretary Chad Wolf announced the program would limit renewals to one year instead of two and still not accept new applicants.” This led to DACA recipients filing a complaint against Wolf in federal court, “urging the court to block the administration's effort to gut the program.” As Law360’s Suzanne Monyak wrote, Barrett’s “tendency to defer to the executive branch's authority could pave the way for the Trump administration to prevail against challenges to its immigration policies,” including for DACA.

Case: Casa De Maryland, Inc. v. Trump

Status: Resolved by 4th Circuit Court of Appeals in August; at risk

Impact: In August, the 4th Circuit Court of Appeals ruled for the Trump administration in amending the “public charge” program for immigrants, which can be used to deny immigrants green cards. As StatNews explained, “The administration’s new rule added the use of public programs like Medicaid, the Supplemental Nutrition Assistance Program (food stamps), and subsidized housing — in addition to overall health status — to the reasons for denying an immigrant a green card.” Notably, the “overall health status” consideration “may cause immigrant families to avoid seeking medical care during the pandemic.” In September, the Trump administration announced it would “begin to retroactively apply” the new rules. In a similar case about the new rules that was before the 7th Circuit, Barrett “strongly defended the Trump administration’s” rule, as the NAACP explained. Barrett said the new rules “increase the bite of the public charge determination” and were “not unreasonable.”

This piece will be updated as cases come before the Supreme Court.