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Abortion, religious freedom cases on the docket for U.S. Supreme Court in 2020
High up among the matters that the Supreme Court will consider early in the new year are an important church-state test and a closely watched conflict over states’ efforts to set limits on the performance of abortion.
On Jan. 22, the court will hear oral arguments in a case from Montana raising the question of whether students in religious schools can participate in a state-sponsored scholarship program. Supporters are hopeful the justices will take an expansive view of religiously neutral programs that benefit church-sponsored schools and their patrons.
And on March 4, the court will hear arguments for and against a Louisiana law requiring that doctors who perform abortions in the state have admitting privileges at a nearby hospital. Forty-seven years after the Supreme Court legalized abortion, prolifers hope for a decision that shows a new openness to laws that set limiting conditions for its performance.
The Louisiana case, June Medical Services v. Gee, involves legislation called the Unsafe Abortion Protection Act that was adopted by the state legislature in 2014. June Medical Services operates one of three abortion clinics in the state and is joined in the case by two anonymous abortion doctors. Named in their suit is Dr. Rebekah Gee, secretary of the Louisiana Department of Health.
In defending the law, the state has cited three purposes that it has in view: first, to set the same requirements for abortion providers that already apply to physicians providing services of a similar kind at walk-in surgical centers; second, to ensure that doctors who perform abortions in abortion clinics have the required medical qualifications; and third, to ensure that women who suffer complications from abortions receive continuity of care.
A district court held that the law was unconstitutional in light of the Supreme Court’s rule against placing an “undue burden” on women’s access to abortion. But the U.S. Court of Appeals for the Fifth Circuit ruled in favor of the Louisiana law, saying its credentialing function “promotes the well-being of women seeking abortion.”
The Supreme Court by a 5-4 vote last February granted June Medical’s request for a stay, placing enforcement of the law on hold pending its decision in the case. Opponents of the law had argued that it was virtually identical to a Texas law that the Supreme Court overturned in 2016, but the Fifth Circuit court found what it called “stark differences” between the facts in the Texas case and the facts in Louisiana.
In its appeal to the Supreme Court, Louisiana says the law’s opponents want to “transform” the decision in the Texas case into “a vehicle to wipe out virtually all abortion regulation.”
Both sides see it as an important test — not only of the extent and limits of states’ ability to set conditions on the performance of abortions, but also of the Supreme Court’s current thinking on abortion. It also raises an as yet unresolved “standing” question — whether abortion providers, presumed to be acting on behalf of women who are potential recipients of abortions, have legal standing to bring suit against restrictive laws.
Since the court last handed down an opinion in an abortion-related case, two new justices have come on board — Neil Gorsuch and Brett Kavanaugh — and both are thought likely to vote pro-life. That is certainly true of Justices Clarence Thomas and Samuel Alito — and also, presumably, of Chief Justice John Roberts, although his position is not so clear. Potentially, that adds up to a five-vote pro-life majority, with the court’s four liberal members — Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — a solid pro-choice bloc.
A possible straw in the wind was the Supreme Court’s action Dec. 9 refusing to consider a ruling by the U.S. Court of Appeals for the Sixth Circuit that upheld a Kentucky law requiring that, before performing an abortion, a doctor describe the fetus’ development to the woman and show her an ultrasound image of the child. The law was challenged by doctors at the only abortion clinic in the state. Surprisingly, there was no indication that any of the Supreme Court liberals disagreed with the decision not to consider the case.
Private education scholarships
The Montana school case (Espinoza v. Montana Department of Revenue) involves a 2018 ruling by the state supreme court regarding a scholarship program enacted by the state legislature in 2015. The program provides a tax credit up to $150 annually to individuals and businesses that donate to private, nonprofit organizations set up to receive donations and disburse the money to families that send their children to nonpublic schools.
The one such organization established to date awards scholarships only to low-income families or families whose children have disabilities. Shortly after enactment of the program, the state revenue department adopted an administrative rule prohibiting the use of scholarships at religious schools.
In doing so, the revenue department cited a provision of the state constitution known as Montana’s “Blaine Amendment,” so called in memory of U.S. Rep. and Senator James Blaine who sought an amendment to the U.S. Constitution barring use of public funds to benefit any religious schools. The federal amendment, widely seen at the time as targeting Catholic parochial schools, failed to win adoption, but 37 states — Montana among them — enacted their own versions of Blaine.
In December 2018, the Montana Supreme Court declared the entire scholarship program unconstitutional in light of the state’s Blaine Amendment. The petitioners in the case are three low-income mothers who had counted on the scholarships to keep their children in a Christian school. Lawyers with the Institute for Justice, a nonprofit public interest law firm representing them, argue that the Montana court’s ruling conflicts with a 2017 decision by the U.S. Supreme Court that a Lutheran day school in Missouri was entitled to state funds for upgrading playgrounds as a safety measure.
The case is viewed as a potential vehicle for overturning Blaine Amendments and making it easier for states to assist religious schools and their students if the states so wish.
Russell Shaw is a contributing editor for Our Sunday Visitor.