October 7, 2013 — In the new term that begins today, the Supreme Court's docket includes two cases concerning abortion, the New York Times reports.
The first involves a Massachusetts law that prohibits protests within 35 feet of abortion clinics, while the second involves an Oklahoma law (HB 1970) restricting the use of medication abortion (Liptak, New York Times, 10/7).
According to the Los Angeles Times, this new term "gives the court's conservative bloc a clear opportunity to shift the law to the right on touchstone social issues such as abortion, contraception and religion" (Savage, Los Angeles Times, 10/6). The New York Times reports, "An unusually large number of new cases put important precedents at risk, many in areas of the law the court has been rapidly revising since the retirement of Justice Sandra Day O'Connor." O'Connor -- who was at the court's ideological center and helped shape rulings on abortion, race, religion and the role of money in politics -- was succeeded by the "more conservative" Justice Samuel Alito in 2006 (New York Times, 10/7).
Massachusetts' Buffer Zone Law
The Supreme Court in June agreed to hear an appeal of a lower court's ruling that upheld a Massachusetts law prohibiting protests within 35 feet of abortion clinics. The 2007 law permits people to enter a 35-foot zone around clinics only to access the facility itself or reach another destination (Women's Health Policy Report, 6/25).
According to the Daily Beast, the case takes up the constitutionality of the law, which the plaintiffs contend is particularly suspect because "it targets those who speak against abortion" and "content-based speech restrictions are subject to stricter scrutiny than content-neutral rules."
In 2000, the Supreme Court upheld a Colorado law that prohibited protests within eight feet of a clinic, but the justices "could rule either way here without disturbing that precedent -- perhaps by relying on the individual right to be in a public place," the Daily Beast reports (Shapiro, Daily Beast, 10/7). Chief Justice John Roberts and Alito have replaced the members of that 2000 majority and "are considered more sympathetic to the free-speech claims of the protesters," according to AP/ABC News (Sherman, AP/ABC News, 10/6).
Oklahoma's Medication Abortion Law
In June, the Supreme Court also agreed to review an Oklahoma medication abortion law, pending clarification from the Oklahoma Supreme Court on its understanding of the statute. Depending on the state court's response, the high court could drop the case or decide to intervene.
The law -- among other abortion restrictions -- requires physicians to follow FDA guidance on medication abortion, rather than guidelines from the American College of Obstetricians and Gynecologists and the National Abortion Federation that currently are used. In their request to the Oklahoma court, the Supreme Court justices asked whether the state judges thought the law bars use of the abortion drug misoprostol, even when physicians follow FDA protocol. They also asked whether the state measure prevents physicians from using the cancer drug methotrexate to treat ectopic pregnancies (Women's Health Policy Report, 6/28).
According to the New York Times, the Supreme Court -- once its questions of the lower court are answered -- "may well modify its understanding of one of Justice O'Connor's central legacies, Planned Parenthood v. Casey in 1992," which "reaffirmed the core of Roe v. Wade ... and prohibited laws placing an 'undue burden' on women's access to abortion."
Federal Contraceptive Coverage Rules
In addition, the Supreme Court will decide soon if it will hear a case on whether the Affordable Care Act's (PL 111-148) contraceptive rules violate the religious freedom of private, for-profit businesses (New York Times, 10/7). According to the Los Angeles Times, the case likely will be heard next spring (Los Angeles Times, 10/6).
The high court will likely take the case because federal appeals courts are divided in their rulings on the mandate and both sides want the justices to weigh in. Specifically, the Obama administration in September moved to appeal a ruling by the 10th Circuit Court of Appeals in favor of Hobby Lobby, a retail chain that argued the mandate violated the company's owners' religious beliefs. Meanwhile, the Christian legal group Alliance for Freedom that same month filed a petition with the Supreme Court to review a ruling made by the 3rd Circuit Court in Philadelphia which rejected a similar claim from another business (Women's Health Policy Report, 9/20).