Editorial Note – Samantha Hodgson

Supreme Court Justice Amy Coney Barrett has taken part in her first abortion related case since her joining SCOTUS. Her decision formed part of the majority who provided little reason for their grant of the Governments application for stay. Chief Justice Roberts, concurring in the grant of application for stay, said that the question here was not whether the FDA imposed an undue burden on those seeking abortion medication, but whether the district court correctly ordered the FDA to lift the requirement for women to continue obtaining the drug mifepristone in person during the COVID-19 pandemic. Chief Justice Roberts said that the ruling of the majority was one that deferred to the view of experts.

Justice Sotomayor formed the dissenting opinion for which Justice Kagan joined. Justice Breyer would deny the application for stay. Justice Sotomayor argues that the government did not meet the exceptional standard of proof required to grant an application for stay and that the FDA did in fact place an undue burden on women seeking abortion medication during the COVID-19 Pandemic.

Justice Gorsuch delivered the 6-3 majority judgment (Roberts CJ, and Ginsburg, Breyer, Sotomayor, and Kagan JJ joining, Alito J, Thomas J, Kavanaugh J dissenting) in Bostock v Clayton County, extending the protection of the Civil Rights Act of 1964 to gay and transgender discrimination. His Honour opened:

“Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids. Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”

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