Gavel Drop: SCOTUS Gets Its First Abortion Rights Petition With Kavanaugh on the Bench

Weeks into the job, and Associate Supreme Court Justice Brett Kavanaugh will weigh in on whether the court should take an abortion rights case out of Indiana.

[Photo: Nondescript white man in a suit holds up his hand and stands in front of balding white man, also in a dark suit.]
Brett Kavanaugh gets sworn in as the newest U.S. Supreme Court justice on October 8. Very soon, he may have a say on a case about Indiana's sweeping and restrictive abortion law. Brendan Smialowski/AFP/Getty Images

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.


And so it begins. Just one week after Judge Brett Kavanaugh was confirmed to the U.S. Supreme Court (SCOTUS), the State of Indiana is asking the Court to hear arguments over a law that bars pregnant people from having an abortion based on sex, race, or disability; the state had attempted to apply anti-discrimination law to fetuses. The omnibus abortion law, which also required abortion clinics to dispose of miscarried or aborted fetuses by cremation or interment, was signed in 2016 by Vice President Mike Pence when he was governor of Indiana. Planned Parenthood of Indiana and Kentucky quickly filed a lawsuit, various provisions of the law were blocked and then permanently struck down in September 2017. The U.S. Court of Appeals for the Seventh Circuit earlier this year affirmed a lower court’s ruling blocking the provisions. Indiana Attorney General Curtis Hill last week asked SCOTUS to review the case, arguing that both issues were “nationally important.”

In other news, a federal judge has dismissed an attempt by the American Civil Liberties Union (ACLU) to stop the federal government from placing young, undocumented immigrants in shelters run by Catholic organizations that oppose abortion and contraceptive services. The lawsuit claimed that contracting with faith-based groups that deny such services is a violation of the separation of church and state. U.S. Magistrate Laurel Beeler ruled October 11 that the ACLU failed to show that “any grant funding was used for any religious purpose or that any unaccompanied minor or trafficking victim who wanted an abortion or contraception was unable to obtain them.

LGBTQ Rights

Lambda Legal is suing the State of Kansas for refusing to allow transgender people to update their birth certificates to accurately reflect their gender identity. Kansas is one of only three states that will not allow transgender people to correct the gender marker on their birth certificate, under any circumstance. At least a dozen other states require transgender people to provide proof of surgery in order to correct the gender on their driver’s license. The lawsuit, filed October 15 in the United States District Court in Kansas City argues that denying transgender people the ability to obtain birth certificates that accurately reflect their identity violates the 14th Amendment’s guarantee of equal protection and due process.

Meanwhile, a federal appeals court heard arguments last week over a Minnesota couple’s attempt to refuse videography services at same-sex weddings. In 2016, Christian filmmakers Carl and Angel Larsen alleged the state’s public accommodations law, which bans discrimination on the basis of sexual orientation, would require the pair to accept filming requests for same-sex marriages. A federal judge dismissed their lawsuit against the state, ruling last year that the couple did not have a free-speech right to discriminate. Backed by the Alliance Defending Freedom (ADF), a far-right litigation firm, the Larsens appealed the decision to the U.S. Court of Appeals for the Eighth Circuit. ADF has had an aggressive caseload this year; they argued before the U.S. Supreme Court on behalf of an anti-gay Colorado cake baker and anti-choice fake clinics; asked SCOTUS to rule that employers can legally discriminate against transgender people in the workplace; and just recently argued in federal court that Christian homeless shelters should be able to deny services for transgender people.


The Trump administration plans to ask the U.S. Supreme Court to intervene in its attempts to end the Deferred Action for Childhood Arrivals (DACA) program if a federal appeals court has not ruled on the legality of the administration’s rescission efforts by the end of the month. Created by President Obama, the DACA program permits enrollees to defer deportation and reside, work, or attend school in the United States legally for two years before having to seek a renewal. 

The Courts

Republicans have gone to great lengths to gain control of the federal judiciary, from slowing down or blocking entirely President Obama’s nominees to putting the confirmation process on warp speed once they took control of Congress and the executive branch. Now Slate‘s Mark Joseph Stern has this report on how the Heritage Foundation is helping to solidify the far right takeover by enlisting federal law clerks in an ideological “boot camp” program.

And Senate Republicans pressed ahead with hearings for even more Trump judicial nominees despite the fact that most members of Congress were on break and Senate Democrats objected to this latest rounds of hearings.