SCOTUS Update: December 2023

Three pieces of recent news from the Supreme Court of the United States are of interest to pro-life, pro-family Americans.

First, in Tingley v. Ferguson, 601 U.S.         (2023), the Court denied certiorari in a legal challenge to a Washington state law barring licensed healthcare providers from engaging in sexual orientation and gender identity change efforts with minor clients. (As New Yorkers may recall, New York passed a similar law in 2019; that law, known as the Counselor Coercion Law, was enacted despite fierce opposition from New Yorkers for Constitutional Freedoms.) Washington’s Counselor Coercion Law was passed in 2018; its constitutionality was challenged in federal court by Brian Tingley, a licensed marriage and family counselor who believes that “a person’s sex is ‘a gift from God, integral to our very being.’” The Ninth Circuit Court of Appeals ruled in favor of the state of Washington, reasoning that professional counseling is a form of conduct, not constitutionally-protected speech.

On December 11, 2023, the Supreme Court declined to hear the appeal, leaving Washington’s Counselor Coercion Law undisturbed. Three justices of the Court—Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh—dissented, asserting that the Court should have taken the case. In his dissent, Justice Thomas noted that different federal appellate courts have reached different results in regard to the constitutionality of counselor coercion laws. Justice Thomas also quoted a prior Supreme Court case, which said, “‘regulating the content of professionals’ speech “pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.”’” Based on their records in cases relating to sexuality and gender, it is unsurprising that Chief Justice John Roberts and Justice Neil Gorsuch were unwilling to take the Tingley case. It is hoped, however, that a future Court will have the wisdom and the bravery to rule that counselor coercion laws violate the First Amendment.

Second, the Supreme Court declined to hear a First Amendment case out of New York relating to abortion. In Vitagliano v. County of Westchester, Debra Vitagliano, a pro-life Catholic woman, brought a legal challenge against a Westchester County ordinance. According to the Becket Fund for Religious Liberty, the county ordinance “established a 100-foot zone around abortion clinics and prohibited anyone from approaching within eight feet of a person in that zone to provide information or counseling unless given express consent.” Vitagliano lost at the trial court level and at the Second Circuit Court of Appeals, but appealed to the Supreme Court. After the appeal was filed, Westchester County backed down, repealing its own ordinance. Despite the fact that the Court opted not to hear the case, this is a pro-life win.

Third, the Supreme Court has announced that it will hear an appeal of a Fifth Circuit Court of Appeals decision in FDA v. Alliance for Hippocratic Medicine. This case arises from a decision by the U.S. Food and Drug Administration (FDA) to expand access to abortion pills. Arguments in this important case are expected to be scheduled in the spring of 2024.