July 12, 2019: Judicial Advocacy Update


The Supreme Court has agreed to hear a trio of cases regarding the meaning of discrimination "because of sex" under Title VII. One of these cases—Harris Funeral Homes v. EEOC—involves a transgender plaintiff, assigned the male sex at birth, who was dismissed for transitioning to female, consistent with her true gender identity. The question in the case is whether Title VII prohibits discrimination against transgender people based on their status as transgender or sex stereotyping. The brief, filed on July 3, 2019, addresses what it means to be transgender and the harms that discrimination can cause, especially in the context of employment discrimination.

Standing for physicians

The AMA Litigation Center is the strongest voice for America's medical profession in legal proceedings across the country.

The second case, Bostock v. Clayton County, Georgia, concerns a gay man who was employed by Clayton County, Georgia, as a Child Welfare Services Coordinator for the county's Juvenile Court System. After Bostock "came out" as gay, he was subject to disparagement from other employees due to his sexual orientation. Bostock was then accused by the county of mismanaging public funds and was fired by the county. The question before the Supreme Court is whether Title VII of the Civil Rights Act of 1964, which prohibits against employment discrimination "because of… sex," encompasses discrimination based on an individual's sexual orientation.

This case has been consolidated with Altitude Express Inc. v. Zarda, in which a man alleged he was terminated based on his sexual orientation. All three of these cases could set a hugely important precedent for LGBTQ+ rights in the workplace.

A recent U.S. Supreme Court ruling ensures that CMS officials must tell the public about proposed changes to Medicare benefits—even if they seem minor—and give physicians, patients and other stakeholders a chance to comment on modifications' potential impact.

Physicians are cheering the ruling, as the outcome is one the Litigation Center of the AMA and State Medical Societies advocated for in a friend-of-the-court brief (PDF) filed in the case before the high court on behalf of the AMA and the Medical Society of the District of Columbia. Physicians told justices that "even 'seemingly minor' modifications in reimbursement determinations give rise to extreme financial consequences for providers and ultimately their patients."

The majority opinion, written by Justice Neil Gorsuch, opens by saying that in "one way or another, Medicare touches the lives of nearly all Americans," noting that it provides health insurance for nearly one-fifth of the nation's population. In explaining its reasoning for requiring the U.S. Department of Health and Human Services (HHS) to seek input, the court echoes arguments that the Litigation Center brief made about the importance of a notice-and-comment period for physicians, patients and other stakeholders. Read more here.

The AMA filed a lawsuit to challenge the constitutionality of two North Dakota laws that compel physicians and other members of the care team to provide patients with false, misleading, non-medical information about reproductive health. The AMA is filing this lawsuit in partnership with Center for Reproductive Rights, Red River Women's Clinic—the only abortion clinic in North Dakota—and its medical director, Kathryn Eggleston, MD, as co-plaintiffs.

Filed in the United States District Court, District of North Dakota, the lawsuit asks the court to block enforcement of North Dakota's compelled speech laws, which the AMA argues would inflict irreparable harm on patients and force physicians to violate their obligation to give honest and informed advice.

"The patient-physician relationship is the cornerstone of health care, and depends upon honest, open conversations about all of a patient's health care options," said AMA President Patrice A. Harris, MD, MA. "North Dakota's law undermines this relationship by requiring physicians to mislead and misinform their patients with messages that contradict reality and science. The AMA will always defend science and open conversations about all health care options available to patients."

In the lawsuit, the plaintiffs argue that these laws violate the First Amendment rights of physicians by forcing them to convey false information and non-medical statements with which they disagree. The lawsuit asks the court to block H.B. 1336 before it takes effect on Aug. 1.

Eight states—Arkansas, Idaho, Kentucky, North Dakota, South Dakota, Oklahoma, Nebraska and Utah—have passed laws requiring abortion providers to tell patients about so-called medication-abortion "reversal." Five of those states—including Arkansas, which expanded an existing law—passed the legislation in the past year.

Read more on this case here.