Monday, September 1, 2014

District Judge Enjoins Portions of Texas' Restrictive Abortion Law, HB 2

The latest installment in the continuing saga of HB 2, Texas' restrictive abortion law, occurred late Friday with Judge Lee Yeakel enjoining the admitting privileges requirement and the ambultory-surgical-center requirement in his 21 page  opinion  in Whole Woman's Health Center v. Lakey.

Recall that a panel of the Fifth Circuit in March upheld the admitting privileges provision of controversial  Texas HB 2 passed despite a well-publicized filibuster by state senator Wendy Davis, after it had issued a stay of Judge Yeakel's decision enjoining the provision as unconstitutional. 

This new opinion considers the as-applied challenge to the admitting privileges provision combined with the the ambultory-surgical-center requirement. 

In considering the testimony and evidence in the bench trial, Judge Yeakel found that the "experts’ testimony substantially contradicted each other and, predictably, reached opposing conclusions," noting that this is "the nature of expert testimony."   But the judge did use some of that testimony, as well as carefully considering the parties' stipulations. 

The court concludes that the act’s ambulatory-surgical—center requirement, combined with the already in-effect admitting-privileges requirement, creates a brutally effective system of abortion regulation that reduces access to abortion clinics thereby creating a statewide burden for substantial numbers of Texas women. The obstacles erected for these women are more significant than the “incidental effect of making it more difficult or more expensive to procure an abortion.” [citing Casey].  The court concludes that the overall lack of practical access to abortion services  resulting from clinic closures throughout Texas as a result of House Bill 2 is compelling evidence of a substantial obstacle erected by the act.  

The judge also concluded "that the severity of the burden imposed by both requirements is not balanced by the weight of the interests underlying them."  And, perhaps most interestingly, the judge explicitly considered the legislative intent of HB2:

An abortion regulation is also violative of a woman’s right to an abortion if it was adopted with the purpose of erecting a substantial obstacle to a woman’s ability to choose a previability abortion. [citing Gonzales v Carhart]. Because the act’s two requirements have the effect of creating an undue burden, an additional finding that the act was passed with the purpose of erecting a substantial obstacle is not required in order to declare the act unconstitutional. However, the court  concludes, after examining the act and the context in which it operates, that the ambulatory-surgical- center requirement was intended to close existing licensed abortion clinics. The requirement’s  implementing rules specifically deny grandfathering or the granting of waivers to previously licensed  abortion providers. This is in contrast to the “frequent” granting of some sort of variance from the  standards which occur in the licensing of nearly three-quarters of all licensed ambulatory surgical  centers in Texas. Such disparate and arbitrary treatment, at a minimum, suggests that it was the intent of the State to reduce the number of providers licensed to perform abortions, thus creating a substantial obstacle for a woman seeking to access an abortion. This is particularly apparent in light of the dearth of credible evidence supporting the proposition that abortions performed in ambulatory  surgical centers have better patient health outcomes compared to clinics licensed under the previous regime.  

[emphasis added].

Thus, the judge enjoined the enforcement of HB2.  

The Attorney General of Texas is sure to appeal. 

September 1, 2014 in Abortion, Courts and Judging, Due Process (Substantive), Fourteenth Amendment, Gender, Opinion Analysis, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Thursday, August 7, 2014

Eleventh Circuit: No Preliminary Injunction for Ordinance Aimed at Curbing Loud Sounds Outside Abortion Clinics

In its opinion in Pine v. City of West Palm Beach, a unanimous Eleventh Circuit panel affirmed the district judge's refusal to enjoin the enforcement of § 34-38 of the Code of the City of West Palm Beach which bans amplified sound within 100 feet of the property line of any health care facility.

Thomas_H_Ince_-_Megaphone_1922The court held that the Sound Ordinance survived the First Amendment challenge as a valid time, place, or manner restriction on speech that is content-neutral, is narrowly tailored to advance the City’s substantial interest in protecting patients, and leaves open ample alternative avenues of communication, and further that it was not unconstitutional as applied to the abortion protesters.

The court relied upon Ward v. Rock Against Racism, which upheld a sound amplification regulation.  It distinguished the Court's recent declaration of unconstitutionality of an abortion clinic buffer zone in McCullen v. Coakley:

This case raises issues sharply different from those addressed recently by the Supreme Court in McCullen. There, the Supreme Court struck down a Massachusetts law that prohibited activists from standing within thirty-five feet of the driveway or entrance of a reproductive health care facility.  For a number of reasons, the Court held that the restriction was not narrowly tailored to the government’s interest in preventing obstructions and congestion outside of abortion clinics. The Court explained that the Massachusetts law “unnecessarily swe[pt] in innocent individuals and their speech” by “categorically exclud[ing] non-exempt individuals from the buffer zones.” Notably, Massachusetts had failed to pursue a variety of available, less-restrictive solutions for congestion problems. Finally, the law barred access to public sidewalks and ways, “areas historically open for speech and debate.”  Massachusetts had taken “the extreme step of closing a substantial portion of a traditional public forum to all speakers.”

These considerations cut the other way in this case. Instead of casting a wide net that captures innocent speech, the Sound Ordinance targets only actions near health care facilities that produce types of noise that can endanger patients. In addition, here there are no less restrictive means: because the heart of the problem is loud, raucous, or disturbing noise, a restriction on that sound is narrowly tailored. Unlike in McCullen, the record here contains no evidence of feasible alternatives that protect patient health from such sound. Finally, the Sound Ordinance in no way prevents Petitioners from accessing public ways and sidewalks near the Center. They simply cannot create loud, raucous, or unreasonably disturbing noise while there.

[citations omitted].  The court had made clear that "the City’s noise control regulations indicate that the Sound Ordinance restriction on amplified sound applies only to 'loud and raucous noise, or any noise which unreasonably disturbs, injures, or endangers the comfort, repose, health, peace, or safety' of others within a health care facility quiet zone."   The court stated it the Sound Ordinance was not intended to have the "absurd" result that would prohibit "any electronic equipment that uses or produces amplified sound, from paging systems to administrators’ telephones to patient monitoring devices."

Thus construed, the court found that the Ordinance was not being enforced based on viewpoint when it was not enforced against "drive-through loudspeakers within the quiet zone by quick-service restaurants Wendy’s and Pollo Tropical."  Instead, the protestors use of bullhorns was directly within the "loud and raucous noise" prohibition.

The court ended by emphasizing that the opinion was limited to the "extraordinary" remedy of a preliminary injunction and they plaintiffs were free to pursue a permanent injunction.  But given that the court found that the plaintiffs did not demonstrate they had a likelihood of success on the First Amendment merits, the prospects for prevailing on those same First Amendment arguments are slight.

[image via]

August 7, 2014 in Abortion, First Amendment, Opinion Analysis, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, August 4, 2014

Alabama District Judge Declares State's Restrictive Abortion Law Unconstitutional as Applied

United States District Judge Myron Thompson, in a lengthy opinion in Planned Parenthood Southeast v. Strange, concluded that the staff-privileges requirement of Alabama’s Women’s Health and Safety Act of 2013, 1975 Ala. Code § 26-23E-4(c), is unconstitutional as applied to the plaintiffs.

In considering whether the hospital admitting privileges requirement, especially given that hospitals were not deeming physicians eligible to apply, Judge Thompson found it constituted an undue burden.  He did note and rely on last week's Fifth Circuit decision in Jackson Women's Health Organization v. Currier in which the appellate court concluded that the admitting privileges requirement that would operate to close the only abortion clinic in Mississippi was an undue burden, in part because a state could not shift its responsibilities to other states.  

The Alabama situation, however, was different as Judge Thompson noted:

This court does not need to resolve the legal issue of whether to consider out-of state clinics because, even if this court were to consider those clinics, it would reach the same conclusion. The out-of-state clinic nearest to any of the three cities at issue in this case is in Pensacola, Florida, approximately 50 miles away from Mobile. The Columbus, Georgia clinic is approximately 80 miles away from Montgomery. A woman in Mobile traveling to Pensacola or in Montgomery traveling to Columbus would still face the same threshold difficulties related to losing an abortion clinic in her home city; she would still have to overcome the challenges of the first 50 miles. Furthermore, the record does not support the conclusion that the Pensacola and Columbus clinics could actually accommodate an influx of patients from Alabama, and, in fact, the evidence from the Huntsville and Tuscaloosa clinics, discussed below, shows that it is not always easy for a clinic to increase capacity and suggests that the out-of-state clinics may not be able to treat large numbers of new women from Alabama.

The court also observed that if it looked outside the state's borders, it should not only look south and east but west as well.  West of Alabama is Mississippi, and the court duly cites Jackson Women's Health Organization.

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[image via]

As the judge clarifies, he "reaches no conclusions on these matters, but hastens to point out that an out-of- state analysis is both much more complicated than the State suggests and potentially harmful, on balance, to the State’s case."

 Moreover, the judge refused to deem the Fifth Circuit's decision in Abbott (on Texas's HB 2) as setting a per se rule that 150 miles of travel was not an undue burden.  Instead, he found that the consideration of undue burden should be very specific and focused on the undue burden that the Alabama regulation would have on urban women rather than rural women.

The court carefully considered the state's two proffered interests, the relationship of those interests, and then considered the undue burden, and anchored the conclusions in the testimony that is extensively discussed.
 
The judge is seeking additional "input" from the parties before fashioning final relief, but it will remain to be seen whether the Eleventh Circuit finds either of the approaches of the Fifth Circuit - - - Abbott or Jackson Women's Health Organization - - - when the Alabama case is appealed.

August 4, 2014 in Abortion, Due Process (Substantive), Fundamental Rights, Gender, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 29, 2014

Divided Fifth Circuit Upholds Preliminary Injunction Against Mississippi's Restrictive Abortion Law HB 1390

A panel of the Fifth Circuit in its opinion today in Jackson Women's Health Organization v. Currier upheld the district judge's injunction against the enforcement of a restrictive abortion statute known as  Mississippi HB 1390.

The statute required physicians performing abortions to have admitting privileges to a nearby hospital.   As the court noted, a similar provision in Texas (HB 2) was recently upheld by the Fifth Circuit in Planned Parenthood of Texas Surgical Providers v. Abbott. As to the rational basis of such a law, the panel stated it was "bound" by Abbott as precedent to accept that the Mississippi statute survives a constitutional challenge.

1024px-Welcometomississippi_i-20Regarding undue burden, however, the panel majority, in an opinion by Judge E. Grady Jolly  (who interestingly hails from Mississippi) and joined by Judge Stephen Higginson, the effects of HB 1390 were relevant in this as-applied challenge.   In assessing the undue burden, the court found it highly relevant that “if enforced, the admitting privileges requirement would likely require JWHO, the only currently licensed abortion facility in Mississippi, to lose its license.”   The panel rejected the State's attempt to "walk back" this statement - - - which is actually a quote from the State's opening brief - - - as "too little, too late."  Additionally, the majority found it important that the hospitals had rejected the physicians' applications for admitting privileges based on the fact that the physicians performed abortions.

 The central - - - and exceedingly interesting - - - question of the undue burden analysis is the relevance of the clinic's status as the only abortion clinic remaining in Mississippi.  The State argued that there is no undue burden because women could travel to another state and many of these distances would not be unduly burdensome in and of themselves.  Recall that in Planned Parenthood of S.E. Penn. v. Casey, 505 U.S. 833 (1992) the plurality opinion rejected the contention that traveling long distances constituted an undue burden.  But, as Judge Jolly notes, there was no suggestion that women should have to go to neighboring states in Casey or in any other opinion, and there is at least one circuit court opinion that finds it "dispositive" that women had to leave the state to exercise their constitutional right. 

Additionally - - - and this is the interesting part - - - the court relies upon State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) in the United States Supreme Court rejected Missouri's argument that its failure to admit an African-American man to its law school was essentially cured by its offer of a tuition stipend to allow Mr. Gaines to attend law school in another state.  Here's the passage from Gaines that Judge Jolly finds worthy of quoting at length:

[T]he obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. . . . That obligation is imposed by the Constitution upon the States severally as governmental entities, —each responsible for its own laws establishing the rights and duties of persons within its borders. It is an obligation the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do. That separate responsibility of each State within its own sphere is of the essence of statehood maintained under our dual system.

Id. at 350.  Judge Jolly admits that Gaines can be distinguished, but finds Gaines nevertheless determinative: " a state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights." 

In a lengthy and somewhat vehement dissent - - - complete with quotations from Albert Camus - - - Senior Judge Emilio Garza finds many things to criticize in the majority's opinion, including the majority's failure to recognize there is not sufficient state action for a constitutional claim (it is the hospitals denying admitting privileges rather than the statute that are the cause); the majority's failure to honor the distinction between equal protection (as in Gaines) and due process (in the abortion context); the majority's belief that there is relevance to crossing state lines (given the constitutional right to travel across state lines articulated in Saenz v. Roe); the majority's failure to recognize that Casey is nothing more than a "verbal shell game" (quoting Justice Scalia's dissent in Casey); the majority's recognition of the "liberty" interest (quotes in original) in the Due Process Clause; and the majority's participation in "aggrandizement of judicial power."   

But the central issue of federalism including not only states' rights but states' responsibilities raised by this opinion and litigation is one that merits close consideration.

July 29, 2014 in Abortion, Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Race, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, June 30, 2014

Divided Supreme Court Recognizes Right of Closely Held Corporations Hobby Lobby and Conestoga Wood Specialties under RFRA to Avoid "Contraceptive Mandate"

On this last day of the 2013-2014 Term, the Court delivered its long-awaited opinion in "Hobby Lobby" - - now Burwell v. Hobby Lobby, Inc. consolidated with Conestoga Woods Specialties Corp. v. Burwell - - - on the question of whether corporations (or their owner/shareholders) be able to interpose a religious objection under RFRA (the Religious Freedom Restoration Act)  to a federal requirement that employers provide health insurance to employees that includes contraceptive coverage?  Here's our primer on the issues for more detail.  Recall that the Tenth Circuit en banc in Hobby Lobby ruled for the corporation, while the Third Circuit panel in Conestoga Woods ruled for the government, and several other courts entered the fray with disparate results. 

The oral arguments  in March were contentious and so too are the opinions in this 5-4 decision. 

Birth_Control_Review_1919bThe majority opinion, authored by Justice Alito, holds that closely-held corporations such as Hobby Lobby and Conestoga Wood Specialties are "persons" within the meaning of RFRA and thus are entitled to raise a claim.  The Court looks at Congressional intent in RFRA, its own precedent allowing RFRA claims by nonprofit corporations, and policy issues about the difficulty of determining the "beliefs" of a corporation, and held that closely held corporation that make a profit are "persons" within RFRA.

The Court then held that the challenged HHS regulations ("the contraceptive mandate") did substantially burden the business owners religious beliefs because they believe if they comply with the mandate they will be "facilitating abortions" and if they do not comply, they will face substantial fines. The Court rejected the argument that the link between the insurance coverage paid by an employer and an employee being reimbursed by the insurance company for obtaining contraception was too attenuated.

Given this finding, under RFRA, the Court applies "strict scrutiny," but interestingly assumes that the government satisfies the "compelling government interest" prong.  However, the Court finds that the HHS mandate is not the "least restrictive means" to accomplish its goal: the system already in place for accommodating the religious beliefs of nonprofit entities granted exemptions under the regulations and statute.

 Justice Kennedy writes a brief concurring opinion.  As we discussed,  Kennedy was focused on as the "Justice to watch" and he stresses that the existence of government accommodation already in existence.

 The "principal dissent" (as the Court's opinion often characterizes it) is by Justice Ginsburg,  joined by Sotomayor in full, and by Breyer and Kagan (except to a section regarding the construction of RFRA as applying to corporate persons).  The dissent begins by labeling the majority's decision as one of "startling breadth" that allows corporations to "opt out" of  "any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs."  Justice Ginsburg argues there is a slippery slope in the majority's least restrictive means analysis, despite the majority's attempt to cabin it:

And where is the stopping point to the “let the government pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection? Because the Court cannot easily answer that question, it proposes something else: Extension to commercial enterprises of the accommodation already afforded to nonprofit religion-based organizations. “At a minimum,” according to the Court, such an approach would not “impinge on [Hobby Lobby’s and Conestoga’s] religious belief.”  I have already discussed the “special solicitude” generally accorded nonprofit religion-based organizations that exist to serve a community of believers, solicitude never before accorded to commercial enterprises comprising employees of diverse faiths.

Ultimately, the Court hedges on its proposal to align for- profit enterprises with nonprofit religion-based organizations. “We do not decide today whether [the] approach [the opinion advances] complies with RFRA for purposes of all religious claims.”  Counsel for Hobby Lobby was similarly noncommittal.

[citations and footnotes omitted].

Whether or not the Court's opinion is narrow or broad might depend more on one's political outlook and one's view of the Court as "chipping away" or as "careful crafting."

However, recall that RFRA - - - the Religious Freedom Restoration Act - - - is a statute passed by Congress that changed the standard of review the Court had announced be accorded religious claims; many now believe that Congress will be called upon to change RFRA, including perhaps the definition of "person" to exclude for-profit corporations, or to repeal RFRA in its entirety.

[image via]

June 30, 2014 in Abortion, Congressional Authority, Courts and Judging, Executive Authority, Family, First Amendment, Gender, Medical Decisions, Opinion Analysis, Religion, Reproductive Rights, Sexuality, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Thursday, June 26, 2014

United States Supreme Court Declares Massachusetts' Buffer Zone Unconstitutional in McCullen v. Coakley

A unanimous Court, albeit in separate opinions, found the Massachusetts statute imposing a 35 foot buffer zone around places where abortions are performed violates the First Amendment in its opinion in McCullen v. Coakley,  reversing the First Circuit.

Writing for the Court, Chief Justice Roberts - - - who, unusually, did not ask any questions during the oral argument - - -found that the statute was not subject to strict scrutiny because it was content and viewpoint neutral, despite arguments to the contrary.  However, the Court found that the statute failed the so-called "time, place, and manner" test articulated in  Ward v. Rock Against Racism, 491 U. S. 781 (1989).   The Court's opinion - - - joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan - - - concluded that the statute burdened more speech than necessary and was not sufficiently closely tailored.  In large part, this was based on the statute's exceptional coverage of public streets and sidewalks.  It was also based on the specific petitioners in the case, who are not "protesters," but people who "attempt to engage women approaching the clinics in what they call 'sidewalk coun­seling,' which involves offering information about alternatives to abortion and help pursuing those options." Further, the Court articulated other less restrictive means available to Massachusetts, including targeted injunctions, and found that the record did not support the need for Massachusetts' sweeping approach.  As the Court concluded:

Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks—sites that have hosted discussions about the issues of the day throughout history. Respondents assert undeniably significant interests in maintaining public safety on those same streets and sidewalks, as well as in preserving access to adjacent healthcare facilities. But here the Commonwealth has pursued those interests by the extreme step of closing a substantial portion of a tradi­ tional public forum to all speakers. It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes. The Commonwealth may not do that consistent with the First Amendment.

Justice Scalia's concurring opinion, joined by Justices Kennedy and Thomas, criticizes the Court's opinion as one

that has Something for Everyone, and the more significant portion continues the onward march of abortion-speech-only jurisprudence. That is the first half of the Court’s analysis, which concludes that a statute of this sort is not content based and hence not subject to so-called strict scrutiny. The Court reaches out to decide that question unnecessarily—or at least unnecessarily insofar as legal analysis is concerned.

Justice Alito, wrote separately but briefly to express his belief that the statute discriminates on the basis of viewpoint.

The takeaway is this: In a unanimous opinion, the Court ruled that Massachusetts went too far in seeking to protect the reproductive rights of women seeking abortions and infringed the First Amendment rights of those who seek to counsel them to change their minds.  The Court's opinion approves more narrow methods governments might use to protect the reproductive rights of women entering clincs.  But four Justices seem inclined to find a violation of the First Amendment in even more narrow government attempts.

June 26, 2014 in Abortion, Courts and Judging, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Speech | Permalink | Comments (2) | TrackBack (0)

Tuesday, April 1, 2014

Daily Read: Mother Jones on Hobby Lobby's Investments (in Contraception)

Last week's oral arguments in Hobby Lobby v. Sebelius and the companion case of Conestoga Wood Specialities Corp. v. Sebelius saw discussions about the substantial burden on the companies regarding providing contraceptive coverage and included Chief Justice Roberts noting that Hobby Lobby's religious beliefs included the provision of health insurance and Justice Kennedy specifically asking about why the company could not simply pay any fines or taxes. 

220px-Mother_Jones_1902-11-04
Mary Harris "Mother" Jones via

According to an article by Molly Redden in Mother Jones magazine today, Hobby Lobby does not exercise its religion in quite the same way when in comes to its 401(K) retirement plans.  Based on corporate disclosures, three-quarters of the funds (73 million) have holdings that "clashed" with the owners of Hobby Lobby's stated religious principles.  The corporation apparently did not avail itself of the faith-based investing that is often available. 

Under First Amendment free exercise doctrine as well as the Religious Freedom Restoration Act (RFRA), questioning sincerity is difficult and adherents to a religious belief need not be consistent in their beliefs.  Seemingly the only case in which a "contraceptive mandate" challenge suffered on these grounds is Eden Foods v. Sebelius. 

Nevertheless, this scenario could have served as the basis of an interesting hypothetical regarding the "substantial burden" on its religious beliefs the company and owners claim.

 

April 1, 2014 in Abortion, Current Affairs, First Amendment, Religion, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, March 27, 2014

Fifth Circuit Upholds HB2, Texas Restrictive Abortion Statute

A panel of the Fifth Circuit upheld the restrictive abortion law of Texas in its opinion in Planned Parenthood of Texas Surgical Providers v. Abbott. 

Authored by controversial conservative Judge Edith Jones, the unanimous panel opinion upholds positions of equally controversial  Texas HB 2 passed despite a well-publicized filibuster by state senator Wendy Davis.  The district judge's decision  had enjoined the "admitting provisions of HB 2 as unconstitutional: 

A physician performing or inducing an abortion:
(1) must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that:
(A) is located not further than 30 miles from the location at which the abortion is performed or induced; and
(B) provides obstetrical or gynecological health care services

800px-Texas_Capitol_night
Texas state capitol building via

The Fifth Circuit quickly stayed the injunction.  In today's panel opinion, Judge Jones wrote that the the district judge's opinion "applied the wrong legal standards under rational basis review and erred in finding that the admitting–privileges requirement amounts to an undue burden for a 'large fraction' of the women that it affects."

As to rational basis, Judge Jones highlighted the highly deferential standard, its place in a democracy, its practicality (if the legislature doesn't think a law is working, it can change it), and its application to HB2:

Viewed from the proper perspective, the State’s articulation of rational legislative objectives, which was backed by evidence placed before the state legislature, easily supplied a connection between the admitting–privileges rule and the desirable protection of abortion patients’ health.

As to the undue burden, Judge Jones noted that the Supreme Court's 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey,

counsels against striking down a statute solely because women may have to travel long distances to obtain abortions. The record before us does not indicate that the admitting–privileges requirement imposes an undue burden by virtue of the potential increase in travel distance in the Rio Grande Valley.

The narrow exception of the Fifth Circuit's reversal if that the  admitting privileges requirement "may not be enforced against abortion providers who timely applied for admitting privileges under the statute but are awaiting a response from the hospital."

March 27, 2014 in Abortion, Due Process (Substantive), Fourteenth Amendment, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 25, 2014

Justice Kennedy and the Hobby Lobby Contraceptive Mandate Oral Arguments: Is it Simply Administrative Law?

The arguments in the consolidated cases of  Hobby Lobby and Conestoga Wood Specialities v. Sebelius displayed Justices sharply divided on the issues as we discussed.  Whether Justice Kennedy will be the deciding vote in the cases is sure to be the subject of much speculation.  What, if anything, might be derived from his expressions at oral argument?  

He began, relatively early in the oral argument, by making space for Paul Clement to elaborate on his "framework" and by posing a question about RFRA:

JUSTICE KENNEDY: You were beginning by giving us a framework for your argument. Do I think of this as a statutory case? Of course, the First Amendment is on the stage at some point here, but I take it you can prevail just on the question of statutory interpretation, and if that is so, are there any statutory rules that work in your favor, that is to say, avoiding a constitutional question or how do we think about this case, primarily as a statutory case?

Justice Kagan thereafter pointed out that RFRA was a "special kind of statute" that "specifically refers back to a "body of constitutional law."

Justice Kennedy also asked about the relative substantial burden of paying any fines: "Let's assume that the cost of providing insurance is roughly equivalent to the $2,000 penalty. How ­­ how is the employer hurt? He can just raise the wages."

Clement eventually answered that “If they take away the health care insurance, they are going to have to increase the wages to make up for that. And they're going to have to pay the $2,000 penalty on top of it, plus they're going to have to violate their ­­ their own interest which is, we actually ­­ we believe it's important to provide our employees with qualified health care.

JUSTICE KENNEDY: Okay, the last is important. But just assume hypothetically that it's a wash, that the employer would be in about the same position if he paid the penalty and the employer ­­ pardon me, an employee went out and got the insurance and that the employee's wages were raised slightly and then it's ­­ and that it's a wash so far as the employer are concerned, other than the employer's religious objection, but just on the financial standpoint. Can we assume that as a hypothetical. Then what would your case be?

MR. CLEMENT: I think my case would be that in that case the government might be able to sort of support itself on the compelling interest. I think there would still be a substantial burden on their exercise. But again, this all turns on issues that the government hasn't put in issue.

Toward the end of Clement's time, Kennedy posed a different type of query:

JUSTICE KENNEDY: Just before your time starts to go too fast, how would you suggest that we think about the position and the rights of the ­­ of the employees? And you can have hypotheticals about the employer makes them ­­ wants to make them wear burkas and so forth. That's not in this case. 

But in ­­ in a way, the employees are in a position where the government, through its healthcare plans, is ­­ is, under your view, is ­­ is allowing the employer to put the employee in a disadvantageous position. The employee may not agree with these religious ­­ religious beliefs of the employer. Does the religious beliefs just trump? Is that the way it works?

In Kennedy's extensive colloquy with Solicitor General Verrilli, the subject veered from compelling governmental interest back to the status of RFRA:

JUSTICE KENNEDY:  Is it your position that part of the compelling interest here is that you have to protect the integrity ­­ the operational integrity of the whole Act?

GENERAL VERRILLI: It is part of our argument, absolutely. And ­­ but it ­­ but there is in addition to that, much more ­­

JUSTICE KENNEDY: Does that mean the constitutionality of the whole Act has to be examined before we accept your view?

GENERAL VERRILLI: Well, I think it has been examined, Your Honor, is my recollection.

(Laughter.)

GENERAL VERRILLI: But ­­ but with respect to ­­ but with respect to the ­­ there is a particularized interest here in that what we are talking about is a question of whether 14,000 employees and their families get access to this contraceptive coverage.

JUSTICE KENNEDY: You ­­ you have exempted a whole class of corporations and you've done so under your view not because of RFRA.

GENERAL VERRILLI: So let me ­­ let me go to that ­­

JUSTICE KENNEDY: Now, what ­­ what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? I recognize delegation of powers rules are somewhat more abundant insofar as their enforcement in this Court.

But when we have a First Amendment issue of ­­ of this consequence, shouldn't we indicate that it's for the Congress, not the agency to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes.

 Kennedy later continued on the issue of compelling governmental interest:

JUSTICE KENNEDY: I still don't understand how HHS exercised its judgment to grant the exemption to nonreligious corporations if you say it was not compelled by RFRA.

GENERAL VERRILLI: I don't think ­­

JUSTICE KENNEDY: Then it must have been because the health care coverage was not that important.

GENERAL VERRILLI: It didn't grant an exemption to any nonreligious organizations, Justice Kennedy. It granted an exemption to churches, and that was it. . . .

And later, Justice Kennedy, whose opinions on abortion are certainly complex, asked Verrilli what seemed a version of a particular "slippery slope" that had not been extensively considered:

JUSTICE KENNEDY: Under your view, a profit corporation could be forced ­­ in principle, there are some statutes on the books now which would prevent it, but ­­ could be forced in principle to pay for abortions.

GENERAL VERRILLI: No. I think, as you said, the law now ­­ the law now is to the contrary.

JUSTICE KENNEDY: But your reasoning would permit that.

GENERAL VERRILLI: Well, I think that ­­ you know, I don't think that that's ­­ I think it would depend on the law and it would depend on the entity.

 Finally, during Verrilli's argument, Justice Kennedy expressed interest in a hypothetical posetd by Justice Alito about a law requiring humane treatment of animals and therefore prohibiting kosher and halal slaughter.

Justice Kennedy asked no questions during Clement's rebuttal, but Clement gave the last word to Kennedy:

 . . . . If I could have just one second more to say that the agency point that Justice Kennedy has pointed to is tremendously important, because Congress spoke, it spoke in RFRA. Here the agency has decided that it's going to accommodate a subset of the persons protected by RFRA. In a choice between what Congress has provided and what the agency has done, the answer is clear.

Certainly Clement's articulation is simplistic, but it could satisfy Kennedy's initial search for some statutory construction principles that might make the answer to the divisive issues also seem simple.

[image: Justice Kennedy by Donkey Hotey via]

March 25, 2014 in Abortion, Courts and Judging, First Amendment, Oral Argument Analysis, Religion, Reproductive Rights, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Saturday, March 15, 2014

Arkansas Federal Judge Permanently Enjoins Arkansas 12 Week Gestation Abortion Ban

In an opinion in Edwards v. Beck, a federal judge permanently enjoined portions of Arkansas' Act 301, which imposed regulations on the performance of abortions in Arkansas.

Judge Wright considered the Act's three provisions: a heartbeat testing requirement; a disclosure requirement; and a ban on abortions when a fetal heartbeat is detected and the fetus has reached twelve weeks’ gestation.

She found that the 12 week ban prohibits pre-viability abortions and "thus impermissibly infringes a woman’s Fourteenth Amendment right to elect to terminate a pregnancy before viability."

Yet Judge Wright concluded that the disclosure and heartbeat testing could be severed from the unconstitutional 12 week provision, because they are

independently capable of furthering the stated purpose of Act 301, to protect unborn children, and that they are severable from the unconstitutional twelve-week ban and the requirement of license revocation for a physician who performs an abortion banned under the Act. The State, from the inception of a pregnancy, maintains its own interest in protecting the life of a fetus that may become a child, and the Supreme Court has recognized that the disclosure of truthful information about fetal development is relevant to a woman’s decision- making process and is rationally related to the State’s interest in protecting the unborn.

The judge's analysis on the severability issue is relatively slight and she could easily have reached the opposite conclusion under her articulated rationales.  But she decided that only the ban on 12 week abortions was declared unconstitutional.

 

March 15, 2014 in Abortion, Due Process (Substantive), Gender, Opinion Analysis, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 11, 2014

Fourth Circuit Declares North Carolina's "Choose Life" License Plate Offering Unconstitutional

In its unanimous  opinion today in ACLU of North Carolina v. Tata a panel of the Fourth Circuit has concluded that North Carolina's specialty license plate "Choose Life" is unconstitutional under the First Amendment.

Recall that in December 2012,  Senior United States District Judge James Fox found that while the the "choose life" specialty license plate was offered by the government, it was not the type of "government speech" to which the First Amendment would not apply. 

As the Fourth Circuit explained:

The Supreme Court and this Court have recognized individual speech interests in license plate messages. And in this case, too, the specialty plate speech at issue implicates private speech rights, and thus First Amendment protections apply.

But this did not mean the state had no responsibility.  Indeed, the court concluded:

North Carolina invites its vehicle owners to “[m]ake a statement” and “promote themselves”—but only if they are on the government’s side of a highly divisive political issue. This, North Carolina may not do. Because the specialty plate speech at issue implicates private speech rights and is not pure government speech, North Carolina’s authorizing a “Choose Life” plate while refusing to authorize a pro-choice plate constitutes viewpoint discrimination in violation of the First Amendment.

Life


The court's opinion is an excellent rehearsal, in less than 30 pages, of what might be called the First Amendment doctrine of license plates, following from the classic First Amendment case of Wooley v. Maynard.  We recently discussed the Native American image on the Oklahoma license plate and Michigan's refusal of specific letters on a vanity license plate.

February 11, 2014 in Abortion, First Amendment, Reproductive Rights, Speech | Permalink | Comments (0) | TrackBack (0)

Friday, January 24, 2014

Second Circuit on Mandatory Disclosures for "Pregnancy Crisis Centers"

In its overdue opinion in The Evergreen Association, Inc. d/b/a Expectant Mother Care Pregnancy Centers v. City of New York, a divided panel of the Second Circuit ruled that only one of the three major provisions of NYC's Local Law 17 seeking to mandate disclosures by pregnancy crisis centers was constitutional.

Recall that in July 2011, a federal district judge enjoined all of Local Law 17 finding that the disclosure provisions did not survive strict scrutiny under the First Amendment, and the Second Circuit heard oral arguments in the appeal 16 months ago.  Meanwhile, the Fourth Circuit considered two similar laws seeking to compel disclosures by pregnancy crisis centers, issuing two en banc opinions in 2013.  The en banc Fourth Circuit in Greater Baltimore Center for Pregnancy Concerns, Incorporated v. Mayor and City Council of Baltimore reversed the granting of a preliminary injunction finding fault with the application of the summary judgment standard by the district judge.   The en banc Fourth Circuit in Centro Tepeyac v. Montgomery County, 722 F.3d 184 (4th Cir. en banc), affirmed a finding that one of the mandated disclosures was constitutional and the other was not.

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The underlying problem that the local laws intended to address is the existence of "crisis pregnancy centers" that arguably appear to be medical offices but are anti-abortion counseling centers.  The solutions that the local laws proposed were various "disclosures" by the centers.  In the case of Local Law 17, the disclosures were three:

  • whether or not they have a licensed medical provider on staff (the “Status Disclosure”);
  • whether or not they provide or provide referrals for abortion, emergency contraception, or prenatal care (the “Services Disclosure”);
  • that “the New York City Department of Health and Mental Hygiene encourages women who are or who may be pregnant to consult with a licensed provider” (the “Government Message”)

The Second Circuit upheld only the first, the "Status Disclosure."

The Second Circuit's opinion declined to decide whether the disclosures merited strict scrutiny or the lesser standard of intermediate scrutiny, stating - - - not altogether convincingly - - - that its conclusions were the same under both standards.

The panel opinion did find that the government had a compelling interest for Local Law 17 and thus for all three disclosure provisions: protecting public health and protecting a woman's access to reproductive health care.  But the panel found that only the status disclosure was "sufficiently tailored" to these interests.  In finding that the status disclosure was narrowly tailored, this certainly met both strict and intermediate scrutiny standards.

As to the services disclosure, the panel considered the "context" of the mandated disclosure regarding whether the facility provides or provides referrals for abortion, emergency contraception, or prenatal care to be the "public debate over the morality and efficacy of contraception and abortion."  Given this context of "public issues," the burden to justify the compelled speech is high.  Not surprisingly, the panel found that the mandated services disclosure did not survive.  However, the intermediate scrutiny analysis is less satisfying.  Here's the entirety of the analysis:

Finally, we consider whether a different answer would obtain under intermediate scrutiny, which looks to whether the regulation at issue is not more extensive than necessary to serve a substantial governmental interest. While it is a closer question, we conclude that it would not, considering both the political nature of the speech and the fact that the Status Disclosure provides a more limited alternative regulation.

The panel's analysis on the government speech analysis is less explicit regarding the standard of review, emphasizing that the government message could be conveyed in many different ways.

In addition to the specific disclosures, the district judge had found that Local Law 17's definition of "pregnancy services centers" was unconstitutionally vague; a conclusion with which the Second Circuit panel majority disagreed.  However, dissenting in part, one judge would have found all three provisions unconstitutional, arguing that the law is a "bureaucrat’s dream" containing  "deliberately ambiguous set of standards guiding its application, thereby providing a blank check to New York City officials to harass or threaten legitimate activity." 

The Second Circuit opinion largely agrees with the 2013 en banc Fourth Circuit's Centro Tepeyac v. Montgomery County, but the constitutional doctrine remains unclear.  Given the complexities, and judicial decisions upholding other mandated disclosures in the reproductive rights realm, this remains a great subject for some scholarly intervention.

January 24, 2014 in Abortion, First Amendment, Reproductive Rights, Scholarship, Speech | Permalink | Comments (0) | TrackBack (0)

Saturday, January 18, 2014

Federal District Judge Invalidates North Carolina Abortion Provision on First Amendment Grounds

In her opinion in Stuart v. Loomis, United States District Judge Catherine Eagles held the "speech and display" provisions of North Carolina's "The Woman‟s Right to Know Act" unconstitutional under the First Amendment.  Recall that Judge Eagles entered a preliminary injunction against the statute's enforcement in October 2011.

613px-Flag-map_of_North_Carolina.svgThe speech and display provision, North Carolina statute §90-21.85,  passed by the legislature over the governor's veto, generally provided

that a woman undergo an ultrasound at least four hours before an abortion

that the physician or qualified technician working with the physician display the images produced from the ultrasound “so that the [patient] may view them,” 

that the providers give “a simultaneous explanation of what the display is depicting, which shall include the presence, location, and dimensions of the unborn child within the uterus,” and

that the providers give “a medical description of the images, which shall include the dimensions of the embryo or fetus and the presence of external members and internal organs, if present and viewable.”

In a nutshell, Judge Eagles ruled:

The Supreme Court has never held that a state has the power to compel a health care provider to speak, in his or her own voice, the state‟s ideological message in favor of carrying a pregnancy to term, and this Court declines to do so today. To the extent the Act is an effort by the state to require health care providers to deliver information in support of the state‟s philosophic and social position discouraging abortion and encouraging childbirth, it is content- based, and it is not sufficiently narrowly tailored to survive strict scrutiny. Otherwise, the state has not established that the speech-and-display provision directly advances a substantial state interest in regulating health care, especially when the state does not require the patient to receive the message and the patient takes steps to avoid receipt of the message. Thus, it does not survive heightened scrutiny.

One interesting aspect of Judge Eagles' opinion is her discussion of the Ninth Circuit's 2013 opinion in Pickup v. Brown, holding constitutional California's prohibition of sexual orientation change efforts (also known as sexual conversion or reparative therapy).   Judge Eagles uses Pickup's analysis of medical speech, although noting that the court in Pickup ultimately concluded that the therapy in Pickup was conduct rather than speech.  Here, North Carolina was  "seeking to compel “doctor- patient communications about medical treatment,” in distinction to Pickup

Judge Eagles also discusses the other claims, including due process and the state's request to sever the statute (which she finds untimely).  It's a well-reasoned opinion that should survive if it is appealed.

 

January 18, 2014 in Abortion, Family, First Amendment, Medical Decisions, Opinion Analysis, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 15, 2014

Oral Argument in McCullen v. Coakley, the Clinic Buffer Zone Case

The United States Supreme Court heard oral arguments today in McCullen v. Coakley regarding a First Amendment challenge to a Massachusetts statute creating a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of medical facilities, including abortion clinics.  Recall that the First Circuit had rejected both a facial and as-applied challenge to the statute.  While the statute is a "time, place, manner" statute similar to others that had been upheld, throughout the arguments it often seemed as if the statute was being more than strictly scrutinzed.

The oral arguments evidenced several definitional disagreements.  A pronounced dispute was the characterization of the actors and actions covered by the statute.  Throughout his argument on behalf of the petitioners, Mark Rienzi described the activity as "peaceful, consensual conversations" and as "counseling."  When Jennifer Grace Miller, representing the state of Massachusetts opened her argument by characterizing the activities of the petitioners as "protest" or abortion, Justice Scalia quickly interrupted, accusing her of distortion.  Instead, he insisted, the petitioners "want to talk to the women who are about to get abortions and try to talk them out of it."  For Scalia, the case is a "counseling case, not a - - - not a protest case."  Later in the argument, he came back to the point:

I -- I object to you calling these people protestors, which you've been doing here during the whole presentation. That is not how they present themselves. They do not say they want to make protests. They say they want to talk quietly to the women who are going into these facilities. Now how does that make them protestors?

This definitional disagreement arose a number of times, implicating the issue of whether the state had other, less restrictive, means to accomplish its goals.  Justice Kennedy asked Ian Gershengorn, Deputy Solicitor General of the United States, supporting the state of Massachusetts, how many federal prosecutions there had been in Massachusetts, to which Gershengorn replied that the federal FACE Act is a "very different statute" aimed at "murder, arson, and chaining to doorways."  Such definitional issues also implicated the activity being regulated by the statute as speech based on content or even viewpoint.  

Importantly, the state action before the Court is a statute rather than an injunction, a point made apparent several times.  The record before the Massachusetts legislature as well as analogies to other types of buffer zones - - - Justice Alito seemed especially preoccupied with labor - - - was an important focus.  Justice Kagan raised protests around slaughterhouses by animal rights activists, noting to Mark Rienzi that it was raised in his brief for Petitioners, and saying that while he might have meant it to be "terrible," her reaction was that it might be sensible: "Just have everybody take a step back."

But how far back?  The question of "why 35?" was explicitly asked by Justice Kagan of Jennifer Miller arguing for the state.   Comparisons to the courtrrom space littered the arguments.  Justice Ginsburg translated the distance into time, asking Mark Reinzi how long is one in the buffer zone.  He replied, about "7 to 10 seconds":

JUSTICE GINSBURG: There's not much you're going to be able to do to have a conversation that will persuade people in 7 to 10 seconds.

MR. RIENZI: I respectfully disagree on that last point, Your Honor. The evidence in this record is that the -- the inability to speak with people close to the clinic has a dramatic effect on the Petitioners' ability to reach their audience. So if someone happens to be walking from the same side of the zone that you're standing on, you may have a shot.

Not surprisingly, Justice Thomas maintained his usual practice of foregoing verbalizing questions.  More surprisingly, perhaps, Chief Justice Roberts did not ask any questions.  His final "Thank you, counsel," provided no clues to his future deliberations on the case.

 

January 15, 2014 in Abortion, Current Affairs, First Amendment, Oral Argument Analysis, Privacy, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 19, 2013

Closely Divided United States Supreme Court Allows Enforcement of Restrictive Texas Abortion Law

In a 5-4 decision in Planned Parenthood of Greater Texas v. Abbott,  the United States Supreme Court has refused to vacate the Fifth Circuit's stay  of the district judge's injunction against the enforcement of the abortion restriction law known as  Texas HB 2, that had been the subject of the well-publicized filibuster by state senator Wendy Davis.

The Court's Order was accompanied by two opinions.  In the first, a concurring opinion authored by Justice Scalia and joined by Justices Thomas and Alito, the four factors for a stay are laid out:

(1) whether the State made a strong showing that it was likely to succeed on the merits,
(2) whether the State would have been irreparably injured absent a stay,
(3) whether issuance of a stay would substantially injure other parties, and
(4) where the public interest lay.

Justice Scalia's relatively brief opinion is primarily a refutation of the dissenting opinion, arguing that the

dissent would vacate the Court of Appeals’ stay without expressly rejecting that court’s analysis of any of the governing factors. And it would flout core principles of federalism by mandating postponement of a state law without asserting that the law is even probably un- constitutional. Reasonable minds can perhaps disagree about whether the Court of Appeals should have granted a stay in this case. But there is no doubt that the applicants have not carried their heavy burden of showing that doing so was a clear violation of accepted legal standards— which do not include a special “status quo” standard for laws affecting abortion.

The dissent, written by Justice Breyer and joined by Justices Ginsburg, Sotomayor, and Kagan, argued that the Fifth Circuit's issuance of the stay was "demonstrably wrong" in its application of the standards for issuing a stay based on six reasons:

  • the district judge's order maintained the status quo that existed in Texas prior to the hospital admitting privileges requirement;
  • the Fifth Circuit's stay disrupted that status quo, so that a "significant number of women seeking abortions" will be affected and that the "longer a given facility remains closed, the less likely it is ever to reopen even if the admitting privileges requirement is ultimately held unconstitutional;"
  • the Fifth Circuit agreed to expedite its consideration, again favoring the status quo;
  • the balance of harms tilts in favor of the applicants;
  • the "underlying legal question—whether the new Texas statute is constitutional—is a difficult question" that at least four Members of this Court will wish to consider irrespective of the Fifth Circuit's ultimate decision;" and
  • there was not a significant public interest consideration.

Given the four Justices who joined the dissent, it is clear that the decision not to vacate the stay was 5-4, although Justice Kennedy and Chief Justice Roberts did not join Justice Scalia's concurring opinion.

The restrictive abortion statute passed by Texas has been deeply divisive and the Court's decision demonstrates that the members of the Court are likewise deeply divided.

 

November 19, 2013 in Abortion, Courts and Judging, Gender, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 12, 2013

Daily Read: "Interest Creep" by Dov Fox

What is the government interest?

This simple query, even before one evaluates the interest (is it compelling? or even merely legitimate?), can be a vexing one for students, professors, litigators, and courts.   Legislative listing of such interests - - - whether in preambles, legislative history, or litigation - - - provides language but not necessarily meaning.

02c5688cd9ab2daa13288b5b3a4c43b5In his terrific article, "Interest Creep," (available on ssrn), Professor Dov Fox (pictured left) analyzes government interests in an array of constitutional cases.  His argument that the way that courts characterize government interests often shapes how cases are decided will hardly be surprising.  His contribution, however, is in his own characterizations and categorizations of the types of interests and their deployment.  His specific discussion of the government's interest in "potential life," expressed by the Court in Roe v. Wade, in contemporary abortion regulations about "fetal pain" and "sex/race selection" is stellar.

Ultimately, he argues that

Casual reliance on underspecified interests like potential life, national security, or child protection frustrates a constructive struggle about how best to make sense of the various plausible but distinct concerns that those shibboleths are invoked to capture over time and across contexts  Interest creep erodes adjudicative norms by impeding the capacity of litigants, judges, advocates, lawmakers, and citizens “to debate and to criticize the true reasons for [judicial] decisions."

Especially worth a read for anyone teaching or writing in the areas of reproductive rights.

November 12, 2013 in Abortion, Due Process (Substantive), Fourteenth Amendment, Medical Decisions, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

United States Supreme Court Refuses to Hear Oklahoma Abortion Case

The United States Supreme Court routinely rejects petitions for writs of certiorari, so today's denial in Pruitt v. Nova Health Systems is not especially noteworthy.  Nevertheless, given the Oklahoma Supreme Court's decision in 2012, which we discussed here, holding that Oklahoma's abortion law requiring an ultrasound was unconstitutional because of Planned Parenthood v. Casey, 505 U.S. 833 (1992), does seem meaningful. 

Its meaning is compounded by the Court's dismissal of the writ as improvidentally granted in Pruitt's companion case, Cline v. Oklahoma Coalition for Reproductive Justice, in which the Court certified a question to the Oklahoma Supreme Court regarding the interpretation of the abortion statute.

Thus, it seems as if the Court presently has no inclination to reconsider Casey.

800px-Panorama_of_United_States_Supreme_Court_Building_at_Dusk
 

 

 

November 12, 2013 in Abortion, Due Process (Substantive), Fourteenth Amendment, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, October 31, 2013

Fifth Circuit Stays Injunction Against Texas HB 2 Abortion Restrictions

A few days ago, federal District Judge Lee Yeakel enjoined portions of Texas HB 2 in Planned Parenthood of Greater Texas v. Abbott.

A Fifth Circuit panel has entered its opinion staying the injunction pending a full consideration of the merits, concluding that there is  "a substantial likelihood that the State will prevail in itsargument that Planned Parenthood failed to establish an undue burden on women seeking abortions or that the hospital-admitting-privileges requirement creates a substantial obstacle in the path of a woman seeking an abortion."  The panel also concluded that "the State has made a strong showing of likelihood of success on the merits" on its appeal on the partial injunction pertaining to medication abortions.

As to mandated hospital admitting provisions, the panel observed that the district judge's finding that the requirement failed a rational basis standard "overlooks substantial interests of the State in regulating the medical profession and the State’s interest in “‘protecting the integrity and ethics of the medical profession." Further, the panel held that the district judge's finding of an undue burden did not apply to "a large fraction" of the women seeking abortions in Texas.

Regarding the partial injunction on medical abortions, the Fifth Circuit panel found it is was overbroad, except in a single respect in which the injunction will remain in effect:

the district court’s injunction continues to apply pending appeal with respect to a mother who is 50 to 63 days from her last menstrual period if the physician who is to perform an abortion procedure on the mother has exercised appropriate medical judgment and determined that, due to a physical abnormality or preexisting condition of the mother, a surgical abortion is not a safe and medically sound option for her.

Otherwise, HB 2, the subject of the well-publicized filibuster by state senator Wendy Davis in now in effect.

 

October 31, 2013 in Abortion, Courts and Judging, Due Process (Substantive), Gender, Opinion Analysis, Reproductive Rights, Sexuality | Permalink | Comments (0) | TrackBack (0)

Monday, October 28, 2013

Texas District Judge Declares Portions of HB 2 Restricting Abortion Unconstitutional

WDTexas banner
In his opinion in Planned Parenthood of Greater Texas v. Abbott, Judge Lee Yeakel has enjoined portions of Texas HB 2, passed in July (despite a well-publicized filibuster by state senator Wendy Davis) and slated to become effective October 29, 2013.

 The judge found unconstitutional the "admitting privileges provision" that provided:

A physician performing or inducing an abortion:
(1) must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that:
(A) is located not further than 30 miles from the location at which the abortion is performed or induced; and
(B) provides obstetrical or gynecological health care services

He concluded that the provision placed a substantial obstacle in the path of a woman seeking an abortion and failed the rational basis test.  As to the substantial obstacle, the judge noted that hospital admitting privileges for physicians performing abortions can be difficult to obtain; for example a physician performing low-risk abortions may simply not have sufficient surgeries to qualify.  Moreover, many physicians are not within the 30 mile limit.  Regarding a rational relationship, the judge found that hospital emergency rooms admitting a patient and hospitals subsequently treating her do not disfavor a patient whose physician does not have admitting privileges.

Judge Yeakel did not declare unconstitutional HB 2's revision of physician prescription of abortion-inducing medications such as RU-486.  HB 2 essentially mandates following the FDA protocol, a protocol that is not usually followed and about which there is substantial disagreement.  Judge Yeakel, however, found that HB 2 did not impose an undue burden because the physician could perform a surgical abortion.  An exception, however, must be added if the physician determines that the health or life of the woman is at stake.

Texas is reportedly already appealing the decision.  It is not the first time that Judge Lee (Earl Leroy) Yeakel has rendered an opinion declaring portions of a Texas statute restricting abortion unconstitutional and been appealed.  Last year in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs, a panel of the Fifth Circuit reversed Judge Yeakel's preliminary injunction involving a Texas regulation that expanded the Texas Women's Health Program prohibition of funding for health care not merely to abortions, but to any organization affiliated with abortion.

 UPDATE: FIFTH CIRCUIT STAY

October 28, 2013 in Abortion, Courts and Judging, Due Process (Substantive), Fourteenth Amendment, Medical Decisions, Opinion Analysis, Reproductive Rights, Standing | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 27, 2013

Conference on Sex and Reproduction, Feminism and Legal Theory Project at 30

CONFERENCE ANNOUNCEMENT

The Feminism and Legal Theory Project at 30: A Workshop on Sex and Reproduction: From Privacy and Choice to Resilience and Opportunity?

EMORY UNIVERSITY SCHOOL OF LAW

November 15-16, 2013

more information here

SCHEDULE:

Friday, November, 15th
3-4 pm RECEPTION IN MACMILLAN LAW LIBRARY (location TBA)

247Celebrating the formal opening of the Catherine G. Roraback (pictured in watercolor left) Archive at Emory Law School .The workshop will be dedicated to Katie and her pioneering work on behalf of reproductive rights and justice.

Amy Kesselman (SUNY New Paltz), Vanessa King (Emory University School of Law)
  
4:30 - 6:30 pm  History of Sex and Reproduction
Bleeding Across Time: First Principles of US Population Policy | Rickie Solinger
Women versus Connecticut: Insights from the Pre-Roe Abortion Battles | Amy Kesselman (SUNY New Paltz)
Sex, Drugs, Rock and Roe: Ammi Rogers and the Legal History of Anti-Abortion Norms | Lolita Buckner Inniss  (Hamilton College, Cleveland Marshall College of Law)
6:30 - 8 pm DINNER

Saturday, November 16th
8:30 - 9:00 am CONTINENTAL BREAKFAST
 
9:00 - 11:30 am Discourses Surrounding Sex and Reproduction Issues: Law, Religion and Medicine
Medical, Scientific, and Public Health Evidence in Supreme Court Jurisprudence: Reimagining the Feminist Health Movement | Aziza Ahmed (Northeastern University School of Law)
Abortion Law and Medical Practices | Sheelagh McGuinness (School of Law, University of Birmingham) and Michael Thomson (School of Law, University of Leeds)
The Role of 'Nature' in Debates about Sex and Reproduction | Sean Coyle (School of Law, University of Birmingham)
Abortion Liberalization Policies around the World: Hidden Differences in the Diffusion Process | Elizabeth Heger Boyle (University of Minnesota), Minzee Kim (Ewha Women's University, South Korea), and Wesley Longhofer (Goizueta Business School, Emory University)
(University of Florida)
11:30 am - 12:30 pm LUNCH
 
12:30 - 2:45 pm Feminist Discourses: Sex, Reproduction and Choice
Infertility, Adoption, Alternative Reproduction, and Contemporary Legal Theory | April L. Cherry (Cleveland-Marshall School of Law)
Reproductive Rights and the Right to Reproduce: Is there a Place for the Non-Marital Mother? | Twila L. Perry (Rutgers University School of Law-Newark)
Choices Under the Shadow of Population Policy: Compuslory motherhood Challenged and Remade in Taiwan (1970s-2000s) | Chao-ju Chen (National Taiwan University)
Testing Sex: Non-invasive Prenatal Genetic Testing and Sex Selection |  Rachel Rebouche (University of Florida, Levin College of Law) 
3:00 - 5:15 pm Regulating Sex and Reproduction
Markets and Motives for Sex and Reproduction | Mary Ann Case (University of Chicago Law School)
A Fiduciary Theory of Health Entitlements | Margaux Hall (Columbia Law School)
Schrodinger's Child: Identity and Non-Identity in Reproductive Decision-Making | Jennifer S. Hendricks (University of Colorado Law School)
Procreative Pluralism |  Kimberley Mutcherson (Rutgers Law School, Camden)

 

RR

August 27, 2013 in Abortion, Conferences, Family, Gender, History, Religion, Reproductive Rights, Scholarship, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)