Wednesday, December 26, 2012

Sotomayor Rejects Hobby Lobby's Emergency Stay of ACA Contraception Coverage Mandate

In her role as Circuit Justice for the Tenth Circuit, Justice Sonia Sotomayor today rejected an application for an injunction pending appellate review from Hobby Lobby.  In her brief order in Hobby Lobby Stores, Inc. v. Sebelius, Sotomayor ruled that the privately held corporations did not "satisfy the demanding standard for the extraordinary relief they seek."

Hobby-Lobby-Logo

Recall that in November, an Oklahoma district judge stressed that Hobby Lobby, an arts and crafts store chain operating in 41 states, as well as its co-plaintiff, the Mardel corporation, were secular for-private corporations that did not possess free exercise of religion rights under the First Amendment.  Judge Joe Heaton therefore denied the motion for a preliminary injunction regarding their First Amendment objections to complying with contraceptive requirements under the Patient Protection and Affordable Care Act. 

Sotomayor notes that the Tenth Circuit refused to issue a stay pending appeal and she saw no reason to depart from that conclusion: "Even without an injunction pending appeal, the applicants may continue their challenge to the regulations in the lower courts. Following a final judgment, they may, if necessary, file a petition for a writ of certiorari in this Court."

RR

December 26, 2012 in Courts and Judging, Current Affairs, Family, First Amendment, Free Exercise Clause, Gender, Opinion Analysis, Reproductive Rights, Sexuality | Permalink | Comments (0) | TrackBack (0)

Thursday, December 20, 2012

Canada Supreme Court on the Constitutionality of a Veiled Witness in Criminal Prosecution

The Supreme Court of Canada this morning has issued its long-awaited opinion in R. v. N.S., 2012 SCC 72,  essentially affirming the provincial Court of Appeal of Ontario 2010 conclusion regarding the wearing of a niqab (veil) by a witness in a criminal proceeding and dismissing the appeal and remanding the matter to the trial judge.

NiqabAt issue is a conflict of rights that should be familiar to US conlaw scholars: the rights of a witness in a trial, here her religious rights, in opposition to the rights of the accused to a fair trial, including the right to confrontation of witnesses.  The accusing witness, N.S., is a Muslim woman who wished to testify at a preliminary hearing in a criminal case in which the defendants, N.S.'s uncle and cousin, were charged with sexual assault.  The defendants sought to have N.S. remove her niqab when testifying.  The judge heard testimony from N.S., in which she admitted that she had removed her niqab for a driver's license photo by a woman photographer and she would remove her niqab if required at a security check.  The judge then ordered  N.S. to remove her niqab when testifying, concluding that her religious belief was "not that strong."   This determination of the "strength" of N.S.'s belief was one of the reasons for the remand as it troubled the Supreme Court.

Cj4096_Balfour-250The majority opinion, authored by Chief Justice Beverley McLachlin (pictured) and joined by three of the Court's seven Justices, began by noting the conflict of Charter rights at issue: the witness’s freedom of religion and the accused's fair trial rights, including the right to make full answer and defence.  The opinion quickly rejected any "extreme approach" that would value one right over the over, as "untenable."  Instead, the Court articulated the Canadian constitutional law standard of "just and proportionate balance" as:

A witness who for sincere religious reasons wishes to wear the niqab while testifying in a criminal proceeding will be required to remove it if (a) this is necessary to prevent a serious risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of requiring her to remove the niqab outweigh the deleterious effects of doing so.

In turn, this involved four separate inquiries:

First, would requiring the witness to remove the niqab while testifying interfere with her religious freedom as construed by section 2(a) of the Charter, which centers on a sincere (rather than "strong") religious belief?

Second, would permitting the witness to wear the niqab while testifying create a serious risk to trial fairness?  The opinion recognized the deeply rooted presumption that seeing a face is important, but noted that in litigation in which credibility or identification are not involved, failure to view the witness' face may not impinge on trial fairness.

Third, assuming both rights are engaged, the trial judge must ask "is there a way to accommodate both rights and avoid the conflict between them?"

Finally, if accommodation is impossible, the judge should engage in a balancing test, asking whether

the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so?  Deleterious effects include the harm done by limiting the witness’s sincerely held religious practice.  The judge should consider the importance of the religious practice to the witness, the degree of state interference with that practice, and the actual situation in the courtroom – such as the people present and any measures to limit facial exposure.  The judge should also consider broader societal harms, such as discouraging niqab-wearing women from reporting offences and participating in the justice system.  These deleterious effects must be weighed against the salutary effects of requiring the witness to remove the niqab.  Salutary effects include preventing harm to the fair trial interest of the accused and safeguarding the repute of the administration of justice.  When assessing potential harm to the accused’s fair trial interest, the judge should consider whether the witness’s evidence is peripheral or central to the case, the extent to which effective cross-examination and credibility assessment of the witness are central to the case, and the nature of the proceedings.  Where the liberty of the accused is at stake, the witness’s evidence central and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance.  The judge must assess all these factors and determine whether the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so.

 In sending the case back to the trial judge (and instructing judges in similar situations in the future), the Court provides guidance, yet obviously falls far short of definitive answers. 

The concurring opinion of two Justices argued that a "clear rule" should be chosen.  This rule should be the removal of the niqab because a trial is a "dynamic chain of events" in which a conclusion about which evidence is essential can change. 

Abella250Justice Rosalie Abella (pictured right) wrote the solitary dissenting opinion.  On her view, while rooted in religious freedom, wearing a veil could certainly be analogized to other types of "impediments" in which the face or other aspects of demeanor might be obscured such as when a person is blind, deaf, not an English speaker, a child, or a stroke victim.  Moreover, Abella argued:

Wearing a niqab presents only a partial obstacle to the assessment of demeanour.  A witness wearing a niqab may still express herself through her eyes, body language, and gestures.  Moreover, the niqab has no effect on the witness’ verbal testimony, including the tone and inflection of her voice, the cadence of her speech, or, most significantly, the substance of the answers she gives.  Unlike out-of-court statements, defence counsel still has the opportunity to rigorously cross-examine N.S. on the witness stand. 

Abella also stressed the specifics of the case involved: a sexual assault prosecution by a young woman in which the defendants were members of her own family.

From the perspective of US conlaw scholars, whether or not interested in comparative constitutional law, the Canada Supreme Court's opinion in R. v. N.S. is an important one seeking to balance rights and addressing an issue that is percolating in the United States courts.

RR
[image of niqab via; image of Justices via Canada Supreme Court website]

December 20, 2012 in Comparative Constitutionalism, Criminal Procedure, Free Exercise Clause, Gender, Opinion Analysis, Religion, Sixth Amendment | Permalink | Comments (0) | TrackBack (0)

Monday, December 3, 2012

Daily Read: Joslin on the Responsible Procreation Government Interest of DOMA

Should the Court take certiorari in at least one of the circuit cases challenging DOMA, the Defense of Marriage Act, as is widely anticipated, the government interest will be at issue.  Courtney Joslin's article, Marriage, Biology, and Federal Benefits, forthcoming in Iowa Law Review and available in draft on ssrn, is a must-read on the "responsible procreation" interest that is often proffered.  Joslin (pictured)  argues that this interest is based on what she calls the "biological primacy:" an "underlying premise that the government’s historic interest in marriage is to single out and specially support families with biologically-related children."

Courtney-joslinJoslin's task is decidely not to assess the "fit" of DOMA's means chosen to this interest, under any equal protection standard, whether it be intermediate scrutiny as some, including the Second Circuit in Windsor  have applied, or rational basis as the First Circuit applied

Instead, Joslin interrogates whether this interest is factually true:  "Has the federal government historically accorded special solicitude and protection to families comprised of parents and their own biological children?"   She demonstrates that the interest is, at the very least, not a consistent one.  She examines the "history of federal family-based benefits in two areas: children’s Social Security benefits and family-based benefits for veterans and active members of U.S. military," and demonstrates that in a "vast array of federal benefits programs, eligibility is not conditioned on a child’s biological connection with his or her parent."

She concludes:

From the early years of federal family-based benefits, Congress both implicitly and explicitly extended benefits to children who were biologically unrelated to one or both of their parents. This unearthed history exposes that responsible procreation is based on normative judgments about sexual orientation and gender, not history and tradition.

Indeed, although Joslin does not discuss Loving v. Virginia, her article is deeply reminiscent of the Court's reasoning in Loving when it essentially rejected Virginia's proffered rationale of "racial integrity," with Chief Justice Warren writing that the "fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy."  Joslin's article should be required reading for anyone analyzing DOMA. 

RR

December 3, 2012 in Current Affairs, Family, Gender, History, Interpretation, Scholarship, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, November 30, 2012

Nevada District Judge Rejects Challenge to Same-Sex Marriage Exclusion

In an 41 page opinion and order in Sevick v. Sandoval, United States District Judge Robert Jones has rejected an equal protection challenge to Nevada's statutory scheme disallowing same-sex marriage. 

450px-Little_White_ChapelThe judge relied upon Baker v. Nelson, 409 U.S. 810 (1972), in which the United States Supreme Court summarily dismissed an equal protection challenge to the Minnesota statutory marital scheme's exclusion of same-sex couples.  While stating that the "present challenge is in the main a garden-variety equal protection challenge precluded by Baker," the judge was undoubtedly aware of Baker's problematic status (a case to be relegated to the dustbin of precedent, perhaps), and provided a full analysis, "so that the Court of Appeals need not remand for further proceedings should it rule that Baker does not control or does not control as broadly as the Court finds."

The judge's well-structured analysis begins with a discussion of the classification, considering the notion that the Nevada scheme makes no classification at all, as well as the notion that the scheme makes a gender classification, but settling for the widely accepted principle that the scheme makes a sexual orientation classification.

In determining the level of scrutiny to be applied, Judge Jones decides in favor of rational basis, noting his disagreement with the Second Circuit in Windsor involving DOMA.  Supporting this conclusion, Judge Jones highlights the factor of political powerlessless and its relationship with the judicial role in a democracy.  For example, Jones writes that "Any minority group can reasonably argue that its political power is less than it might be were the group either not a minority or more popular. That is simply an inherent aspect of democracy."   Additionally, "Gross movements by the judiciary with respect to democratic processes can cause an awkward unbalancing of powers in a Madisonian constitutional democracy."

Moreover, Judge Jones rejects the heightened rational basis of Romer v. Evans and the Ninth Circuit precedent of Perry v. Brown, involving California's Proposition 8, because there is no animus in the Nevada scheme:

Because there has never been a right to same-sex marriage in Nevada, Romer and Perry are inapplicable here as to NRS section 122.020. That section of the NRS removed no preexisting right and effected no change whatsoever to the legal status of homosexuals when adopted by the Nevada Territorial Legislature in 1861. See Nev. Comp. Laws § 196 § 2, at 65 (1861–1873).

On this lowest standard of rational basis, the challenger must negate every conceivable basis - - - an exceedingly, if not impossible task, and Judge Jones not surprisingly finds that the challengers fail to meet their heavy burden.  The "protection of the traditional basis for marriage," is a legitimate one for Judge Jones, and the exclusion of same-sex couples is rationally related to that interest.  This is true even though Nevada has provided for a domestic partnership scheme for same-sex couples.

As the United States Supreme Court considers whether or not to decide the issue of same-sex marriage, either in the Proposition 8 posture of Perry v. Brown or one of the DOMA postures such as the Second Circuit case or First Circuit case - - - all of which invalidated bans on same-sex marriage - - - Judge Jones' opinion demonstrates that the constitutional issue of same-sex marriage remains a contested one, even in a state with otherwise permissive marital regulations. 

RR
[image "Little white chapel" in Las Vegas, Nevada, via]

November 30, 2012 in Equal Protection, Federalism, Gender, Interpretation, Opinion Analysis, Sexual Orientation, Sexuality | Permalink | Comments (2) | TrackBack (0)

Wednesday, November 21, 2012

Daily Read: Karen Tani on New Deal Women Lawyers

With at least one person arguing that any recent surfeit in law graduates is due to law schools' "exploitation of the career aspirations of women in particular,"  Professor Karen Tani's article, Portia's Deal, published in Chicago-Kent Law Review and available in draft on ssrn, reminds us that women's aspirations for legal careers is not a recent phenomenon. 

FacultyPhoto2Tani (pictured) argues that the New Deal "offered important opportunities to women lawyers at a time when they were just beginning to graduate from law school in significant numbers."  Tani focuses on three women: Sue Shelton White, Marie Remington Wing, and Bernice Lotwin Bernstein.  In her compelling article, she discusses their careers as well as the constitutional trenches of the New Deal.

Tani concludes:

According to conventional narratives, these women are not significant. They did not stand up before the Supreme Court and defend New Deal legislation. They did not become legislators, judges, or famous academics. Yet, their stories have much to offer us. White, the fiery suffragist who died too young, encourages us to consider the difference that gender made to the high‐stakes interpretive and administrative work of New Deal lawyers. White’s biological sex did not dictate the style or quality of her lawyering, but there are hints that  her path to the New Deal—a path that had everything to do with gender—affected the way that she interacted with colleagues and analyzed legal questions. Wing, the “hell‐raiser” from Cleveland, inspires us to think more deeply about power and place. Regional outposts of the federal government were not as desirable to young, male graduates of Harvard Law School, and yet, as Wing discovered, they were the sites of political influence and vital legal work. Bernstein is perhaps the most intriguing case study, since in pedigree and placement she was the female equivalent of one of Felix Frankfurter’s “Happy Hotdogs.” Unlike most of her male counterparts, who used the New Deal as a launching pad for celebrated careers in academia, private practice, and politics, Bernstein remained an administrative lawyer for decades. We need more information about the costs and benefits of this career trajectory, both for the individual and for society.

Together, the lives of all three women provoke one final question. In the area of social welfare and elsewhere, much law‐making happens neither at the top, with Congress and the appellate courts, nor at the bottom, with the people. It happens somewhere in between, with ground‐level decision‐makers and mid‐level bureaucrats. Who occupied that level of decision‐making in 1935? Who occupies it now? Much of the content of today’s law is their doing.

Tani's analysis is certainly worth considering when we talk, even implicitly, about who is entitled to become an attorney.

RR

November 21, 2012 in Current Affairs, Gender, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 20, 2012

District Judge to Hobby Lobby: No Substantial Burden on Religious Beliefs re: ACA Contraception Compliance

404px-Hobbies_Magazine_J._E._Standley_coverThe contraception provision requirement of the ACA continues to foment litigation.  However, unlike last week's decision by a federal district judge granting the preliminary injunction in favor of Tyndale House Publishers, a small Christian publishing house, yesterday a federal district judge denied a preliminary injunction sought by Hobby Lobby, a privately held corporation operating 514 arts and crafts stores in 41 states regarding the so-called "morning after"  or "Plan B" contraceptive pill.

In a 28 page opinion, Judge Joe Heaton of the Western District of Oklahoma, denied Hobby Lobby's claims, as well as the claims by Mardel, a Christian supply and bookstore chain; both corporations are owned by the Green family through a management trust.  Interestingly, much of the judge's analysis revolves around the identity of the plaintiffs as it relates to whether their First Amendment and RFRA are being violated.  

Denying the preliminary injunction, Judge Heaton concluded:

Plaintiffs have not demonstrated a probability of success on their First Amendment claims. Hobby Lobby and Mardel, secular, for- profit corporations, do not have free exercise rights. The Greens do have such rights, but are unlikely to prevail as to their constitutional claims because the preventive care coverage regulations they challenge are neutral laws of general applicability which are rationally related to a legitimate governmental objective.

Plaintiffs also have failed to demonstrate a probability of success on their Religious Freedom Restoration Act claims. Hobby Lobby and Mardel are not “persons” for purposes of the RFRA and the Greens have not established that compliance with the preventive care coverage regulations would “substantially burden” their religious exercise, as the term “substantially burdened” is used in the statute. Therefore, plaintiffs have not met their prima facie burden under RFRA and have not demonstrated a probability of success as to their RFRA claims.

The applicability of free exercise rights and RFRA rights to corporations is resoundingly rejected by Judge Heaton.  His analysis as to the persons involved does, in part, depend upon their attentuated relationship to the entities subjected to the ACA requirements.

RR
[image via]

November 20, 2012 in Family, First Amendment, Gender, Medical Decisions, Opinion Analysis, Privacy, Religion, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Monday, November 12, 2012

Daily Read: Sotomayor on Gender Equality

Today's daily "read" is a view: Justice Sonia Sotomayor with "Abby," the Sesame Street character, discussing careers for women:

 

 

RR
[video via] 

November 12, 2012 in Gender, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, November 5, 2012

Daily Read: Take a Look at Glamour Magazine

While Glamour magazine might not be a usual ConLawProf read, the Women of the Year issue features none other than Supreme Court Justice . . . Ruth Bader Ginsburg pictured "wearing her signature white lace collar, at the Supreme Court in Washington, D.C."

Within the seemingly strict word limit, Dahlia Lithwick's profile manages to include quotes not only from Ginsburg, but also President Clinton, Justice Scalia, and Rachel Maddow. 

Women of the year

Unfortunately, Justice Ginsburg did not land the cover of Glamour, but this is a fun read and might prove inspiring for its targeted demographic of young women.

RR
[image via]

November 5, 2012 in Current Affairs, Gender, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, October 18, 2012

Second Circuit Affirms DOMA Unconstitutional

In a divided opinion issued today, the Second Circuit in Windsor v. United States, affirmed the district judge's conclusion that the defense of Marriage Act (DOMA) section 3 is unconstitutional. Recall that the United States position is being defended by BLAG, Bipartisan Leadership Advisory Group, reportedly at a cost to taxpayers of 1.5 million dollars. 

6a00d8341bfae553ef01761518780d970c-320wi

Second Circuit Chief Judge Dennis Jacobs wrote the majority opinion that Judge Droney joined.  The panel held that Windsor had standing, that the suit was not foreclosed by the Court's 1971 summary dismissal in Baker v. Nelson, that DOMA was subject to intermediate scrutiny and that DOMA failed intermediate scrutiny, as well as that there was no need to certify any questions to New York's highest court.

The Second Circuit rejected the district judge's finding that the appropriate level of scrutiny was rational basis, holding that intermediate scrutiny is correct under the basic Carolene Products factors as articulated in Cleburne.  The panel stated:

In this case, all four factors justify heightened scrutiny:

A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.

The panel then applied the classic articulation of intermediate scrutiny, requiring that the "classification must be substantially related to an important government interest."  The panel analyzed BLAG's stated interests - - -the “unique federal interests ” (which include maintaining a consistent federal definition of marriage, protecting the fisc, and avoiding “the unknown consequences of a novel redefinition of a foundational social institution”) and the encouragement of “responsible procreation” - - - noting that at oral argument "BLAG’s counsel all but conceded that these reasons for enacting DOMA may not withstand intermediate scrutiny."  The panel, however, does evaluate the interests, concluding they are not being substantially served by DOMA.

Dissenting Judge Straub, in a lengthy opinion, contends that DOMA merits only rational basis scrutiny and that it satisfies this low standard.

The Second Circuit thus joins the First Circuit in holding DOMA unconstitutional as the issue awaits Supreme Court review.

RR

October 18, 2012 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Fifth Amendment, Gender, News, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Thursday, October 11, 2012

Daily Read: Rebecca Lee on Core Diversity

Rebecca-leeProfessor Rebecca Lee (pictured) notes that "in this age of ““diversity talk,”” it may seem that the issue of workplace discrimination is somewhat passé, or at least not as much of the problem it was in the past."  That was certainly some of the sentiment in yesterday's oral argument in Fisher v. UT.  But Lee offers a more sophisticated interpretation, arguing that

Most employers implement models of diversity that promote only what I call ““surface diversity”” and ““marginal diversity,”” both of which focus on diversifying the organization’’s ranks but which stop short of valuing diversity in full form, thus inhibiting substantive equity. The surface and marginal diversity paradigms neglect to treat the malady of embedded discrimination because they emphasize demographic diversity rather than diversity in a substantive sense. A focus on numerical parity alone, however, will not bring about racial and gender equity. Although women and people of color have been entering various workplaces in increasing numbers, the way in which work gets done has not changed much. This is because simply adding more members of previously excluded groups to the organization may not change dominant organizational practices that remain biased against such groups.

Instead in her 2010 article entitled Core Diversity, available on ssrn, Lee argues that much deeper and more structural change is necessary.  This is definitely worth a read.

Lee's follow-up article, Implementing Grutter's Diversity Rationale: Diversity and Empathy in Leadership, available on ssrn, is also essential reading.  In this article, Professor Lee makes more explicit the links between educational diversity and employment diversity.

RR

October 11, 2012 in Affirmative Action, Equal Protection, Gender, Race, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, September 20, 2012

Daily Read: Supreme Court Opinions Lack Rigor?

From the SCOTUSBlog same-sex marriage symposium, discussing how the Supreme Court should rule if the Court accepts Perry (the Proposition 8 case) or any of the DOMA cases, including Massachusetts v. United States Department of HHS and Gill v. Office of Personnel Management:

 

Zola_LeandreThe suggestions of clearly articulated standards and rigorous analysis are not simply the fantasies of a law professor.  While Supreme Court opinions need not be constitutional law examination answers, neither should they be confusing, or marred by sarcasm or sentimentality.  Students studying law should be exposed to more Supreme Court opinions demonstrating trenchant analysis rather than rhetorical politics.

Clearly articulated standards might also allow the lower federal courts as well as the state courts to engage in their own rigorous analysis rather than attempt to discern the correct standard from Supreme Court precedents that are unclear, internally inconsistent, or point in several directions.  This is not to say that the same-sex marriage issue should have been easily resolved by lower courts or that the applications of the standard are not difficult and value-laden.  However, the grappling of the lower courts for several years now regarding the actual holding of Romer v. Evans, as well as Loving v. Virginia, could have been avoided.

 

The full post is here.

RR
[image via]

September 20, 2012 in Courts and Judging, Due Process (Substantive), Equal Protection, Family, Gender, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, September 14, 2012

Daily Read: Ashe on Religion Clauses

Are the First Amendment's Religion Clauses good for women? 

ConLawProf Marie Ashe suggests not, at least as the constitutional provisions have been interpreted by the Supreme Court since 1879.

800px-Baptism_of_Pocahontas

The article, Women’s Wrongs, Religions’ Rights: Women, Free Exercise, and Establishment in American Law, 21 Temple Political & Civil Rights Law Review 163, is available on ssrn. 

It's a must-read for anyone teaching First Amendment or doing scholarly work on the history or current construction of the Religion Clauses.

RR
[image: The Baptism of Pocahontas, by John Gadsby Chapman, circa 1840, via]

September 14, 2012 in First Amendment, Gender, History, Religion, Reproductive Rights, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 11, 2012

Ninth Circuit on the Unconstitutionality of Criminalizing Women's Self-Abortion

449px-The_PrisonerIn its opinion in McCormack v. Hiedeman today, a panel of the Ninth Circuit considered the constitutionality of Idaho's "unlawful abortion" statutes, making it a felony for any woman to undergo an abortion in a manner not authorized by statute.  McCormack had been charged with a felony by the prosecutor Mark Hiedeman based on her procurement of abortion "medications" over the internet.  While a state magistrate had dismissed the charge without prejudice, the prosecutor had not determined whether or not to re-file a criminal complaint. McCormack brought an action in the federal district court challenging the constitutionality of the Idaho statutes.  The district judge granted a preliminary injunction against the statutes' enforcement.

At the heart of the constitutional inquiry was whether or not a pregnant woman could be constitutionally held criminally liable under an abortion statute.  The prosecutor essentially argued that criminalizing nonphysicians performing abortions is consistent with Roe v. Wade and Planned Parenthood v. Casey.   

The Ninth Circuit, however, agreed with the district judge that imposing criminal sanctions on a pregnant woman imposes an "undue burden" under Casey.  The "undue burden" resulted because the statute required the woman to police the abortion providers' actions or risk criminal sanctions herself:

If a woman terminates her pregnancy during the first trimester but fails to ask the physician whether the office has made “satisfactory arrangements with one or more acute care hospitals within reasonable proximity thereof providing for the prompt availability of hospital care as may be required due to complications or emergencies that might arise,” she would be subject to a felony charge if the physician has not made such arrangements. Idaho Code § 18-608(1). If a woman finds a doctor who provides abor- tions during the second trimester of a woman’s pregnancy, but the doctor fails to tell the pregnant woman that the abortion will be performed in a clinic as opposed to a hospital, the pregnant woman would be subject to felony charges. Idaho Code § 18-608(2). Or, as is the case here, if a woman elects to take physician prescribed pills obtained over the internet to end her pregnancy, which is not authorized by statute, she is subject to felony charges. Idaho Code §§18-608(1)-18- 608(3).

The court also found McCormack's economic situation and the lack of abortion providers in her area to contribute to the "undue burden."

The Ninth Circuit panel found McCormack had standing, but narrowed the district court's injunctive relief to apply only to McCormack since there had been no class certification.

For pregnant women facing prosecutions under abortion statutes, the Ninth Circuit's opinion is an important and persuasive statement on the unconstitutionality of criminal sanctions.

RR
[image: The Prisoner, artist unknown, circa 1907, via]

September 11, 2012 in Abortion, Due Process (Substantive), Gender, Medical Decisions, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 29, 2012

West Virginia Federal Judge Issues Preliminary Injunction Against Sex-Segregated Middle School

478px-Pierre-Auguste_Renoir_-_Jeunes_Filles_regardant_un_albumIn a relatively brief opinion today, Judge Joseph Goodwin issued a preliminary injunction in the controversial sex-segregated Middle School program in West Virginia.  Recall that the school mandated a practice of sex-segregated classrooms based on teacher-training that posits the differences between children based upon sex.  Girls do not like stress; boys do.  Girls like warmer rooms; boys cooler.  Girls like to be face-to-face; boys learn better in rows.  Girls learn better when their movement is minimized and their rooms are darker; boys "need" to move and have light.

The judge's opinion rests on the Title IX claim: "The court again emphasizes that its decision today rests on the requirement of the Department of Education regulations that single-sex programs be “completely voluntary.” 34 C.F.R. § 106.34(b)(1)(iii)."

Indeed, the judge held that sex-segregated education could be constitutional, citing United States v. Virginia (VMI) if the "school meets the heightened scrutiny standard."  Thus, the judge was not willing to "go so far" as to enjoin any sex-segregated education. 

Nevertheless, the judge did explicitly note 

that the science behind single-sex education appears to be, at best, inconclusive, and certain gender-based teaching techniques based on stereotypes and lacking any scientific basis may very well be harmful to students. Even Professor Salomone, the expert witness called by the defense, agreed with the ACLU on the issue of brain research—that it’s based on the rationale of pseudoscience—and suggested that many schools were “led astray” by the teachings of Dr. Leonard Sax. Professor Salomone served as an expert witness for the defense not because she agreed with the gender-based teaching techniques, but because she felt that the individual teachers at VDMS were, in fact, not teaching students based on gender stereotype, despite the training given by Dr. Sax and David Chadwell.

Given the testimony of the school's own expert, it seems this constitutional controversy will be best resolved by settlement.

RR
[image: Jeunes Filles regardant un album by Pierre August Renoir via]

August 29, 2012 in Equal Protection, Gender | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 21, 2012

Fifth Circuit on Texas Planned Parenthood Regulation: No First Amendment Unconstitutional Conditions Problem

In its brief opinion today in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs, a panel of the Fifth Circuit has reversed the preliminary injunction issued by Judge Lee Yeakel against a 2012 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.   Recall that last April Fifth Circuit Judge Jerry Smith quickly issued an emergency stay of that preliminary injunction, and a panel of the Fifth Circuit vacated that emergency stay almost as quickly.

PPToday, however, a different panel reversed and remanded Judge Yeakel's decision.  The panel disagreed with Judge Yeakel's conclusions regarding unconstitutional conditions doctrine, noting that "Courts often struggle with when to apply the unconstitutional conditions doctrine, and the doctrine’s contours remain unclear despite its long history."  Yet the panel's opinion adds to this lack of clarity. The panel opinion correctly notes that the unconstitutional conditions doctrine includes a "clear threshold premise;"  A "funding condition cannot be unconstitutional if it could be constitutionally imposed directly.”  Thus, "if the government could directly achieve the result in question, then it is unnecessary to assess the result within the unclear framework of the unconstitutional conditions doctrine."

Yet the panel then adds that although the Texas "restriction functions as a speech-based funding condition, it also functions as a direct regulation of the content of a state program,"  and is "therefore constitutional under the reasoning of Rust v. Sullivan."   Rust v. Sullivan, of course, is an unconstitutional conditions case involving Title X funding, and the "state programs" to which the panel refers are in fact state-funded programs with arguably unconstitutional conditions.  Instead, the panel concludes that "Texas’s restriction on promoting elective abortions directly regulates the content of the WHP [Women’s Health Program] as a state program. The policy expressed in the WHP is for public funds to subsidize non-abortion family planning speech to the exclusion of abortion speech"  (emphasis added).  The court held that "Texas may deny WHP funds from organizations that promote elective abortions" because it is "a direct regulation of the definitional content of a state program, and it is therefore unnecessary to examine it within the framework of the unconstitutional conditions doctrine."

On the expansion to all affiliated organizations, the panel decided that the "Planned Parenthood mark" was "associated with the pro-abortion point of view."  "Using a pro-abortion mark is, after all, a way of promoting abortion."  Therefore, "Texas’s choice to disfavor abortion is eviscerated, just as it would be if the organizations promoted abortion through pamphlets or video presentations."  Again, the panel decided this was a "direct regulation of the content of a state program" and there was "no reason to examine it within the framework of the unconstitutional conditions doctrine" despite the fact that it involved funding.

The panel remanded the case, however, including for analysis of the equal protection claim, which Judge Yeakel found resolved by the First Amendment claim.

Despite its odd doctrinal analysis, the Fifth Circuit's panel conclusion is clear: Texas can constitutionally target Planned Parenthood for defunding under the Women's Health Program subsidies.

RR
[image via]

August 21, 2012 in Abortion, First Amendment, Gender, Speech | Permalink | Comments (0) | TrackBack (0)

Thursday, August 16, 2012

The Constitutionality of Sex-Segregated Education Challenged in Lawsuit Against Middle School

complaint filed by the ACLU in Doe v. Wood County Board of Education argues that the mandated sex-segregated education practices of Van Devender Middle School in Parkersburg, West Virginia violate the Fourteenth Amendment's Equal Protection Clause as well as Title IX. 

August_Heyn_Trouble_in_the_classroomThe complaint alleges not only that the school separates children by gender, but that the educational practices in the sex-segregated classrooms are different.  This is based on teacher-training that posits the differences between children based upon sex.  Girls do not like stress; boys do.  Girls like warmer rooms; boys cooler.  Girls like to be face-to-face; boys learn better in rows.  Girls learn better when their movement is minimized and their rooms are darker; boys "need" to move and have light.

But despite the school's motto - - - "where gender matters" - - - the complaint makes allegations that gender should not be the only thing that matters.  For example:

Anne Doe is legally blind and has difficulty reading in the girls’ classroom, which is kept dimmer than the boys’ classroom. Anne would benefit from brighter lights to enable her to read more easily during class, but she has not been permitted that option. When Anne asked her teachers to brighten the lights to accommodate her vision problems, her teachers refused and told her to move closer to the window.

The complaint alleges that "Sex is an imprecise proxy for psychological, learning, emotional and developmental differences in adolescents." The complaint also stresses that sex-segregation and sex-differntial teaching "harm children who do not conform to the gender stereotypes advanced in these classes, such as boys who would happily engage in a conversation about literary characters’ emotions or girls who need to move around," and thus harm children.

Although the complaint followed the usual practice and did not cite any cases, including United States v. Virginia (VMI), the complaint's allegations fit squarely within the VMI rubric.  While VMI is often recalled as involving the exclusion of women from the Virginia Military Academy, Virginia had instituted sex-segregated education.  In VMI, Virginia's argument was that the Virginia Women's Institute for Leadership (VWIL), at Mary Baldwin College, satisfied equal protection concerns by offering women a "cooperative method" that would be better suited to women and reinforce their self-esteem rather than VMI's "adversative method," suited for male citizen-soldiers.  Justice Ginsburg, writing for the Court, rejected this sort of stereotyping and generalizations about "the way women are."

Indeed, if the allegations of the complaint prove true, it will be difficult for the school to argue that it is not engaging in the type of stereotyping and generalizations about "the way" girls - - - and boys - - - are that was rejected by the Court in VMI.

RR
[image: "Trouble in the classroom" by August Heyn, circa 1920]

August 16, 2012 in Equal Protection, Family, Fourteenth Amendment, Gender, Sexuality | Permalink | Comments (0) | TrackBack (0)

Sunday, August 12, 2012

Senior Federal District Judge Rejects Challenge to Hawai'i Opposite-Sex Only Marriage Statute

In in an opinion exceeding 100 pages, Judge Alan Kay, Senior District Judge for the District of Hawai'i, upheld the Hawai'i marriage scheme in Jackson v. Abercrombie.  The plaintiffs had argued that Hawai'i Constitution Article 1, Section 23 stating that “[t]he legislature shall have the power to reserve marriage to opposite- sex couples,” and Hawaii Revised Statutes § 572-1, which states that marriage “shall be only between a man and a woman,” violated the Due Process and Equal Protection Clauses of the United States Constitution.  Governor Abercrombie's Answer agreed with the plaintiffs' constitutional arguments.  However, Defendant Fuddy, Hawai'i Director of Health, and Intervenor Hawai'i Family Forum, opposed the plaintiffs, and the Judge resolved the case on Summary Judgment.

800px-Sunset_next_to_Waikiki_Beach,_Oahu,_Hawai,_USA1Those conversant with same-sex marriage jurisprudence in the United States will recall that Hawai'i is a landmark in the second-generation litigation: In Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), the Hawai'i Supreme Court found the limitation of marriage to opposite-sex couples violated the state constitution.  This decision prompted the state constitutional amendment, Article I, Section 3, referenced above (and interestingly in terms of judicial review, not prohibiting same-sex marriage but allocating that power only to the legislature and not to the courts).  It also prompted Congress to pass DOMA - - - the Defense of Marriage Act - - - constitutionally suspect at present.

Judge Kay rehearses these histories at length.  However, he rests his rejection of the plaintiffs' constitutional challenges on a "decision" of the first-generation of same-sex marriage litigation:  The United States Supreme Court’s summary dismissal in Baker v. Nelson, 409 U.S. 810 (1972) (mem.).  For Judge Kay: "Baker is the last word from the Supreme Court regarding the constitutionality of a state law limiting marriage to opposite-sex couples and thus remains binding on this Court."  (Opinion at 46).

Most courts considering the issue have rejected the 1972 summary dismissal in Baker v. Nelson as binding precedent.  Thus, Judge Kay also provides an "alternative analysis"  under the Equal Protection and Due Process Clauses.  He applies rational basis review, concluding that "marriage" can be reserved to opposite-sex couples because the legislature can rationally choose to encourage the stability of relationships that have the ability to "procreate naturally" and choose to promote the raising of children by "a mother and a father."  Judge Kay also credits the legislature's rational choice to "proceed with caution" in an area of social change: 

Hawaii could rationally conclude that by enacting the reciprocal beneficiaries act, followed years later by the civil unions law, and retaining the definition of marriage as a union between a man and woman, it is addressing a highly-debated social issue cautiously. By doing so, it may observe the effect of the reciprocal beneficiaries and civil unions laws before deciding whether or not to extend the title marriage, along with the already conferred legal rights, to same-sex couples.

Yet Judge Kay's ultimate rejection goes further.  He writes that  "to suddenly constitutionalize the issue of same-sex marriage “would short-circuit” the legislative actions that have been taking place in Hawaii."   (Opinion at 118).  Certainly, the judicial restraint arguments are familiar by now, but to write in 2012 that the plaintiffs seek to  "suddenly constitutionalize the issue of same-sex marriage"  is odd.  Indeed, it is undermined by Judge Kay's own opinion with its careful history of second-generation litigation since 1990 and his reliance on a summary dismissal in 1972.

The plaintiffs are doubtless preparing their appeal to the Ninth Circuit.

RR
[image via]

August 12, 2012 in Cases and Case Materials, Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Gender, Opinion Analysis, Reproductive Rights, Sexual Orientation, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Tuesday, July 24, 2012

Eighth Circuit En Banc Upholds Compelled "Suicide Warning" for Abortion Procedures

In a 7-4 en banc opinion today in Planned Parenthood v. Rounds, the Eighth Circuit disagreed with the panel opinion and the district judge and upheld the constitutionality of a South Dakota statutory provision requiring the disclosure to patients seeking abortions of an “[i]ncreased risk of suicide ideation and suicide,” S.D.C.L. § 34-23A- 10.1(1)(e)(ii).

372px-Chassériau,_Théodore_-_Sappho_Leaping_into_the_Sea_from_the_Leucadian_Promontory_-_c._1840Planned Parenthood contended that requiring a physician to present the suicide advisory imposes an undue burden on abortion rights and violates the free speech rights of the physician.  The court conflated the undue burden (due process) claim and the physician First Amendment claim:  "In short, to succeed on either its undue burden or compelled speech claims, Planned Parenthood must show that the disclosure at issue “is either untruthful, misleading or not relevant to the patient’s decision to have an abortion.”

Judge Gruender's opinion for the majority seemingly acknowledged that there was no evidence that abortion caused suicidal ideation.  Instead, the issue was the "accepted usage of the term 'increased risk' in the relevant medical field."  The opinion found that based on the medical usage, the statutory requirement "does not imply a disclosure of a causal relationship," instead it is merely a disclosure that "the risk of suicide and suicide ideation is higher among women who abort compared to women in other relevant groups, such as women who give birth or do not become pregnant."  

The majority rejected the relevancy of  Planned Parenthood's argument that certain underlying factors, such as pre-existing mental health problems, predispose some women both to have unwanted pregnancies and to have suicidal tendencies, resulting in a misleading correlation between abortion and suicide that has no direct causal component.  Planned Parenthood argued that the required disclosure would be misleading or irrelevant to the decision to have an abortion because the patient’s decision would not alter the underlying factors that actually cause the observed increased risk of suicide.  But the majority found that a correlation - - - seemingly for any reason - - - was sufficient: "the truthful disclosure regarding increased risk cannot be unconstitutionally misleading or irrelevant simply because of some degree of 'medical and scientific uncertainty,' as to whether abortion plays a causal role in the observed correlation between abortion and suicide."

 In contrast, the four dissenting judges, in an opinion by Judge Murphy, stated that the "record clearly demonstrates"  that "suicide is not a known medical risk of abortion and that suicide is caused instead by factors preexisting an abortion such as a history of mental illness, domestic violence, and young age at the time of pregnancy."   The dissenting opinion read the statutory provision to require doctors to tell a pregnant woman that a greater likelihood of suicide and suicide ideation is a "known medical risk[]" to which she "would be subjected" by having an abortion. S.D.C.L. § 34-23A-10.1(1)(e) (2005) (emphasis added).  This causal language troubled the dissenting judges, who concluded that the suicide advisory places an undue burden on a pregnant woman's due process rights and violates a doctor's First Amendment right against compelled speech.

Both opinions rehearse and discuss the social science and psychological studies before the court and both opinions admit the studies are flawed.  However, by rejecting the necessity for causation in a warning about a medical procedure given for informed consent, the majority rests its opinion on correlation even if there is "some degree of 'medical and scientific uncertainty" as to the reasons for any correlation.

RR
[image:Sappho Leaping into the Sea from the Leucadian Promontory, circa 1840, via]

July 24, 2012 in Abortion, Due Process (Substantive), First Amendment, Fourteenth Amendment, Gender, Medical Decisions, Opinion Analysis, Sexuality | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 27, 2012

In Memoriam: Ann Scales

ConLawProf Ann Scales, University of Denver Strum College of Law, was best known for her constitutional law work on feminist legal theory, equality, and military matters.  She died June 24, at the age of 60.

 

Scales_250x375

 

More on Feminist Law Prof here.

RR
[image of Ann Scales via]

June 27, 2012 in Gender, Profiles in Con Law Teaching | Permalink | Comments (0) | TrackBack (0)

Thursday, May 31, 2012

PRENDA - The Sex Selection Anti-Abortion Bill Fails to Pass House of Representatives, But . . . .

As the Washington Post reports, members of the House of Representatives "voted 246 to 168"  on PRENDA, HR 3541, the Prenatal Non-Discrimination Act, that bans sex-selective and race-selective abortions.  While the 246 majority voted for PRENDA, it "failed to pass as House Republicans brought it up under a suspension of normal rules that required it to earn a two-thirds majority vote."

PRENDA defines "‘‘sex-selection abortion’’ as an "abortion undertaken for purposes of eliminating an unborn child of an undesired sex," and ‘‘race-selection abortion’’ is "an abortion performed for purposes of eliminating an unborn child because the child or a parent of the child is of an undesired race."  The bill is similar to one in Arizona that did become law; the few other states that do have statutes focus on sex-selection.

As I've written elsewhere:

The specter of sex-­selection prohibitions in abortion statutes is said to pose a political dilemma for feminists,who can be “torn” between “support for reproductive autonomy” and “distaste for sex-­‐selection practices driven by a gendered and patriarchal society.” It also provokes opposing logical constructions. On one account, if there is right to an abortion for any or no reason, this includes a right to an abortion even for a problematical reason.165 On an opposing account, “[t]he right to not have a child for any reason does not logically encompass the right not to have a child for any specific reason.”  Whatever the logic, however, an interrogation of a woman’s “reason” for having an abortion demonstrates a distrust of women similar to the distrust apparent in other abortion restrictions that treat women have abortions quite differently than ungendered patients providing informed consent for other medical procedures. However, unlike other abortion restrictions such as mandatory ultrasounds or waiting periods, sex-­‐selective prohibitions are not cast as being beneficial to women or assisting decision-­‐ making; rather, they clearly seek to remove the power of a woman’s choice to terminate a pregnancy in service to a larger societal and state interest.

Indeed, PRENDA's findings on sex include:

(subsection L) Sex-selection abortion results in an unnatural sex-ratio imbalance. An unnatural sex- ratio imbalance is undesirable, due to the inability of the numerically predominant sex to find mates. Experts worldwide document that a significant sex-ratio imbalance in which males numerically predominate can be a cause of increased violence and militancy within a society. Likewise, an unnatural sex-ratio imbalance gives rise to the commoditization of humans in the form of human trafficking, and a consequent increase in kidnapping and other violent crime.

PRENDA bases this finding on the experience of nations such as China, mentioning "son preference" but not China's accompanying one-child policy.  For some, the interest in prohibiting sex-selective abortion is a "manufactured controversy."  For others, PRENDA may be part of an election year strategy.

For those teaching a summer course in ConLaw, this could be the basis of an excellent problem.  ConLawProfs might want to also consider the constitutional provisions on which Congress grounds its power, including the Thirteenth Amendment.

RR

May 31, 2012 in Abortion, Due Process (Substantive), Equal Protection, Family, Gender, Medical Decisions, Race, Teaching Tips, Thirteenth Amendment | Permalink | Comments (0) | TrackBack (0)