Tuesday, April 22, 2014

Oral Arguments in Susan B. Anthony List v. Driehaus on Campaign Lies

The Court heard oral arguments today in Susan B. Anthony List v. Driehaus, a challenge to an Ohio election law prohibiting false statements.  As we explained when the Court granted certiorari in January, the case centers Article III.  The Sixth Circuit determined that the case was not ripe because although Driehaus had filed a complaint with the Ohio Elections Commission about an advertisement from Susan B. Anthony List because it could not show "an imminent threat of prosecution at the hands of any defendant" and thus could not "show a likelihood of harm to establish that its challenge is ripe for review."  It could also not show its speech was chilled; indeed representatives from the organization stated they would double-down.

580px-Seal_of_the_Ohio_Elections_Commission.svgThis is not to say that the First Amendment was entirely absent from today's arguments.  Arguing for Susan B. Anthony List, an anti-abortion organization,  Michael Carvin referred to the Ohio Election Commission as a "ministry of truth," a characterization later echoed by Justice Scalia.  During Eric Murphy’s argument, on behalf of the State of Ohio, there were references to United States v. Alvarez in which the Court found the “Stolen Valor” statute unconstitutional, with Justice Alito (who first mentioned the case) as well as Justices Scalia and Sotomayor participating in that discussion.

But Article III concerns, the subject of the grant of certiorari, dominated.  But which Article III concerns specifically?  As Justice Ginsburg asked:  "Do you think this is a matter of standing or ripeness?"  Michael Carvin's reply deflects the doctrinal distinctions and seeks to go to the heart of his argument:

In all candor, Justice Ginsburg, I can't figure out the difference between standing and ripeness in this context.  No question that we are being subject to something. I think the question is whether or not the threat is sufficiently immediate.

 Analogies abounded.  Justice Sotomayor asked why the injury in this case wasn't as "speculative" as in Clapper v. Amnesty International USA decided in early 2013 in which the Court denied standing to Amnesty International to challege domestic surveillance under FISA?  On the other hand, the challengers in Holder v. Humanitarian Law Project did have standing, based on a credible threat of prosecution" based upon 150 prior prosecutions.  But, as the Deputy Solicitor General noted in answer to a query from Chief Justice Roberts and quoting from Ohio's brief, under the Ohio statute between 2001 and 2010 there were "a little bit over 500" proceedings based on the state false statements law.

The context of an election was discussed at several junctures.  Another election cycle is approaching and election cycles themselves are short periods of intense action and when they conclude the issues can be moot. 

Despite the references to Younger v. Harris, federalism was more anemic than robust.  The notion that the state supreme court should be given an opportunity to construe the false statement law provoked laughter, with Chief Justice Roberts remark "Well, that will speed things up" as a catalyst. 

If the oral argument is any indication, it seems that the federal courts will have a chance to consider the merits of the First Amendment challenge to the Ohio statute.

April 22, 2014 in Federalism, First Amendment, Oral Argument Analysis, Reproductive Rights, Standing, Supreme Court (US) | Permalink | Comments (0) | 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)

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)

Supreme Court Hears Oral Arguments in Hobby Lobby and Conestoga Wood Specialties on RFRA and the "Contraceptive Mandate"

Should corporations (or their owner/shareholders) be able to interpose a religious objection to a federal requirement that employers provide health insurance to employees that includes contraceptive coverage? 

Simplified, that's the question at the heart of the oral arguments today in the consolidated cases of Hobby Lobby v. Sebelius and Conestoga Wood Specialties Corp. v. Sebelius in which the Court granted certiorari in November.  The legal issues are complex (our primer is here and another here), but given the basic conflict, it's no wonder the case has attracted so much attention. Another good overview is Lyle Denniston's preview of the arguments for SCOTUSblog.

Recall that the Tenth Circuit's divided en banc opinion in Hobby Lobby essentially split 5-3 over the issue of whether a for-profit secular corporation has a right to free exercise of religion under the Religious Freedom Restoration Act (RFRA) and the First Amendment's Free Exercise Clause.  The majority essentially concluded there was such a right and that the right was substantially burdened by the requirement of the PPACA that employer insurance plans include contraception coverage for employees.

Recall also that the Third Circuit's divided panel opinion in Conestoga Woods rejected the contention that the corporation could raise a claim under RFRA, either as a corporation possessing free exercise of religion rights or under a "pass through" theory allowing the beliefs of the owners to pass to the corporate form.

Moreover, Hobby Lobby and Conestoga Woods are not the only two opinions on these issues.  A digest of some previous circuit court cases and some discussion of the controversy is here; the divided Seventh Circuit opinion is discussed here; and the ACLU has a helpful running tab on all the cases here. So, the Court's ultimate conclusion will impact a number of cases.

Today's 90 minute oral argument {transcript} in the consolidated cases began with Paul Clement representing the "private parties," Hobby Lobby and Conestoga Wood and then Solicitor General Donald Verrilli  representing the federal government, including Kathleen Sebelius as Secretary of Health and Human Services.  Not surprisingly, the questions to Clement largely came from Justices Kagan, Sotomayor, and Ginsburg, and the questions to Verrilli came from Justices Alito and Scalia, as well as Chief Justice Roberts.   Also not surprisingly, the arguments were peppered with slippery slopes, other analogies, questions of Congressional intent in passing RFRA, RFRA's relationship with First Amendment doctrine, and the relevance of the corporate form. 

The question as to the cost of not complying with the mandate (part of the substantial burden on the corporations under RFRA) was the subject of this rather interesting exchange during Paul Clement's argument:

JUSTICE KAGAN:  . . . .

And so the question is, why is there a substantial burden at all?

MR. CLEMENT: Well, just to be clear, we were talking about the same thing. So the option, the choice, is between paying a $475 million a year penalty and a $26 million a year penalty.  That's what Hobby Lobby faces.  So $2,000 per person - - -  ­­

JUSTICE KAGAN: No, between paying $2,000 per employee per year if Hobby Lobby does not provide ­­- - -

MR. CLEMENT: That's $26 million.

JUSTICE KAGAN: You know, Hobby Lobby is paying something right now for the - - -­­ for the coverage. It's less than what Hobby Lobby is paying for the coverage. There are employers all over the United States that are doing this voluntarily because they think that it's less.

CHIEF JUSTICE ROBERTS: I thought - - -­­ I thought that part of the religious commitment of the owners was to provide health care for its employees.

MR. CLEMENT: That is true, Mr. Chief Justice. It is also true that this ­­- - -

JUSTICE SOTOMAYOR: Well, if they want to do that, they can just pay a greater salary and let the employees go in on the exchange.

MR. CLEMENT: Exactly, which is, by the way, why comparing the $2,000 penalty to the cost of the health care is a false - - - ­­ it's a false comparison.

JUSTICE SOTOMAYOR: It's not called a penalty. It's called a tax. And it's calibrated ­­ - - - and it's calibrated ­­

CHIEF JUSTICE ROBERTS: She's right about that.

 (Laughter.)

 The laughter arises from Chief Justice Roberts' decision in NFIB v. Sebelius that the ACA was constitutional under Congress' power to tax, but it is worth noting that Roberts jumped in to assert the corporation's exercise of religion as including the provision of health insurance.  Justices Ginsburg and Kagan later come back to this point:

JUSTICE GINSBURG: There was a point made earlier, and I think you didn't mean to say this, that provision of health care is not part of their religious belief. Covering their employees for health care, that is not a religious tenet, right?

MR. CLEMENT: No, it actually is.  Again, it hasn't been the principal theory been litigated. But see, if you complaints and you go back to our briefs, you know, it's part of the religious beliefs that both the Hahns and the Greens have. They think it's actually important ­­- - -

JUSTICE KAGAN: But, Mr. Clement, you're not saying, are you, that their religious beliefs mandate them to provide health care? I thought that you were never making that claim.

MR. CLEMENT: I didn't have to make that claim in the course of this litigation. What I'm pointing out, though, is for purposes of the substantial burden analysis, it is perfectly appropriate to take into account that the 2,000 ­­ the $26 million in fines they would pay would not be the only thing that they would lose out if they are on that horn of the dilemma. They would also lose out all the additional wages they would have to pay, and they would be in this position of not offering health care, which is something they believe is important for their religion as well.

JUSTICE KAGAN: You know, I'm sure they seem like very good employers. And I'm sure they want to be good employers. But again, that's a different thing than saying that their religious beliefs mandate them to provide health insurance . . . .

If the "substantial burden" under RFRA is the most difficult element that the corporations to meet, then the strict scrutiny test applicable to any substantial burden is surely the government's most difficult task.  The questioning noted that the "least restrictive means" test in RFRA was clearly more difficult to meet than even the pre-Smith cases that RFRA explicitly sought to restore - - - and there did not seem to be even a glimmer that RFRA should be held unconstitutional (which would, of course, require a departure from O Centro Espirita Beneficiente Uniao Do Vegetal v. Gonzales). 

 Justice Breyer, asking his first question of the argument, requested that Verrilli provide a "precise answer" to the "least restrictive" argument that the government should simply pay for the contraceptive coverage.  Verrilli's argued that this suggestion by the corporations was not properly before the Court, but even if it was, that even the accommodation would be subject to a RFRA challenge.   Justice Alito suggested that Clement be asked about whether this would hapen, and indeed Clement was asked (by Justice Sotomayor).  Clement's reply:

We haven't been offered that accommodation, so we haven't had to decide what kind of objection, if any, we would make to that. But it's important to recognize that as I understand that litigation, the objection is not to the fact that the insurance or the provider pays for the contraception coverage. The whole debate is about how much complicity there has to be from the employer in order to trigger that coverage. And whatever the answer is for Little Sisters of the Poor, presumably you can extend the same thing to my clients and there wouldn't be a problem with that.

 Whether Justice Kennedy will be the deciding vote in this case is certain to be subject to much speculation and his questions will be closely read; our extended discussion is here.  But without question, the Justices seem sharply divided.

 

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

Thursday, January 30, 2014

Is RFRA Unconstitutional?

RFRA, the Religious Freedom Restoration Act, is at the center of the upcoming and increasingly contentious cases of Conestoga Wood Specialties Corporation v. Sebelius and  Sebelius v. Hobby Lobby Stores, Inc. to be heard by the Court on March 25, involving religious-based challenges to the contraception “mandate” of the Affordable Care Act by corporations and corporate shareholder/owners.  RFRA, 42 USC § 2000bb–1, provides that

(a) Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b) Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

™(1) is in furtherance of a compelling governmental interest; and
™(2) is the least restrictive means of furthering that compelling governmental interest.

Passed by Congress in 1993, RFRA's purpose was to change the Court's interpretations of the First Amendment.  RFRA's findings explicitly state that :

(4) in Employment Division of Oregon v. Smith the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and

(5) the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder is a workable test for striking sensible balances between religious liberty and competing governmental interests.

The United States Supreme Court found that RFRA was unconstitutional as exceeding Congressional power under the enforcement clause of the Fourteenth Amendment in City of Bourne v. Flores.  Thus, RFRA cannot constitutionally be applied to state laws. 

So the short answer to the question "Is RFRA unconstitutional" is "yes," with a "but"  quickly added.  But RFRA still applies to the federal government.  Or so we assume?

That underlying assumption is questioned by an amicus brief filed in Hobby Lobby on behalf of Freedom from Religion Foundation, et. al., by ConLawProf Marci Hamilton.  Hamilton - - - who argued for the City of Bourne in Bourne v. Flores - - - argues that RFRA is similarly unconstitutional as applied to the federal government.  The brief argues that the "plain language" of the statute

establishes that Congress was aggrandizing its power by taking over this Court’s power to interpret the Constitution. On its face, therefore, RFRA is not an ordinary statute, and is in violation of the separation of powers and Art. V. Moreover, the only class of beneficiaries for these extreme rights against constitutional laws is religious, which violates the Establishment Clause. No matter how much one pretends that RFRA is “just a statute,” it is in fact an unconstitutional enactment.

Lyle Denniston of SCOTUSBlog, writing over at Constitution Daily, notes that the argument that RFRA is unconstitutional

has arisen late in the cycle for written arguments, so it is unclear whether the Court will ultimately reach that argument, and even whether the federal government and the private businesses involved in the pending cases will respond to it.  The Court need not deal with it at all, but, if it does, it would be a daring use of judicial power to nullify the law.

Given that the opposing parties have not raised the issue of RFRA's constitutionality, and seem to agree on that aspect of the case (if on little else), the Court might take it upon itself to solicit another amicus brief on this issue, similar to the manner in which the Court appointed ConLawProf Vicki Jackson to argue that BLAG had no standing in Windsor v. United States.  That may seem highly unlikely, but stranger things have happened.

 

January 30, 2014 in Executive Authority, First Amendment, Religion, Reproductive Rights, Supreme Court (US) | 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.

Advertisement_for_CPC

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)

Thursday, January 23, 2014

The Supreme Court's Heavy First Amendment Docket this Term

Last Term, the United States Supreme Court's First Amendment docket was decidedly light.  This Term, there are many First Amendment (and quasi-First Amendment) issues before the Court.

Recall last Term's First Amendment case - - - Agency for International Development v. Alliance for Open Society - - - the "prostitution pledge" case - - - which we discussed here.  The relatively brief 15 page majority opinion authored by Chief Justice Roberts over a dissent by Justice Scalia (joined by Thomas).  The opinion resolved a split in the circuits and added a doctrinal clarification (or perhaps merely a wrinkle) to compelled speech/ unconstitutional conditions doctrine, but cannot fairly be called a landmark case.

FirstAmendmentText

 This Term, there is a bounty of First Amendment cases before the Court.

In alphabetical order, they include:

  • Conestoga Wood Specialties Corporation v. Sebelius &  Sebelius v. Hobby Lobby Stores, Inc. Perhaps the most contentious cases this Term are these religious-based challenges to the contraception “mandate” of the Affordable Care Act.  The cases (and similar cases pending throughout the federal courts) involve the Religious Freedom Restoration Act, which is intertwined with First Amendment Free Exercise principles and doctrine.  Our discussion of the grant of certiorari is here, with links to the circuit court opinions; and a survey of recent commentaries is here. Oral argument is scheduled for March 25.

  • Harris v. Quinn
    The well-established rule that non-union public employees can be compelled to pay union dues for the union's collective bargaining activities (but not the union's political activities) is the subject of this First Amendment challenge in the employment context of home health care providers.  Our extensive coverage of the issues is here.  Oral arguments were held January 21 and our analysis is here.

  • Lane v. Franks
    The Eleventh Circuit summarily applied Garcetti v. Ceballos in this First Amendment challenge to an alleged retaliatory termination of a public employee for revealing misconduct and testifying at the criminal trials of a former state senator.  Our discussion of the grant of certiorari January 17 is here
  • McCullen v. Coakley  
    This is 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.  The First Circuit had rejected both the facial and as-applied challenges. Oral arguments were held January 15 and our analysis is here.

  • McCutcheon v. Federal Election Commission
    This campaign finance case is a First Amendment challenge to the aggregate limits under the Bipartisan Campaign Reform Act, or BCRA, which cap the total amount that a contributor can give to candidates, political parties, and political committees.  Oral arguments were held October 8, 2013 and our analysis is here.

  • Susan B Anthony List v. Driehaus 
    This case is a challenge to an Ohio election law prohibiting false statements.  As we explained when the Court granted certiorari earlier in January, the case involves both the First Amendment and Article III, with the Sixth Circuit having determined that the case was not ripe and thus not reaching the First Amendment challenge.

  • Town of Greece v. Galloway  This case is an Establishment Clause challenge to New York town's practice of opening its council meetings with prayers, the large majority of which have been Christian.  The Second Circuit had held that the town council's practice "impermissibly affiliated the town with a single creed, Christianity."   The Solicitor General filed a brief supporting the town.  Oral arguments were held in early November and our analysis is here.

  • United States v. Apel  
    Whether or not the First Amendment is relevant in this case involving a protest outside military installation is part of the issue. The Ninth Circuit did not reach the First Amendment issue, but decided the case on the particularities of statutory interpretation and the property in question, reversing the defendant's conviction.  At the oral argument in early December, ConLawProf Erwin Chemerinsky, arguing for Apel, consistently raised the First Amendment and was consistently rebuffed, as we discussed here.

  • Wood v. Moss
    Whether or not the First Amendment is relevant in this case (as in Apel, above) is also an issue.  The central arguments involve qualified immunity, but questions of viewpoint discrimination arise given that there were different "protest zones" for pro-Bush and anti-Bush demonstrators.  Oral argument is scheduled for March 26, 2014.

ConLawProfs teaching First Amendment this semester have much that could be incorporated in their courses regarding this Court's Term.  And First Amendment watchers, scholars, and practitioners may see some important changes.

January 23, 2014 in Association, First Amendment, Religion, Reproductive Rights, Speech, Supreme Court (US), Teaching Tips | 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)

Monday, January 13, 2014

Daily Read: Understanding Zablocki v. Redhail and "Marriage Equality"

The United States Supreme Court in Zablocki v. Redhail (1978) held unconstitutional a Wisconsin state statute requiring judicial permission for a marriage license for any person who had a support order for a minor. 

The opinion, authored by Justice Marshall, considers the case as one of equal protection and opines that

our past decisions make clear that the right to marry is of fundamental importance, and since the classification at issue here significantly interferes with the exercise of that right, we believe that "critical examination" of the state interests advanced in support of the classification is required.

 The Court also states that more recent decisions "have established that the right to marry is part of the fundamental "right of privacy" implicit in the Fourteenth Amendment's Due Process Clause," citing Griswold v. Connecticut.

Thus, although not as famous as Loving v. Virginia, Zablocki v. Redhail is also frequently cited in any argument that marriage is a fundamental right, notwithstanding the Court's qualification in Zablocki that "not every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny," but only ones that interfere directly and substantially with the right to marry.

In a new essay, Chronicle of a Debt Foretold: Zablocki v. Red Hail, by Tonya L. Brito, R. Kirk Anderson and Monica Wedgewood, forthcoming in The Poverty Law Canon and available on ssrn, the authors revive the importance of the wealth inequality relevance of the case and also reveal a racial aspect.  Redhail, whose name is actually Roger Red Hail, is a Native American man, now in his late 50s, who still owes child support for the child he fathered when he was 16.  Although the "child" is now in her 40s, he owes the money to state (with interest) and the state continues to garnish his wages.

Tribal

There is a possibility that Red Hail's pending child support cases now under the jurisdiction of Milwaukee County would be transferred to the Oneida Tribal Judicial System.

The essay is a must-read for anyone considering the constitutional ramifications of equality or marriage.

January 13, 2014 in Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Fundamental Rights, History, Reproductive Rights, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, December 13, 2013

Survey of Recent Commentaries on the Religious Rights of Corporations in the Context of the ACA

With Hobby Lobby (and Conestoga Wood) headed to the United States Supreme Court, there's more and more commentary on the issue of whether a for-profit secular corporation, or its "owners" has a right to free exercise of religion under the Religious Freedom Restoration Act (RFRA) and the First Amendment's Free Exercise Clause sufficient to be exempted from compliance with the ACA's so-called contraception mandate requiring most employers to provide employees with health insurance that includes contraception.

Interestingly, after the grant of certiorari, some news reports headlined the religiousity of corporations aspect while others headlined the ACA contraception provision. 

The issue has generated many commentaries which often take very polarized positions.  Here's a round-up:

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*     Garrett Epps' Hobby Lobby and the New 'Alienable' Rights in The Atlantic argues that "market triumphalism" is at the heart - - - and will determine - - - cases such as Hobby Lobby.  “In case after case, the Supreme Court, and some of the lower courts, have looked at speech cases solely from the point of view of the asset holder.”   The abstract “inalienable” framework of rights in the Constitution has been transformed into rights as  “assets”  that can be treated as property and owned by corporations, especially those that are assumed to “create” the jobs encompassing the rights being asserted by the individuals.  "The employees have no right to complain; they sold their rights on the free market."

*    Richard Garnett's The Righteousness in Hobby Lobby’s Cause in the LA Times argues that Hobby Lobby should be praised for maintaining and supporting responsible corporate ethics through religious commitment. "Like millions of religious believers and groups," these corporations "reject the idea that religious faith and religious freedom are simply about what we believe and how we pray, and not also about how we live, act and work."  At  "the heart"  of these cases "is the straightforward argument that federal law does not require us to 'check our faith at the door' when we pursue vocations in business and commerce."

*     Linda Greenhouse's  Doesn’t Eat, Doesn’t Pray and Doesn’t Love, in NY Times contends that the conflict is not really over religion but part of the continuing culture war surround sex.  “To the extent that the “contraceptive project” changes anything on the American reproductive landscape, it will be to reduce the rate of unintended pregnancy and abortion. The objection, then, has to be not to the mandate’s actual impact but to its expressive nature, its implicit endorsement of a value system that says it’s perfectly O.K. to have sex without the goal of making a baby. While most Americans surely share this view, given the personal choices they make in their own lives, many nonetheless find it uncomfortable to acknowledge.”

 *    Dahlia Lithwick's Un-People over at Slate argues that the "conservative crusade to declare everything a “person”—corporations, fertilized eggs—will have disastrous consequences."  Lithwick notes the extension from Citizens United: "Corporate Personhood is back! And this time, it’s got God on its side.”  She predicts the consequences: "If for-profit secular corporations have religious beliefs, companies run by Christian Scientists can be free to limit medical treatment and those run by Jehovah's Witnesses could object to paying for blood transfusions. Artificially created constructs that exist to shield owners from lawsuits will be able to shield owners from compliance with basic civil rights laws."

*    David Catron's SCOTUS, Hobby Lobby, and Media Practice over at The American Spectator argues against the "mainstream media" characterizations:  “Those Americans still naïve enough to rely on establishment news outlets for information on current events are being told that Hobby Lobby v. Sebelius and Conestoga Wood Specialties v. Sebelius are part of a sinister conspiracy to restrict access to birth control, endow corporations with religious rights, and escalate the 'war on women.'" Instead, the main question should be this: "Can the government strip individuals of their religious liberties simply because they own a controlling interest in a corporation?"

*    Sally Cohn's When Religion and Liberty Collide over at the Daily Beast draws on originalist interpretations of the First Amendment's religion clauses that  "freedom *from* religion" is central.  She contends that "the settlers who came to America wanted to express their own religious beliefs, but an equal if not greater motivation was escaping the reality of religious tyranny embedded in government," and to "put it mildly, our forbearers would be appalled by how right-wing conservatives are trying to use government to force their religious views on all of us."

*    David Skeel's Corporations and Religious Freedom in WSJ argues that even if corporate religious rights are recognized, that doesn't mean there will be a flood of cases.  Corporations will need to meet the sincerity requirement "and sincerity is much easier to determine with a corporation than with an individual, since there is no need to look inside the heart of a corporation. If a corporation's certificate of incorporation requires that it be operated in accordance with religious principles, or if its board of directors has established a clear and explicit practice of pursuing religious objectives, it would qualify. Otherwise it would not."

*    Clarence Page's Law Protects All Faiths, Not All Behavior Op-Ed in The Chicago Tribune discusses the legal landscape in accessible terms, ultimately relying upon the belief/practice distinction as articulated  "in the 1878 test case of the bigamy conviction of George Reynolds, the personal secretary to Mormon leader Brigham Young."

*     Angelo Young's The Same Religious Conviction That Has Hobby Lobby Challenging Obamacare is Also Why Its Full Timers Start at $14 an Hour with Evenings (and Thanksgiving Off)  in International Business Times argues exactly what its title captures.  Focusing on Hobby Lobby, the article has an interview with David Green, the 73-year-old founder, including Green's comments about salary increases because "Our idea is that we should care about our people. It’s just a basic Christian do-unto-others idea."

*    Amanda Marcotte's Christian Conservatives Have Perfected Playing the Victim Card in Salon (via alternet) argues that by the controversy is fueled by conservatives "redefining “religious freedom” to mean its opposite."  She says  the "hope is that by repeatedly using the term “religious freedom” when they mean “giving the Christian right power to impose their faith on others,” they can eventually drain the phrase of all its meaning and finally, after decades of fighting secularism, make it easier for the religious right to strip away individual protections for religion.”

*    Megan McArdle's A Fight Over Contraception Won’t Help Obamacare Op-Ed in Bloomberg contends that the Obama Administration should "pick its battles carefully."  She argues that if the ACA is to be " viable for the long term" it will "need the support of folks like Hobby Lobby."  

We previously discussed
Ruthann Robson's Puzzling Corporations: The Affordable Care Act and Contraception Mandate originally published over at Jurist, and
Marci Hamilton's Why the En Banc Tenth Circuit’s Interpretation of the Religious Freedom Restoration Act in Hobby Lobby v. Sebelius Is Indefensible, originally published over at Justia.

[image via]

ADDITIONS:

Bill Keller, Conscience of a Corporation, Op-Ed Column in NYT (February 13, 2013).

 

 

 

Why the En Banc Tenth Circuit’s Interpretation of the Religious Freedom Restoration Act in Hobby Lobby v. Sebelius Is Indefensible - See more at: http://verdict.justia.com/2013/07/11/why-the-en-banc-tenth-circuits-interpretation-of-the-religious-freedom-restoration-act-in-hobby-lobby-v-sebelius-is-indefensible#sthash.WwGYDXTo.dpuf
Why the En Banc Tenth Circuit’s Interpretation of the Religious Freedom Restoration Act in Hobby Lobby v. Sebelius Is Indefensible - See more at: http://verdict.justia.com/2013/07/11/why-the-en-banc-tenth-circuits-interpretation-of-the-religious-freedom-restoration-act-in-hobby-lobby-v-sebelius-is-indefensible#sthash.WwGYDXTo.dpuf
Why the En Banc Tenth Circuit’s Interpretation of the Religious Freedom Restoration Act in Hobby Lobby v. Sebelius Is Indefensible - See more at: http://verdict.justia.com/2013/07/11/why-the-en-banc-tenth-circuits-interpretation-of-the-religious-freedom-restoration-act-in-hobby-lobby-v-sebelius-is-indefensible#sthash.WwGYDXTo.dpufwere discussed on conlawprof previously

December 13, 2013 in Cases and Case Materials, Current Affairs, First Amendment, Free Exercise Clause, Gender, Interpretation, Religion, Reproductive Rights | 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)

Sunday, November 17, 2013

Religious Freedom for Corporations: Hypotheticals from Seventh Circuit Judge Rovner

The issue of religious freedom for secular for-profit corporations, whether under the statutory scheme of Religious Freedom Restoration Act or the First Amendment, in the context of the ACA's so-called contraceptive mandate is a contentious and complicated one.  Here's an overview of (and  reaction to) the issue and cases; after which the Seventh Circuit (again) rendered an opinion.

RovnerFor those teaching, writing, or thinking about the issues, Judge Ilana Rovner (pictured), dissenting in the Seventh Circuit's opinion in the consolidated cases of Korte v. Sebelius and Grote v. Sebelius, offers three provocative hypotheticals.  [For those interested in more about Judge Rovner, there's an interesting interview from the Illinois Supreme Court Commission on Professionalism in a brief video available here].

Rovner's hypotheticals draw on the ACA as well as other federal laws and are especially helpful because they provide the statutory schemes as well as the facts.

In the first, an employee has ALS, commonly known as Lou Gehrig’s Disease, and has been accepted into a clinical trial testing the effectiveness of an embryonic stem-cell therapy on ALS.  The employer software company/owner's plan would cover only the costs of the employee's routine care associated with the stem cell therapy, and not the costs of the stem cell therapy itself, but the employer nevertheless believes that by covering routine care, the company plan would be facilitating his participation in a practice to which he objects on religious grounds.

In the second, the employer corporation's sole owner is "a life-long member of the Church of Christ, Scientist. Christian Science dogma postulates that illness is an illusion or false belief that can only be addressed through prayer which realigns one’s soul with God." The owner believes that "his company’s compliance with the ACA’s mandate to cover traditional medical care would be a violation of his religious principles."

In the third hypothetical, the employer corporation's owners condemn same-sex marriage and homosexuality as part of their religious views.  One of their employees seeks time off under the Family and Medical Leave Act to attend, with his husband, the birth of their child through a surrogate arrangement.  The employers not only refuse the unpaid leave under the FLMA, they terminate him, because neither the owners nor their company can in any way recognize or facilitate such an immoral arrangement against their religious beliefs.

These hypotheticals would make a terrific in class discussion.  They appear on pages 68 - 76 of the opinion; and for convenience, without accompanying footnotes, below.

 

Continue reading

November 17, 2013 in Cases and Case Materials, First Amendment, Interpretation, Medical Decisions, Opinion Analysis, Recent Cases, Religion, Reproductive Rights, Teaching Tips | 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)

Friday, November 8, 2013

Seventh Circuit on Corporations as Possessing Religious Freedom and ACA's Contraception Mandate

In its opinions in excess of 150 pages in the consolidated cases of Korte v. Sebelius and Grote v. Sebelius, a divided panel of the Seventh Circuit has (again) entered the fray regarding the claim of secular for-profit corporations that rights of religious freedom have been infringed by the (PP)ACA's so-called contraception mandate.  We've discussed the complicated landscape here, and specific cases such as the divided DC Circuit's opinion in Gilardi v. HHS, by the Sixth Circuit in  Eden Foods v. Sebelius and Autocam Corp. v. Sebelius by the divided Third Circuit in Conestoga Wood Specialties Corp. v. Secretary of HHS and, of course, in the divided en banc opinion of the Tenth Circuit in Hobby Lobby, presently before the United States Supreme Court on a petition for writ of certiorari.

In this consolidated opinion in Korte and Grote, the majority of the Seventh Circuit panel - - - in an opinion authored by Judge Diane Sykes and joined by Judge Joel Flaum - - - reiterated its previous views and its previous divide - - - with Judge Ilana Diamond Rovner again dissenting - - - now that the  "appeals have now been briefed and argued and are ready for decision."   

These cases—two among many currently pending in courts around the country—raise important questions about whether business owners and their closely held corporations may assert a religious objection to the contraception mandate and whether forcing them to provide this coverage substan- tially burdens their religious-exercise rights.  We hold that the plaintiffs—the business owners and their companies—may challenge the mandate. We further hold that compelling them to cover these services substantially burdens their religious- exercise rights. Under RFRA the government must justify the burden under the standard of strict scrutiny. So far it has not done so, and we doubt that it can. Because the RFRA claims are very likely to succeed and the balance of harms favors protect- ing the religious-liberty rights of the plaintiffs, we reverse and remand with instructions to enter preliminary injunctions barring enforcement of the mandate against them.

(emphasis in original). 

Belleville WRF 3
a Korte construction site

Korte & Luite Johan Contractors, Inc., is general contractor in Illinois, employing about 90 full-time employees, 70 of whom belong to a union that sponsors their health-insurance plan, and 87% of the stock is owned by Cyril and Jane Korte, who describe themselves as devout Roman Catholics.  Interestingly, as the opinion relates, in August 2012, the

Kortes discovered that their then-existing health plan covered sterilization and contraception—coverage that they did not realize they were carrying. Because providing this coverage conflicts with their religious convictions, they began to investigate alternative health-care plans with the intention of terminating their existing plan and substituting one that conforms to the requirements of their faith.

But, they now argue, the ACA's contraception mandate stands in their way.  Also interestingly, although not in the court's opinion, the Korte company has been awarded the contract to renovate the Illinois Supreme Court building, in a contract for more than 7 million dollars.

The Grotes include six individual plaintiffs who own and manage Grote Industries, Inc., a manufacturer of vehicle safety systems headquartered in Indiana, having 1,148 full-time employees at various locations, including 464 in the United States, and providing a health-care plan that is self-insured. 

Header

The opinions and analysis are extensive, but they provide little that is different from their previous opinions or from other courts' opinions, with the exception of dissenting Judge Rovner's hypotheticals discussed below.  The majority's analysis on the individual plaintiffs focuses on standing and there is no resort to the "pass through" test that some other courts have used.  Regarding RFRA, the majority relies on the Dictionary Act's definition of "person," and concludes that covering corporations within RFRA is not a "poor fit," indeed,

A corporation is just a special form of organizational association. No one doubts that organizational associations can engage in religious practice. The government accepts that some corporations—religious nonprofits—have religious-exercise rights under both RFRA and the Free-Exercise Clause.

The majority uses a series of First Amendment Free Exercise Clause cases, including Sherbert v. Verner, the Seventh Day Adventist employee seeking workers' compensation benefits, and Braunfeld v. Brown, the "Jewish merchants" challenging a Sunday-closing law, to conclude that such" cases show that far from categorically excluding profit-seekers from the scope of the free-exercise right, the Supreme Court has considered their claims on the merits, granting exemptions in some and not others based on the compelling-interest test."

Dissenting, Judge Rovner contends that while her "esteemed colleagues have made the best case possible for the notion that the contraception mandate interferes with the plaintiffs’ free exercise rights," she believes that the majority's  "holding and rationale represent an unprecedented and unwarranted re-conception of both what the free exercise of religion entails and what constitutes a substantial burden on that exercise," because the majority "extends a highly personal right to a secular corporation, a man-made legal fiction that has no conscience enabling belief or worship."  She continues regarding the substantial burden - - - or what she sees as a lack therefof - - - and  notes that the majority "permits the plaintiffs to invoke their free exercise rights offensively rather than defensively, in a way that circumscribes the rights Congress has given to employees, by permitting the corporate employers to rewrite the terms of the statutorily- mandated health plans they provide to their employees."

Judge Rovner's opinion is most provocative - - - and probably most useful for Constitutional Law Professors - - - in providing three hypotheticals worth considering. [Update: discussion of hypotheticals here].

November 8, 2013 in First Amendment, Opinion Analysis, Religion, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Friday, November 1, 2013

DC Circuit Finds Corporate Shareholders' Religious Freedom Burdened by ACA's Contraceptive Mandate

In a divided opinion including two senior judges, the Court of Appeals for the District of Columbia Circuit in Gilardi v. HHS  entered the fray regarding corporate rights under RFRA and the First Amendment regarding the requirement that an employer include contraceptive coverage in its health care insurance.   Recall that just last week, the Sixth Circuit denied the claim of Eden Foods, following the decision of another panel of the circuit in Autocam Corp. v. Sebelius, decided in September, that agreed with the divided panel of the Third Circuit's July opinion in Conestoga Wood Specialties  that a for-profit secular corporation cannot assert a claim to religious freedom under RFRA, the Religious Freedom Restoration Act.  This is contrary to the holding of the divided  en banc Tenth Circuit's June majority opinion in Hobby Lobby v. Sebelius presently before the United States Supreme Court on a petition for writ of certiorari filed by the Solicitor General on behalf of Sebelius.

In Gilardi, the divisions by the DC Circuit judges  - - -  Janice Rogers Brown, Harry Edwards, and A. Raymond Randolph - - - reflect the divisions expressed in the other opinions.  Judge Brown's main opinion is joined in various parts by only one of the other two judges, both of whom wrote separate opinions.  Judge Randolph's opinion is a few pages, while Judge Edwards' opinion, concurring in part and dissenting in part is longer than the majority opinion.

The case involves Francis and Philip Gilardi, adherents of Catholicism, who oppose contraception for women.  They are owners of Freshway Foods and Freshway Logistics, closely-held corporations that employ approximately 400 employees.  Important for the analysis, the corporations "have elected to be taxed under Subchapter S of the Internal Revenue Code."  Judge Randolph's brief opinion has a good explication of the relevance of Subchapter S.

Freshway Foods

 

The judges, excepting Randolph, first decide that the corporations do not possess a right of religious freedom.  The majority finds that RFRA's "person" language does not solve the issue, and turns to First Amendment doctrine.  The court notes that perhaps the "constitutional arithmetic" of "Citizens United plus the Free Exercise Clause equal a corporate free exercise right" might "ultimately prevail, but "for now" there is "no basis for concluding a secular organization can exercise religion," thus agreeing with cases such as Eden Foods.  In the brief concurring opinion, Judge Randolph states this issue need not have been addressed. 

 This "leaves the Gilardis," as the court phrases it, and finds that they suffer an injury "separate and distinct" from the corporation.  The majority - -  this time without the agreement of Judge Edwards - - - finds that the religious freedoms of the individual men are burdened under RFRA.  It applies strict scrutiny, as required by RFRA, but interestingly quoting from Fisher, last Term's equal protection case involving racial classifications in affirmative action programs at the the University of Texas.  The majority then rejects as compelling the government interests in safeguarding public health, protecting women's autonomy, or promoting gender equality, finding these interests both too broadly formulated and even if satisfactory, not being served by the least restrictive means.  In short, the majority concludes, even without the contraceptive mandate, the "statutory scheme will not go to pieces."

Judge Edwards' lengthy opinion finds that while the Gilardis may be sincere, the legal claim that the mandate imposes a substantial burden on their individual rights of free exercise of religion because "their companies are required to provide health insurance that includes contraceptive services" is "specious."  Judge Edwards argues that while the individuals may have Article II standing to pursue their claim, this does not mean that they have a valid one.  Judge Edwards extensively rehearses the Supreme Court's free exercise doctrine, intertwined with RFRA, and discusses the burden on the Gilardis.  In a paragraph that captures the disagreement over whether individuals are burdened by the acts of corporations, he argues:

Amici also contend that the difference between the Mandate and paying wages is akin to the difference between a person who opposes the death penalty being required to pay taxes that fund executions, and being required to “purchase the drugs for a lethal injection and personally deliver them to the facility where the execution will take place.” Br. of 28 Catholic Theologians and Ethicists at 19. The problem with this rather extraordinary example is that the Mandate does not require the Gilardis to have nearly this degree of personal involvement in providing contraceptives. The Mandate does not require the Gilardis to transfer funds from Freshway’s accounts directly to the manufacturers or retailers of contraception. Nor are the companies required to deliver or distribute contraception to employees. Under the Employee Retirement Income Security Act, 29 U.S.C. § 1132(d)(1), Freshway is a distinct legal entity from its self-insured group health plan. The plan is operated by a third-party administrator, and, pursuant to health privacy regulations, the Gilardis are actually prohibited from being informed whether individual employees purchase contraceptive products, or about any other information regarding employees’ health care decisions. See Br. of Americans United for Separation of Church and State, et al., at 29-30 (citing 45 C.F.R. § 164.508; 45 C.F.R. § 164.510). Moreover, the Gilardis are free to procure Mandate-compliant coverage for their employees through an entirely independent, third-party insurance carrier, rather than administering their own group health plan. Id. This is a far cry from personally purchasing contraceptives and delivering them to employees.

Further, Judge Edwards would find that even if there were a substantial burden, there are compelling governmental interests supporting the contraceptive mandate provisions, including "promoting public health, welfare, and gender equality."  He would find the exemptions narrow and, analogizing to the Social Security tax upheld by the United States Supreme Court, the scheme cannot function if persons are allowed to opt-out because money is being spent in a manner that violates their religious beliefs.

Because the district court found as a matter of law that the Gilardis did not have a substantial likelihood of prevailing on the merits, it denied the prelimiary injunction.  Having reversed that conclusion of law, the majority remands for a determination of the other considerations for a preliminary injunction.

But most certainly the Gilardis case - - - or this issue - - - will not simply end there.  It may be determined by what the Court does in Hobby Lobby, even as Freshway Foods is distinguished by being a different type of corporation.

November 1, 2013 in First Amendment, Free Exercise Clause, Gender, Opinion Analysis, Religion, Reproductive Rights, Sexuality | Permalink | Comments (1) | 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)