March 07, 2013
Idaho District Judge Holds Portions of State's Abortion Law Unconstitutional
In the latest chapter of McCormack v. Hiedeman, District Judge Lynn Winmill issued a 42 page opinion (Memorandum Decision and Order) yesterday holding various provisions in Idaho's abortion law unconstitutional, including the 20 week pregnancy ban unconstitutional.
Recall that the Ninth Circuit last year found that Idaho's prosecution of McCormack for "self-abortion" constituted an undue burden and was unconstitutional. McCormack, who purchased abortion "medications" over the internet, was the subject of an excellent indepth article which we discussed here. At that time, it seemed as if the case was concluded.
However, Judge Winmill rejected the prosecutor's argument that the case was moot, noting that a party "cannot conjure up mootness by ceasing the challenged conduct only for practical or strategic reasons - - - such as avoiding litigation." The judge further held that the prosecutor's promise not to prosecute would not bind his successors and that his subsequent offer of transactional immunity to McCormack was not timely or binding. Further, the judge noted that pregnancy is "capable of repetition yet evading review."
Judge Winmill also held that the physician in the case had standing, including to assert his patients' constitutional claims.
On the merits, Judge Winmill held that the self-abortion provision is a substantial obstacle and therefore unconstitutional, adopting the Ninth Circuit's reasoning.
Judge Winmill also held unconstitutional the provisions imposing criminal liability on abortion providers who perform first trimester abortions outside a hospital or a properly staffed and equipped office or a clinic and requires that “physicians have made satisfactory arrangements” for emergency hospital care. The judge accepted the physician's argument that the terms “properly” and “satisfactory” are unconstitutionally vague therefore placing an undue burden on women seeking first trimester abortions. There is some confusion in the judge's reliance on Gonzales v. Carhart in this passage, but the judge finds that the Idaho statute is not sufficiently specific.
Additionally, the judge found unconstitutional the Idaho provisions banning abortions at twenty weeks in PUCPA, the Pain-Capable Unborn Child Protection Act. He reasoned that PUCPA does not contain mention the health or safety of the pregnant woman, that its only purpose was to limit the available options for the woman, and that the legislature cannot place viability at a set point.
Given this opinion, it is likely that McCormack v. Heidman will be returning to the Ninth Circuit.
February 07, 2013
Bishops Reject New Regs on Contraception
The U.S. Conference of Catholic Bishops released a statement today saying that the newly proposed HHS regulations on the contraception-coverage provision of the Affordable Care Act don't do enough to protect religious liberties. According to the statement, the Conference has three problems:
- the narrow understanding of a religious ministry;
- compelling church ministries to fund and facilitate services such as contraceptives, including abortion-inducing drugs, and sterilization that violate Catholic teaching; and
- disregard of the conscience rights of for-profit business owners.
These are the same objections the Conference lodged earlier, in March 2012, well before HHS proposed the new regs. In short, the Conference says that the HHS proposal doesn't do enough to address its original objections.
The Conference says that the proposed rules maintain an "inaccurate distinction among religious ministries" by not considering Catholic hospitals, universities, and charities as part of the Catholic ministry. In particular, the Conference objects to the "accommodation" that these institutions receive from the contraception coverage requirement--an accommodation that provides their enrollees separate contraceptive coverage, with no co-pays, and at no (direct) cost to the religious organization. The Conference seems to object both to the idea that these institutions get an "accommodation" (as opposed to a full free pass on the contraception requirement) and to the possibility that the institutions might end up indirectly paying the bill for contraception coverage even with the accommodation. As to point three, the Conference balked at the lack of exception for private business owners who, for religious reasons, object to contraception.
The statement says that the Conference will submit its concerns in the notice-and-comment period for the proposed rules.
January 10, 2013
Daily Read: Leslie Griffin on Free Exercise and the ACA
In a guest post over at the American Constitution Society blog, Professor Leslie Griffin (pictured) discusses the numerous decisions in challenges to the ACA's mandate of reproductive coverage on the basis of the First Amendment's Free Exercise Clause.
Griffin argues that in these cases, such as Hobby Lobby, the accomodation of religion could violate the Establishment Clause. Moreover, she argues that neither selling crafts at a profit nor providing employees with benefits should constitute an "exercise" of religion.
The post helpfully provides a great overview and links to all the cases, useful for anyone working in this area.
Worth a read!
January 04, 2013
NYC Bar Event on 40th Anniversary of Roe v. WadeThe Fortieth Anniversary of the United States Supreme Court's Landmark Decision, Roe V. Wade
Monday, January 14, 2013 6:30 pm-8:00 pm
2013 marks the 40th anniversary of Roe v. Wade, establishing the constitutionally-protected right to abortion. This program will discuss the evolution of the right to abortion in the courts, public opinion, and political discourse since then and will address the current status of reproductive rights in the United States, including its role in the 2012 presidential election.
Moderator: PRISCILLA SMITH, Senior Fellow at the Information Society Project at the Yale Law School
LOUISE MELLING, Director, ACLU Center for Liberty
RUTHANN ROBSON, Professor of Law & University Distinguished Professor, CUNY School of Law
KATHLEEN MORRELL, MD, Physicians for Reproductive Choice and Health
JESSICA GONZALEZ-ROJAS, Executive Director, National Latina Institute for Reproductive Health
BEBE ANDERSON, Director, U.S. Legal Program, Center for Reproductive Rights
Sponsors: Sex and Law Committee, Pamela Zimmerman, Chair
More information here.
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."
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."
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
December 11, 2012
Federal District Judge: North Carolina's "Choose Life" License Plate Scheme Unconstitutional
Is a specialty license plate government speech permissible under the First Amendment? In a 21 page opinion and order in ACLU of North Carolina v. Conti, Senior United States District Judge James Fox held that North Carolina's "choose life" specialty license plate scheme was not protected government speech and therefore enjoined the issuance of such license plates.
Judge Fox described the North Carolina scheme as unique in comparison to other state statutory schemes and likewise noted that the legislature rejected offering other specialty plates that would have expressed an opposing view, such as "respect choice."
The central issue in the case, however, was whether the "choose life" specialty license plate could be described as "government speech" and thus protected under First Amendment doctrine as articulated in Rust v. Sullivan and most recently in the Court's unanimous 2009 opinion in Pleasant Grove City v. Summum.
Judge Fox rejected the state's argument that the degree of government control was "the" single factor test. Instead, Judge Fox relied upon the Fourth Circuit's four factor test:
- the central purpose of the program in which the speech in question occurs
- the degree of editorial control exercised by the government and private parties
- the identity of the literal speaker
- whether the government or private entity bears the ultimate responsibility for the speech
Judge Fox noted that these factors were consistent with Supreme Court precedent and that the Fourth Circuit had employed them recently.
Applying these factors, Judge Fox found that although the state exercised editorial control (despite the fact that the design and idea originated with a national organization outside the control of the state), the other factors weighed in favor of private, or hybrid private-state speech.
Judge Fox's order closed the case; it is sure to be appealed. Meanwhile, North Carolina car owners are not relegated to the standard license plate: Judge Fox's opinion states that there are 150 types of specialty license plates available in the state. More information is available here.
November 20, 2012
District Judge to Hobby Lobby: No Substantial Burden on Religious Beliefs re: ACA Contraception Compliance
The 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.
October 26, 2012
Seventh Circuit Affirms Funding of Planned Parenthood, but Rejects Constitutional Claims
In its opinion in Planned Parenthood of Indiana v. Commissioner of Indiana Department of Health, the Seventh Circuit this week affirmed a district judge's injunction against the state's defunding of Planned Parenthood.
However, the Seventh Circuit upheld the district court on the statutory claim under the Medicaid Act's "free choice of provider" provision, and rejected the constitutional claims of preemption and unconstitutional conditions.
On the preemption claim, the Seventh Circuit panel reversed the district judge's finding that the federal block-grant program for the diagnosis and monitoring of sexually transmitted diseases conflicted with Indiana's defunding of Planned Parenthood in contravention of the Supremacy Clause. The panel applied a presumption in favor of a lack of preemption and found no conflicts, even as implied.
While the district judge had not reached the unconstitutional conditions claim - - - having granted relief on the other claims - - - the Seventh Circuit stated that "it makes sense" to address it. The panel focused on the constitutional right at stake, reasoning that it is a "right against coercive government burdens," but this "implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion." Thus, the panel concluded that the unconstitutional conditions claim was not likely to succeed on the merits: given that "the government’s refusal to subsidize abortion does not unduly burden a woman’s right to obtain an abortion, then Indiana’s ban on public funding of abortion providers—even for unrelated services—cannot indirectly burden a woman’s right to obtain an abortion."
Thus, although the Seventh Circuit opinion's result requires the funding of Planned Parenthood, the court foreclosed constitutional claims.
Daily Read: Obama on Roe v. Wade's Future
In an interview in Rolling Stone, President Obama responds to a query about the future of the constitutional right to abortion.
Do you have any fear that Roe v. Wade could be overturned if the Republicans win the presidency and appoint another Supreme Court justice?
I don't think there's any doubt. Governor Romney has made clear that's his position. His running mate has made this one of the central principles of his public life. Typically, a president is going to have one or two Supreme Court nominees during the course of his presidency, and we know that the current Supreme Court has at least four members who would overturn Roe v. Wade. All it takes is one more for that to happen.
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.
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.
[image: The Baptism of Pocahontas, by John Gadsby Chapman, circa 1840, via]
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.
Those 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.
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
August 01, 2012
HB2036 Update: Ninth Circuit Enjoins Arizona Abortion Law
In a brief Order today, a panel of the Ninth Circuit has issued an emergency stay of Arizona's restrictive abortion law, despite a federal district judge's holding yesterday that the law was constitutional.
In the Isaacson v. Horne order, the Ninth Circuit stated:
The court enjoins enforcement of the provisions of Arizona House Bill 2036 that place restrictions upon and criminalize the performance of abortions from 20 weeks gestational age, pending appeal. 2012 Ariz. Legis. Serv. 250 (H.B. 2036) (West) (to be codified as Ariz. Rev. Stat. § 36-2159);
The Ninth Circuit also expedited the briefing and oral argument schedule.
July 31, 2012
Arizona HB 2036: Federal Judge Upholds Restrictive Abortion Law
In a relatively brief opinion in Isaacson v. Horne, federal judge James Teilborg rejected constitutional challenges to Arizona House Bill 2036 (“H.B. 2036”), signed into law by the Governor in April 2012, restricting all abortions at 20 weeks of pregnancy or later, except in "medical emergency." The judge evaluated the legislative findings of "the documented risks to women’s health and the strong medical evidence that unborn children feel pain during an abortion at [20 weeks] gestational age."
The opinion's reasoning largely rests on two extensive quotations. First, the judge quotes from Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 879-80 (1992), regarding the definition of “medical emergency,” concluding that the Arizona statute is within the broad definition. Second, the judge relied on Gonzales v. Carhart, 550 U.S. 124 (2007) and its description of one type of procedure. The judge then credited the legislature's fetal pain rationale, finding that "by 7 weeks gestational age, pain sensors develop in the face of the unborn child and, by 20 weeks, sensory receptors develop all over the child’s body and the children have a full complement of pain receptors." The judge did add that as an additional legitimate interest, the "instance of complications is highest after twenty weeks of 20 gestation" supported the interest in the pregnant woman's health.
The Center for Reproductive Rights will undoubtedly appeal.
July 21, 2012
Catholic College Lacks Standing to Challenge ACA's Contraception Requirement
Judge James E. Boasberg (D.D.C.) ruled in Belmont Abbey College v. Sebelius that a Catholic college lacked standing to sue HHS over its regulations under the Affordable Care Act that require health insurance plans to cover contraceptives. The problem: HHS said that it would reconsider the regs and look for other alternatives to provide contraceptive coverage, and so the case sounds more than a little like a pre-enforcement challenge. In other words, the government's working on it, and Belmont's suit will have to wait.
The ruling comes just two months after forty-three Catholic institutions filed 12 separate suits in a high-profile, coordinated move challenging the regulations. (Belmont filed its suit much earlier, in November 2011, arguing that the regs violated the First Amendment, the Administrative Procedures Act, and the Religious Freedom Restoration Act.) The ruling here will certainly influence the direction of those cases, even if it won't necessarily dictate the direction of those cases.
Current HHS regs, enacted under the ACA, require health insurance plans to provide contraceptive services starting August 1, 2012. But the regs exempt religious organizations who meet these four criteria:
(1) The inculcation of religious values is the purpose of the organization.
(2) The organization primarily employs persons who share the religious tenets of the organization.
(3) The organization serves primarily persons who share the religious tenets of the organization.
(4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.
In response to criticism, HHS added a "safe harbor" period through February 10, 2012, for "certain non-exempted, non-profit organizations with religious objections to covering contraceptive services." Moreover, HHS issued an Advance Notice of Proposed Rulemaking (ANPRM) on March 21, 2012, indicating that it would seek ways to "accommodat[e] non-exempt, non-profit religious organizations' religious objections to covering contraceptive services," while "assuring that participants and beneficiaries covered under such organizations' plans receive contraceptive coverage without cost sharing."
Belmont argued that it didn't qualify for an exemption, that the safe harbor provision only delayed the implementation of the contraceptive requirement, and that the new Rulemaking provided no certain exemption and, in any event, would lead to a similar harm.
Judge Boasberg agreed that Belmont didn't qualify for an exemption (as did the government) and that the safe harbor provision only delayed the harm (and therefore didn't deny Belmont standing). But he concluded that HHS's ANPRM provided enough certainty that HHS was seriously examining a solution to the problem so as to deny Belmont standing. From the ruling:
Plaintiff argues that non-binding promises of future rulemaking cannot defeat standing. Contrary to the Plaintiff's assertions, however, Defendants have done more than simply "open another docket to propose addressing related matters." They have published their plan to amend the rule to address the exact concerns Plaintiff raises in this action and have stated clearly and repeatedly in the Federal Register that they intend to finalize the changes before the enforcement safe harbor ends. Not only that, but Defendants have already initiated the amendment process by issuing an ANPRM. The government, moreover, has done nothing to suggest that it might abandon its efforts to modify the rule--indeed, it has steadily pursued that course--and it is entitled to a presumption that it acts in good faith.
Op. at 15.
Judge Boasberg also ruled that the case was not ripe, for similar reasons.
July 21, 2012 in Cases and Case Materials, Courts and Judging, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Religion, Reproductive Rights, Standing | Permalink | Comments (0) | TrackBack
May 16, 2012
Eleventh Circuit: Pregnancy Discrimination Suit Against Religious School To Proceed
In a relatively brief and unanimous opinion in Hamilton v. Southland Christian School, the Eleventh Circuit reversed the district court's grant of a summary judgment in favor of the school.
"A woman of childbearing age was hired as a teacher at a small Christian school. Then she got pregnant, married, and fired. In that order. Then she filed a lawsuit. She lost on summary judgment. This is her appeal."
The next paragraphs, one would assume, would be devoted to discussing the ministerial exception. And they are. Except the discussion is devoted to the procedural status of the ministerial exception in this litigation. While the school did raise it as an affirmative defense, the district judge rejected it, but granted summary judgment on the ground that the teacher had not established a prima facie case that her pregnancy was the reason the school terminated her. On appeal, the school did not raise the ministerial exception defense as an alternativeground for affirmance; its "brief mentions the ministerial exception only once, and that is when describing the district court’s rulings: 'The Court determined that the ministerial exception did not apply in this case.' ” The school's attorneys did file a notice of Supplemental Authority several months later, citing Hosanna-Tabor Evangelical Lutheran Church & Sch. v. Equal Emp’t Opportunity Comm’n. But that, the Eleventh Circuit held, was not sufficient.
The court then found there remained material issues of disputed fact as to the reason the teacher was fired. The remand, for proceedings consistent with the opinion, presuambly leaves the "ministerial exception" door open for the district court.
[image: Woodcut from The Scarlet Letter, 1878, via]
May 12, 2012
Saturday Evening Review: Julie Nice on the "Responsible Procreation" Argument in Same-Sex Marriage Constitutional Litigation
With President Obama making news this week proclaiming his personal support for same-sex marriage, after an extensive "evolution," it's a good time to take a look at scholarship on the constitutional arguments.
Obama specifically mentioned same-sex couples "raising kids together." But one of the more odd - - - at least on first review - - - arguments in support of state marriage being limited to opposite sex couples is that this is acceptable, but that opposite sex couples need more "encouragement" to marry. This is the so-called "responsible procreation" state interest. Perhaps it reached its most interesting articulation in the pronouncement of New York's highest court, an opinion subject to a skewering analysis - - - and fun read - - - in John Mitchell's Chatting with the Lady in the Grocery Store about Hernandez V. Robles, the New York Same-Sex Marriage Case, available on ssrn.
ConLawProf Julie Nice (pictured below) has now elaborated this odd notion in The Descent of Responsible Procreation: A Genealogy of an Ideology, forthcoming in Loyola Los Angeles Law Review, draft available on ssrn. With her usual scholarly integrity matched by innovative analysis, Nice "traces the genealogy of responsible procreation."
She notes that same sex constitutional litigation has changed remarkably during the past several decades, with the amount of such litigation increasing substantially. With state justifications eroding, especially since blatant discrimination has become more disfavored, defenders of state bans on same-sex marriage have primarily leaned on the responsible-procreation defense, which surmises that same-sex couples already procreate responsibly and that the rights and responsibilities of marriage should be limited to furthering the goal of encouraging more responsible procreation by heterosexuals.
Nice explains that the justification is rooted in religion. It appeared as a justification of the federal Defense of Marriage Act. State courts split on its constitutionality: the high court of Massachusetts found it to be “unpersuasive” while the New York court used it as a justification for a rejection of constitutional challenge to same-sex-marriage bans.
While the saga of Perry v. Brown is far from over, Nice predicts that the "responsible procreation" state interest is "on the wane." She ultimately argues the emerging trend is that both executive officials and courts are rejecting the "responsible procreation" rationale and concluding that the same-sex-marriage ban is drawn, not to further a proper legislative end but to make same-sex couples and their children unequal to everyone else. She contents that even conservative commentators defending the same-sex-marriage ban openly concede that it is drawn to disadvantage same-sex couples and to favor opposite-sex couples.
Thus, she concludes regardless of which level of scrutiny is applied, contemporary constitutional jurisprudence is quite clear that such an invidious ideology is not a legitimate basis for law.
An article worth reading that not only puts the same-sex marriage constitutional issues into perspective but also provides an excellent primer on equal protection and constitutional litigation.
May 12, 2012 in Equal Protection, Establishment Clause, Family, Federalism, Fourteenth Amendment, Religion, Reproductive Rights, Scholarship, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack
May 01, 2012
Update: Fifth Circuit Grants Emergency Stay in Texas Planned Parenthood Case
The Fifth Circuit, in a brief order from Judge Jerry Smith, has issued a stay of Judge Yeakel's preliminary injunction in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs.
As we discussed yesterday, Judge Lee Yeakel issued a preliminary injunction 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.
April 30, 2012
Texas Federal Judge Enjoins Rule Prohibiting Planned Parenthood Funding
In an opinion today in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs, Judge Lee Yeakel issued a preliminary injunction 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. Before moving to the preliminary injunction standard, Judge Yeakel quickly rejected the state's Eleventh Amendment immunity argument.
The bulk of Judge Yeakel's 25 page opinion is devoted to the unconstitutional conditions argument. He concluded that the "affiliate" regulation was so broad that it infringed on plaintiffs First Amendment speech and associational rights. Any state interest in "respect for fetal life after viability" was not adequately served by the extensive prohibition. The argument that state funding "frees up" other money to provide abortions "extends too far."
The judge also found the equal protection argument had merit. By exempting hospitals, but applying the regulation to the 49 health centers, the regulation created a classification. The classification itself only implicated rational basis scrutiny, but it did infringe upon a fundamental right, thereby meriting strict scrutiny. In a very brief analysis, the judge expressed doubts whether the Texas regulation could satisfy even the lowest standard.
Finding the other factors for granting a preliminary injunction also weighed in favor of the plaintiffs, the judge enjoined the regulation and set a hearing for May 18.
[image: from PLanned Parenthood Ass'n of Hidalgo County via]
March 25, 2012
District Judge Finds Establishment Clause Violation for Trafficking Funding to Catholic Bishops
The opinion in ACLU of Mass. v. Sebelius, by District Judge Richard Stearns of the District of Massachusetts grants summary judgment on behalf of the ACLU in the controversial Catholic Bishops funding case under the TVPA.
At issue is implementation of the TVPA, the Trafficking Victims Protection Act, 22 USC §7101-7112 (2000). Congress appropriated funds and directed the Secretary of HHS to “expand benefits and services to victims of severe forms of trafficking in persons in the United States.” HHS first accomplished this by making grants to nonprofit organizations that worked with trafficking victims, but in 2005 decided it would delegate this task to an independent contractor to administer the funds.
Only two organizations bid for the role of “independent contractor,” both of which are religious organizations. The winner of the independent contractor bid was United States Conference of Catholic Bishops (USCCB). This was despite the USCCB’s frank statement in its proposal that “as we are a Catholic organization, we need to ensure that our victim services are not used to refer or fund activities that would be contrary to our moral convictions and religious beliefs,” and therefore “subcontractors could not provide or refer for abortion services or contraceptive materials for our clients pursuant to this contract.” This statement did raise concerns, and although HHS asked whether USCCB could abide by a “don’t ask, don’t tell” policy with regard to the exception, the USCCB essentially rejected that possibility. It stated it would require an assurance form all subcontractors regarding compliance.
Nevertheless, HHS awarded USCCB the contract, and it was renewed four times, for a total of almost $15 million.
The ACLU sued, arguing that the USCCB contract violated the Establishment Clause, because the government was allowing the USCCB to impose religious restrictions on taxpayer funds. The present secretary of HHS, Sebelius, contended that the ACLU lacked standing, that the case was moot, and that on the merits, there was no Establishment Clause violation.
On standing, the judge rejected the government’s argument that standing was foreclosed by Arizona Christian School Tuition Organization v. Winn (2011), noting that this case involves an expenditure, and not a tax credit as in Winn.
On the merits, the judge applied the well-known “Lemon test:” First, the statute must have a secular legislative purpose; Second, its principal or primary effect must be one that neither advances nor inhibits religion; Finally, the statute must not foster “an excessive government entanglement with religion.” The judge also discussed the endorsement test, rejecting the argument that the endorsement inquiry is not relevant to funding, but only applicable in cases of religious displays. The judge noted that the reproductive limits in the contracting scheme were absolutely linked to religion: “there is no reason to question the sincerity of the USCCB’s position that the restriction it imposed on its subcontractors on the use of TVPA funds for abortion and contraceptive services was motivated by deeply held religious beliefs.” Thus, the government’s delegation of authority to USCCB as an independent contractor provides a significant benefit to religion.
Judge Stearns explicitly addressed the possibility that his opinion would be controversial, especially in light of rhetoric regarding hostility to religion:
“I have no present allegiance to either side of the debate, only a firm conviction that the Establishment Clause is a vital part of the constitutional arrangement envisioned by the Framers, and perhaps a reason we have not been as riven by sectarian disputes as have many other societies.” That conviction remains unshaken. To insist that the government respect the separation of church and state is not to discriminate against religion; indeed, it promotes a respect for religion by refusing to single out any creed for official favor at the expense of all others.
The case is sure to be appealed.
January 11, 2012
Fifth Circuit Vacates Preliminary Injunction of Texas Abortion Statute
Chief Judge of the Fifth Circuit Edith Jones, well known for her conservative affiliations, authored the panel opinion for the Fifth Circuit vacating a preliminary injunction of Texas HB 15, an Act “relating to informed consent to an abortion.” The district judge had issued a preliminary injunction against seven subsections for violating the First Amendment or Fourteenth Amendment's due process clause encompassing vagueness principles.
Judge Jones rejected the argument that the panel should defer ruling on the preliminary injunction given that the "district court has, notwithstanding this appeal, proceeded apace toward consideration of summary judgment" and therefore a "ruling on this interlocutory matter would become moot if the district court enters final judgment first." In declining to defer, Jones wrote that "this ruling will offer guidance to the district court, which is particularly important given our different view of the case." Should the district judge not hew to the Fifth Circuit's interpretation, a reversal is certain: Jones also made clear that for "the sake of judicial efficiency, any further appeals in this matter will be heard by this panel."
Texas HB 15 requires a sonogram, a display of the sonogram to the pregnant woman, make audible the heart auscultation of the fetus for the woman to hear, and explain to her the results of each procedure and to wait 24 hours, in most cases, between these disclosures and performing the abortion. A woman may only decline the explanation if her pregnancy is a result of a sexual assault or incest, she is a minor who has received a judicial bypass, or the fetus is abnormal.
The district judge found sections of HB 15 unconstitutional as compelled speech, but the Fifth Circuit's review of abortion cases led it to three conclusions:
First, informed consent laws that do not impose an undue burden on the woman’s right to have an abortion are permissible if they require truthful, nonmisleading, and relevant disclosures. Second, such laws are part of the state’s reasonable regulation of medical practice and do not fall under the rubric of compelling “ideological” speech that triggers First Amendment strict scrutiny. Third, “relevant” informed consent may entail not only the physical and psychological risks to the expectant mother facing this “difficult moral decision,” but also the state’s legitimate interests in “protecting the potential life within her.”
Applying these principles, the panel found that the sections of HB 15 "requiring disclosures and written consent are sustainable under Casey, are within the State’s power to regulate the practice of medicine, and therefore do not violate the First Amendment."
As to the three vagueness arguments under the Due Process Clause, Judge Jones found the first "novel" and "novelty suggests its weakness;" the second as not meriting the district judge's "skeptical interpretation" and that the "legislature had every right to maintain the integrity" of its statutory scheme; and the third, "at bottom, trivial."
Judge Patrick Higginbottom's brief concurring opinion is worth reading in full, both for what it says and for what it does not say. While it expresses some misgivings, it leaves little doubt of the result unless the case reaches the United States Supreme Court.
[image: Judge Edith Jones, via]
January 11, 2012 in Abortion, Cases and Case Materials, Courts and Judging, Due Process (Substantive), First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Privacy, Reproductive Rights, Sexuality, Speech | Permalink | Comments (0) | TrackBack