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:

450px-Arthaberpark_Figurengruppe

*     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)

Monday, October 28, 2013

Texas District Judge Declares Portions of HB 2 Restricting Abortion Unconstitutional

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

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

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

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

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

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

 UPDATE: FIFTH CIRCUIT STAY

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

Sixth Circuit: Eden Foods Corporation Cannot Assert a Religion Under RFRA

The continuing question of whether a for-profit secular corporation can assert a religious belief against contraception sufficient to exempt it from the ACA's provision requiring an employer to include contraceptive coverage in its health care insurance was again addressed by the Sixth Circuit in its opinion in Eden Foods v. Sebelius.

Interestingly, a footnote in the opinion cast doubt on whether Eden Foods and its founder and sole shareholder Michael Potter could past the requirement of having a sincerely held religious belief:

Potter’s “deeply held religious beliefs,” see Complaint ¶ 83, more resembled a laissez-faire, anti-government screed.  Potter stated to Carmon [in an article in salon.com]  “I’ve got more interest in good quality long underwear than I have in birth control pills.” Carmon then asked the Eden Foods chairman why he didn’t seem to care about birth control when he had taken the step to file a lawsuit over the contraceptive mandate. Potter responded, “Because I’m a man, number one[,] and it’s really none of my business what women do.” The article continued:

So, then, why bother suing? “Because I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control. What gives them the right to tell me that I have to do that? That’s my issue, that’s what I object to, and that’s the beginning and end of the story.” He added, “I’m not trying to get birth control out of Rite Aid or Wal-Mart, but don’t tell me I gotta pay for it.”

 

Eden Foods 2


But the panel opinion rested on different grounds, 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, the Secretary of Health and Human Services.   In its response brief filed October 21, 2013, Hobby Lobby agrees that the Court should grant the writ and hear the case.   With the split in the circuits, numerous district court cases in litigation, and both parties contending it is a matter of great public importance, odds are that the Court will grant certiorari for the current Term. 

 [image via]

October 28, 2013 in Family, First Amendment, Medical Decisions, Religion, Reproductive Rights, Sexuality | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 11, 2013

District Judge: For Profit Nursing Home Chains Have Free Exercise of Religion Rights

Relying on the Tenth Circuit's decision in Hobby Lobby v. Sebelius, Senior Judge Wiley Daniel enjoined the enforcement of the ACA's preventative health mandate regarding certain contraceptive methods for employees in his opinion in Briscoe v. Sebelius.

As the judge states, Briscoe is an Evangelical Christian and owns Continuum Health Partnerships, Inc., Continuum Health Management, LLC, and Mountain States Health Properties, LLC. Briscoe’s secular, for-profit companies manage and operate senior care assisted living centers and skilled nursing facilities. Briscoe is the sole member and manager of Continuum Health Management, LLC and Mountain States Health Properties, LLC. Briscoe is also the lone shareholder of Continuum Health Partnerships, Inc.

Given the precedent of Hobby Lobby, the district judge spent little analysis on the underlying issues, but did analyze the requirements for a preliminary injunction.   This included finding that the 200 persons employed by the plaintiff companies were much less than the "millions of others" persons exempted under other provisions.

 

September 11, 2013 in Congressional Authority, First Amendment, Religion, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 27, 2013

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

CONFERENCE ANNOUNCEMENT

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

EMORY UNIVERSITY SCHOOL OF LAW

November 15-16, 2013

more information here

SCHEDULE:

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

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

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

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

 

RR

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

Tuesday, July 23, 2013

North Dakota Federal Judge Enjoins North Dakota's Abortion Restrictions

 

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North Dakota State Capitol Building
Judge Daniel Hovland's opinion in MKB Management, Inc. v. Burdick grants a preliminary injunction against North Dakota House Bill 1456 passed by the legislature and signed by the Governor, which would make it a criminal offense to perform an abortion if a “heartbeat” has been detected, thereby banning abortions beginning at approximately six weeks of pregnancy, with limited exceptions.  As the plaintiffs, who run the only abortion clinic in North Dakota, argued, abortions before six weeks are exceedingly rare, in part because a woman rarely knows she is pregnant before that time. 

 

A woman’s constitutional right to terminate a pregnancy before viability has consistently been upheld by the United States Supreme Court in the forty years since Roe v. Wade. See e.g., City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 420 (1983) (a woman has a constitutional right to terminate her pregnancy) (overruled on other grounds); Casey, 505 U.S. at 846 (a woman has a right to an abortion before viability without undue interference from the state); Stenberg, 530 U.S. at 921 (a woman has the right to choose an abortion before viability); Gonzales, 550 U.S. 124 (the state may not prevent “any woman from making the ultimate decision to terminate her pregnancy”).

Indeed, Judge Hovland stated:

It is crystal clear from United States Supreme Court precedent that viability, although not a fixed point, is the critical point.

(emphasis in original).  He characterized the Defendants’ arguments as "necessarily rest[ing] on the premise that every Court of Appeals to strike a ban on pre-viability abortion care has misread United States Supreme Court precedent."  He stated that "until" Roe v. Wade and Casey are "overturned by the United States Supreme Court, this Court is bound to follow that precedent under the rule of stare decisis."

After briefly assessing the traditional standards for a preliminary injunction, Judge Hovland enjoined North Dakota House Bill 1456 which was to become effective August 1. 

Where and on what basis the "viability" line can be drawn remains uncertain in the continuing abortion debates, but six weeks is certainly too early.

RR

July 23, 2013 in Abortion, Due Process (Substantive), Fourteenth Amendment, Fundamental Rights, Medical Decisions, Opinion Analysis, Privacy, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 3, 2013

Planned Parenthood's Complaint Alleging New Kansas Abortion Law Violates First Amendment

Kansas' new abortion law that took effect July 1 - - - running 70 pages and known as Kansas HB 2253 - - - has already been the subject of a constitutional challenge.  HB 2253 seeks to restrict abortion and other reproductive services in numerous ways in accord with the legislative finding that "the life of each human being begins at fertilization."  The Complaint filed by the local Planned Parenthood organization, Comprehensive Health of Planned Parenthood of Kansas and Mid- Missouri, Inc. (CHPPKM) specifically challenges two provisions of the law on First Amendment grounds.

 

471px-Kirchner_-_Frauenkopf_vor_Sonnenblumen
"Head of a woman in front of sunflowers"
by Ernst Ludwig Kirchner circa 1920
(Recall sunflower is the state flower of Kansas)
First, the complaint in Comprehensive Health of Planned Parenthood of Kansas and Mid- Missouri, Inc.v. Templeton, challenges mandated statements to be made by physicians, including a statement regarding fetal pain at a certain gestation age and a statement that "“the abortion will terminate the life of a whole, separate, unique, living human being."  CHPPKM argues that these statements are misleading, at times irrelevant (as when the fetus has not reached the required gestation age), or not subject to factualverification but instead are statements of philosophy and religion.   The funding situation sharply distinguishes this situation from Rust v. Sullivan, which involved federal Title IX funds, but the nature of the statements are also quite different.  A more analogous case involved the required "risk of suicide warning" upheld by the Eighth Circuit en banc in Planned Parenthood v. Rounds.   Even though there was some "uncertainty" as to the reliability of the studies purporting to show a link between abortion and suicide ideation - - - including the very meaning of the word "risk" - - - the majority in Rounds found that the provision survived by giving great deference to South Dakota.  One question will be whether the Tenth Circuit will be as deferential as the majority in its sister circuit or be as rigorous as the dissenting judges in Rounds.

 

Second, the complaint challenges the provision that compels CHPPKM "to place on the homepage of its public website both a hyperlink to a government website that contains the government’s viewpoint on abortion, and a scripted message of endorsement of the content on the government’s website, even where CHPPKM disagrees with the message."  In light of last month's decision by the United States Supreme Court in United States Agency for International Development v. Alliance for Open Society International, Inc., - - - the prostitution pledge case - - - invalidating a requirement that organizations that received direct funding could not be compelled to espouse views that were not their own, this claim seems on firm First Amendment footing.  The distinction is a factual one - - - the hyperlink - - - although interestingly CHPPKM contends in its complaint this further complicates the matter because it cannot be expected to constantly monitor the government site.  Certainly, however, much of the language and reasoning in Chief Justice Roberts' majority opinion for the Court solidifies compelled speech doctrine.   And interestingly, compelled speech doctrine is being argued by anti-abortion organizations to challenge laws requiring "pregnancy crisis centers" to disclose the fact that they are not medical facilities. ( For example, a district judge held NYC's Local Law 17 unconstitutional in 2011; an opinion from the Second Circuit has been anticipated since oral argument over a year ago).  UPDATE: The Fourth Circuit's en banc opinion July 3 on a Baltimore ordinance.

A popular discussion of the controversy, including some of my own thoughts, is available on "KC Currents" broadcast by KCUR, a local NPR station.

RR

July 3, 2013 in Abortion, Cases and Case Materials, Federalism, First Amendment, Fundamental Rights, Reproductive Rights, Sexuality, Speech | Permalink | Comments (0) | TrackBack (0)

Friday, June 28, 2013

Tenth Circuit Recognizes For-Profit Corporations as Having Religious Freedom and Free Exercise Rights

In the contentious and closely-watched case of Hobby Lobby, Inc. v. Sebelius, the Tenth Circuit has rendered its opinion concluding that a for-profit corporation has free exercise of religion rights under the federal Religious Freedom Restoration Act (RFRA) and the First Amendment.

Hobby Lobby challenges the constitutionality of the so-called "contraception mandate" under the Affordable Care Act that require health insurance plans to provide contraception coverage to employees.  We've previously discussed the issue and the circuit split here. 

800px-HobbyLobbyStowOhio

The federal district judge had rejected Hobby Lobby's claim, noting that it was a for-profit completely secular company - - - it is a corporation operating 514 arts and crafts stores in 41 states.  The federal district judge also denied the injunction as to the for-profit corporation Mardel, a Christian supply and bookstore chain, and to the family owning both the corporations through a management trust.  Hobby Lobby sought extraordinary relief from the United States Supreme Court after a Tenth Circuit panel declined to issue a stay; Justice Sotomayor in her role as Tenth Circuit Justice then rejected the claim, ruling that the privately held corporations did not "satisfy the demanding standard for the extraordinary relief they seek."

The Tenth Circuit granted the request for initial en banc review - - - thus, there is no Tenth Circuit panel opinion - - - and issued a lengthy set of opinions from the eight judges, one judge being recused. The majority opinion on pages 8-9 details the rationales of the individual judges.  But the essential division is 5-3 over the issue of whether a corporation, even a for-profit secular corporation, has a right to free exercise of religion under RFRA and the First Amendment.  The majority concluded there was such a right and that the corporations demonstrated a likelihood of success for prevailing on the merits. 

Judge Timothy Tymkovich's more than 65 page opinion for the majority concluded that  

Hobby Lobby and Mardel are entitled to bring claims under RFRA, have established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm. But we remand the case to the district court for further proceedings on two of the remaining factors governing the grant or denial of a preliminary injunction.

Only a plurality of judges would have resolved the other two preliminary injunction factors  - - - balance of equities and public interest - - -  in Hobby Lobby and Mardel’s favor, thus the remand.

The majority, however, held

as a matter of statutory interpretation that Congress did not exclude for-profit corporations from RFRA’s protections. Such corporations can be “persons” exercising religion for purposes of the statute. Second, as a matter of constitutional law, Free Exercise rights may extend to some for-profit organizations.

(emphasis added). The opinion often conflates RFRA (which recall, is only applicable as to federal laws) and First Amendment.  However, in specifically considering First Amendment doctrine, the majority's argument derived from two strands.  First, it noted that individuals may incorporate for religious purposes and keep their Free Exercise rights - - - such as churches, citing Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 525 (1993) (holding that a “not-for-profit corporation organized under Florida law” prevailed on its Free Exercise claim).  Second, it then noted that "unincorporated individuals may pursue profit while keeping their Free Exercise rights," citing United States v. Lee, 455 U.S. 252 (1982) (considering a Free Exercise claim of an Amish employer); Braunfeld v. Brown, 366 U.S. 599 (1961) (plurality opinion) (considering a Free Exercise claim by Jewish merchants operating for-profit).

It then characterized the government's argument as being that these "Free Exercise rights somehow disappear" when "individuals incorporate and fail to satisfy Internal Revenue Code § 501(c)(3)."  The majority found this distinction to be one that cannot be supported by First Amendment doctrine.  It did, however, implicitly limit the facts under which for-profit corporations could be found to have free exercise rights: 

The government nonetheless raises the specter of future cases in which, for example, a large publicly traded corporation tries to assert religious rights under RFRA. That would certainly seem to raise difficult questions of how to determine the corporation’s sincerity of belief. But that is not an issue here. Hobby Lobby and Mardel are not publicly traded corporations; they are closely held family businesses with an explicit Christian mission as defined in their governing principles. The Greens, moreover, have associated through Hobby Lobby and Mardel with the intent to provide goods and services while adhering to Christian standards as they see them, and they have made business decisions according to those standards. And the Greens are unanimous in their belief that the contraceptive-coverage requirement violates the religious values they attempt to follow in operating Hobby Lobby and Mardel. It is hard to compare them to a large, publicly traded corporation, and the difference seems obvious.

Thus, the majority stated that it did not share any concerns that its holding would prevent courts from distinguishing businesses that are not eligible for RFRA’s - - - and presumably the First Amendment's - - - protections.

While the analysis of substantial burden that follows is important, it is the holding that a secular for-profit corporation has a sincerely held religious belief that entitles it to assert a free exercise claim is the centerpiece of the controversy. 

Indeed, Chief Judge Briscoe, joined by Judge Lucero, call the majority's opinion on this point

nothing short of a radical revision of First Amendment law, as well as the law of corporations. But whatever one might think of the majority’s views, the fact remains that they are wholly unsupported by the language of the Free Exercise Clause or the Supreme Court’s free exercise jurisprudence, and are thus, at best, “considerations for the legislative choice.”

The ability of for-profit corporations to have Free Exercise rights under the First Amendment - - - along with their Free Speech rights as articulated in the still-controversial Citizens United v. FEC, decided in 2010 and liberally cited in Hobby Lobby - - - is highly contested.  This may certainly be going (back) to the United States Supreme Court.

RR
[image via]

June 28, 2013 in Campaign Finance, Congressional Authority, First Amendment, Free Exercise Clause, Gender, Opinion Analysis, Privacy, Religion, Reproductive Rights, Sexuality | Permalink | Comments (0) | TrackBack (0)

Monday, June 24, 2013

Supreme Court Takes First Amendment Abortion Clinic Buffer Zone Case

The United States Supreme Court granted certiorari in McCullen v. Coakley in which the First Circuit rejected a First Amendment challenge to a Massachusetts statute creating a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of abortion clinics. 

The First Circuit rejected the argument that the First Amendment doctrine governing buffer zones had shifted after the Supreme Court's decisions in Sorrell v. IMS Health Inc. (2011); Snyder v. Phelps (2011); and Citizens United v. FEC (2010).  

This grant of certiorari could signal a more robust recognition of First Amendment challenges to buffer zones.

RR

June 24, 2013 in First Amendment, Reproductive Rights, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, March 7, 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.

Agrippine_de_Claude_MellanRecall 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.

RR
[image via]

March 7, 2013 in Abortion, Due Process (Substantive), Family, Fourteenth Amendment, Gender, Medical Decisions, Opinion Analysis, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)