Tuesday, August 27, 2013
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
Friday, November, 15th
3-4 pm RECEPTION IN MACMILLAN LAW LIBRARY (location TBA)
Celebrating 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)
Tuesday, July 23, 2013
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.
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
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.
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.
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.
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.
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
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.
Thursday, March 7, 2013
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.
Thursday, February 7, 2013
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.
Thursday, January 10, 2013
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!
Friday, January 4, 2013
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.
Wednesday, December 26, 2012
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 (0)
Tuesday, December 11, 2012
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.
Tuesday, 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.
Friday, October 26, 2012
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.
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.
Friday, September 14, 2012
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]
Sunday, August 12, 2012
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 (0)
Wednesday, August 1, 2012
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.
Tuesday, July 31, 2012
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.
Saturday, July 21, 2012
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 (0)
Wednesday, May 16, 2012
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]