Wednesday, March 30, 2016
Something strange is afoot at the U.S. Supreme Court. The justices issued a highly unusual order Tuesday for the parties in Zubik v. Burwell, one of this term’smost-watched cases.
The order instructs the parties in Zubik and a bevy of related cases to “file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees” (“petitioners” in this case, refers to the employers who object to birth control). In case that instruction is not clear, the order also offers an example of a possible regime that may survive review in the Supreme Court:
[T]he parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any
separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan
Monday, March 28, 2016
Zubik v. Burwell, Transcript of Oral Argument
Zubik v. Burwell, Audio of Oral Argument (Oyez)
Balkinization, The Zubik Oral Argument Pt. 2
Only one of these headlines mentions women.
Meaghan Winter, Slate, Roe v. Wade Was Lost in 1992: How "Undue Burden" Has Eroded the Right to Choose
Remembering the day Planned Parenthood v. Casey (1992) was decided:
“We conclude that the central holding of Roe should be reaffirmed,” O’Connor read that June morning in 1992. Miller, by then the head of communications for the newly formed Center for Reproductive Law and Policy, was awed. Here was the first woman ever to sit on the Supreme Court asserting women’s right to abortion. “Oh my God, did we just win?” Miller remembers thinking. “How it that possible?”
But O’Connor kept reading. In “reaffirming” Roe, the court had also mostly upheld four of the five restrictions put in place by the Abortion Control Act, only invalidating the spousal notification law. Abortion remained legal, but the judges introduced two caveats. One was that the states had a compelling interest in protecting unborn life from the “outset of pregnancy”—a stark departure from Roe, which held that states had no such interest until after the first trimester. The other was that states would be able regulate abortion unless their laws “unduly burden” a woman’s right to choose abortion.
Miller, who is now the president of the National Institute for Reproductive Health, remembers her mind spinning. What was an “undue burden”? How could the Pennsylvania restrictions stand if Roe stood too?
And citing my work on the backstory of Akron v. Akron Center for Reproductive Health (1983) where Justice O'Connor first articulated the undue burden standard in dissent. See Tracy A. Thomas, Back to the Future of Regulating Abortion in the First Term, 28 Wisc. J. Law, Gender & Society 47 (2013).
One attorney described the multipart ordinance as “a Christmas tree,” with everything possible hanging off it: a parental consent rule, a mandatory waiting period, and “informed consent” counseling. The attorneys designed it to be a national model. After Kapper proposed the law, experts from cities all over the U.S descended on Akron for four public hearings held over several weeks. Tracy Thomas, associate dean at University of Akron School of Law, later recounted how hundreds of divided locals watched John Willke of National Right to Life, a hero of the anti-abortion movement, present a slideshow of fetal life. (It’s hard to imagine now, but disturbing audiences with images of fetuses was then a cutting-edge tactic.) Gynecologists slated to appear at the hearings were so angered by the anti-abortion advocacy that they walked out without testifying. Shouting erupted in the hallway outside the hearing room.
Viewers watching an anti-abortion representative from Akron on the Today show might have been impressed with what seemed to be the anti-abortion movement’s grassroots organizing skills. But its advocacy wasn’t as homegrown as it appeared.
O'Connor took the position, in part, offered by Prexident Reagan's solicitor general, Rex Lee, adopting the deferential balancing approach of "undue burden." See LeeAmicusBriefAkron. The "unduly burdensome" standard had appeared in prior Supreme Court abortion decisions by Justices Powell (Maher v. Roe, Belliotti v. Baird II (1979)) and Blackmun (Belliotti v. Baird (1976), but O'Connor converted it into a litmus test, rather than a conclusion. And she utilized the test in order to uphold much government regulation, rather than strike down legislation, as the Court had previously used it in three out of four cases except funding. Powell explicitly rejected the undue burden test in Akron, writing the majority opinion invalidating the 17 provisions of the Akron law on informed consent, waiting periods, and hospital regulations, suggesting that he did not intend his previous unduly burdensome language to be used as the constitutional standard.
Monday, March 21, 2016
Douglas NeJaime & Reva Siegel, Conscience Wars in Transnational Perspective: Religious Liberty, Third-Party Harms, and Pluralism
Abstract:Those who believe contraception, abortion, and same-sex relationships are sinful are increasingly seeking religious exemptions from laws protecting these practices. This essay examines the spread of culture-war conscience claims in the United States and across borders.Religious liberty claims asserted in these culture-war contexts differ from claims for the accommodation of religious ritual observance in ways that warrant principled legal response. When a person of faith seeks an exemption from legal duties to another in the belief that the citizens the law protects are sinning, granting the religious exemption can inflict material and dignitary harms on those whom the law protects. Employing cross-borders comparisons to illustrate, we argue that religious accommodation of such claims serves pluralist ends only when the accommodation is structured to shield other citizens from harm. Our analysis includes the U.S. Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores and its forthcoming decision in Zubik v. Burwell and reaches beyond U.S. borders to the European Court of Human Rights, including its decision in Eweida and Others v. United Kingdom.
Doug Laycock, Wash Post, How the Little Sisters of the Poor Puts Religious Liberty at Risk
Zubik v. Burwell is the Supreme Court’s name for the set of cases more often identified with the Little Sisters of the Poor, a religious order that is also a party to the case. I filed an amicus brief in Zubik on behalf of the Baptist Joint Committee for Religious Liberty. I had never before filed a brief in support of the government in a case about the free exercise of religion. ****
The second, and even more dangerous argument: These organizations say that because the government exempted the insurers of churches and their integrated auxiliaries, it is required to exempt the insurers of all other conscientious objectors as well. Otherwise, it discriminates between two groups of religious organizations.
This argument is a mortal threat to an essential and widespread source of protection for religious liberty. There are thousands of specific religious exemptions in U.S. law. If legislators and administrative agencies cannot enact a narrow religious exemption without it being expanded to become all-inclusive, many of them will not enact any religious exemptions at all. And they will start repealing the exemptions they have already enacted.
Caroline Mala Corbin, The Contraception Mandate Accommodation: Why the RFRA Claim in Zubrik v. Burwell Fails
The Affordable Care Act requires that health care plans include all FDA-approved contraception without any cost sharing. In Hobby Lobby v. Burwell, for-profit businesses with religious objections successfully challenged this “contraception mandate.” In this term’s Zubik v. Burwell, it is religiously affiliated nonprofits like Baptist universities and Catholic Charities challenging the contraception benefit. But there is a major difference: these religiously affiliated nonprofits are exempt from the contraception mandate. Once they certify that they are religiously opposed to contraception and notify either their insurance carriers or the Department of Health and Human Services, the responsibility for contraception coverage shifts to private insurance companies. The nonprofits do not have to provide, pay for, or even inform their employees or students of the separate coverage.
Despite the ability to opt out of contraception coverage, many nonprofits complain that the religious accommodation itself imposes a substantial religious burden in violation of the Religious Freedom Restoration Act (RFRA). According to these nonprofits, providing notice of their objections triggers the provision of contraception to their employees and students, thus making them complicit in sin. Their RFRA claim cannot succeed. RFRA requires that the contraception regulations impose a substantial religious burden and fail strict scrutiny, and neither requirement is met. First, filing paperwork to receive an exemption is not a substantial burden on the nonprofits’ religious exercise. The nonprofits’ claims to the contrary are based on a mistake of law, and while court must defer to the nonprofits’ interpretation of religious theology, courts should not defer to their interpretation of federal law. Second, the contraception mandate passes strict scrutiny: it advances compelling government interests in women’s health and equality, and the accommodation provided to objecting nonprofits is the least restrictive means of accomplishing those interests.
Wednesday, February 24, 2016
Mary Ziegler (Florida State), Choice at Work: Young v. UPS, Pregnancy Discrimination, and Reproductive Liberty, 93 Denver L. Rev. 219 (2015).
In deciding Young v. United Parcel Service, the Supreme Court has intervened in ongoing struggles about when and whether the Pregnancy Discrimination Act of 1978 (PDA) requires the accommodation of pregnant workers. Drawing on original archival research, this Article historicizes Young, arguing that the PDA embodied a limited principle of what the Article calls meaningful reproductive choice. Feminist litigators first forged such an idea in the early 1970s, arguing that heightened judicial scrutiny should apply whenever state actors placed special burdens on women who chose childbirth or abortion.
A line of Supreme Court decisions completely rejected this understanding of reproductive liberty. However, choice arguments rejected in the juridical arena flourished in Congress, during debate about the PDA. For a variety of strategic and ideological reasons, legal feminists and antiabortion activists turned to legislative constitutionalism to give meaning to the idea of reproductive liberty. While not requiring employers to provide any accommodations, the PDA prohibited employers from placing special burdens on women’s procreative decisions.
The history of the meaningful-choice principle suggests that while the Court reached the right outcome, Young still falls short of providing women the protection intended by the framers of the PDA. By a 6-3 vote, the Court vacated a Fourth Circuit decision vindicating United Parcel Service’s “pregnancy-blind” employment policy—that is, the policy effectively excluded pregnant workers but did not formally categorize them on the basis of pregnancy. In its application of the McDonnellDouglas burden-shifting analysis, Young removed some of the obstacles previously faced by pregnant workers relying on disparate treatment theories. However, the Court still assumes that employers could have legitimate reasons for discriminating against pregnant workers beyond their ability to do a job, creating precisely the kind of burdens on
Thursday, February 18, 2016
Ciara O'Connell, Engendering Reproductive Rights in the Inter-American System, in Gender, Sexuality and Social Justice: What's Law Got to Do With It?, Kay Lalor, Elizabeth Mills, Arturo Sánchez García and Polly Haste, eds., p. 58, Institute of Development Studies, 2016
Abstract:The challenge of including a gender perspective within human rights work has been a project only recently undertaken by the international human rights community. It is undeniable that much progress has been made over the past two decades in regard to advocacy and legal efforts to protect, promote and fulfil women’s human rights. However, there remain significant shortcomings in how the law is used to address systemic conditions that cause the subordination of women. This article seeks to explore the gap that exists between women’s rights rhetoric and implementation at the national level. An examination of women’s reproductive rights in the Inter-American System of Human Rights serves as a lens by which to explore how international human rights bodies fall short in addressing the gendered implications of women’s rights violations as they are embedded in national cultures.
Tuesday, January 19, 2016
Chronicles, How 46 Title IX Cases Were Resolved
Since the U.S. Department of Education’s Office for Civil Rights signaled stricter enforcement of Title IX in April 2011, it has resolved 46 investigations of colleges for possible violations of the gender-equity law involving alleged sexual violence. You can explore all investigations in this wave of enforcement and learn more with The Chronicle’s Title IX investigation tracker.
- 30 Resolution Agreements
- 7 Administratively Closed
- 4 Settled Through Early-Complaint Resoultion
- 3 Insufficient Evidence
- 2 Unknown Resolution
Friday, January 1, 2016
The next year promises to be an eventful one on the legal front—though we feel like we say that every December. After all, 2015 brought challenges to the Pregnancy Discrimination Act; a case on whether not hiring an employee because she wears a hijab is employment discrimination; the historic and successful challenge to same-sex marriage bans; the failed challenge to federal subsidies in the Affordable Care Act; and a failed attempt to gut the Fair Housing Act. Meanwhile, 2014 was the year the Roberts Court gave the green light to governments embracing prayer at civic functions; it also struck most abortion clinic buffer zones as unconstitutional in McCullen v. Coakley. And who could forget Hobby Lobby v. Burwell, the case in which the Roberts Court created a constitutional corporate right to object to contraception coverage?
Even so, 2016 is still shaping up to be an important year for reproductive rights and justice. Some cases on the list to watch—like yet another challenge to the birth control benefit in the Affordable Care Act—we anticipated. Other cases, like the trial in Colorado of Robert Lewis Dear Jr., who is accused of launching a siege at a Planned Parenthood health-care center in Colorado Springs that killed three, injured nine, and terrorized many others, we wish were not here at all. But given the violent rhetoric targeting abortion doctors, providers, and patientsthat increased over the course of 2015, we can’t say we were surprised to put it there.
Thursday, December 31, 2015
In 2015, something that rarely happens happened. The Supreme Court, the United States Congress, and state legislatures all started to get on the same page. Fairness for pregnant workers was what brought them all together. Despite the many diverse views these institutions represent, they agreed that ensuring pregnant workers’ health and economic security is paramount. Here are 2015’s top highlights in the fight for fairness for pregnant workers.
Monday, November 23, 2015
Paula Abrams (Lewis & Clark), The Bad Mother: Stigma, Abortion and Surrogacy, 43 J. Law, Medicine & Ethics (Summer 2015).
Why do certain decisions about reproduction engender social support, other decisions social disapproval? Surrogacy and abortion represent two different facets of procreative liberty, the right to reproduce and the right to avoid reproducing, but these different experiences may carry similar stigmatic harm, for both disrupt traditional expectations of the pregnant woman. This article examines how stigma attached to abortion and surrogacy reveals similar patterns of gender stereotyping. It argues that evidence of stigma is relevant to determining whether laws regulating abortion or surrogacy are based on impermissible stereotyping. Stigma evidence is probative in determining whether gender stereotypes influenced legislative purpose and in assessing the degree of harm imposed by a regulation
Tuesday, November 10, 2015
The Supreme Court granted cert last Friday in Little Sisters v. Burwell consolidating several cases raising religious objections to filing paperwork in order to trigger the religious exemption to providing employees with contraception as otherwise required by federal healthcare law.
- Supreme Court Grants Cert in Birth Control Mandate Challenge
- The Birth Control Wars Return to the Supreme Court
- The Little Sisters of the Poor Get Their Day at the Supreme Court
Prior to the grant, Caroline Corbin (Miami), explained the circuit split and the issues in Paperwork as a Substantial Religious Burden, Jurist
Hobby Lobby focused on for-profit companies because non-profit organizations were already exempt. Under Department of Health and Human Services regulations, religious non-profits need not include contraception in their health care plans. Instead once a religious non-profit declares its religious opposition, it can have its health care insurer or, if it is self-insured, a third party administrator, provide coverage instead. Indeed, the Hobby Lobby court pointed to this accommodation as a reason why the contraception mandate's application to religious for-profits was not narrowly tailored. If this accommodation worked for non-profits, the court reasoned, then why not for for-profits?
Nonetheless, some non-profits have complained that the religious accommodation itself violates their religious rights. They argue that filing the paperwork that grants them their exemption imposes a substantial burden on their religious practice. According to these religious non-profits, signing a two-page form or sending a letter facilitates the provision of contraception, thus making them complicit in sin.
Although multiple courts (including the US Court of Appeals for the Third Circuit [PDF], the US Court of Appeals for the Sixth Circuit [PDF], the US Court of Appeals for the Seventh Circuit and the US Court of Appeals for the DC Circuit [PDF]) have rejected this claim, the US Supreme Court has stayed these decisions. Mere days after writing in Hobby Lobby that the accommodation for non-profits "constitutes an alternative that achieves all of the Government's aims while providing greater respect for religious liberty," the court granted an emergency injunction against that very alternative in Wheaton College v. Burwell [PDF]. In her Wheaton dissent, Justice Sotomayor lamented that "[t]hose who are bound by our decisions usually believe they can take us at our word. Not so today."
Setting aside the court's mixed messages, the non-profits' claim should fail. At the most basic level, it misunderstands how the contraception mandate works. The religious organizations believe that their written refusal triggers the provision of contraception. As a matter of law, they are wrong. Their paperwork does not cause contraception coverage. The Affordable Care Act, passed by a democratically-elected Congress, does.
Thursday, October 1, 2015
Joan Williams and Jessica Lee, It's Illegal, Yet It Happens All the Time, Chronicle of Higher Ed.
Why don’t we have more women in STEM fields? One reason is that students get hounded out of their college or graduate-school programs when they become pregnant. It’s against federal law, but it happens all the time.
One student told us she had a pregnancy-related disability that required her to go to the hospital at least twice a week. Exhausted but driven, she continued to produce quality work. Late in her pregnancy, the publishing deadline she was struggling to meet was accelerated by her department — it now fell right after her due date. Just months prior she had been celebrated as a rising star in her department, but now, she said, "I had to prove I was still worthy to even be in their program." If she didn’t meet the new deadline, she would lose the funding her family relied upon. After her baby was born, she was intimidated into finishing her degree in significantly less time than the average student in her department. The hostility and bias the student faced "traumatized me in so many ways," she said. "I wasn’t asking for accommodations, I wanted to be treated like everybody else, but I was the one who was punished."
A graduate student with a disability caused by childbirth was pursuing her degree full force after a lengthy struggle, only to be told by a faculty mentor, "You don’t have a disability, you just need to go home and be with your baby." Professors frequently make off-the-cuff statements — often written off as harmless — telling pregnant women or new mothers to stay home instead of pursuing their education. Plaintiffs’ lawyers love such direct evidence of gender discrimination.
And it’s not just professors who open their institutions to legal liability. Administrators do, too. A graduate student said she anticipated the birth of her child at the start of the academic year, so she asked to be able to record classes for the first week or two of the semester. The student-affairs dean told the student to withdraw for at least a semester, with no guarantee of readmission, informing her that all of the pregnant students at the institution in the past six years withdrew from the program — except one, who regretted her decision. This student, like many others, didn’t want to take leave at all.
The consequences of being forced out of your program can be grim. Many women need to keep working in their university-sponsored jobs to make ends meet. Yet those jobs are often unavailable to students while they are on leave, or aren’t offered back to them upon their return. On many campuses, being on leave or withdrawn status means losing that income, along with health insurance, loan deferment status, and even your university email address. Sometimes it means losing your housing, too.
Federal law requires that pregnant students must be reinstated following leave to their prior status, without penalty. Yet we hear over and over about women are penalized for their absence, or forced to reapply to their programs as if they had never been accepted.
Thursday, September 24, 2015
Dara Purvis (Penn State), The Rules of Maternity, on SSRN.
Abstract:This article examines a diverse body of laws and regulations speaking to reproductive rights, healthcare, criminal punishment of drug use, termination of parental rights, and more in order to unearth the rules of maternity: guidance provided both obliquely and explicitly by the law’s coercive power telling women both how and who should mother. Rule 1 begins in pregnancy, with the message that “your body is your child’s vessel.” Every choice that a pregnant woman makes becomes a source of potential harm to her child, and thus of potential punishment through both civil and criminal law. Rule 2 explains one way women should attempt to avoid such liability, by following the maxim that “doctor knows best.” To question medical authority or have preferences other than following doctor’s orders is to needlessly risk the health of a pregnancy or a child, and is evidence of bad mothering. After the child’s birth, the mother remains responsible for the people who enter a child’s life, leading to rule 3, “the buck stops with you.” Rule 4 provides examples of the tightropes that mothers must walk: be nurturing, but not too nurturing. Breastfeed, but not for too long. Be protective, but not overprotective. “Damned if you do, damned if you don’t.” Finally, the rules of maternity create an aspirational maternity, one that excludes women deemed undesirable as mothers, because of class, race, past actions, and so on. Rule 5 specifies that “only some women need apply” for motherhood; women who have already been judged as bad mothers should not be legally permitted to reproduce.
Tuesday, September 8, 2015
Robin West (Georgetown),Hobby Lobby, Birth Control and Our Ongoing Cultural Wars: Pleasure and Desire in the Crossfires
From the Abstract:
Both sides of the birth control debate agree that birth control artificially prevents or interrupts conception, allowing women to control their own fertility and allowing heterosexual men and women to enjoy unconstrained sexual liberty. However, the decision in Hobby Lobby omitted all discussion of this central function of birth control, and contained no mention of arguments for or against birth control that assume it.
This piece examines and criticizes the two major arguments opposing and supporting birth control on this understanding of its function and core social meaning: first the neo-natural lawyers’ argument against birth control advanced in a papal encyclical in the 1930’s and in contemporary law review articles by John Finnis, George Bradley, and Robert George, and second, the “sexual-libertarian” argument supporting the use of birth control, culled from Griswold, Eisenstadt, Lawrence and their advocates and supporters in the academy.
The focus of the piece is on the competing conceptions of heterosexual morality that underlie these two arguments. My central claim is that both sides fail to address women’s actual felt desires either for sex or pregnancy. Natural law advocates generally celebrate all non-contracepted marital sex regardless of women’s desires for either the sex or the pregnancy that is its foreseeable consequence. Likewise, sexual libertarians celebrate all consensual sex regardless of women’s desires.
This erasure of the relevance of women’s desire, or lack of desire, to the morality of heterosexual intercourse and pregnancy causes women harm, and is a condition of women’s subordination. The current legal clashes over birth control have marginalized the harms. This piece seeks to re-center them.
Thursday, August 13, 2015
Tuesday, August 11, 2015
Given today's headlines about defunding Planned Parenthood, I am appreciating reading the following biography of PP's founder, Margaret Sanger which I've had on my shelf for awhile. Jean Baker, Margaret Sanger: A Life of Passion. The book does a good job of providing historical and social context, legal nuance, as well as readable biography.
The National Women's Law Center explains the existing law of pharmacists' "right" to refuse to dispense contraception. Pharmacy Refusals 101
Refusal to Dispense Contraception are Increasing
- Reports of pharmacies refusing to fill prescriptions for birth control—or provide EC—have surfaced in at least twenty-five states across the nation, including: AZ, CA, DC, GA, IL, LA, MA, MI, MN, MO, MT, NH, NJ, NY, NC, OH, OK, OR, RI, TN, TX, VA, WA, WV, WI.
- These refusals to dispense prescription contraceptives or provide EC are based on personal beliefs, not on legitimate medical or professional concerns. The same pharmacies that refuse to dispense contraceptives because of personal beliefs often refuse to transfer a woman’s prescription or refer her to another pharmacy. These refusals can have devastating consequences for women’s health.
- Despite the fact one type of EC is available without a prescription, refusals based on personal beliefs are still a problem. Some stores prefer to keep non-prescription EC behind the counter or in locked cases, so individuals seeking it must interact with pharmacists or other pharmacy staff who may have personal beliefs against providing the drug.
The Legal Landscape: What Governs the Practice of Pharmacy?
- The laws governing pharmacies vary from state to state. Pharmacies must abide by state laws and regulations, which are written by the state legislature and the state Pharmacy Board.
- The laws and regulations in most states do not specifically speak to the issue of pharmacy refusals based on personal beliefs. States that provide general guidance about when pharmacies or pharmacists may refuse to dispense tend to limit the reasons for such a refusal to professional or medical considerations—such as potentially harmful contraindication, interactions with other drugs, improper dosage, and suspected drug abuse or misuse—as opposed to personal judgments.
- Many pharmacist associations that have considered this issue, including the American Pharmacists Association, have issued policies requiring that patient access to legally prescribed medications is not compromised—for example by either filling valid prescriptions or transferring them to another pharmacist who can. Although such policies are not legally binding, they encourage pharmacies to meet consumers’ needs.
Thursday, July 16, 2015
Women in Oregon will soon be able to receive birth control prescriptions from pharmacists, thanks to a new law signed by Gov. Kate Brown this week. Under the new rule, birth control can be obtained without the added burden of scheduling a doctor’s visit. The bill passed the state’s house in a 50-10 bipartisan vote.
To get birth control from a pharmacist, women over 18 will have to fill out a simple health questionnaire so that pharmacists can recommend the best contraceptive method for them. Those under 18 will need proof of a previous birth control prescription, but aren’t required to get a new one. The contraception will still be covered by the patient’s insurance.
State Rep. Knute Buehler (R) celebrated the bill in a press release, saying that his background as a medical professional informed his beliefs on access to contraception.