Saturday, June 29, 2013
Guest Blogger Professor Jessie Hill: Supreme Court grants cert in Cline v. Oklahoma Coalition for Reproductive Justice
For the past nine years, I have been litigating (together with attorneys from Planned Parenthood) the constitutionality of an Ohio law that requires physicians prescribing the abortion-inducing drug mifepristone (RU-486, which was approved by the FDA in 2000 and can be used safely to terminate pregnancy until at least 9 weeks of pregancy) to follow a particular, outdated protocol. On Thursday, the Supreme Court granted certiorari in an Oklahoma case raising almost identical issues. Because of some uncertainty about the meaning and scope of the state law, however, the Supreme Court took the unusual step of certifying two questions to the Oklahoma Supreme Court and suspending all proceedings (including, presumably briefing), until the Oklahoma court responds. This raises the possibility that the Court might end up dismissing the case, or that it won’t get argued this Term. But the case raises important, novel, and fascinating issues that most likely will ultimately be aired before the Court.
The Oklahoma law prohibits the “off-label” use of any “abortion-inducing drug.” There are several problems with this. First, insofar as it appears to require that RU-486 be prescribed in accordance with the protocol outlined in the FDA labeling, that protocol is severely out-of-date. It was the protocol used during clinical trials in the 1990s, and virtually no physician uses it today (unless state law requires it). Notably, the FDA labeling protocol specifies that women take three times more of the drug mifepristone than they actually need to take under the current, evidence-based protocol. It also requires women to return for additional visits to the clinic, which they otherwise do not need to make. (In the Oklahoma case, there is also some question whether the law also completely prohibits the use of misoprostol, which is used in conjunction with mifepristone to complete the abortion, and methotrexate, which is often used to terminate ectopic pregnancies).
Assuming the law’s doesn’t outlaw use of misoprostol and methotrexate but does require women to follow the outdated RU-486 protocol (an issue that the Oklahoma Supreme Court will clarify), the problems are that the off-label prohibition makes the drug more expensive, increases side effects, requires additional visits to the clinic, and makes takes the medication abortion option off the table for women between 7 and 9 weeks of pregnancy, for whom it would be safe and effective. But is it unconstitutional? I believe there are strong arguments that these factors, certainly in combination, could constitute an “undue burden” under Planned Parenthood v. Casey. In addition, there is a strong argument that, by forcing some women to have a surgical abortion when a safe, medical option is available, the law impinges on women’s fundamental right to bodily integrity. Finally, the Constitution requires a health exception, allowing the drug to be used for some women for whom it is safer than surgical abortion (such as women with anatomical anomalies or obesity). Time will tell whether the Supreme Court agrees.
Friday, June 28, 2013
The Tenth Circuit issued yesterday a divided and quite lengthy opinion in Hobby Lobby Stores Inc. v. Sebelius. The court has held that Hobby Lobby has rights under the Religious Freedom Restoration Act, despite being a corporation, that are likely to protect the entity from compliance with the ACA's contraceptive coverage requirements. The case is remanded to the district court for additional findings as to whether the Hobby Lobby stores should be exempted from the ACA's statutory requirements, consistent with the Tenth Circuit's interpretation of RFRA. For more summary and analysis, see Lyle Denniston at SCOTUSblog. The slow march to the Supreme Court continues.
Wednesday, June 26, 2013
The Court's decision striking down section 3 of DOMA in United States v. Windsor was unsurprising, yet still a relief to many. Section 3 defined marriage for federal statutory purposes to mean only marriage between one man and one woman. Based on the late March oral arguments in Windsor, as well as Justice Kennedy's majority opinions in Lawrence v. Texas and Romer v. Evans, the common wisdom was that federalism would be the prevailing reasoning because the states historically have governed family law matters, including marital status. One of Justice Kennedy's projects has been revitalization of the Court's enforcement of federalism to protect the states, especially as a method to protect individual liberties (see, e.g., Bond v. United States).
And so it was. Justice Kennedy provided both structural and substantive reasons for striking down section 3 of DOMA. From a structural perspective, Justice Kennedy's majority emphasized traditional state dominion over marriage, writing: "By history and tradition, the definition and regulation of marriage ... has been treated as being within the realm of the separate States." Though the opinion walked right up to the federalism line, it stopped short of holding that DOMA exceeded congressional authority or violated the Tenth Amendment. Instead, the majority moved forward on substance and held that the federal government cannot take away the marriage right and its attendant societal status once conferred by the states. To do so was a violation of gay couples' liberty and dignity. The Court also hinted at an equal protection analysis, condemning Section 3 as creating second class marriages in states that recognize same-sex unions. The majority applied only rational basis review, rather than heightened scrutiny, holding that DOMA was motivated by anti-gay animus and served no legitimate governmental purpose.
Neither the federalism, nor the equal protection, nor the due process analysis was either complete or clear cut, and each opens more questions than it closes. For example, Justice Kennedy views the experiment of the states to protect individual liberty, and here, it happens that twelve states do protect liberty, more than the federal government. But, this view of federalism's aspirational work does not address the 37 or so states that do not protect the liberty interests of their gay citizens from state discrimination let alone the federal government's limited view of gay rights. And, this reversion to assessing traditional state law domains does not advance modern conceptions of federalism that acknowledge most state law is ineffibly intertwined with federal law by virtue of statutory interconnectedness, conditional spending, or other cooperative federalism mechanisms. Instead, Justice Kennedy seemed to be reaching back to the dual sovereign model of doctrinal federalism.
Fortunately, this regressive model of federalism does not seem to hinder the work that Windsor is likely to do with regard to DOMA's far-reaching effects on healthcare. For example, marital status influences not only access to affordable private health insurance (which is usually easier and cheaper through marriage), but also qualification for the Federal Employees Health Benefits Program as well as Social Security, the gateway for Medicare at age 65. Section 3 also affected Medicaid enrollment and spend-down requirements for the elderly entering nursing homes. The Medicaid/DOMA issue was presented to the Court in a petition for certiorari that the Court has not granted or denied yet. Back in October, I highlighted the First Circuit's decision in Massachusetts v. Department of Health and Human Services, which was mentioned in passing by Justice Kennedy as a case that would suffer vacatur if the Court dismissed for lack of standing. It seems fair to read approval of the First Circuit's decision into Kennedy's cite, which makes me think the Court will not grant the petition.
In addition to public and private health insurance issues, some healthcare delivery issues are likely to be resolved by Windsor as well. For example, many stories have detailed how hospitals have turned away same-sex partners under the guise of HIPAA privacy. Other tales have highlighted how substituted decision-making at the end of life can devolve to estranged family members when same-sex partnerships are not recognized as giving the gay spouse decisional authority that would ordinarily be given without a second thought to a heterosexual spouse. Doctors' offices have refused to recognize same-sex spouses as parents of children who need medical attention. And, care for infants of same-sex couples may become easier now that the Family Medical Leave Act will apply to same-sex marriages. It seems that the federal recognition of gay marriage that will flow from Windsor will be beneficial in many healthcare situtations, even in states that do not recognize same-sex marriage. Federal agencies have much work to do interpreting the word marriage in the coming days, but it seems that these decisions will facilitate a more functional approach to families' experiences in the healthcare system.
Tuesday, June 25, 2013
Once again, we have a judicial ruling that undermines efforts to encourage fathers to take responsibility for their children. The Supreme Court today sided with adoptive parents over a man who wants to raise his biological daughter.
To be sure, the man had relinquished his parental rights when the birth mother was pregnant, and he had not provided any financial assistance during the pregnancy or the first four months of his daughter's life. But he did object to the adoption when he was notified about it and asked that he be able to raise his daughter. If we want fathers to take responsibility for their children, we should not interfere with their reasonable efforts to assert their paternal roles.
Today's case unfortunately follows in the footsteps of other Supreme Court precedents which give mothers greater rights than fathers. For example, in 1983 case (Lehr v. Robertson), Court held that biological mothers always are entitled to notice about adoption proceedings, while biological fathers may forfeit their rights to notice if they do not take enough steps to assert their paternity.
When we have a serious problem with absent dads, we should do all we can to foster relationships between children and their fathers.
[The case, Adoptive Couple v. Baby Girl, involved interpretation of Native American law, with the interpretation driven by the Court's inadequate concern for fathers.]