Reproductive Rights Prof Blog

ACLU Asks Court to Ensure Reproductive Health Care for Women Trafficked into U.S.

ACLU News Release: ACLU Asks Court On Thursday To Ensure Reproductive Health Care For Women Trafficked Into The United States:

BOSTON -- On Thursday, December 3, 2009, the American Civil Liberties Union will ask the U.S. District Court of Massachusetts to allow a legal challenge to proceed against the Department of Health and Human Services (HHS).  The ACLU filed the case earlier this year against HHS for permitting the United States Conference of Catholic Bishops (USCCB) to use taxpayer money to impose religiously based restrictions on reproductive health services in the U.S. government's trafficking victims program.

Since April 2006, HHS has awarded USCCB from $2.5 million to $3.5 million annually to make grants to organizations that provide direct services to trafficking victims under the federal Trafficking Victims Protection Act.  HHS did this knowing that USCCB prohibits, based on its religious beliefs, grantees from using any of the federal funds to provide or refer for contraceptive or abortion services, even though the Trafficking Victims Protection Act contains no such restrictions.

In an attempt to block the legal challenge, HHS has argued that the ACLU of Massachusetts cannot bring the lawsuit.  On Thursday, the ACLU will demonstrate in court that the Constitution permits federal taxpayers to challenge this misuse of public dollars.

The ACLU's brief is available at: http://www.aclu.org/reproductive-freedom/aclu-massachusetts-v-michael-o-leavitt-et-al-complaint

Montana Mother Asks Court to Declare Unconstitutional the Denial of Medical Care to Pregnant Inmates

ACLU News Release: Montana Mother Asks Court To Remedy Mistreatment Of Pregnant Inmates By Detention Facility:

Missoula, MT – A Montana mother denied prescribed medication while serving time in jail for traffic violations asked a federal court today to require the Lake County Detention Facility to compensate her for the physical and emotional suffering she endured while in the facility’s custody and to declare unconstitutional the denial of needed medical care to pregnant inmates.  Bethany Cajúne is represented by the American Civil Liberties Union and the ACLU of Montana.

“I was afraid my baby might die because Lake County Detention Facility was denying me treatment,” said Bethany Cajúne.  “No one should go through what I went through.  I’ve brought this case to make sure it doesn’t happen to another woman.”

In March 2009, Cajúne voluntarily reported to Lake County Detention Facility to complete an outstanding short-term sentence for traffic violations.  At that time, she was approximately four to five months pregnant, raising five small children at home and attending GED classes four days a week.  She was also nearing a year of successful participation in a medication-treatment program for a diagnosed addiction to opioid drugs.  Despite attempts by Cajúne’s treating physician and drug treatment counselor to ensure that Cajúne continue receiving Suboxone, a medication that suppresses withdrawal symptoms, the facility denied her this care.  As a result, Cajúne suffered complete and abrupt withdrawal, experienced constant vomiting, diarrhea, rapid weight loss, dehydration, and other withdrawal symptoms, all extremely dangerous during pregnancy.  Despite repeated warnings of the serious risk abrupt withdrawal posed to her health and pregnancy, including miscarriage, the facility continued to deny Cajúne her medication.  It took the intervention of a public defender to secure Cajúne’s release after nine days of being denied care so that she could resume the treatment. . . .

To read the complaint: http://www.aclu.org/reproductive-freedom/cajune-v-lake-county-complaint

To watch a video about the case: http://www.youtube.com/watch?v=kdeZ7qHWJSA

Senate Advances Obama Pick for Seventh Circuit Court of Appeals

onPolitics (USA Today): Senate advances David Hamilton for appeals court:

The Senate voted 70-29 today to end a filibuster threat against one of President Obama's first federal judiciary appointees, David Hamilton of Indiana. 

Obama nominated Hamilton to the United States 7th Circuit Court of Appeals based in Chicago in March and the Senate Judiciary Committee approved his appointment in June. Hamilton was endorsed by Indiana's senior senator, Republican Richard Lugar. . . .

For more on David Hamilton, see: NY Times: Moderate Is Said to Be Pick for Court, by Neil A. Lewis.

Republicans Consider Filibuster of Obama Pick for Seventh Circuit; Obama Supporters Worry About Lag in Filling Vacancies

The Hill: Conservatives split over filibuster of Obama court pick, by Alexander Bolton:

Leading conservative activists are split over whether to filibuster Judge David Hamilton, whose nomination to the 7th Circuit will serve as a test case for President Barack Obama’s more controversial appellate court picks.

Twenty four leading conservatives have signed a memo urging Republican senators to filibuster Hamilton, setting the stage for the first protracted Senate fight over one of Obama’s judicial nominees.

Hamilton will likely receive an up-or-down vote because Democrats control 60 seats, but conservative and liberal advocates say a filibuster would be significant because it would serve as a precedent for Obama’s future judicial nominees. . . .

See also: NY Times: Obama Backers Fear Opportunities to Reshape Judiciary Are Slipping Away, by Charlie Savage:

WASHINGTON — President Obama has sent the Senate far fewer judicial nominations than former President George W. Bush did in his first 10 months in office, deflating the hopes of liberals that the White House would move quickly to reshape the federal judiciary after eight years of Republican appointments.

Mr. Bush, who made it an early goal to push conservatives into the judicial pipeline and left a strong stamp on the courts, had already nominated 28 appellate and 36 district candidates at a comparable point in his tenure. By contrast, Mr. Obama has offered 12 nominations to appeals courts and 14 to district courts.

Theodore Shaw, a Columbia University law professor who until recently led the NAACP Legal Defense and Educational Fund Inc., said liberals feared that the White House was not taking advantage of its chance to fill vacancies while Democrats enjoy a razor-thin advantage in the Senate enabling them to cut off the threat of filibusters against nominees. There are nearly 100 vacancies on federal courts. . . . 

Republican Obstructionism on Pres. Obama's Judicial Nominees

Slate Magazine: The Bench in Purgatory, by Doug Kendall:

It's still early in President Obama's first term, but not too soon to conclude that the president's effort to "put the confirmation wars [for judges] behind us" is not going well. Only three of his 22 lower court nominees have been confirmed so far. The latest one, Roberto Lange for a federal district court in South Dakota, was cleared last week after waiting for three and a half months (including three weeks on the floor). The slow pace of the president's nominations is part of the problem. But the larger issue is a new form of obstructionism in the Senate.

It seems clear that Senate Republicans are prepared to take the partisan war over the courts into uncharted territory—delaying up-or-down votes on the Senate floor for even the most qualified and uncontroversial of the president's judicial nominees. If this continues, it will worsen an already serious problem of vacancies on the federal courts. And it will discourage from ever entering the confirmation process precisely the type of nominees both parties should want.

Over the past several decades, senators in both parties have used an escalating set of procedural tactics to block confirmations, particularly near the end of an out-going president's term in office. To date, however, the tit-for-tat game has played out within a fairly narrow category of nominees who are deemed controversial. While there has never been an agreed-upon definition of what that means—it's an eye-of-the-beholder type of thing—there has consistently been a large category of nominees that are not considered controversial. They have typically made it easily through the Senate confirmation process, no matter how rough the ride is for their controversial counterparts. . . .

South Korean Court Finds Stem Cell Scientist Guilty of Research Fraud

ABC News/BBC: Stem cell scientist guilty of research fraud:

A South Korean court has given a suspended two-year jail sentence to disgraced stem cell scientist Hwang Woo-suk after finding him guilty of fraud in a case that shocked the global scientific community.

His work raised hopes of finding cures for diseases such as Alzheimers, but three years ago an investigation found some of his work had been faked.

After a long legal process, a court of law has now found him guilty of using his fabricated research to embezzle state funds, some of which it says were diverted for his personal use.

State Court Temporarily Blocks Oklahoma Law Requiring Online Posting of Abortion Patient Data

LA Times: Judge bars restrictive Oklahoma abortion law requiring online posting of patient data, by Robin Abcarian:

While Californians mull whether a fetus is a person, a state judge has temporarily blocked enforcement of a new Oklahoma law that would require doctors to report detailed information about abortion patients, which would then be posted online.

The law, passed by a solid majority of the Oklahoma Legislature, would require physicians to report such information as age, marital status, race, number of children, education level and the mother’s relationship to the father. It would also require the reason for the abortion, the cost and the type of payment used. Names of patients would not be included in information that would be posted online by the state’s health department, but abortion rights advocates say because Oklahoma is such a small state it would not be difficult to identify some patients. Abortion rights advocates say the law would violate the privacy of patients and is an attempt to dissuade women from seeking abortions.

. . . A hearing in the case is scheduled for Dec. 4.

Lawsuit Charges Illinois' Parental Notification Law Is Unconstitutional

Chicago Tribune: Lawsuit Challenges Illinois' Parental Notification Law for Abortions, by Sara Olkon:

A Chicago physician and a Granite City women's medical clinic have filed a lawsuit in Cook County Circuit Court charging that Illinois' parental notification law for abortions is unconstitutional and seeking to bock its start.

The law, set to go into effect Nov. 3, requires physicians to notify the parent of a girl younger than 18 before performing an abortion. A provision of the law allows girls to bypass parental notification by going before a judge, who would then have 48 hours to rule on the petition.

Moreover, no notice is required in case of a medical emergency or if the girl declares in writing that she is a victim of sexual abuse.

On Nov. 2, a Circuit Court judge is set to conduct a hearing on a temporary restraining order, said Lorie Chaiten of the American Civil Liberties Union, one of the attorneys representing the plaintiffs, the Hope Clinic for Women Ltd. and Dr. Allison Cowett, director of the Universtiy of Illinois at Chicago's Center for Reproductive Health.In the complaint, the plaintiffs argue that the notification law would harm minors by preventing them from obtaining safe abortions or force them to carry their pregnancies to term.

I wrote an op-ed on this law earlier this year.  See: JURIST: Abortion Parental Notice Laws: Irrational, Unnecessary and Downright Dangerous

Arizona Court Rules that Sheriff Cannot Block Inmates' Access to Abortion Care

ACLU News Release (10/20): Court Rules That Sheriff Arpaio Can Not Block Inmates Access to Abortion Care:

PHOENIX – In a case brought by the American Civil Liberties Union, an Arizona court found today that Maricopa County Sheriff Joseph Arpaio can no longer require inmates seeking abortion care to prepay their transportation and security costs before they can obtain an abortion.  

Earlier this year, as part of a partial settlement in an ACLU lawsuit involving the right of women prisoners to obtain timely, safe and legal abortions, Arpaio agreed to follow a 2005 court order prohibiting Maricopa County correctional facilities from requiring inmates to obtain a court order before an abortion. However, in the course of settlement negotiations, Arpaio decided inmates must prepay transportation and security costs associated with obtaining the procedure. In his ruling today, Judge Robert H. Oberbilling of the Superior Court of Arizona indicated that requiring inmates to prepay security and transportation costs could be more onerous than the court order Sheriff Arpaio previously required.

"We are so pleased that Sherriff Arpaio can no longer pull a bait and switch by requiring women prisoners to pay transportation and security costs before obtaining an abortion,” said Brigitte Amiri, a senior staff attorney for the ACLU Reproductive Freedom Project who argued the case today before the court. "Arpaio’s new prepayment requirement was yet another way for him to do an end run around the law and to interfere with a woman’s private decision about whether to end a pregnancy.”

In May 2004, on behalf of a woman inmate seeking an abortion, the ACLU challenged an unwritten Maricopa County Jail policy that required inmates to obtain a court order before officials would transport them for abortion care. The Maricopa County Superior Court struck down the unwritten policy in August 2005, holding that it violated women's reproductive rights and served “no legitimate penological purpose.” The Arizona Court of Appeals upheld that decision; both the Arizona and the United States Supreme Courts refused to hear the case. . . .

Texas Lawsuit Challenges Practice of Jailing Women to Protect Their Fetuses

Austin American-Statesman: Jailed for being Pregnant? Court to Hear Arguments on Drug User's Incarceration, by Chuck Lindell:

Amber Lovill was almost six months pregnant and on probation when a mandatory drug test found high levels of methamphetamine in her system.

What happened next to the Corpus Christi woman — jail time followed by drug treatment in a secure facility for felons — prompted a legal challenge that will be heard this week by the state's highest criminal court.

Lovill argues that she was the victim of gender discrimination and heavy-handed prosecution. Her cause has been taken up by civil liberties and women's rights groups who complain that Lovill was treated more severely than a man or nonpregnant woman in the same situation....

Prosecutors say Lovill was targeted for violating her probation, not for being pregnant. But probation officers also were entitled to take action to protect the fetus from Lovill's drug use, said Doug Norman, Nueces County assistant district attorney....

A ruling, expected weeks or months later, could better define when — or if — the Texas criminal justice system can punish women in an effort to protect the health of their fetuses.

Should Parents Lose Custody Because Their Children Are Morbidly Obese?

Time Magazine: Should Morbidly Obese Kids Be Taken from Their Parents?, by Gaelle Faure:

Should morbidly obese children be taken from their parents? That's the question an increasing number of countries are grappling with amid the Western world's obesity epidemic.

The latest case to make headlines concerns a Scottish couple who lost custody of two of their six children on the basis of what was, their lawyer claims, a failure to reduce the kids' weight following warnings from Scottish social services. The couple lost their Oct. 14 appeal in a case that is far from clear-cut — representatives of Dundee City say they would never remove children "just because of a weight issue." But obesity appears to be the primary reason South Carolina mom Jerri Gray lost custody of her 14-year-old, 555-lb. son in May. She was arrested after missing a court date to examine whether she should retain custody after doctors had expressed concern about her son's weight to social services. The boy is currently living with his aunt, and his mother is facing criminal child-neglect charges.

Several other cases in recent years — in California, New Mexico, Texas and New York, as well as Canada — have garnered attention because a child's obesity resulted in loss of custody. "It's happening more than the public is aware of, but because these cases are usually kept quiet [as a result of child-privacy laws], we have no record," says Dr. Matt Capehorn, who sits on the board of the U.K.'s National Obesity Forum.

New Oklahoma Law Establishes Public Database of Women Who Had or Sought Abortions

Guardian News: A is for abortion, by Megan Carpentier:

Branding women with a 'scarlet letter' won't reduce abortions. As a global study shows, contraception and education are key

. . . A new law scheduled to take effect in Oklahoma would establish an online, publicly accessible database of information about every woman in the state who sought or had an abortion. While it would not require doctors to report the names and addresses of patients seeking or obtaining a legal medical procedure many conservative lawmakers think should be outlawed, the 37-question survey would (among other things) establish the women's race, age, education level and county of residence.

Women would be required to disclose if they are state employees and what method of insurance, if any, they are using for the procedure. It would require women to specify the number of pregnancies, children, miscarriages and previous abortions they've had. And it even asks for the length of the pregnancy and whether the women were using birth control when they conceived.

The surveys would all be sent to the Oklahoma health department, where state employees would aggregate the data into a searchable, sortable database and make it available to "researchers" online. . . .

The law is being challenged.  See Feminists for Choice: New Oklahoma abortion law being challenged

Utah Court Rules Teenager Not Criminally Liable for Soliciting a Beating in Order to End Pregnancy

Salt Lake Tribune: Judge: abortion laws protect girl who sought pregnancy-ending beating, by Sheena Mcfarland:

A judge has released a 17-year-old Vernal girl from jail after ruling she did not commit a crime when she allegedly paid a man to beat her in an attempt to end her late-term pregnancy.

The release, which came after the girl's mother obtained a second opinion on her daughter's no contest plea, has incensed some lawmakers who argue the ruling skirts laws governing legal abortions in Utah.

"The judge is absolutely stretching," said Rep. Carl Wimmer, R-Herriman. "There's no way the judge believes the Utah Legislature left open this loophole. I guarantee it will be closed this next session."

Eighth District Juvenile Court Judge Larry Steele sided with attorney Rich King, who argued under Utah law and around the country women are not held criminally liable for soliciting an abortion.

Gender and Judicial Quality? Paper concludes: "Bring on the Women!"

Slate Magazine: Do Women Make Better Judges?, by Stephen Choi, Mitu Gulati, Mirya Holman, & Eric Posner:

Asked and answered—with data.

Justice Sonia Sotomayor's elevation to the Supreme Court brought to the surface a long-simmering controversy about the relationship between gender and judging. Are female nominees for judicial positions chosen based on affirmative action? If so, are women on the bench worse judges than men—or do they come with advantages that men lack? This controversy has legs. If Justice Ginsburg is forced to retire this term because of illness, reducing the number of female justices from two to one, there will be a great deal of pressure on President Obama to nominate another female jurist. Or if Justice John Paul Stevens retires, why not three women on the high court? . . . 

The claim that women are worse—or better—than men at judging should be susceptible to empirical investigation. There is no obvious way, however, to measure judicial quality; lawyers dispute endlessly whether cases are rightly or wrongly decided—and, ultimately, a good judge is just a judge who decides cases correctly. Still, we have come up with some indirect measures of judicial quality. These include productivity (how many opinions judges write), influence (how frequently other judges rely on their opinions), and independence (how often judges dissent from opinions written by judges who belong to the same political party). We looked at the performance of hundreds of judges over a number of years and working in different types of courts—state supreme courts, federal trial courts, and federal appellate courts. (Our paper is here.) . . . 

[O]ur basic point is this: The fact that female judges are selected from a shallower pool of talent does not imply that they are worse judges than men. In fact, the evidence suggests that they are at least as good as male judges, perhaps better. When she sat on the 2^nd U.S. Circuit Court of Appeals, Justice Sotomayor ranked among the most cited federal appellate judges in the country. Bring on the women!

Supreme Court Lets Stand Ruling Rejecting Free-Speech Claim for "Choose Life" License Plate in Illinois

LA Times: Illinois can steer clear of abortion debate, Supreme Court rules, by David G. Savage:

A group pushing for the state to issue a 'Choose Life' license plate loses its free-speech claim.

Illinois need not offer "Choose Life" license plates to motorists under a ruling the Supreme Court let stand today.

The justices turned down a free-speech claim from Choose Life Illinois Inc., a group that supports adoption and opposes abortion. It had gathered more than 25,000 signatures from persons who wanted a "Choose Life" plate, but the state refused to issue the specialty plate.

Officials said the state wanted to take no position on the abortion issue.

When the state refused to act, lawyers for Choose Life sued, arguing that the refusal amounted to discrimination against their pro-life message.

Last year, however, the federal appeals court in Chicago upheld the state's decision and ruled the state was free to steer clear of the abortion controversy entirely.

Despite today's setback in the high court, 24 states offer "Choose Life" license plates, and efforts are underway to gain approval in 14 more states.

All Eyes Are On Sotomayor As Supreme Court Begins Its New Term

LA Times (Opinion): Justice Sonia Sotomayor's free-speech tests, by Jonathan Turley:

Supreme Court observers will be watching to see whether the new justice's rulings will depart from the liberal voting record of her predecessor.

The start of the U.S. Supreme Court's fall term is always a much-anticipated event. This year, it is likely to receive more attention than usual, with a new justice being seated and conjecture that another plans to resign.

David H. Souter is no longer on the court, and this will be the first term for his replacement, Justice Sonia Sotomayor. It may be the last term for Justice John Paul Stevens, liberal icon of the court. The growing speculation that Stevens plans to retire next year was fueled by his recent decision not to select a full complement of clerks for 2010 -- a strong signal that he doesn't intend to remain on the bench.

For the most part, however, all eyes will be on Sotomayor. Most of the court handicappers will be watching for early signs of how she might depart from the liberal voting record of her predecessor. Originally a Republican nominee to the trial court (though later put on the appellate court by President Clinton), Sotomayor was suggested as a nominee for President George W. Bush and has a more conservative voting record than Souter. If she votes the way she voted on the appellate court, liberals will lose ground with her selection. . . .

Supreme Court Begins 2009 Term with High Approval Ratings

Slate Magazine: Spoonfuls of Sugar, by Dahlia Lithwick:

Americans' continued love affair with the John Roberts Court

Next week, the Supreme Court will begin its 2009 term, secure in the knowledge that it remains almost completely misunderstood by the American public. A Gallup poll conducted this month showed the court's current approval rating to be higher than it's been in a decade: As of now, 61 percent of Americans approve of the high court's performance. Last year, that number was slumping at 50 percent.

Fifty percent of Americans currently believe the court is neither too liberal nor too conservative; that's up from 43 percent last year. And the number of Americans who believe the court is too conservative has dropped from 30 percent to 19 percent. . . .

Eighth Circuit Court of Appeals Condemns Shackling of Pregnant Prisoners in Labor

ACLU press release (10/2): Federal Appeals Court Condemns Shackling Of Pregnant Prisoners In Labor:

ACLU Client Shackled During Labor In Arkansas

Ruling in the case of an Arkansas woman who was shackled to her hospital bed while in labor in 2003, a federal appeals court today said that constitutional protections against shackling pregnant women during labor had been clearly established by decisions of the Supreme Court and the lower courts. This is the first time a circuit court has made such a determination. The full Eighth Circuit Court of Appeals made the ruling today in the case of ACLU client Shawanna Nelson.

"This is a historic decision by a U.S. Court of Appeals that affirms the dignity of all women and mothers in America," said Elizabeth Alexander, Director of the American Civil Liberties Union"s National Prison Project. "Correctional officials across the country are now on notice that they can no longer engage in this widespread practice."

Nelson was a 29-year-old non-violent offender who was six months pregnant with her second child when she was incarcerated by the Arkansas Department of Corrections (ADOC) in June 2003. Three months later, after going into labor, she was taken to a local hospital where correctional officers shackled her legs to opposite sides of the bed. Nelson remained shackled to the bed for several hours of labor until she was finally taken to the delivery room. . . .

A copy of the ruling by the Eighth Circuit is available online at: www.aclu.org/prison/medical/41232lgl20091002.html 

Nicolette Priaulx on Tysiac v. Poland and Abortion Jurisprudence

Nicolette M. Priaulx (University of Wales System, Cardiff Law School) has posted Testing the Margin of Appreciation: Therapeutic Abortion, Reproductive Rights and the Intriguing Case of Tysiąc v. Poland on SSRN.  Here is the abstract:

In Tysiac v. Poland (2007) the Strasbourg Court ruled in favour of the applicant (who had been denied access to a lawful therapeutic abortion), finding that Poland had failed to comply with its positive obligations to safeguard the applicant's right to effective respect for her private life under Article 8. Exploring this controversial judgment, the author assesses the claim that Tysiac marks a 'radical shift' on the part of the Court in creating a 'right to abortion'. The author argues that while Tysiac makes an important addition to abortion jurisprudence, the notion it founds such a 'right' greatly overstates the legal significance of this case.

See also this post from last week on another court case involving Tysiac: Polish Court Awards Damages Against Catholic Magazine for Vilifying Polish Woman Who Sought Abortion

South Dakota Appeals U.S. District Court Decision on its Informed Consent Law

Sioux Falls Argus Leader: South Dakota appealing judge's ruling in abortion case:

Attorney General Marty Jackley is appealing a judge’s ruling which struck down portions of South Dakota’s law on informed consent for abortion.

U.S. District Judge Karen Schreier last month said doctors should not have to tell pregnant women that abortion increases the risk of suicide and suicidal thoughts or that they enjoy a legally protected relationship with their unborn children. She found suicide is not a known risk.

Jackley wants those issues heard on appeal and by the full court of appeals rather than a three-judge panel, according to a news release.

Schreier’s ruling upheld a provision of the law which said abortions “terminate the life of a whole, separate, unique, living, human being.”