Tuesday, December 3, 2013
ABC News: Judges in Chicago Question Wisconsin Abortion Law, by Michael Tarm:
An appellate court on Tuesday questioned a lawyer for the state of Wisconsin about why lawmakers singled out abortion clinics in requiring their doctors to have admitting privileges at nearby hospitals, as judges heard arguments about the hotly debated law.
The sometimes-contentious, hourlong hearing before the 7th Circuit Court of Appeals was meant to help a three-judge panel decide whether to lift a temporary block on the law imposed by a lower court. . . .
The New York Times: Bishops Sued Over Policies on Abortion at Hospitals, by Erik Eckholm:
The American Civil Liberties Union announced on Monday that it had filed a lawsuit against the nation’s Roman Catholic bishops, arguing that their anti-abortion directives to Catholic hospitals hamper proper care of pregnant women in medical distress, leading to medical negligence.
The suit was filed in federal court in Michigan on Friday on behalf of a woman who says she did not receive accurate information or care at a Catholic hospital there, exposing her to dangerous infections after her water broke at 18 weeks of pregnancy. . . .
Saturday, November 30, 2013
The New York Times: Abortion Cases in Court Helped Tilt Democrats Against the Filibuster, by Jeremy W. Peters:
Within hours of each other, two federal appeals courts handed down separate decisions that affirmed sharp new limits on abortion and birth control. One on Oct. 31 forced abortion clinics across Texas to close. The other, on Nov. 1, compared contraception to “a grave moral wrong” and sided with businesses that refused to provide it in health care coverage.
“These are the kinds of decisions we are going to have to live with,” a blunt Senator Harry Reid, the Democratic majority leader, warned his caucus later as it weighed whether to make historic changes to Senate rules. . . .
Balkinization: The Establishment Clause and the Contraception Mandate, by Micah Schwartzman, Richard Schragger, and Nelson Tebbe:
Yesterday the Supreme Court granted certiorari in Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corp. v. Sebelius, which ask whether large, for-profit corporations and their religious owners can assert rights of religious free exercise under the Religious Freedom Restoration Act (RFRA), and, if so, whether their rights are violated by the government’s requirement that they pay for health insurance that includes coverage for various forms of contraception. . . .
Friday, November 29, 2013
New Emergency Contraception Label Undermines Corporations' Objections To Health Plans Covering the Pills
As I was saying in my last post, the evidence shows that emergency contraceptive pills work before fertilization, not after (contrary to the claims of corporations like Hobby Lobby). Now European health authorities are changing the labeling to reflect this information.
The New York Times: New Birth Control Label Counters Lawsuit Claim, by Pam Belluck:
European health authorities have made two significant changes to the label of an emergency contraception pill that is equivalent to Plan B One-Step. One of the changes could be relevant to two cases that the Supreme Court added to its docket on Tuesday.
The new label of the drug, Norlevo, says it “cannot stop a fertilized egg from attaching to the womb,” contradicting a claim by some abortion opponents that has fueled their objections to the Affordable Care Act.
The new label also warns that Norlevo loses effectiveness in women weighing more than 165 pounds and does not work in women over 176 pounds.
Norlevo is not sold in the United States, but Plan B One-Step and two generic versions are identical to it. . . .
Monday, November 25, 2013
Religious Freedom Restoration Act, Meant To Shield Religious Practices from Government Intrusion, Is Now Invoked by Corporations to Discriminate Against Women
The Los Angeles Times: 1993 religious freedom act is at heart of contraception case, by David Savage:
When the Supreme Court confronted the case of Native Americans who were fired for smoking an illegal drug during a religious ceremony, Justice Antonin Scalia called a halt to granting religious exemptions under the Constitution's protection for the "free exercise" of religion. It "would be courting anarchy" to permit "religious objectors" to ignore the law, he said.
But Democrats in Congress rose up to overturn his decision and to bolster religious freedom.
Backed by a broad coalition, including the American Civil Liberties Union and the Christian Legal Society, the Religious Freedom Restoration Act became law 20 years ago this month. It declared that the government may not "substantially burden a person's exercise of religion" unless it had a "compelling" reason to do so.
Now, that little-known law is at the center of a major "religious liberty" challenge to President Obama's health insurance overhaul and its requirement that employers pay for full contraceptive coverage for their female employees. . . .
Friday, November 22, 2013
Federal District Judge Grants Catholic-Affiliated Employers Temporary Delay in Complying with Contraception Mandate
Herald-Star: Catholics win delay, by Kevin Begos:
A federal judge ruled Thursday that two Western Pennsylvania Catholic groups don't immediately have to comply with mandates in the federal health care overhaul law, and has granted them a temporary delay while the issue is appealed to higher courts.
U.S. District Judge Arthur J. Schwab wrote that forcing schools and charities related to the Pittsburgh and Erie Catholic dioceses to comply with the Affordable Care Act could result in decreased donations, loss of employees and fines that could force the closure of some church programs. The dioceses object to the law's requirement that contraception, including sterilization, be offered in employee health care plans. . . .
H/t: Roz Litman
To be clear, the contraception mandate does not apply at all to "pervasively sectarian entities," including churches and some parochial schools. The Department of Health and Human Services later provided further accommodation to not-for-profit employers such as hospitals, universities, and charities that object on religious grounds to the provision of contraceptive services. These employers are not forced to pay for contraceptives themselves. Instead, their insurance providers will directly pay for the services. But even that accommodation hasn't satisfied some employers. Here is a summary of the exemptions for employers who object to the mandate on religious grounds. Here is a summary of challenges to the contraception rules by both non-profit and for-profit employers.
Tuesday, November 19, 2013
ACLU press release: Supreme Court Refuses to Block Texas Abortion Law:
Health Care Providers Vow to Continue Fight to Protect Women
The U.S. Supreme Court today declined to halt a Texas law that has forced more than a dozen of the state’s women’s health centers to stop providing abortion care, leaving large parts of the state without an abortion provider and preventing women from obtaining abortions.
“We are not giving up on Texas women,” said Louise Melling, deputy legal director of the American Civil Liberties Union. “If the constitutional right to abortion means anything, it must mean that laws like this one that prevent women from obtaining an abortion must be invalidated. This is a very disappointing decision, but we will continue to do everything we can to protect the health and rights of Texas women.”
The case will now continue in the Fifth Circuit Court of Appeals, which will hear the full merits of the case in January 2014. . . .
Tuesday, November 12, 2013
The National Law Journal: Ruling Against Contraception Mandate Deepens Circuit Split, by Sheri Qualters:
A federal appellate ruling barring enforcement of the Affordable Care Act’s law's mandate that employer-provided health insurance cover contraception and related services has deepened the appellate split over that issue.
A divided panel of the U.S. Court of Appeals for the Seventh Circuit ruled on Nov. 8 that Religious Freedom Restoration Act of 1993 claims against the mandate were “very likely to succeed.” . . .
Last week’s ruling put the appellate tally at 3-2 in favor of plaintiffs opposed to the mandate. The Tenth Circuit held that a company could be a "person" exercising religion in this context and the D.C. Circuit similarly sided with owners of a company. . . .
Sunday, November 10, 2013
Seventh Circuit Decision Temporarily Blocks Enforcement of Contraception Mandate, Broadly Construing Rights of Both For-Profit Companies and Their Owners
SCOTUS blog: Broad bar to birth-control mandates, by Lyle Denniston:
In the broadest ruling so far by a federal appeals court barring enforcement of the birth-control mandate in the new federal health care law, a divided Seventh Circuit Court panel decided on Friday that two profit-making companies and their Roman Catholic owners are likely to win their constitutional challenges. The decision temporarily blocking the mandate is here: sixty-four pages in the majority ruling, ninety pages in the dissent. . . .
SCOTUS blog: Birth-control mandate: Which case to review?, by Lyle Denniston:
With lawyers in different cases arguing that theirs is the best one for the Supreme Court to use in deciding the legality of the birth-control mandate in the new federal health care law, the Court on Monday indicated that it will examine all four pending cases together later this month. The Court’s electronic docket said the four will be considered on November 26. If any are granted then or soon afterward, the Court probably would hear and decide them in the current Term. . . .
Sunday, November 3, 2013
Slate: Dear President Obama, This Is Why Judges Matter, by Emily Bazelon & Dahlia Lithwick:
Two Bush appointees deliver body blows to reproductive rights—and demonstrate the power of the bench.
It’s been a day of body blows for reproductive rights. On Thursday night, the U.S. Court of Appeals for the 5th Circuit reversed a lower court’s decision to temporarily block a provision of the omnibus Texas abortion law that requires doctors performing abortions to have admitting privileges at a local hospital. . . . On Friday, morning, it was the turn of another extremely conservative woman chosen for the bench by Bush, Janice Rogers Brown of the U.S. Court of Appeals for the District of Columbia Circuit. . . .
Bloomberg.com editorial: Don’t Let Texas Restrict Abortion Again:
You can’t fault Texas for inconsistency. It first criminalized abortion in 1854, and Roe v. Wadearose from a lawsuit in Dallas County. That 1973 Supreme Court ruling, which protects a woman’s right to have an abortion, is still the law of the land.
It’s a point worth keeping mind in view of last week’s legal roller coaster in Texas. . . .
Friday, November 1, 2013
DC Circuit Denies Injunction of Federal Contraceptive Mandate to For-Profit Corporations, but Grants it to the Companies' Individual Owners
SCOTUS Blog: A split ruling on birth-control mandate, by Lyle Dennison:
Taking a split approach, the D.C. Circuit ruled on Friday that profit-making corporations cannot make a religious challenge to the new health care law’s mandate that workers get birth-control and related medical coverage; however, if the firm is owned by only a few individuals, they can challenge it to defend their own religious objections, and they may well win. The two major parts of the ruling split the three judges in differing ways.
The Supreme Court already has three cases awaiting its attention on the Affordable Care Act’s contraception coverage mandate — with differing outcomes in lower courts — and the somewhat unusual approach taken by the D.C. Circuit on Friday may simply add an additional impetus for the Court to take on the issue in the current Term. . . .
This passage of the court's opinion seems question-begging:
If the companies have no claim to enforce—and as nonreligious corporations, they cannot engage in religious exercise—we are left with the obvious conclusion: the right belongs to the Gilardis, existing independently of any right of the Freshway companies.
The court assumes that there must be a "claim to enforce," but why must that be so? Why isn't there simply no right, given that the Gilardis chose to incorporate, and it is the corporation that is subject to the mandate? For more on this, see Caroline Corbin's essay on this issue.
Thursday, October 31, 2013
Mother Jones: The New War on Abortion Drugs, by Mariah Blake:
Can a state ban a type of abortion, entirely? That's the question the US Supreme Court is now weighing.
In June, the court agreed to hear a challenge to a 2011 Oklahoma law that bars doctors from prescribing abortion drugs, unless they follow the FDA label. Supporters of the bill argue the goal is to protect women's health. "Oklahoma has acted to regulate a dangerous off-label use of a drug regimen that is tied to the deaths of at least eight women," says Mailee Smith, a lawyer for Americans United for Life, which drafted the legislation. But critics maintain the language is so broad it would block access to all abortion drugs—including those used to treat life-threatening ectopic pregnancies. And the Oklahoma Supreme Court agrees. In response to a query from the US Supreme Court, on Tuesday the state court ruled that the bill effectively "bans all medication abortions" and thus is unconstitutional. . . .
Fifth Circuit's Excessive Deference to the State Renders the "Fundamental" Right to Abortion Meaningless
The difference between the trial court's opinion in Planned Parenthood v. Abbott -- permanently enjoining Texas's hospital admitting privileges requirement for abortion providers -- and that of the Fifth Circuit -- staying the trial court's injunction pending an expedited appeal -- boils down to burdens of proof. U.S. District Judge Lee Yeakel required the state to show evidence that its admitting privileges requirement actually furthers women's health. After a trial, he concluded the evidence showed that the requirement did absolutely nothing to protect women's health, and it would cause clinics across Texas to shut down. He held that the law therefore lacked a rational basis, did not further a valid purpose, and had the effect of placing a substantial obstacle in the path of women seeking abortions. He was not alone in that view: four other courts have recently temporarily blocked admitting privileges requirements based on similar reasoning. Judge Yeakel's approach is correct: when a law burdens fundamental constitutional rights, the state should be required to produce evidence that the law in fact furthers some valid governmental purpose. (More on that issue here.)
The Fifth Circuit panel, on the other hand, deferred to the state on every question of fact in determining that Judge Yeakel's opinion was likely to be overturned on appeal. In reviewing the state's justification for the law, the panel applied the weakest possible form of rational basis review, a la FCC v. Beach Communications, requiring only that there be some "conceivable" justification for the law. In applying the undue burden standard, the court found that there was no smoking gun purpose to burden women apparent on the face of the law (which it said was required for a facial challenge). And as to effects, the court minimized the evidence of so many clinics shutting down and the burdens (or even absolute obstacles) this would impose on some women. The court relied in part on the facial nature of the challenge for its effects ruling, essentially thumbing its nose at the Supreme Court's "large fraction" test in Casey and suggesting that it was bound instead by the Fifth Circuit's preference for applying the Salerno standard in abortion cases. That test places plaintiffs in the exceedingly difficult position of proving that there is no set of circumstances under which the statute would be constitutional. (More on the problems with this approach to facial challenges here.)
In granting the emergency stay, the court compared the relative harms that each side would suffer if the stay were or were not granted. Now what, you may wonder, is the "irreparable harm" that the state of Texas will suffer if the status quo is maintained while this appeal is pending? The panel found that "the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws." This, compared with the immediate elimination of abortion services in 24 counties in Texas. Even for the Fifth Circuit, the callousness of this opinion is shocking.
The Fifth Circuit's opinion in Planned Parenthood v. Abbott is available here.
Fifth Circuit Grants Texas Emergency Stay of Trial Court's Injunction: Onerous Admitting Privileges Law Will Go Into Effect, Eliminating Abortion Services At Many Clinics
CNN: Federal court reinstates key part of Texas abortion law, by Dana Ford:
A federal appeals court Thursday reinstated a key part of a new Texas abortion law, considered to be among the most restrictive in the country.
The decision came three days after a federal judge struck down the provision, which requires doctors to obtain admitting privileges at a hospital within 30 miles of the clinic at which they're providing abortion services. . . .
ACLU press release: Appeals Court Allows Unconstitutional Texas Abortion Restrictions to Take Effect While Legal Challenge Proceeds:
Providers Pledge to Continue to Fight for their Patients
AUSTIN - A federal appeals court ruled today that part of a Texas anti-abortion law that was struck down Monday by a district court will be allowed to take effect while legal challenges proceed. The provisions will cause at least one-third of the state's licensed health centers that currently provide abortion to stop offering the service immediately.
The law was initially challenged by more than a dozen women's health care providers represented by the American Civil Liberties Union, the ACLU of Texas, Planned Parenthood Federation of America, the Center for Reproductive Rights, and the law firm of George Brothers Kincaid & Horton. The district court ruled Monday that a provision that requires doctors to have admitting privileges at a local hospital is not rationally related to ensuring patient safety, and that the requirement would place a substantial obstacle in the path of women seeking abortion. Following the state's emergency request, the Fifth Circuit Court of Appeals ruled today that the provisions can take effect while the case moves forward.
"We will continue to fight to preserve access to abortion services in Texas," said Brigitte Amiri, senior staff attorney with the ACLU Reproductive Freedom Project. "This law is unconscionable. As the district court found, it does not further patient safety, and it will shut down many clinics across the state."
"The result of this ruling is not academic," said Terri Burke, executive director of the ACLU of Texas. "Women in many parts of the state will lose access to care they count on because clinics will close. If the State of Texas cares about women's health and safety, as it claims, it should take steps to reduce the need for abortion rather than closing clinics in already underserved parts of the state."
For more information on this case, please visit: www.aclu.org/reproductive-freedom/planned-parenthood-v-abbott
Tuesday, October 29, 2013
Center for Reproductive Rights press release: Oklahoma Supreme Court Confirms Unconstitutional State Law Acts as a Total Ban on All Medication Abortion:
Ruling is in response to request from U.S. Supreme Court
In answering certified questions from the U.S. Supreme Court, the Oklahoma Supreme Court has definitively ruled today that the state’s restrictions on medication abortion are unconstitutional because the law “restricts the long-respected medical discretion of physicians” and effectively bans medication abortions and the non-surgical treatment of women with ectopic pregnancies. . . .
SCOTUS blog: Oklahoma Abortion Law Explained, by Lyle Denniston:
The Oklahoma Supreme Court ruled today that a 2011 state law — now awaiting review by the Supreme Court — is so broad that it would outlaw all abortions done with medications, rather than surgery. The state court was answering two questions sent to it by the Justices last June, when they agreed to hear a case defending the law’s constitutionality (Cline, et al., v. Oklahoma Coalition for Reproductive Justice, et al., docket 12-1094). . . .
Monday, October 28, 2013
Center for Reproductive Rights: Court Decision Protects Abortion Access for Most Women in Texas, But Upholds Restrictions on Medication Abortion:
Ruling blocks provision that would have made safe, legal abortion non-existent for one in three Texas women
After a three day trial, a federal court today permanently struck down one provision of a recently enacted, deeply unpopular law—a measure that would have made safe and legal abortion services for one-third of women in Texas virtually impossible to access.
While U.S. District Court Judge Lee Yeakel blocked implementation of a requirement that all abortion providers obtain admitting privileges at a local hospital, today’s ruling has allowed another harmful measure to take effect on October 29—one that severely restricts the use of medication abortion, a safe and effective method to end an early pregnancy. . . .
ACLU Blog of Rights: Court to Texas: Abortion Law Serves No Valid Purpose, by Brigitte Amiri:
In a crucial victory for Texas women and families, a federal district court held unconstitutional a law requiring physicians who provide abortions to have admitting privileges at a local hospital. The Texas court based its decision on evidence showing that the law would not protect women in any way, and would have a devastating effect on women in the state. Indeed, the court expressly found that the law has “no rational relationship to improved patient care” and serves no “valid purpose.” That is why leading medical experts, including the American College of Obstetricians and Gynecologists and the Texas Hospital Association, all opposed the law.
The importance of today’s ruling cannot be overstated. . . .
The New York Times: Judge Blocks Part of Texas Abortion Law, by Erik Eckholm:
A federal judge in Texas on Monday blocked an important part of the state’s restrictive new abortion law, which would have required doctors performing the procedure to have admitting privileges at a nearby hospital. . . .
But the court upheld a second measure, requiring doctors to use a particular drug protocol in nonsurgical, medication-induced abortions that doctors called outdated and too restrictive. . . .
The Texas Tribune: Court Rules Abortion Restriction Unconstitutional, by Becca Aaronson:
Less than 24 hours before new abortion regulations were set to take effect in Texas, U.S. District Judge Lee Yeakel blocked the implementation of two provisions challenged by abortion providers, ruling that they could place an undue burden on women and are therefore unconstitutional.
In his opinion, Yeakel wrote that a provision of House Bill 2 that requires doctors performing abortions to have admitting privileges at a hospital within 30 miles of the abortion facility "places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus and is thus an undue burden to her.” . . .
Judge Lee Yeakel's decision can be found in full here.
Saturday, October 26, 2013
The fight over abortion in Texas is being played out in federal court, where abortion rights activists are challenging a new state law.
The measure bans abortions at 20 weeks, adds building requirements for clinics and places more rules on doctors who perform abortions. Some clinics have shut down, saying they can't comply with the law set to go into effect Oct. 29. . . .
Listen to the story here.