Friday, February 7, 2014
MotherJones: MAP: The Republican Crusade to End Insurance Coverage of Abortion, by Molly Redden:
Lawmakers have tried to eliminate private insurance coverage for abortion in 20 states.
Last week, the GOP-led House of Representatives passed the No Taxpayer Funding for Abortion Act, a bill that would radically limit Americans' ability to buy private-sector health insurance that covers abortion. With the Senate under Democratic control and Barack Obama in the White House, the bill is doomed to fail. But abortion foes can rest easy. Although their momentum has stalled on Capitol Hill, there is a quiet campaign underway in states across the country to outlaw private-insurance coverage of abortion—and it's working. . . .
Thursday, February 6, 2014
The New York Times editorial: A Missing Argument on Contraceptives:
One of the most anticipated showdowns of the Supreme Court’s current term will take place March 25, when the justices are scheduled to hear two cases brought by secular, for-profit corporations whose owners want an exemption, based on their religious beliefs, from the requirement that employers’ health plans cover the full range of contraceptive services without a co-payment. . . .
Oddly, the Justice Department has relegated to a footnote what may be the strongest single argument against allowing the two companies to deny their workers contraceptive coverage that they would otherwise be entitled to under the health care law. . . .
My commentary, In Abortion Litigation, It's the Facts that Matter, has been published by the Harvard Law Review Forum. Here is a summary:
This brief commentary argues that courts need to do a better job of closely examining the facts underlying abortion legislation. Courts applying the undue burden standard generally demand from the plaintiffs fact-intensive proof that an abortion law will cause harm. At the same time, courts are highly deferential to the states’ own fact-based assertions about why these laws are needed. Although the “purpose prong” of the undue burden standard has largely been written off as toothless, courts can smoke out illegitimate purposes indirectly by looking more skeptically at the factual foundations supposedly necessitating abortion laws. Recent challenges to virtually identical abortion restrictions have turned on judges’ willingness or refusal to examine more closely the governments’ factual assumptions. This explains the opposite (preliminary) conclusions reached by the Fifth and Seventh Circuits, respectively, on the constitutionality of laws requiring abortion providers to obtain admitting privileges at nearby hospitals, an issue the Supreme Court appears likely to consider.
Jezebel: Louisiana Abortion 'Emergency Rule' Fight Ends For Now, by Hillary Crosley:
Louisiana’s Department of Health and Hospitals have dropped the “emergency” abortion regulations which threatened to close clinics statewide. Don't start throwing the confetti yet; this doesn't mean they won’t stop trying.
“The Department of Health and Hospitals (DHH) is rescinding its November 2013 emergency rule for outpatient abortion facilities licensing standards,” spokesperson Olivia Watkins said in a statement on the decision. “The Department will reissue a revised rule and notice of intent at a later date.” . . .
Anchorage Daily News/AP: Judge grants restraining order against state in abortion rules case:
Judge John Suddock approved the order Tuesday at the request of Planned Parenthood of the Great Northwest, which has sued the state. . . .
U.N. Committee Report Blasts Vatican for Policies on Sexual Abuse and Attitudes on Sexuality, Contraception, and Abortion
The Huffington Post/AP: UN Report Denounces Vatican For Sex Abuse And Stands On Contraception, Abortion And Homosexuality, by Nicole Winfield:
The Vatican "systematically" adopted policies that allowed priests to rape and molest tens of thousands of children over decades, a U.N. human rights committee said Wednesday, urging the Holy See to open its files on pedophiles and bishops who concealed their crimes.
In a devastating report hailed by abuse victims, the U.N. committee severely criticized the Holy See for its attitudes toward homosexuality, contraception and abortion and said it should change its own canon law to ensure children's rights and their access to health care are guaranteed. . . .
ABCnews: Anti-Abortion Groups Don't Want You to Buy Thin Mints, by M.L. Johnson:
Anti-abortion groups angry over what they see as the Girl Scouts' support for abortion-rights advocates, including Democratic Texas state Sen. Wendy Davis, have launched a cookie boycott.
The groups have taken issue with tweets and Facebook postings that link to articles recognizing Davis, who shot to political stardom last year with a filibuster of abortion limits, and Health and Human Services Secretary Kathleen Sebelius, another Democrat who supports abortion rights. . . .
Wednesday, February 5, 2014
Reuters: Brain-dead Canadian woman kept on life support to save fetus, by Julie Gordon:
A 32-year-old Canadian woman who has been declared brain dead is being kept on life support in a Victoria, British Columbia hospital, with doctors working to keep her alive long enough to deliver her unborn son. . . .
The Diocese of Helena is defending its decision to fire an unwed Butte Central teacher because she is pregnant.
Shaela Evenson “made a willful decision to violate the terms of her contract,” which requires her to follow Catholic teachings in both her personal and professional life, Superintendent Patrick Haggarty said Tuesday. “It’s a sensitive issue, and it’s unfortunate all around.” . . .
The New York Times: Ethics Questions Arise as Genetic Testing of Embryos Increases, by Gina Kolata:
. . . Genetic testing of embryos has been around for more than a decade, but its use has soared in recent years as methods have improved and more disease-causing genes have been discovered. The in vitro fertilization and testing are expensive — typically about $20,000 — but they make it possible for couples to ensure that their children will not inherit a faulty gene and to avoid the difficult choice of whether to abort a pregnancy if testing of a fetus detects a genetic problem.
But the procedure also raises unsettling ethical questions that trouble advocates for the disabled and have left some doctors struggling with what they should tell their patients. . . .
The Missoulian: Montana AG barred from defending abortion consent laws, by Charles S. Johnson:
A Helena district judge has blocked the state from defending two state laws that require minors to obtain parental consent before obtaining abortions.
Planned Parenthood of Montana, which challenged the laws, claimed victory Tuesday. A spokeswoman said the group now will ask District Judge Jeffrey Sherlock of Helena to permanently enjoin the two laws to stop them from being enforced. . . .
The New York Times: Abortions Declining in U.S., Study Finds, by Erik Eckholm:
The abortion rate among American women declined to its lowest level in more than three decades in 2011, according to a new report released Monday that is widely considered the country’s most definitive examination of abortion trends. . . .
The decline in abortions from 2008 to 2011 was mirrored by a decline in pregnancy rates. . . .
Sunday, February 2, 2014
CharlotteObserver.com: Abortion question divides North Carolina’s U.S. Senate candidates, by Renee Schoof & John Frank:
North Carolina’s fiercely competitive U.S. Senate race could turn on one of the most divisive issues in politics.
The abortion question shows up the stark contrast between incumbent Democrat Kay Hagan and her GOP challengers. . . .
Saturday, February 1, 2014
The New York Times: Responding to Critics, Gynecology Board Reverses Ban on Treating Male Patients, by Denise Grady:
After months of protest from doctors and patients, a professional group that certifies obstetrician-gynecologists has lifted a ban it imposed in September and now says its members are free to treat men.
The decision, announced Thursday by theAmerican Board of Obstetrics and Gynecology, was a reversal of its September directive, and followed partial concessions the group had made in November and December in an effort to mollify critics. . . .
The New Yorker: Interactive Chart: America's Vanishing Abortion Providers:
In this week’s issue of the magazine, Eyal Press investigates American Women’s Services, a troubled chain of abortion clinics run by a physician named Steven Brigham. . . .
The existence of such clinics, which cater mostly to low-income women with limited options, is not entirely surprising. As reputable doctors, hospitals, and medical schools have increasingly distanced themselves from abortion, substandard providers have materialized to fill the void. The interactive chart above, based on data from the Guttmacher Institute, shows the number of abortion providers in the United States for various years from 1973 to 2008. . . .
abcNEWS.com: Viewing Ultrasound Unlikely to Deter Women from Abortion, Study Finds, by Gillian Mohney:
A new study has found that pregnant women who plan on having an abortion are not often dissuaded by viewing an ultrasound.
The study, designed to find out if pregnant women who view their ultrasounds are significantly less likely to go through with a planned abortion, was published this month in the Obstetrics and Gynecology Journal. It looked at the cases of more than 15,000 women, the total number of pregnant women who went to a Planned Parenthood clinic in Los Angeles in 2011 and were planning to have an abortion. . . .
Caroline Mala Corbin (Univ. of Miami Law School) has posted the following articles on SSRN:
This is an entirely novel claim. It is also without merit. The Free Exercise Clause and the Religious Freedom Restoration Act protect the religious practices of individuals and churches. They do not, and should not, extend to the for-profit corporate form for at least three reasons. First, corporate religious liberty makes no sense as free exercise is understood to (a) protect an individual’s relationship with the divine and (b) respect the inherent dignity of the individual. Furthermore, Citizens United v. Federal Election Commission provides no theoretical foundation for corporate religious liberty: The justifications for extending free speech protection to for-profit corporations do not translate into the free exercise context. Second, there is no precedent for the claim that for-profit corporations are entitled to religious liberty exemptions; on the contrary, precedent points in the other direction. Third, recognizing corporate religious liberty will benefit employers at the expense of their employees, who risk losing protection of the employment laws as well as their own free exercise rights.
This essay argues that for-profit corporations should not – and do not – have religious liberty rights. First, there is no principled basis for granting religious liberty exemptions to for-profit corporations. For-profit corporations do not possess the inherently human characteristics that justify religious exemptions for individuals. For-profit corporations also lack the unique qualities that justify exemptions for churches. Citizens United fails to provide a justification as its protection for corporate speech is based on the rights of audiences and not the rights of corporate speakers. Second, as a matter of current law, neither the Free Exercise Clause nor the Religious Freedom Restoration Act recognizes the religious rights of for-profit corporations. Finally, corporate religious liberty risks trampling on the employment rights and religious liberty of individual employees.
The U.S. Supreme Court should hold that owners of for-profit companies cannot assert religious objections to deny their employees insurance coverage of contraceptive services and supplies in employer-sponsored health plans, argues a friend-of-the-court brief filed by the Guttmacher Institute and Professor Sara Rosenbaum (a member of the Guttmacher board of directors and professor at The George Washington University). The brief’s legal team was led by former Acting Solicitor General Walter Dellinger and Indiana University Professor (and Guttmacher board member) Dawn Johnsen.
At issue in two related cases (Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius), to be argued before the Court on March 25, is a provision under the 2010 Affordable Care Act (ACA) guaranteeing that most private insurance plans cover the full range of prescription contraception without cost-sharing for patients. Churches and other houses of worship are exempted from this requirement and an accommodation is in place for religiously affiliated nonprofit organizations. However, a number of for-profit companies are challenging the federal policy, claiming they too should be able to opt out of covering some or possibly all methods of contraception on the grounds that their owners deem those methods morally objectionable.
Thursday, January 30, 2014
Frederick Mark Gedicks (BYU Law School) has posted the Brief of Amici Curiae Church-State Scholars in Support of the Government in Sebelius v. Hobby Lobby Stores, Inc. & Conestoga Wood Specialties Corp. v. Sebelius on SSRN. Here is the summary:
This brief argues that permissive religious accommodations violate the Establishment Clause and conflict with Free Exercise Clause and Title VII accommodation decisions when they impose significant costs of practicing the accommodated religion on those who do not believe or participate in it. For-profit employer exemptions from the Affordable Care Act contraception mandate under the Religious Freedom Restoration Act would constitute congressional and federal judicial action that violates the Establishment Clause, by shifting significant costs of observing religious beliefs against contraception from the employers who hold them to employees who don't. The brief concludes that keeping federal government action within the structural limits set by the Establishment Clause is a compelling interest that justifies denial of for-profit employer exemptions from the mandate under RFRA.
Amici on the brief are Frederick Mark Gedicks (Brigham Young University Law School), Vincent Blasi (Columbia Law School); Caitlin Borgmann (CUNY School of Law), Caroline Mala Corbin (University of Miami School of Law), Sarah Barringer Gordon (University of Pennsylvania Law School & Dept. of History), Steven K. Green (Willamette University College of Law), Leslie C. Griffin (William S. Boyd School of Law, University of Nevada, Las Vegas), B. Jessie Hill (Case Western Reserve University School of Law), Andrew M. Koppelman (Northwestern University Law School & Dept. of Political Science), Martha C. Nussbaum (The University of Chicago Law School & Dept. of Philosophy); Eduardo Peñalver (The University of Chicago Law School); Michael J. Perry (Emory University School of Law); Frank S. Ravitch (Michigan State University College of Law), Zoë Robinson (DePaul University College of Law), Lawrence Sager (University of Texas at Austin School of Law), Richard Schragger (University of Virginia School of Law), Micah Schwartzman (University of Virginia School of Law), Elizabeth Sepper (Washington University School of Law), Steven H. Shiffrin (Cornell University Law School), Nelson Tebbe (Brooklyn Law School) & Laura Underkuffler (Cornell University Law School).
Catherine Weiss, Natalie Kraner, Michael J. Hampson, Joseph A. Fischetti & Meg Slachetka of Lowenstein Sandler LLP served as counsel to the Amici.
Wednesday, January 29, 2014
Kansas Supreme Court Justices Pose Sharp Questions to Defense Lawyer Representing Dr. Tiller's Murderer
Justices interrogated attorney over argument that Scott Roeder believed he saved lives by shooting Dr George Tiller
Justices on Kansas' highest court expressed skepticism Wednesday that a man convicted of first-degree murder in the shooting of a Wichita abortion provider should get a new trial because he believed he was saving the lives of unborn children.
All seven supreme court justices had pointed questions for the attorney representing Scott Roeder, who is serving at least 50 years in prison for killing Dr George Tiller in May 2009. Roeder gunned down Tiller in the foyer of the doctor's church, where he was serving as an usher just as a Sunday service was starting. . . .