Monday, September 8, 2014
The National Law Journal: Next Wave for Abortion Law Courts, by Tony Mauro:
Judges struggle to define "undue burden" standard
Slowly but surely, a new wave of abortion-related litigation is making its way to the U.S. Supreme Court, with the ultimate outcome uncertain.
A stop-and-start round of rulings and stays that blocked enforcement of new restrictions on abortion clinics in Texas last week was just the latest sign that, 41 years after Roe v. Wade, courts are still grappling with the issue. . . .
The National Law Journal (Op-Ed): Rulings Illuminate Abortion Standard, by Caitlin Borgmann:
With scant guidance from Supreme Court, lower courts are grappling with "undue burden" test
Onerous restrictions on abortion facilities are prompting lower courts to sit up and take notice. Late last month, federal judges in Texas and Louisiana blocked such laws from taking effect, at least temporarily.
Some courts, in evaluating the constitutionality of these laws, are interpreting the governing undue-burden standard — the U.S. Supreme Court's governing standard for the constitutionality of abortion regulations — in new ways that meaningfully consider the facts and purposes underlying the laws, as well as their real-world effects. The Supreme Court justices would do well to adopt these interpretations when they finally address one of these restrictions. . . .
Thursday, August 7, 2014
Cornerstone: Contraception: A Prescription for Women's Equality, by Kara Loewentheil:
One of the few mercies of the Supreme Court's opinion in Burwell v. Hobby Lobby Inc. last month was its acceptance of the Government's argument that access to contraception is indeed a compelling governmental interest (see pages 39-40 of the majority opinion). Justice Kennedy's concurrence (see pages 2-3), in particular, stressed that this vote for the majority's holding hinged on his belief that the government could achieve its compelling interest in a different manner without burdening the rights of the women whose contraceptive access would be affected. But we should not be too sanguine about this aspect of the holding, because it too is under attack. . . .
Tuesday, August 5, 2014
The New York Times: Justices’ Rulings Advance Gays; Women Less So, by Adam Liptak:
When Justice Ruth Bader Ginsburg reflects on the Supreme Court’s recent rulings, she sees an inconsistency.
In its gay rights rulings, she told a law school audience last week, the court uses the soaring language of “equal dignity” and has endorsed the fundamental values of “liberty and equality.” Indeed, a court that just three decades ago allowed criminal prosecutions for gay sex now speaks with sympathy for gay families and seems on the cusp of embracing a constitutional right to same-sex marriage.
But in cases involving gender, she said, the court has never fully embraced “the ability of women to decide for themselves what their destiny will be.” She said the court’s five-justice conservative majority, all men, did not understand the challenges women face in achieving authentic equality. . . .
Thursday, July 31, 2014
Does Hobby Lobby Open Door To Renewed Conscience-Based Claims for Exemptions from Abortion Restrictions?
MSNBC: Satanists Aren't the Only Ones Following Hobby Lobby's Lead, by Irin Carmon:
On Monday, the Satanic Temple drew headlines for declaring that, in the wake of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, it was “asserting a religious exemption from the burden of state mandated ‘informational’ abortion materials for those who share their deeply held beliefs.”
In other words, they wanted a conscience clause from laws intended to dissuade women from having abortions by mandating an ultrasound or that a doctor impart biased or medically-inaccurate information about abortion. . . .
But the Satanists are hardly the first to use religion to make an affirmative argument for reproductive rights. For decades, pro-choice activists have been trying to make a religious claim for their view – and generally failing. . . .
But now that the Supreme Court has opened the door to more robust religious exemptions under RFRA, there might be a new opportunity for supporters of abortion rights to try their luck. . . .
Wednesday, July 30, 2014
New York City Restriction on Abortion Protest, Mentioned by Supreme Court, Appears Largely Ineffective
The New York Times: New York’s Abortion Protest Law Is Praised by Justices, but Few Others, by Benjamin Mueller:
A crowd of abortion opponents converged on Zena Khan outside of the Choices Women’s Medical Center in Jamaica, Queens, on a recent Saturday. As a blurred mustard sun broke through the morning haze, Ms. Khan sped past posters depicting dismembered fetuses, flip cameras trained on her face and protesters demanding that she get back in her car and leave. . . .
“Should I call the cops?” she asked the escorts, her hands flying like agitated birds around her head. “I’m not even pregnant.” . . .
To the unfamiliar observer, the scene, repeated almost every Saturday morning at Choices and other clinics that perform abortions in New York City, would appear to be nothing so much as unbridled chaos. But it is also seen as one model for how abortion protests in the United States should be managed. . . .
Wednesday, July 16, 2014
Wednesday, July 9, 2014
Bloomberg BNA: Justices Will Review Accommodation Issue Arising Under Pregnancy Discrimination Act, by Kevin P. McGowan:
Granting a United Parcel Service Inc. driver's petition, the U.S. Supreme Court July 1 agreed to review whether the Pregnancy Discrimination Act requires an employer to accommodate the work restrictions of pregnant employees when it does so for some non-pregnant employees with temporary impairments.
On the final day of its term, the court granted Peggy Young's request to review a U.S. Court of Appeals for the Fourth Circuit decision that the PDA didn't require UPS to accommodate Young's pregnancy-related lifting restriction even though the company offered light duty to workers injured on the job, those disabled within the meaning of the Americans with Disabilities Act and drivers who temporarily lost their federal certification (707 F.3d 737, 116 FEP Cases 1569 (4th Cir. 2013). . . .
Friday, July 4, 2014
Court Issues Order on Contraception Mandate that Reinforces Female Justices' Concerns About Hobby Lobby Ruling's Scope
The New York Times: Birth Control Order Deepens Divide Among Justices, by Adam Liptak:
In a decision that drew an unusually fierce dissent from the three female justices, the Supreme Court sided Thursday with religiously affiliated nonprofit groups in a clash between religious freedom and women’s rights.
The decision temporarily exempts a Christian college from part of the regulations that provide contraception coverage under the Affordable Care Act. . . .
The reason this order is so frustrating is that Justice Alito's opinion in Hobby Lobby emphasized that its ruling was justified in large measure because the accommodation already provided to certain non-profits could simply be extended to closely held for-profits. In relying on the existing accommodation, the Court implied that the accommodation was constitutionally acceptable. Indeed, the Court dismissed Justice Ginsburg's concerns about the opinion's scope, referring to the existing accommodation for non-profits and saying, "[O]ur holding is very specific." Justice Kennedy in concurrence even felt obliged to issue a separate reassurance: "[I]t should be said that the Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent." Justice Kennedy pointed out that "there is an existing, recognized, workable, and already-implemented framework to provide coverage" and "[t]hat accommodation equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs" (emphasis added). The majority itself assured that the goverment's accommodation "does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion."
There was a clue, however, in the majority's opinion, that left Justice Ginsburg and others concerned as to whether the Court was sincere in suggesting it would ultimately find the existing accommodation adequate. The Court noted, "We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims," referring to Little Sisters of the Poor, a case in which the Court issued a previous order addressing the accommodation as applied to a non-profit entity. This caveat, buried in an opinion full of reassurances about the decision's narrow scope, coupled with today's order supports Justice Ginsburg's concern that the true implications of Hobby Lobby are broad and as yet unclear.
Monday, June 30, 2014
The Washington Post - WonkBlog: The 49-page Supreme Court Hobby Lobby ruling mentioned women just 13 times, by Emily Badger:
. . . Th[e] idea — that women's reproductive well-being is vital to both their personal prospects and the country's fortunes — runs throughout Ginsburg's dissent. It is notably absent from Justice Samuel Alito's majority opinion. . . .
Concurring Opinions: Nine Comments on McCullen, the Abortion Buffer Zone Case, by Ronald K.L. Collins:
I thought it might be interesting to share excerpts from some of the commentary on McCullen v. Coakley. Here are 9 views on the case. . . .
Here is the link to UltraViolet's Twitter Q&A on Hobby Lobby, which I participated in this morning.
The effects of Hobby Lobby decision are already being felt in the non-profit context, with the 11th Circuit enjoining the government, pending appeal, from enforcing the contraception rule against Eternal Word Television Network, a tax-exempt non-profit organization, "[i]n light of the Supreme Court's decision today" in Hobby Lobby. Also, via Lyle Denniston at SCOTUSblog: "Over the dissents of two Justices, the Supreme Court on Monday evening temporarily barred enforcement of the birth-control mandate against Wheaton College, a non-profit religious institution in Illinois."
Justice Alito wrote the opinion. There are qualifications to the Court's ruling. It appears to be limited to closely held corporations and to contraception, for example. SCOTUSblog is live blogging the decision here. The opinion is available here. I will be participating in a Twitter chat hosted by UltraViolet to answer questions about the opinion.
Thursday, June 26, 2014
Tuesday, June 24, 2014
The Washington Post: Awaiting Supreme Court’s Hobby Lobby ruling, public favors contraception mandate, by Cathy Lynn Grossman:
The U.S. Supreme Court is expected to finally issue its ruling this week in the highly anticipated case of the craft companies vs. Obamacare. . . .
But to the general public, this is seen as a showdown between employers — the evangelical Green family behind Hobby Lobby and the Mennonite Hahn family that owns the Conestoga cabinet company — and the employees’ personal reproductive choices under their insurance. . . .
Monday, June 23, 2014
The Huffington Post/Reuters: U.S. Supreme Court Rejects Wisconsin Abortion Case, by Lawrence Hurley:
The U.S. Supreme Court on Monday declined to intervene in the legal fight over a new Wisconsin law that requires any doctor performing an abortion to have privileges to admit patients to a nearby hospital.
The justices turned away the state's appeal of a December 2013 ruling by the 7th U.S. Circuit Court of Appeals that upheld a federal judge's decision to block the law temporarily. . . .
Tuesday, June 17, 2014
NPR: 6 Questions About Contraception Coverage And The Supreme Court, by Julie Rovner:
One of the most watched issues before the Supreme Court this term may turn on the question of religious freedom. But it will also likely determine how women will be able to access a key provision of the Affordable Care Act – one seeking to guarantee no-cost prescription contraception in most health insurance plans.
The justices' ruling on Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp v. Sebelius, two cases that are being considered together, is expected by the end of this month. The court will decide whether those companies, and potentially all other for-profit companies, must abide by the so-called contraceptive mandate. It's a complicated legal thicket, so here is some background. . . .
Tuesday, June 10, 2014
RH Reality Check: 49 Years After Griswold: A Splintering Legacy,
This month marks the 49th anniversary of Griswold v. Connecticut, the landmark Supreme Court decision that ruled states could not criminalize contraception use between married couples.
In a Washington Post article published this March, Walter Dellinger noted that the oral arguments in the 1965 case suggested that, by 21st-century standards, the justices were “either uninformed about contraceptive methods or uncomfortable discussing them.” . . .
Fast forward nearly 50 years and the Supreme Court is once again considering the question of birth control, this time in the Hobby Lobby case . . . .
Friday, March 28, 2014
Balkinization: Religious Accommodations Cost More than Money, by Kara Loewentheil:
Tuesday, March 25, 2014
SCOTUSblog: Birth Control, Business, and Religious Beliefs: In Plain English, by Amy Howe:
Almost two years ago to the day, the Supreme Court heard oral arguments in a challenge to the Affordable Care Act’s individual mandate, which requires virtually everyone in the United States to buy health insurance or pay a penalty. This morning, it heard a new and different challenge arising out of the Affordable Care Act: can a business be required to provide its female employees with health insurance that includes access to free birth control, even if doing so would violate the strong religious beliefs of the family that owns the business? After the oral argument today, it looked like the Court’s answer may well be no, although the decision may not prove as sweeping as some of the challengers might prefer. And as is so often the case, it looks like Justice Anthony Kennedy may hold the key vote in the case. Let’s talk about the proceedings at the Court today in Plain English. . . .
Balkinization: Today's Oral Arguments in Hobby Lobby, by Nelson Tebbe:
The oral argument in Hobby Lobby and Conestoga Wood, which I attended today, provided some slight cause for optimism for those of us who have been arguing that accommodating the companies would raise serious concerns because it would mean shifting the cost of that accommodation onto third parties (the affected women employees). Not only did Solicitor General Verrilli open and close with the argument, but Justice Kennedy arguably displayed some sympathy for the point. First, Justice Kennedy asked Paul Clement (who was arguing for the companies) whether there are rules of statutory construction that should guide the Court in this case, such as the canon of constitutional avoidance. Later, Justice Kennedy asked directly what should happen when granting an accommodation for the companies would shift costs onto employees. Justice Kennedy asked whether the employer's interests should simply trump in such situations. . . .
NPR: Justices Divide By Gender In Hobby Lobby Contraception Case, by Nina Totenberg:
There was a clear difference of opinion between male and female justices at the U.S. Supreme Court on Tuesday. The issue was whether for-profit corporations, citing religious objections, may refuse to include contraception coverage in the basic health plan now mandated under the Affordable Care Act.
The female justices were clearly supportive of the contraception mandate, while a majority of the male justices were more skeptical. . . .
Monday, March 24, 2014
The Wall Street Journal - Law Blog: In Contraceptives Case, Court May Run Into Plan B, by Joe Palazzolo:
As the Supreme Court weighs whether for-profit companies have the religious right to refuse to provide contraceptives, it may also run into another question: Whether the Plan B drug is a contraceptive or a form of abortion. . . .
When the Food and Drug Administration approved a drug known as Plan B One-Step in 1999, it wasn’t entirely clear how the drug worked. So the agency required that the label mention the possibility that the drug affected implantation. . . .
Abortion-rights advocates and medical groups, including the American College of Obstetricians and Gynecologists, say heaps of research since the late 1990s has produced no scientific evidence showing that Plan B inhibits implantation. There are fewer studies on ella, because it is a newer drug, but they have reached the same conclusion, they say.
“FDA labeling has not caught up with the recent research,” said Caitlin E. Borgmann a law professor at City University of New York Law School and former lawyer for the American Civil Liberties Union’s Reproductive Freedom Project. . . .
See also Caroline Corbin's article on this issue.