Thursday, January 22, 2015
JURIST (commentary): Fourth and Fifth Circuits Confront Abortion Exceptionalism, by Caitlin Borgmann:
Federal Courts of Appeals have recently addressed two important abortion cases, either of which could end up before US Supreme Court. Last week, the US Court of Appeals for the Fifth Circuit heardoral arguments on the merits of a Texas law that requires abortion facilities to meet hospital-like building and construction standards. The US Court of Appeals for the Fourth Circuit issued a decision[PDF] in late December striking down a North Carolina pre-abortion ultrasound law that requires abortion providers to perform a sonogram before an abortion and to display and describe it to the woman. Each case is important for abortion rights in different ways, but a common theme the cases raise is the question of abortion exceptionalism: whether courts should treat abortion as an exceptional case when states purport to regulate it for health and safety reasons (in the Texas case) or when state restrictions encroach on the right against compelled speech (in the North Carolina case) . . . .
Wednesday, January 7, 2015
The New York Times: Texas Abortion Clinic Rules Tested in Appeals Court, by Erik Eckholm:
Lawyers for abortion clinics squared off with Texas state attorneys in a federal appeals court here on Wednesday, arguing over the constitutionality of stringent abortion clinic rules that would force more than half the remaining abortion providers in Texas to close.
But more is at stake than whether large portions of South and West Texas will be left with no abortion clinics, forcing some women to drive hundreds of miles for an abortion, for safety reasons that doctors and clinic owners call a pretense.
The case argued here — along with others arising from the hundreds ofabortion restrictions adopted by more than half of the states in recent years — poses issues that are likely to end up before the Supreme Court in the next year or two, many legal experts say . . . .
Al Jazeera America: Texas abortion clinics: How far is too far to drive?, by Michael Keller & Marisa Taylor:
Is 150 miles too far to drive in order to get an abortion? In some parts of Texas, that distance could get a lot longer, and it’s up to a federal appeals court to decide whether that places too much of a burden on women seeking to end their pregnancies. . . .
“It’s always been a little bit unclear exactly what constitutes an ‘undue burden,’” said Caitlin Borgmann, a professor at CUNY School of Law with expertise on reproductive rights law. . . .
“If women can’t access abortions, then the right is meaningless,” Borgmann said. “This very much goes to the core of what it means to be a constitutional right to abortion.”
The Al Jazeera America story includes interactive maps that show what parts of Texas would be left without any available abortion clinics if the ambulatory surgical center requirement is upheld.
Monday, December 15, 2014
The New York Times: Justices Let Abortion Decision Stand, by Adam Liptak:
The Supreme Court on Monday let stand a decision temporarily blocking an Arizona law that limits the availability of medicinal, nonsurgical abortions. As is its custom when it denies review, the court gave no reasons for its action.
The law, enacted in 2012, requires abortion providers to comply with a 2000 protocol from the Food and Drug Administration for mifepristone, anabortion-inducing drug that is sometimes called RU-486. . . .
The 2000 protocol calls for the drug to be given in higher doses than is customary today, and only in the first seven weeks of pregnancy. . . .
This denial is interesting in part because the Supreme Court had previously agreed to review a similar law from Oklahoma, which had been struck down by the Oklahoma Supreme Court. The U.S. Supreme Court had then certified questions to the Oklahoma Supreme Court regarding the law's interpretation. The Oklahoma Supreme Court read the law broadly, in a way that would have prohibited all medication abortions, including to treat ectopic pregnancies. After receiving the Oklahoma Supreme Court's interpretation, the U.S. Supreme Court in November 2013 dismissed the writ of certiorari as improvidently granted. It seemed possible that the U.S. Supreme Court would still be interested in reviewing a medication abortion restriction that was interpreted more narrowly as requiring adherence to the FDA-approved protocol. The Ninth Circuit decision on the preliminary injunction assumed for purposes of the opinion that the Arizona law only reached this far, but still found it to constitute an undue burden.
Monday, December 1, 2014
The Washington Post: Former UPS driver at center of pregnancy discrimination case before Supreme Court, by Brigid Schulte:
Peggy Young didn’t want to become a national icon for pregnant workers. She never imagined she would be at the center of a Supreme Court case that has united every major women’s rights organization on the left with major anti-abortion rights groups on the right. . . .
The Supreme Court will hear arguments in Young v. United Parcel Service this Wednesday, Dec. 3.
Sunday, November 9, 2014
NPR: Two Of Three States Reject Ballot Measures Restricting Abortion, by Jennifer Ludden:
Amid all the shakeout from this week's midterm elections, many are trying to assess the impact on abortion.
Two abortion-related ballot measures were soundly defeated. A third passed easily. And those favoring restrictions on abortion will have a much bigger voice in the new Congress. . . .
The Los Angeles Times: On abortion, election delivered mixed messages, by Maria La Ganga:
The 2014 midterm election was a mixed bag for abortion rights supporters: Two out of three state ballot measures that would have regulated the procedure went down to defeat, but control of the U.S. Senate swung to the Republican Party, with its antiabortion candidates claiming victory.
"It is a happy day for us, a great day for pro-lifers," said Marilyn Musgrave, vice president for government affairs with the Susan B. Anthony List, which advocates for female antiabortion candidates. "The life issue won." . . .
Mother Jones: The Fight for Abortion Rights Just Got a Whole Lot Harder, by Molly Redden:
Activists thought they had a chance to expand reproductive rights. The Red Wave put an end to that
The GOP wave didn't just crash into the US Senate. It flooded state legislatures, as well. By Wednesday evening, Republicans were in control of 67 of the nation's 99 state legislative chambers—up from 57 before the election. It's still unclear which party will control two other chambers.
Already, anti-abortion advocates are calling it a big win. Hundreds of the country'smost extreme anti-abortion bills pop up in these statehouses every year, and Tuesday's results won't do anything to put a stop to that. But reproductive rights advocates also suffered big setbacks Tuesday in places where they had actually been playing offense. Now, Democratic losses in states like Colorado, Nevada, New York, and Washington could torpedo their efforts to expand reproductive rights. . . .
Wednesday, October 15, 2014
The New York Times: Texas Abortion Clinics to Reopen Despite a Future in Legal Limbo, by Erik Eckholm:
A day after the Supreme Court blocked a Texas law that had forced abortion clinics to close, some of the shuttered facilities prepared to reopen, pleased at the reprieve but mindful that the legal fight was far from over.
Tuesday’s order increased the chances, legal experts said, of a major face-off in the Supreme Court over a crucial question: What restrictions add up to an “undue burden” on a woman’s right to abortion? . . .
While the order did not necessarily reveal how or whether the Supreme Court might ultimately rule, it did indicate that the justices “saw the potentially irrevocable damage if the clinics were forced to close,” said Caitlin E. Borgmann, a professor at the CUNY School of Law in New York.
. . . The basic issue, Ms. Borgmann said, is how much a state may restrict abortion without banning it altogether.
“How much travel is too much? How much do costs matter? These are questions the Supreme Court has never answered,” Ms. Borgmann said, adding that appeals of the Texas law could give the court an opportunity to clarify the issue. . . .
The New York Times: Supreme Court Allows Texas Abortion Clinics to Stay Open, by Adam Liptak:
The Supreme Court on Tuesday allowed more than a dozen Texas abortion clinics to reopen, blocking a state law that had imposed strict requirements on abortion providers. Had the law been allowed to stand, it would have caused all but eight of the state’s abortion clinics to close and would have required many women to travel more than 150 miles to the nearest abortion provider.
The Supreme Court’s order — five sentences long and with no explanation of the justices’ reasoning — represents an interim step in a legal fight that is far from over. But abortion rights advocates welcomed what they said was the enormous practical impact of the move. Had the clinics been forced to remain closed while appeals went forward, they said, they might never have reopened. . . .
The Supreme Court, in an unsigned order apparently reflecting the views of six justices, blocked the surgical-center requirement entirely and the admitting-privileges requirement as it applied to clinics in McAllen, Tex., and El Paso.
Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. said they would have allowed the law to be enforced. . . .
See also: SCOTUSblog: Court blocks abortion limits in Texas, by Lyle Denniston.
This is significant, because when the Court last November considered only the admitting privileges portion of this law on an emergency basis, it refused to block the Fifth Circuit's ruling that allowed the law to take effect. That time, the 4 liberal Justices dissented.
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