Reproductive Rights Prof Blog

The Uncertain Future of Facial Challenges in the Roberts Court

ABA Journal: Supreme Court Report: About Face, by David G. Savage:

The U.S. Supreme Court under Chief Justice John G. Roberts Jr. has been sending a message to lawyers who want to challenge state laws as unconstitutional. It goes like this: Show us the proof. Be specific. And if you want us to throw out an entire law because it may infringe the rights of a few people, you may be wasting your time.

Here’s another way to say it: Facial challenges are out. As-applied challenges are in.

The article discusses the particular impact of this trend on abortion cases.  Shortly after Gonzales v. Carhart was decided, I wrote this post on the decision's implications for facial vs. as-applied challenges.

Supreme Court to Consider Pregnancy Leave Case

Wash. Post: High Court to Take Up Pregnancy Leave Case, by Christopher Twarowski:

Noreen Hulteen gave birth to a daughter, Rachael, in 1968, when she was 34. While on maternity leave, she required surgery and wound up missing 240 days of work. Hulteen, 74, contends that her employer, Pacific Bell -- now AT&T -- did not properly weigh her pregnancy leave into her retirement and other benefits. Yesterday, the U.S. Supreme Court agreed to review the issue in a case that could affect thousands of women who are near or at retirement age.

The Future of the Abortion Debate?

TheAtlantic.com: The future of the abortion debate, by Conor Friedersdorf:

An orthodox Catholic I know cares more about abortion than any other political issue. He votes for candidates based largely on his expectations about the kinds of judges they'll appoint or confirm, behavior I completely understand given the certainty he feels that every abortion is a murder. At the other extreme are pro-choice voters whose number one issue is protecting Roe vs. Wade from being overturned, preventing any restrictions on abortion, etc.

These are by their nature long term political struggles, or so you might think: the composition of the Supreme Court is always going to change, legislatures can be influenced to hue closer to one side or the other, etc.

But I predict that what we now think of as the abortion debate is going to radically change within our lifetime in a way that makes many of the strategic gambits employed by both sides irrelevant, or at least beside the point.

Here's a brief response from Andrew Sullivan:

The legitimate property interest that every woman has in her own body, and her right to be free of the state's interference in that respect, makes me a reluctant pro-choicer in the first trimester (for want of any better time limit). But if fetuses can live outside their mother's body, the debate shifts a notch. Not definitively, but intuitively.

Ronald Turner the "Women's Regret" Rationale in Gonzales v. Carhart

Ronald Turner (U. of Houston Law Center) has posted Gonzales v. Carhart and the Court's 'Women's Regret' Rationale on SSRN.  Here is the abstract:

In its 2007 decision in Gonzales v. Carhart the Supreme Court of the United States, by a 5-4 vote, rejected a facial challenge to the constitutionality of the Federal Partial-Birth Abortion Ban Act of 2003. This essay focuses on and questions one aspect of the Court's opinion: the statement that "some women come to regret their choice to abort the infant life they once created and sustained." In referring to (while acknowledging that there is no reliable data to measure) this phenomenon, the Court gave to certain abortion-rights opponents something they have sought for many years - express recognition of and reliance on a "women's regret" rationale in the Court's review of anti-abortion legislation. The Gonzales Court's articulation of the "women's regret" rationale, and the Court's acceptance and, indeed, endorsement of what it viewed as the "unexceptionable" and "self-evident" premise that some women regret their choice to have an abortion, are discussed and critiqued herein. In addition, the essay argues that the Court's recognition of the rationale is an important politico-legal victory for determined participants engaged in a decades-long campaign to place the "women's regret" rationale front and center in judicial and legislative arenas and debates.

Supreme Court Memo: Why the Decline in 5-4 Decisions?

NY Times: At Supreme Court, 5-to-4 Rulings Fade — but Why?, by Linda Greenhouse:

WASHINGTON — Where have all the 5-to-4 decisions gone?

And whatever happened to the “Kennedy Court”?

A year ago at this time, the Supreme Court had decided 13 cases by votes of 5 to 4, out of 41 total decisions. That proved to be an accurate snapshot of a highly polarized term. By the time the court wrapped up its work five weeks later, a third of the cases — the highest proportion in years — had been decided by margins of a single vote.

But so far this term, with 35 cases decided with full opinions, there has been only a single 5-to-4 decision. It came in a low-visibility statutory case, not in a hot-button constitutional one. And the justices did not break along the ideological divisions that shaped the last term. Justice Anthony M. Kennedy, who was in the majority in all 24 of last term’s 5-to-4 decisions, voted in dissent.

Justice Kennedy’s dominance last term was so complete that, of 68 decisions, he cast only two dissenting votes. He has already dissented five times this term. So have Justices Samuel A. Alito Jr., Stephen G. Breyer and John Paul Stevens. In other words, no longer the essential justice, Anthony Kennedy now looks like just one of the pack.

Something is happening, clearly. The question is what.

McCain and Obama's Contrasting Visions of Supreme Court's Role

L.A. Times: John McCain and Barack Obama: Two visions of the Supreme Court, by David Savage:

WASHINGTON — John McCain and Barack Obama, the two leading presidential candidates, have set out sharply contrasting views on the role of the Supreme Court and the kind of justices they would appoint.

Sen. McCain (R-Ariz.), in a speech two weeks ago, echoed the views of conservatives who say "judicial activism" is the central problem facing the judiciary. He called it the "common and systematic abuse . . . by an elite group . . . we entrust with judicial power." On Thursday, he criticized the California Supreme Court for giving gays and lesbians the right to marry, saying he doesn't "believe judges should be making these decisions."

Sen. Obama (D-Ill.) said he was most concerned about a conservative court that tilted to the side of "the powerful against the powerless," and to corporations and the government against individuals. "What's truly elitist is to appoint judges who will protect the powerful and leave ordinary Americans to fend for themselves," he said in response to McCain.

Steven Calabresi on Substantive Due Process After Gonzales v. Carhart

Steven Calabresi (Northwestern Law) has posted Substantive Due Process after Gonzales v. Carhart on SSRN.  Here is the abstract:

This Essay begins in Part I with a doctrinal evaluation of the status of Washington v. Glucksberg ten years after that decision was handed down. Discussion begins with consideration of the Roberts Court's recent decision in Gonzales v. Carhart and then turns to the subject of Justice Kennedy's views in particular on substantive due process. In Part II, the Essay goes on to consider whether the Glucksberg test for substantive due process decision making is correct in light of the original meaning of the Fourteenth Amendment. The Essay concludes in Parts II and III that Glucksberg is right to confine substantive due process rights recognition to recognition only of those rights that are deeply rooted in history and tradition.

Supreme Court Declines to Review Asylum Claim of Chinese Man Whose Wife Had Forced Abortion

Associated Press: Court turns down Chinese man's asylum claim:

WASHINGTON (AP) — The Supreme Court rejected an appeal Monday from a Chinese man who sought asylum in the United States because his wife was forced to have an abortion under China's controversial family planning policy.

Yi Qiang Yang and his wife had a traditional marriage when he was 20 and she was 17, but they were too young to be married legally in China. Authorities forced his wife to have an abortion when she was eight months pregnant.

U.S. immigration policy has made it easier for men in legal marriages to apply for asylum in such situations, but has taken a harder line on men who entered into traditional marriages or were not married at all. There is no dispute that women can seek asylum under the law.

McCain to Address His Judicial Philosophy

Wall St. Journal: McCain Speech to Shed Light On Judicial Philosophy, by Laura Meckler:

John McCain steps out of his comfort zone Tuesday to address his judicial philosophy, a hot-button matter for social conservatives that encompasses abortion, guns and gay rights -- all topics on which Sen. McCain has rankled the right.

On nearly every score, Sen. McCain agrees with conservatives, but he has made a series of exceptions to their orthodoxy. As a result, while liberals think he is a conservative, conservatives fear he is a liberal....

On abortion, a number of people believe that Sen. McCain supports abortion rights. He doesn't. At a town-hall meeting in March, he vowed: "I will continue my commitment to rights of the unborn so we can give every soul the chance to exist on this Earth."

Yet nearly one in four women who support abortion rights and also support Sen. McCain believe that he shares their views, according to a Planned Parenthood Action Fund survey of women in 16 battleground states.

Planned Parenthood, which supports abortion rights, also found that about half of these supporters weren't sure about Sen. McCain's position. Just under 20% knew his stand on abortion but supported him anyway.

In fact, with the exception of fetal-tissue and stem-cell research, he has a long and consistent voting record opposing abortion. He supports sex-education programs that promote abstinence until marriage without any mention of contraception.

Scalia Says Constitution Does Not Prohibit, Permit Abortion Rights

Via the Daily Women's Health Policy Report:

When asked about abortion and other topics during an interview with Lesley Stahl on CBS' "60 Minutes" Sunday, U.S. Supreme Court Justice Antonin Scalia confessed "to being a social conservative" but said it "does not affect [his] views on cases," USA Today reports (USA Today, 4/25). "On the abortion thing, for example, if indeed I were ... trying to impose my own views, I would not only be opposed to Roe v. Wade, I would be in favor of the opposite view, which the antiabortion people would like to see adopted, which is to interpret the Constitution to mean that a state must prohibit abortion," Scalia said. When Stahl asked, "And you're against that?" Scalia replied, "Of course," adding that there is "nothing" in the Constitution to support that view (AP/Google.com, 4/24).

Supreme Court Upholds KY's Use of Lethal Injection

I know, it's not about abortion.  But it is about life.  Was "'serious' and 'humble' Catholic" Chief Justice Roberts trying to impress the Pope on his visit to the United States?

NY Times: Justices Uphold Lethal Injection in Kentucky Case, by Linda Greenhouse:

WASHINGTON — The Supreme Court on Wednesday upheld Kentucky’s method of execution by lethal injection, rejecting the claim that officials there administered a common sequence of three drugs in a manner that posed an unconstitutional risk that a condemned inmate would suffer acute yet undetectable pain.

While the 7-to-2 ruling did not shut the door on challenges to the lethal injection protocols in other states, it set a standard that will not be easy to meet. Chief Justice John G. Roberts Jr. said in the court’s controlling opinion that challengers must show not only that a state’s method “creates a demonstrated risk of severe pain,” but also that there were alternatives that were “feasible” and “readily implemented” that would “significantly” reduce that risk.

Scalia Tells Roger Williams Law Students He Would Not Be Confirmed Today

Boston Globe/AP: Scalia says he'd have difficulty winning confirmation now, by Eric Tucker:

U.S. Supreme Court Justice Antonin Scalia said Monday he would have had difficulty winning confirmation to the nation's highest court if he were nominated today because the public expects its judges to rewrite the Constitution rather than interpret the document narrowly based on its original intent.

Scalia, who was confirmed by the Senate in 1986 by a 98-0 margin, told students at the Roger Williams University law school that he wouldn't be able to get 60 votes now....

The right to an abortion, he said, is nowhere to be found in the Constitution though advocates on both sides use the document to bolster their respective positions. Debates over abortion and the death penalty, among other topics, are best left to legislatures rather than to the nation's highest court, he said.

"You want the right to abortion? Create it the way most rights are created in a democracy. Persuade your fellow citizens it's a good idea -- and pass a law," Scalia said. "You don't like the death penalty? Persuade your fellow citizens it's a bad idea and repeal it."

Supreme Court Refuses to Review Arizona Prison’s Abortion Policy

ACLU press release: Lower Court’s Ruling Upholding Women’s Right to Reproductive Freedom Will Stand:

Washington, DC - The United States Supreme Court announced today that it would not review a lower court decision preventing prison officials in Maricopa County, Arizona, from interfering with women prisoners’ access to timely, safe, and legal abortion care.

"As we have shown throughout this case, a pregnant woman in prison does not lose her right to decide to have an abortion any more than she gives up her right to have a child," said Brigitte Amiri, a staff attorney with the ACLU Reproductive Freedom Project. "It is not up to prison officials to decide whether a woman prisoner should carry a pregnancy to term or not."

At issue in the case was an unwritten Maricopa County Jail policy preventing women in prison from obtaining abortion care. The policy prohibited jail officials from transporting a prisoner for an abortion unless she first obtained a court order. The jail transports prisoners without a court order for all other necessary medical care, including prenatal care and childbirth. The jail also regularly transports prisoners for various non-medical reasons, including visits with terminally ill family members or attendance at relatives’ funerals.

S.C. Law Review Symposium on Equality and the Roberts Court

I am looking forward to participating today in the South Carolina Law Review Symposium, The Roberts Court and Equal Protection: Gender, Race, and Class.  I will be speaking on the panel on gender along with Deborah Brake (Pittburgh), David Cohen (Drexel), and Teresa Collett (St. Thomas).  The full list of panels and speakers is available here.

More Roe Anniversary Web Features

Planned Parenthood Federation of America: 35th Anniversary of the U.S. Supreme Court Roe v. Wade Decision                                                                            

NARAL Pro-Choice America: Roe v. Wade 35th Anniversary Events

It's the 35th Anniversary of Roe v. Wade

It has been 35 years since the Supreme Court issued its landmark ruling declaring that women have a constitutional right to abortion.

Click here for anniversary features from the ACLU, including a video in which ACLU staff discuss the importance of reproductive freedom in the fight for women's equality.

More blog posts on AALS Hot Topic Panel on Gonzales v. Carhart

David Cohen has posted commentary on the panel at Feminist Law Professors, focusing on which women are most affected by abortion bans on post-first-trimester procedures. 

Michael Dorf (one of the speakers) also comments, at Dorf on Law, on a disagreement between him and Jack Balkin on whether the Republican party has actively sought the reversal of Roe or has instead self-consciously pursued a strategy of incremental restrictions.

U.S. Supreme Court Refuses to Review Legal Questions Raised in a Challenge to Michigan’s Abortion Ban

Press release from the ACLU:

FOR IMMEDIATE RELEASE   

January 7, 2008

Contacts: Kary Moss, ACLU of Michigan 313-578-6813;

Rachel Hart, ACLU, (212) 549-2638;

Dionne Scott, CRR, (917) 637-3649;

Sarah Scranton, PPAM, (517) 482-1080 ext.1

WASHINGTON - The U.S. Supreme Court today refused to review legal questions raised in a challenge to Michigan’s third attempt at a dangerous and extreme ban on abortion.  The American Civil Liberties Union, Center for Reproductive Rights, and Planned Parenthood Federation of America said they were pleased that a lower court decision striking down the ban would stand.

“We are hopeful that the Michigan legislature will get the message: stop endangering women’s health and start respecting women’s private health care decisions,” said Brigitte Amiri, a staff attorney with the ACLU Reproductive Freedom Project.

The Michigan legislature passed the abortion ban in 2004, despite federal courts striking down two similar bans in previous years.  In June 1996, the legislature passed its first abortion ban.  A year later, a federal judge declared that ban unconstitutional because it was vague and overbroad.  Similarly in 2001, a federal judge struck down a second ban because it lacked an exception to protect women’s health.

“For the third time, the courts have prevented the Michigan legislature from disregarding the Constitution and banning nearly all abortions in the state,” said Janet Crepps, staff attorney at the Center for Reproductive Rights. “Today is an important win for women in Michigan and their fundamental right to decide whether or not to have an abortion.”

In June 2007, the U.S. Court of Appeals for the Sixth Circuit upheld a federal district court ruling from September 2005 striking down the Legal Birth Definition Act, noting that “the Michigan legislature appears to have cast a wide net that would prohibit virtually all methods of abortions” from the earliest stages of pregnancy.

“Major medical organizations, including the American College of Obstetricians and Gynecologists, opposed this ban because it threatened women’s health,” said Sarah Scranton, Executive Director of Planned Parenthood Affiliates of Michigan.

The petitions before the Supreme Court today asked the Court to review two legal questions: the need for a federal court to ask a state court to interpret a law, and the issue of third-party intervention. 

The plaintiffs in the case are Northland Family Planning Clinic, Inc., Summit Medical Center, Planned Parenthood Mid-Michigan Alliance, Planned Parenthood of South Central Michigan, and a group of individual physicians. 

Today’s case is Northland Family Planning Clinic v. Cox and Standing Together To Oppose Partial-birth abortion v. Northland Family Planning Clinic, Case Numbers 07-313 and 07-291.  The plaintiffs are represented by Amiri, Talcott Camp and Alexa Kolbi-Molinas of the ACLU Reproductive Freedom Project; Michael J. Steinberg and Kary Moss of the ACLU of Michigan; Eve Gartner and Roger Evans of Planned Parenthood Federation of America;  Crepps of the Center for Reproductive Rights; and David Nacht of David A. Nacht, P.C.

AALS "Hot Topic" Panel on "Reproductive Justice After Carhart"

I thought I would say a bit about this informative and insightful panel, a "hot topic" panel at this year's AALS meeting in New York, for those who were unable to attend.  While it is of course not possible to summarize the entire session (and unfortunately I don't believe the AALS is offering podcasts of this year's sessions), I hope this will give a flavor of what the audience heard. 

The topic was Gonzales v. Carhart (Carhart II), the Supreme Court's 2007 decision upholding the federal ban on so-called "partial-birth abortion," and the decision's implications for the future of reproductive justice.  (For all this blog's posts on Carhart II, including my own and links to others' analyses of the opinion, click here.)  The session was conducted in a roundtable format with Pamela Karlan (Stanford) posing questions to the five panelists, Jack Balkin (Yale), Michael Dorf (Columbia), Angela Harris (Boalt), Reva Siegel (Yale), and Kenji Yoshino (Yale).

Professor Karlan explained that the panel was not intended to present the full spectrum of views on the opinion, since all of the panelists are pro-choice, but rather was meant to allow the audience to hear, and participate in, a conversation in which the speakers have been engaged since the decision was issued last year.  The panelists first discussed what was particularly noteworthy about the opinion.  They explored the opinion's rhetoric, including its references to the fetus as an "unborn child" and to the pregnant woman as "mother."  The speakers considered the implications of the Court's anachronistic, romantic idealization of pregnancy and motherhood.  Audience members were particularly interested in the panelists' discussion of the role of regret in Kennedy's opinion, which asserted (confessedly against the weight of the evidence) that pregnant women will necessarily regret their abortions.  Professor Siegel pointed out that this aspect of Kennedy's opinion reflects a new trend in anti-choice advocacy to portray abortion as psychologically harmful to women, rather than focusing on the fetus.  She noted the importance of South Dakota, where this shift has been the source of great public debate and has resulted in legislative experiments testing the new approach. 

Professor Balkin discussed another aspect of the Court's paternalistic approach, namely its confidence in posing as a medical expert in terms of what information pregnant women should know.  He pointed out that this has worrisome implications for legal challenges to the new generation of so-called "informed consent laws," including Planned Parenthood v. Rounds, now pending in the 8th Circuit.  It could encourage legislatures to pass laws requiring women to view ultrasounds of their fetuses and to receive a wide range of emotionally charged, misleading information unrelated to the medical aspects of abortion.

The speakers also addressed inconsistencies between aspects of this opinion and other decisions authored by Kennedy.  Professor Dorf noted, for example, that Kennedy is not known for giving deference to Congress, and while he formally purported not to defer to Congress, he nevertheless did so informally.  Professor Harris noted that, in Lawrence v. Texas, Kennedy declared that mere abhorrence was insufficient to justify criminal prohibition, and yet Carhart II seems based on nothing more than abhorrence. 

The panel also considered the constitutional principles invoked in the decision.  Professor Yoshino remarked on the related nature of liberty and equality, noting that while the principle of equality often operates to expand liberty, it can also be employed to contract it.  That is what happened in Carhart II, where the principle of equality (viewed as protection of a targeted group) was turned against women. The opinion was cast as protective of women, but in fact stifles their liberty.

"The Abortion Controversies"

FORA.tv is an online network offering video discourse, discussion and debate on politics, technology, business and culture. Today the network is featuring The Abortion Controversies, a panel presented by the Wolfson Center for National Affairs at The New School in New York on October 23, 2007.  The panel focused on the Supreme Court's recent decision in Gonzalez v. Carhart.  I was one of the panelists, along with Nancy Keenan, President of NARAL Pro-Choice America, and Daniel MacGuire, Professor of Moral Theological Ethics at Marquette University and author of Sacred Choices.  You can join in a forum discussion about the panel at the FORA.tv website.

Democrats: The Code Word for Abortion Is "Privacy"

In tonight's Democratic debate in Las Vegas, when the candidates were asked what kind of Justices they would nominate for the Supreme Court, all seemed to avoid addressing the issue of abortion directly and instead couched their answers in terms of "privacy" and Roe v. Wade as "settled precedent."

Unlike some scholars who think equality is (re)emerging as a sounder foundation on which to base the right to abortion, the Democratic presidential candidates certainly don't appear ready to stray from Roe's doctrinal underpinnings.  (See, e.g., Cass Sunstein on Gonzales v. Carhart; Reva Siegel:  "Sex Equality Arguments for Reproductive Rights: Their Critical  Basis and Evolving Constitutional Expression".)

For a summary of the candidates' statements on abortion, see Live-blogging tonight's Democratic debate in Las Vegas (USA Today).

If Roe Falls, States Ready to Curb or Ban Abortion

full size map

By Juliette Terzieff, WeNews correspondent:

The Center for Reproductive Rights studied what would happen if Roe v. Wade fell and protection for abortion was left up to the states. In a report issued Thursday, the group finds a majority of states would ban the procedure.

(WOMENSENEWS)--Women in a majority of U.S. states risk losing the right to obtain an abortion due to changes on the Supreme Court bench and the proliferation of abortion bans--some enacted, some in waiting--the Center for Reproductive Rights said yesterday in its "What If Roe Fell?" report.

A reversal of Roe v. Wade--the 1973 Supreme Court decision that decriminalized abortion--would mean that abortion law falls to the states, where anti-choice activists are pursuing a steady, two-front attack against abortion rights.

On one front, activists are pushing contentious legislation challenging Roe that is designed to be fought up to the Supreme Court. In the last three years, 27 such abortion bans have been introduced in 14 states, including Colorado, Georgia, Missouri and West Virginia.

Edward Hartnett on Catholic Judges

Edward Harnett (Seton Hall Law School) has posted Catholic Judges and Cooperation in Sin on SSRN.  Here is the abstract:

For the first time in its history, the Supreme Court of the United States has a majority of Catholics. Yet there are a host of areas where Catholic teaching and American law are at variance. Some worry that Catholic judges will not be faithful to the law, while others worry that Catholic judges will not be faithful to the Church's teaching. Catholic Judges should be concerned with their faithfulness both to the law and to their informed consciences.

This paper explores the basic tool that Catholic moral theology offers to handle situations where a judge's moral views and legal interpretation conflict - the doctrine of cooperation - and applies that tool in several particular circumstances. It also discusses what a judge should do if confronted with a case in which the law require morally impermissible cooperation in sin. It makes suggestions aimed at (1) those who worry that Catholic judges will not be faithful to the law; (2) those who worry that Catholic judges will not be faithful to the Church; and (3) Catholic judges themselves.

Catherine Roraback, Lawyer in Griswold v. Connecticut, Dies at 87

Via the New York Times:

Catherine Roraback, a lawyer who pressed the Connecticut case that eventually led the United States Supreme Court to rule that laws banning the use of contraceptives were unconstitutional, a precursor to its Roe v. Wade decision on abortions, died on Wednesday in Salisbury, Conn. She was 87.

Her death was confirmed by a cousin, Andrew Roraback.

Ms. Roraback was the lead lawyer in several other controversial cases in her 50-year career, including the 1971 trial of the Black Panther leader Bobby Seale in the killing of another party member.

In the early 1960s, Ms. Roraback represented Estelle Griswold, then the executive director of Planned Parenthood in Connecticut, and Dr. Charles Buxton, the chief of obstetrics and gynecology at Yale University’s School of Medicine, as their case rose through the state courts.

In 1965 in Griswold v. Connecticut, the Supreme Court ruled that the constitutional right to privacy encompasses the right of married couples to use contraception.  In 1972, this right was extended to unmarried persons in Eisenstadt v. Baird.  One year later, the Court decided Roe v. Wade. 

Read more about Catherine Roraback at the Connecticut Women's Hall of Fame website.

NYT: Supreme Court Turns Down Cases On Religious Separation

Via New York Times (10/2/07):

One contentious topic missing from the Supreme Court's docket as the new term opened on Monday was religion. The justices evidently plan to keep it that way, at least for now.

Among the hundreds of appeals the court turned down on Monday ... were two cases on the relationship between church and state that might have brought even more visibility to the term.

One was a case from New York on whether church-affiliated employers who object to birth control on religious grounds must nonetheless provide contraceptive coverage to their female employees as part of their medical insurance coverage, as required by laws in New York and some two dozen other states....

Both cases potentially tested lines that the Supreme Court has drawn to separate those accommodations of religion that governments are required to make from those that are not required or, perhaps, are even forbidden.

The birth control case was brought by Catholic Charities in Albany and eight other New York-based Catholic and Baptist organizations. All the organizations, as part of their religious mission, operate educational and social service programs, like schools and nursing homes, that serve the general public.

U.S. Supreme Court Denies Review of NY Law Requiring Insurers to Cover Contraceptives

Via American Civil Liberties Union press release:

WASHINGTON - The U.S. Supreme Court today turned down a request by Catholic Charities of New York to review a state court decision requiring insurance companies to include contraceptive coverage in drug benefit packages. The Court's refusal to hear the case leaves in place a law that promotes women's health and addresses gender discrimination while appropriately protecting religious freedom....

The law at issue, the Women's Health and Wellness Act, requires insurance companies to cover women's preventive health care, including mandating that insurance plans that cover prescription drugs do not exclude contraceptives from that coverage. The law exempts religious employers such as churches, mosques, and temples, whose main purpose is to promote a particular religious faith and who primarily employ and serve people who share their religious beliefs.

Jeffrey Rosen on Justice Stevens

In Sunday's New York Times, Jeffrey Rosen writes, in The Unlikely Liberal:

The last Supreme Court term, which ended in June, was the stormiest in recent memory, with more 5-to-4 decisions split along ideological lines than at any time in the court’s history. In a series of controversial cases about abortion, racial integration in schools, faith-based programs and the death penalty, the court’s four more conservative justices prevailed, with Justice Anthony M. Kennedy providing the crucial fifth vote. The four more liberal justices were often moved to dissent in unusually personal and vehement terms. “It is my firm conviction,” Justice John Paul Stevens wrote in the case striking down race-based enrollment policies in public schools, “that no Member of the Court that I joined in 1975 would have agreed with today’s decision.” According to the gossip among Supreme Court law clerks, the level of tension among the justices is higher than at any point since Bush v. Gore in 2000.

Not long after beginning his tenure as chief justice in 2005, John G. Roberts Jr. announced publicly that he would try to promote unanimity and collegiality on the court. During his first months on the job, the court managed to achieve his goal, issuing a series of 9-to-0 opinions. But this past term, the court’s first full one with Justice Samuel A. Alito Jr., the brief period of harmony abruptly ended: the percentage of 5-to-4 decisions in which the four liberals were together in dissent rose to 80 percent, up from 55 percent in the 2004 term. For the foreseeable future, the court seems likely to be polarized, with the conservative bloc ascendant and the liberal bloc embattled.

Justice Stevens, the oldest and arguably most liberal justice, now finds himself the leader of the opposition.

New Focus on the Effects of Life Tenure

Linda Greenhouse of the New York Times writes:

WASHINGTON, Sept. 9 — ...Chief Justice William H. Rehnquist died over Labor Day weekend in 2005, 10 months after receiving a diagnosis of an invariably fatal form of thyroid cancer. During most of that time, he had been widely expected to announce a decision to retire, but he kept even most colleagues in the dark about his condition and plans until declaring six weeks before his death that he intended to stay on.

Whether he displayed brave optimism or “a degree of egoistic narcissism,” as Prof. Sanford Levinson of the University of Texas Law School asserted in a recent book, is open to debate. With the protection of life tenure, the decision to play through was, in any event, completely the chief justice’s own.

But it is beyond debate that interest in re-examining the wisdom of the Constitution’s grant of life tenure to Supreme Court justices, a lively topic at the time of Chief Justice Rehnquist’s illness and death, has continued to grow.

Physicians' Response to Partial Birth Abortion Ban Act

Via Boston Globe (8/10/07):

In response to the Supreme Court decision upholding the Partial-Birth Abortion Ban Act, many abortion providers in Boston and around the country have adopted a defensive tactic. To avoid any chance of partially delivering a live fetus, they are injecting fetuses with lethal drugs before procedures.

That clinical shift in late-term abortions goes deeply against the grain, some doctors say: It poses a slight risk to the woman and offers her no medical benefit.

"We do not believe that our patients should take a risk for which the only clear benefit is a legal one to the physician," Dr. Philip D. Darney, chief of obstetrics at San Francisco General Hospital, wrote in e-mail. He has chosen not to use the injections.

But others, although they do not perform the banned procedure, feel compelled to do all they can to protect themselves and their staff from the possibility of being accused. Upheld in April, the federal ban is broadly written, does not specify an age for the fetus, and carries a two-year prison sentence.

In Boston, three major Harvard-affiliated hospitals -- Massachusetts General, Brigham and Women's, and Beth Israel Deaconess -- have responded to the ban by making the injections the new standard operating procedure for abortions beginning at around 20 weeks' gestation, said Dr. Michael F. Greene, director of obstetrics at Mass. General.

Giuliani: Abortion Not a Test for Judges

The Associated Press reports today:

Republican presidential candidate Rudy Giuliani, a proponent of abortion rights, said Wednesday he would not use a judicial nominee's stand on the issue or the landmark Supreme Court decision as a litmus test.

On a campaign swing through conservative western Iowa, the former New York mayor pledged to appoint judges who would strictly interpret the Constitution on gun rights and other issues. Abortion never came up in his address to about 100 people at a high school, but it did during an exchange with reporters.

"Abortion is not a litmus test. Roe v. Wade is not a litmus test. No particular case is a litmus test. That's not the way to appoint Supreme Court justices or any judge," Giuliani said.

Although Giuliani has declared that he will not seek to make abortion illegal if he becomes President, his public statements on the issue have not been exactly straightforward.  He has stated that he would not actively attempt to preserve existing abortion law, but would instead leave that to the Court.  The inconsistency between Giuliani's position on abortion and his intent to appoint strict constructionists to the Supreme Court was pointed out earlier this year by the New York Times.

Dahlia Lithwick: "Bad Heir Day: How Sandra Day O'Connor became the least powerful jurist in America"

On Monday, Dahlia Lithwick wrote in Slate:

During the final weeks of the Supreme Court term, it was hard not to be struck by one recurring theme: Former Justice Sandra Day O'Connor—a few short years ago the "most powerful woman in America," a "majority of one," the "most powerful person on the court," and the most "powerful Supreme Court Justice in recent history"—had somehow become the most disregarded. With the court's newly dominant conservative wing focused pretty much on whether to ignore or overrule her outright, it's clear that one real casualty of the new Roberts Court is O'Connor's lifetime of work on an extraordinary range of constitutional issues....

So far, the court has explicitly minimized—or, more frequently, stepped distastefully over—O'Connor's theoretical framework for abortion, campaign finance, and affirmative action. That's to name just a few....

Linda Greenhouse: "On the Wrong Side of 5 to 4, Liberals Talk Tactics"

Linda Greenhouse wrote in Sunday's New York Times:

IN the old Shel Silverstein cartoon, two inmates stand side by side, spread-eagled and shackled hand and foot to the wall of a windowless and impossibly tall prison cell. One turns his head and says to the other, hopefully: “Now here’s my plan.”

Liberals talking about the Supreme Court in recent days are a bit like those cellmates — both in the dire nature of their plight, now that the conservative victory at the court has revealed itself in full dimension, and in their belief that there must be something they can do about it....

In mid-June, before the final flood of decisions but after the court voted 5 to 4 to uphold the federal Partial-Birth Abortion Ban Act, the American Civil Liberties Union Foundation mailed an appeal in envelopes with a line from Justice Ruth Bader Ginsburg’s dissenting opinion in that case, her complaint about the majority’s resurrection of “ancient notions about women’s place.”

Such efforts may help raise money and win elections, but the chance that they will actually change the court, in the near or medium term, is remote.... Confronting that reality, some liberal legal scholars suggest that beyond political tactics, what the left urgently needs is a long-term strategy built around an affirmative message of what the Constitution means and what the enterprise of constitutional interpretation should be about.

Robin Toner on The 2008 Election and the Supreme Court

Robin Toner wrote in yesterday's New York Times:

President Bush’s promise to change the makeup of the Suprem