Tuesday, October 19, 2021
The federal government yesterday asked the Supreme Court to reinstate a lower court injunction against Texas's S.B. 8, the state law that effectively shut down nearly all abortions in the state. The move came after the Fifth Circuit stayed the district court's injunction pending appeal.
This'll be the second trip that S.B. 8 makes to the high court. Recall that the Court in an earlier pre-enforcement lawsuit allowed S.B. 8 to go into effect. The Court ruled that the plaintiffs in that earlier case sued the wrong defendants, state judicial officers and private individuals who said that they'd enforce S.B. 8.
The federal government's suit is tailored to navigate that procedural problem in the earlier case and put the issue of S.B. 8's constitutionality squarely before the Court.
In order to do this, the federal government sued Texas itself (not its officers or judges, and no private individuals). The government argues that it can do this in order "to vindicate two distinct sovereign interests":
First, to the extent S.B. 8 interferes with the federal government's own activities, it is preempted and violates the doctrine of intergovernmental immunity. Second, S.B. 8 is an affront to the United States' sovereign interests in maintaining the supremacy of federal law and ensuring that the traditional mechanisms of judicial review endorsed by Congress and this Court remain available to challenge unconstitutional state laws. The United States has authority to seek equitable relief to vindicate both interests.
(That first interest goes to government obligations to assist certain individuals, like those incarcerated in federal prison, in getting an abortion. If the government honors that obligation for incarcerated women in Texas, it can be subject to civil suit under S.B. 8 in Texas courts. According to the government, this means that S.B. 8 is preempted by those federal obligations, and that S.B. 8, in allowing suits against the United States, violates the government's immunity.)
As a result, the government argues that its suit avoids the wrong-defendant problem in the earlier suit. After all, Texas itself created the mechanism that outsourced enforcement of S.B. 8 to private parties, and so Texas itself must be accountable in court.
The government asked the Court to vacate the Fifth Circuit's stay, or to grant cert. before judgment and set the case for argument this Term.
Thursday, September 2, 2021
The Supreme Court allowed Texas's SB8, the highly unusual and severely restrictive anti-abortion law that is specifically designed to evade judicial scrutiny, to go into effect. The Court issued a ruling last night that explained its decision. The text of SB8 is here.
The Court's ruling specifically says that it's not a decision on the constitutionality of Texas's law. Instead, the majority writes that there are too many questions about the technical aspects of the case (given the highly unusual way the law works), and suggests that it's the wrong case, at the wrong time, against the wrong parties.
But as a practical matter the ruling halts abortions in the state where a physician detects a fetal heartbeat (that is, about 85 percent of all abortions) unless and until a plaintiff can bring a successful challenge. And it all but foretells the demise of Roe v. Wade. (Even if the Court doesn't ultimately overturn Roe, this case gives states a roadmap for enacting legislation that eviscerates it.)
All this without full briefing and argument, on the "shadow docket."
The case, Whole Women's Health v. Jackson, tests the constitutionality of Texas's SB8. SB8 requires abortion providers to test for a fetal heartbeat before performing an abortion, and prohibits persons from performing an abortion when they detect a fetal heartbeat. It also prohibits "aiding and abetting" (including funding, even through insurance) of a post-fetal-heartbeat abortion. (Fetal heartbeat usually occurs around six weeks. That's well before the point of viability, and even before many women know they're pregnant. All that's to say that the restriction plainly violates Roe and Casey (and every other post-Roe ruling of the Court that prohibits a state from banning abortion pre-viability).)
But there's a twist. SB8 specifically prohibits state officers from enforcing the law. Instead, it authorizing private individuals to file private suits in state court against any person who provides an abortion in violation of the law. Upon a successful suit, the law requires state courts to enjoin a defendant from providing future abortions in violation of the law, and authorizes at least $10,000 in damages against a person who provides an abortion in violation of the law . . . for each abortion.
The law forbids state courts from awarding costs and attorney fees to successful defendants (which means that they must bear their own costs, even against frivolous and unsuccessful claims). It also says that a defendant cannot defend an action unless the Supreme Court rules that a defendant has third-party standing to assert the right to abortion on behalf of its patients (which it currently has, but that could change), upon a showing that the law imposes an undue burden on the right to abortion (the Casey standard that exists now, but also could (and is likely to) change).
All this means that private individuals, not the state, enforce the law. And at a very high cost. So high, in fact, that abortion providers have stopped providing post-heartbeat abortions, merely out of fear of incurring the costs of defending private lawsuits, even if those end up overturned.
It also means that the law is tricky to test, except as a defense to a private lawsuit (which, again, comes at a prohibitively high cost to abortion providers), and even then not at all a sure thing.
That's all by design. The Texas legislature specifically designed SB8 to effectively halt post-heartbeat abortions in the state and to evade federal judicial review.
And yesterday's opinion shows that it worked. Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett wrote that there were too many questions about the federal court's ability to hear the case by an abortion provider against a private citizen and a state judge who might enforce the law through a private lawsuit. The Court said that it's not clear that the judge will enforce the law in a way "that might permit our intervention," that the Court can issue an injunction against a state judge to halt enforcement of the law, and that the private-citizen defendant will seek to enforce the law by filing a civil action against the plaintiff. The Court's answer: let the law go into effect until a plaintiff can successfully challenge it. (Again, it's not at all clear that a plaintiff could ever challenge it, given the highly unusual way the law works.)
Chief Justice Roberts and Justices Breyer, Sotomayor, and Kagan each dissented, and joined each other, except that Chief Justice Roberts didn't join the dissents of the other three. Chief Justice Roberts "would grant preliminary relief to preserve the status quo ante." Justice Breyer argued that "[t]he very bringing into effect of Texas's law may well threaten the applicants with imminent and serious harm" sufficient to allow the Court to grant relief. Justice Sotomayor argued that the Court "silently acquiesced in a State's enactment of a law that flouts nearly 50 years of federal precedent." "Because the Court's failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent." Justice Kagan argued that the Court improperly took this extraordinary step without full briefing and argument, on the shadow docket.
Thursday, August 19, 2021
The full Fifth Circuit upheld Texas's ban on a common second-trimester, previability abortion procedure, ruling that the law didn't create an undue burden on a woman's right to abortion. The law and ruling limit the way doctors can perform a "dilation and evacuation" abortion in Texas: they cannot use forceps to separate, terminate, and remove the fetus (what the state calls a "live dismemberment" procedure); instead they can only use a suction technique to remove a fetus, or cause "fetal death" (through digoxin injections) prior to removing the fetus with forceps.
The ruling also deepens a circuit split over the Court's controlling opinion--and the operative test for abortion restrictions--in June Medical.
The case, Whole Woman's Health v. Paxton, tests Texas's restriction on the common D&E procedure for second-semester, previability abortions. Doctors who perform these abortion use one of three principal methods: (1) they use a suction method alone to terminate, separate, and remove a fetus; (2) they use suction and forceps together to terminate, separate, and remove a fetus; or (3) they use "fetal-death" techniques (like digoxin injections) to terminate the fetus before removing it with forceps. The Texas law bans the use of the second technique, except in cases of a "medical emergency."
The court ruled--contrary to the district court--that the law wasn't facially unconstitutional. In short, it held that the ban didn't create an undue burden on a woman's right to abortion, because the law allowed doctors to perform abortions using the suction method alone, or by causing "fetal death" prior to fetal evacuation.
Along the way, the court held that Chief Justice Roberts's opinion in June Medical was the Court's controlling opinion (under the Marks) rule, and so it didn't have to balance the burdens of the law against the state's asserted benefits of the law; instead, it examined only whether the law created an undue burden. (The balancing test used by the plurality in June Medical tends to work in favor of a woman's right to abortion, especially where, as here and in June Medical, the state asserts only weak (or no) benefits from the restriction. Chief Justice Roberts's approach tends to work against a woman's right to abortion in those situations, because it ignores the state's relatively weak benefits, or its lack of benefits altogether.) The court's ruling on this score aligns it with the Eighth and Sixth Circuits, but puts it at odds with the Seventh and Eleventh Circuits.
Five judges dissented. Three of the dissenters argued that the case was controlled by Stenberg v. Carhart (2000), where the Court overturned a state restriction that operated just like Texas's law. Moreover, these three said that the suction method and the "fetal-death" method both created undue burdens on a woman's right to abortion, because both procedures created additional risks, and that those risks outweighed the state's asserted benefits of the law. (The dissenters applied the balancing test (not Chief Justice Roberts's approach) from June Medical.)
Two other dissenters argued that the court should've simply remanded the case after clarifying that Chief Justice Roberts's approach would control, and clarifying the court's views on the Supreme Court's abortion jurisprudence more generally.
Tuesday, May 18, 2021
The Supreme Court agreed to hear a case challenging Mississippi's ban on abortions after 15 weeks of pregnancy, except in cases of medical emergencies or severe fetal abnormality. The case, Dobbs v. Jackson Women's Health Organization, threatens the fundamental right to an abortion under Roe and Casey.
That's because with the addition of Justice Barrett (replacing Justice Ginsburg), there are now six solid votes against the fundamental right to an abortion. This counts Chief Justice Roberts, who only begrudgingly voted to overturn state restrictions on abortion last Term in June Medical. Chief Justice Roberts joined the four progressives in that case, but wrote separately to base his vote on stare decisis, and the Court's 2016 decision in Hellerstedt, a case with virtually identical facts. There's no guarantee that he'd vote to uphold or defer to Roe and Casey in the same way. Even if he did, though, there'd still be five likely votes to overturn Roe.
Still, the case gives the Court some room to sharply curtail the right to abortion without necessarily overturning Roe.
Wednesday, April 14, 2021
The full Sixth Circuit rejected a facial challenge to Ohio's law that bans doctors from performing an abortion with the knowledge that the woman's reason for abortion is that the fetus has Down syndrome. The ruling means that the law stays on the books, but may be subject to as-applied challenges when it goes into effect.
The case, Preterm-Cleveland v. McCloud, tested Ohio's law that prohibits doctors from performing abortions when the doctor knows that the woman seeks an abortion because the fetus has Down syndrome. The court said that the law "advances the State's legitimate interests" in
protecting: (1) the Down syndrome community from the stigma associated with the practice of Down-syndrome-selective abortions, (2) pregnant women and their families from coercion by doctors who advocate abortion of Down-syndrome-afflicated fetuses, and (3) the integrity and ethics of the medical profession by preventing doctors from becoming witting participants in Down-syndrome-selective abortions.
The court also said that the law doesn't have "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion." Here, the court emphasized that the law only prohibits a doctor from performing an abortion when the doctors knows that the woman seeks an abortion because the fetus has Down syndrome. The court asked, and answered:
Would any woman who is otherwise set on having an abortion choose not to have that abortion (and instead have the baby) solely because she could not have the abortion performed by the specific doctor to whom she desires to reveal (or has revealed) that her reason for the abortion is that she does not want a child with Down syndrome? Taking the next step, would a significant number of such women do so? We think the answer to both questions is clearly no, but more importantly, the plaintiffs have certainly made no such showing.
As to any accidental reveal, the court said that a woman would only have to go to a different doctor--one who didn't know of her purpose.
The court also declined to halt the law based on its lack of exception for the life or health of the woman. It said that the plaintiffs had to raise this claim in an as-applied challenge, not a facial one.
Wednesday, March 17, 2021
The Seventh Circuit ruled last week that Indiana's amended judicial bypass procedure violated the right to an abortion for minors. The court earlier ruled on the case (and struck the same amended bypass procedure), but the Supreme Court vacated that judgment and remanded the case in light of the Court's ruling last summer in June Medical. Last week, the Seventh Circuit came to the same result.
The case, Planned Parenthood v. Box, challenged Indiana's judicial bypass procedure. As amended, that procedure required a court to notify a minor's parents when the minor sought an abortion through judicial bypass of the state's parental-consent requirement, unless the judge finds that parental notification is not in the minor's best interest.
The district court originally ruled that the procedure created an undue burden on a minor's right to an abortion. The Seventh Circuit affirmed. The appeals court applied the balancing test from Whole Women's Health, the 2016 Supreme Court case that struck Texas's admitting-privileges requirement. (Under the requirement, abortion doctors had to have admitting privileges at a hospital within 30 miles of the place where they performed abortions.) The Court in Whole Women's Health assessed whether the admitting-privileges requirement created an undue burden by balancing the burdens of the requirement on a woman's right to an abortion against the putative benefits of the requirement. It held that the requirement created substantial burdens, but no benefits. The Seventh Circuit similarly ruled that Indiana's judicial bypass procedure created substantial burdens, but no benefits. (The plaintiffs demonstrated that the procedure would create burdens on access, while the state failed to produce any evidence of benefits of the law.)
Then, last summer, the Supreme Court ruled in June Medical that Louisiana's admitting-privilege requirement (the same as Texas's requirement, struck in Whole Women's Health) also created an undue burden on a woman's right to an abortion. But the Court in June Medical split differently than in Whole Women's Health, because Justice Kavanaugh had replaced Justice Kennedy. (Justice Kennedy sided with the majority in Whole Women's Health, but Justice Kavanaugh sided with the dissent in June Medical.) In particular, Justice Breyer wrote for a four-justice plurality (including Justices Ginsburg, Sotomayor, and Kagan) that Louisiana's law was unconstitutional for two reasons: stare decisis (because Louisiana's law was the same as Texas's law, struck in Whole Women's Health); and because the burdens of Louisiana's law outweighed the benefits, thus creating an undue burden under the Whole Women's Health balancing approach. Chief Justice Roberts concurred in the judgment based on stare decisis alone. But he also disagreed with the balancing approach. Justices Thomas, Alito, Gorsuch, and Kavanaugh wrote their own separate dissents.
The Court vacated the earlier Seventh Circuit ruling and remanded it for considering in light of June Medical. So the Seventh Circuit had to figure out whether June Medical changed the balancing test from Whole Women's Health that the Seventh Circuit had previously relied upon to strike Indiana's bypass procedure.
The Seventh Circuit last week ruled that June Medical did not change the balancing test. Under the Marks rule (which sorts out which opinion states the holding of the Court when, as in June Medical, there's no majority opinion), the court looked to Chief Justice Roberts's concurrence in June Medical as the "position taken by those Members who concurred in the judgment on the narrowest grounds." The Seventh Circuit held that Chief Justice Roberts's stare decisis rationale aligned with Justice Breyer's stare decisis rationale as the holding of the Court, and that the Court didn't otherwise alter or overrule the balancing approach in Whole Women's Health. (The court rejected the state's argument that Chief Justice Roberts's second rationale (that the balancing approach was wrong) aligned with the four dissenters' positions (also that the balancing approach was wrong) to create a majority that the balancing approach was wrong. The court explained that Chief Justice Roberts's second rationale (that the balancing approach was wrong) was dicta, and that under Marks the June Medical dissents (which also took issue with the balancing approach) don't count.)
The court said that because the balancing approach under Whole Women's Health was still the law, Indiana's bypass procedure still violated it.
Judge Kane dissented, arguing that under Marks Chief Justice Roberts's opinion in June Medical aligned with the plurality on a "substantial obstacle" test (without balancing, and not merely on stare decisis), and that Indiana's bypass procedure did not violate that "substantial obstacle" test.
Monday, June 29, 2020
In its highly anticipated opinion in June Medical Services v. Russo (formerly Gee), the United States Supreme Court reversed the Fifth Circuit's controversial decision upholding Louisiana's abortion restrictions despite their similarity to the ones held unconstitutional in the Court's most recent abortion case, Whole Woman's Health v. Hellerstedt (2016).
Justice Breyer, who also wrote the Court's opinion in Whole Woman's Health, wrote the plurality opinion in June Medical, joined by Ginsburg, Sotomayor and Kagan (None of the women Justices wrote separately, meaning that the abortion opinions in today's case are all by men).
Breyer's plurality opinion concluded that there is standing; recall that the United States argued that the physicians should not have standing to raise the constitutional rights of their patients despite this long standing practice. Breyer's plurality opinion carefully rehearses the findings of fact by the district court (which applied Whole Women's Health) and ultimately concluded that the "evidence on which the District Court relied in this case is even stronger and more detailed" than in Whole Woman's Health. The Fifth Circuit, Breyer's plurality opinion concluded, misapplied the correct standard of review of these findings: the appellate court should have applied the deferential clear-error standard.
Chief Justice Roberts, who dissented in Whole Woman's Health, concurred in June Medical on the basis of stare decisis:
I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case . . . .
The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.
The Chief Justice's sixteen page concurring opinion, necessary to constitute the majority reversing the Fifth Circuit and upholding Whole Woman's Health is bound to be highly analyzed.
The dissenting opinions are somewhat fragmented. Thomas's dissenting opinion and Alito's dissenting opinion, joined by Gorsuch, and in part by Thomas and Kavanaugh, tracks ground familiar from Whole Woman's Health, with additional discussions of stare decisis. Gorsuch, who was not on the Court when Whole Woman's Health was decided in 2016, penned an opinion accusing the Court of having "lost" its way in a "highly politicized and contentious arena" by not paying due deference to the state legislature. Kavanaugh, who replaced Kennedy who had joined the majority in Whole Woman's Health, not only joined portions of Alito's dissent but wrote separately to stress his agreement with the portions of Alito's opinion that the case should be remanded, and in a footnote also stated that "the District Court on remand should also address the State’s new argument (raised for the first time in this Court) that these doctors and clinics lack third-party standing."
Wednesday, March 4, 2020
Will this be the case in which the Supreme Court decides to overrule the almost half-century precedent of Roe v. Wade (1973)?
The Court heard oral arguments in June Medical Services v. Russo (formerly Gee), but Roe v. Wade was not mentioned. Planned Parenthood of SE Pennsylvania v. Casey (1992) was mentioned only once, but Justice Breyer in the context of standing of physicians. But the Court's most recent abortion case, Whole Woman's Health v. Hellerstedt (2016), which is factually difficult to distinguish from the June Medical, was often center-stage.
Julie Rikelman, arguing for June Medical, began by stating that the Louisiana statute at issue in the case is "identical" to the one the Court upheld in Whole Woman's Health four years prior. Yet her first sentence — "This case is about respect for the Court's precedent" — implicitly reached back further. Further, the precedent involved was not only on the merits, but also on the issue of third-party standing, which here is the ability of physicians to raise the constitutional rights of their patients. Such third party standing was accorded physicians in pre-Roe cases such as Griswold v. Connecticut (1965), involving contraception. It was also accorded the bar owner rather than the minor male (who had since turned 21), in Craig v. Boren (1976), involving an Oklahoma statute restricting 3.2 beer to males, a case with which Justice Ginsburg is more than a little familiar. Rikelman argued that Louisiana had waived any objections to third party standing by not raising it in the district court, and the fact of that waiver was vigorously disputed by Justice Alito. Alito also repeatedly raised the validity of the third party standing issue in circumstances in which the physicians and the patients interests were in conflict. Rikelman, and other Justices seemingly, repeated that there was no conflict.
On the merits, the question was whether "the inquiry under [Whole Woman's Health v.] Hellerstedt is a factual one that has to proceed state-by-state?," as Chief Justice Roberts phrased it. This question goes to the heart of whether Whole Woman's Health is binding precedent. Elizabeth Murrill, Solicitor General for the state of Louisiana, argued that because the Fifth Circuit focused on the credentialing aspect of admitting privileges, it was different from Whole Woman's Health. Chief Justice Roberts essentially asked her the same question he'd earlier asked Rikelman about state-by-state differences:
CHIEF JUSTICE ROBERTS: Do you agree that the benefits inquiry under the law is going to be the same in every case, regardless of which state we're talking about? I mean, I understand the idea that the impact might be different in different places, but as far as the benefits of the law, that's going to be the same in each state, isn't it?
MURRILL: No. I don't think the benefit -- I mean, I think that a state could certainly show greater benefits, depending on what their regulatory structure is and what the facts are on the ground in that state. I think we absolutely could show that we -- that it serves a greater benefit.
In our situation, for example, we've demonstrated that the doctors don't do credentialing . . . .
Arguing for the United States, Jeffrey Wall, the Deputy Solicitor General, supported the state of Louisiana on the merits and also argued against third party standing. Justice Breyer posed the question of stare decisis:
And I think eight cases where you've given standing, I mean, we could go back and reexamine Marbury versus Madison, but really we have eight cases in the abortion area, we have several cases in other areas, and Whole Woman's Health picks that up. Casey picks that up. And you really want us to go back and reexamine this, let's go back and reexamine Marbury versus Madison.
And -- and you have good arguments. But why depart from what was pretty clear precedent?
Wall argued in response that in none of the previous standing cases had the Court considered whether there was a conflict between the patients and the doctors.
On rebuttal, Rikelman argued there was no such conflict now.
There are plenty of conflicts between the parties and the Justices.
Friday, June 14, 2019
D.C. Circuit Finds Federal Policy Barring Abortion for Unaccompanied Immigrant Minors Unconstitutional
In its opinion in Jane Doe v. Azar, the United States Court of Appeals for the District of Columbia Circuit affirmed the trial court's injunction against the federal government's 2017 policy banning abortion access for any unaccompanied immigrant minor in federal custody. As the per curiam opinion for the majority explained:
The claim of one minor in this case brings the policy’s breadth and operation into stark relief. She had been raped in her country of origin. After her arrival here and her placement in government custody, she learned she was pregnant as a result of the rape. She repeatedly asked to obtain a pre-viability abortion, to no avail. She remained in government custody as an unaccompanied minor because there was no suitable sponsor to whom she could be released. Nor was there any viable prospect of her returning to her country of origin: indeed, she eventually received a grant of asylum (and lawful status here) due to her well-founded fear of persecution in her country of origin. Still, the government sought to compel this minor to carry her rape-induced pregnancy to term.
She is one of the named plaintiffs who brought this challenge to the government’s policy on behalf of a class of pregnant unaccompanied minors. The district court granted a preliminary injunction in favor of the plaintiffs, and the government now appeals. We initially agree with the district court that the case is not moot, and we find no abuse of discretion in the court’s certification of a plaintiffs’ class consisting of pregnant unaccompanied minors in the government’s custody. On the merits, we sustain the district court’s preliminary injunction in principal part.
The bulk of the per curiam majority's opinion is devoted to the class action certification and mootness issues. The government contended that because the named representatives had obtained abortions, their claims were moot, and rendered them inadequate class representatives (both because of the mootness and because not all pregnant minors would choose abortions). The government further contended that other requirements for class certification were not met and that the class should be narrowed so that joinder of individual plaintiffs seeking an abortion would be possible. The majority found the district court did not abuse its discretion in certifying the class.
On the merits of the constitutional claim, the majority stated it was clear that there is a constitutional right to access abortion adjudicated under the undue burden standard and that it extends to minors, although there can be a parental consent requirement if there is a judicial bypass provision. The federal government agreed that a state could not simply ban a minor's access to abortion, but how then, the opinion asked, can the federal government defend the abortion ban policy of the ORR, the Office of Refugee Resettlement, a program in the Department of Health and Human Services, bears responsibility for the “care and placement” of unaccompanied immigrant minors (known as UACs, "Unaccompanied Alien Children")? The government offered three arguments, each of the which the majority rejected.
* "First, the government contends that permitting unaccompanied minors in its custody to access pre-viability abortions requires it to “facilitate” abortions, which the government says it is not obligated to do." The court, however, noted that the problem was not the government not wanting to remove barriers not of its own creation (such as poverty), but here the government creates the conditions itself: "an unaccompanied minor’s abortion hinges on ORR’s drafting and executing approval documents only because ORR itself has conditioned abortion access on its execution of approval documents." Further, the court ruled that what the government deems the “facilitation” that it wants to steer clear of giving to an unaccompanied minor, "is something it willingly gives to all others in federal custody."
* Second, the government asserts that unaccompanied minors may voluntarily depart the country and that the ban thus does not impose any cognizable burden. But, the court noted that"voluntary departure" is not freely available, but is at government discretion, and actually operates as a "second government veto." Moreover, even if the government were to grant a voluntary departure upon request, there is no indication of how long that process might take, and requires the minor to abandon all other requests for relief.
* Third, the government argues that, because many unaccompanied minors are released to sponsors, banning abortions while in ORR custody does not impose an undue burden. The court found that the sponsorship argument was "ultimately no more persuasive than its voluntary-departure one. Those arguments share important parallels. In both, the central idea is that an unaccompanied minor may find herself no longer in ORR custody—either because she voluntarily departs the country or because she is released to a sponsor—in which event she would be free to access an abortion without the burden of ORR’s policy."
Thus, the majority found that the ORR policy violated the Fifth Amendment right to due process and affirmed the district court's injunction against its enforcement.
The court remanded another portion of the district court's injunction, however, on the basis that the ORR policies involved were not necessarily clear. At issue were any policies that required disclosure of pregnancy or abortion access. This issue was at times conflated with the access to abortion issue, and the court remanded so that the district court could "give a more fulsome account of its findings and conclusions in that regard."
In a dissenting opinion, Senior Circuit Judge Laurence Silberman devoted most of his opinion to the class certification issue, but on the merits relied heavily on the dissenting opinion of then-judge and now-Justice Kavanaugh in Garza v. Hargan (2017), concluding that the majority is "endorsing abortion on demand – at least as far as the federal Government is concerned." Thus, the stage is set for the federal government's petition for certiorari.
Friday, May 31, 2019
Responding to Justice Thomas's concurring opinion from a denial of certiorari in Box v. Planned Parenthood of Indiana, legal commentator Imani Gandy (pictured) writes When It Comes to Birth Control and Eugenics, Clarence Thomas Gets It All Wrong.
Specifically, Gandy takes on the history of Margaret Sanger (1879-1966), who she states is not necessarily a present-day "infallible feminist hero" and certainly had the same abelist views that the Court credited in Buck v. Bell.
But, on the subject of race, Gandy writes:
The framing of Thomas’ concurrence, however, suggests that she [Sanger] did want to reduce the Black population. This framing extends to his description of the Negro Project, which Sanger created in conjunction with some of the most prominent Black civil rights leaders of the time—Franklin Frazier, Walter White, Rev. Adam Clayton Powell, Mary McLeod Bethune, and W.E.B DuBois—in order to bring birth control to the South. Thomas writes as if her mere advocacy for birth control was in and of itself racial eugenics. And he virtually ignores that Black women in the South wanted birth control and had taken their reproduction into their own hands since the days of enslavement, when women would self-induce abortions or even kill their newborns in order to save them from a life of slavery.
Gandy's commentary also provides an interesting critique of Thomas's use of a Sanger quotation by providing larger context. Gandy writes: "What Thomas leaves out is the very next sentence that Sanger wrote . . ." and thus invites the reader to think more deeply about the history of birth control.
Predictably, Thomas's concurring opinion is provoking other commentaries, but Gandy's piece is among the most insightful.
Wednesday, May 29, 2019
In its brief opinion in Box v. Planned Parenthood of Indiana, the United States Supreme Court reversed the Seventh Circuit's conclusion that Indiana's "fetal remains" statute was unconstitutional and denied certiorari to the question of the whether the Seventh Circuit correctly found unconstitutional the limitation on abortion based on sex, race, or disability.
On the "fetal remains" issue, the Court's opinion stated that the Seventh Circuit's conclusion that a rational basis test was satisfied was incorrect. The Court stressed:
in challenging this provision, respondents have never argued that Indiana’s law imposes an undue burden on a woman’s right to obtain an abortion. This case, as litigated, therefore does not implicate our cases applying the undue burden test to abortion regulations.
Justice Ginsburg, in a brief opinion, dissented on this issue, stating that the judgment should not be summarily reversed when "application of the proper standard would likely yield restoration of the judgment." Thus, it can be expected that the statute will be quickly challenged on this basis.
On the denial of certiorari to the second issue, Justice Thomas's concurring opinion is notable. Thomas concludes that the Court's decision to allow the issue to "percolate" should not be mistaken for acceptance:
Enshrining a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement. In other contexts, the Court has been zealous in vindicating the rights of people even potentially subjected to race, sex, and disability discrimination.
Thomas devotes most of his 20 page concurring opinion to discussing eugenics, singling out for analysis not only the Supreme Court's 1927 opinion in Buck v. Bell but also birth control advocate Margaret Sanger. Thomas's concurrence focuses on abortion but certainly implicates birth control more broadly, and is sure to provoke commentary.
Friday, May 24, 2019
In an opinion in Jackson Women's Health Organization v. Dobbs, Judge Carlton Reeves has issued a preliminary injunction against the enforcement of Mississippi Senate Bill 2116 which "bans abortions in Mississippi after a fetal heartbeat is detected, which is as early as 6 weeks lmp."
The opinion is only 8 pages and begins "Here we go again."
The parties had been before the court before and Judge Reeves previously enjoined a Mississippi law banning abortions at 15 weeks lmp. Judge Reeves in this opinion noted that the "State responded by passing an even more restrictive bill, S.B. 2116." Judge Reeves continued:
This Court previously found the 15-week ban to be an unconstitutional violation of substantive due process because the Supreme Court has repeatedly held that women have the right to choose an abortion prior to viability, and a fetus is not viable at 15 weeks lmp. If a fetus is not viable at 15 weeks lmp, it is not viable at 6 weeks lmp. The State conceded this point. The State also conceded at oral argument that this Court must follow Supreme Court precedent. Under Supreme Court precedent, plaintiffs are substantially likely to succeed on the merits of this claim.
[footnotes omitted]. Judge Reeves cited Whole Woman's Health v. Hellerstedt (201), the Supreme Court's most recent ruling on abortion.
Monday, May 6, 2019
Here's the Trump Administration's new rule, rolled out in its final version last week, providing religious "conscience protections" for health-care providers who, because of their religious beliefs, decline to provide abortion-related services and training, sterilization, and assisted-suicide related services, among others. The rule provides that health-care institutions could lose federal funding if they fail to enforce the protections.
While the precise impact is now unknowable, the rule will likely affect access to these services and health-care access for the LBGTQ community.
Friday, April 26, 2019
In its extensive opinion in Hodes & Nauser v. Schmidt, the Supreme Court of Kansas held that the right to abortion in protected under its state constitution and regulations of the fundamental right should be subject to strict scrutiny.
The per curiam opinion is exceedingly clear that the opinion rests on independent state constitutional grounds and that it is interpreting §1 of the Kansas state Constitution, adopted in 1859: "All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness." The court specifically finds that this provision creates judicially enforceable "natural rights" such as the right to "personal autonomy" to make decisions regarding our bodies, health care, family formation, and family life, including a woman's right to decide whether to continue a pregnancy.
Having held that the right to an abortion is encompassed within the fundamental right bodily autonomy, the Kansas Supreme Court held that strict scrutiny should apply, which the court articulated as prohibited the state from restricting that right unless it can show it is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest.
At issue in the case is Kansas S.B. 95, passed in 2015, now K.S.A. 65-6741 through 65-6749, which prohibits physicians from performing a specific abortion method referred to in medical terms as Dilation and Evacuation (D & E) except when "necessary to preserve the life of the pregnant woman" or to prevent a "substantial and irreversible physical impairment of a major bodily function of the pregnant woman."
The trial court had issued a preliminary injunction, which the Kansas Supreme Court upheld, but remanded the case for a fuller evidentiary hearing applying strict scrutiny.
via & caption: Kansas Supreme Court
Seated left to right: Hon. Marla J. Luckert, Hon. Lawton R. Nuss, Chief Justice; Hon. Carol A. Beier.
Standing left to right: Hon. Dan Biles, Hon. Eric S. Rosen, Hon. Lee A. Johnson, and Hon. Caleb Stegall.
In a concurring opinion, Justice Dan Biles argued that the majority should be more explicit in articulating how strict scrutiny should be applied in the abortion context, suggesting what "our state test should look like using an evidence-based analytical model taken from Whole Woman's Health v. Hellerstedt" (2016). Justice Biles provided a very detailed roadmap that would be attractive to the trial court. Justice Biles also placed the decision within developments in state constitutional law on abortion:
It is also worth mentioning our court has not gone rogue today. By my count, appellate courts in 17 states have addressed whether their state constitutions independently protect a pregnant woman's decisions regarding her pregnancy from unjustifiable government interference. Of those, 13 have plainly held they do. [citations omitted].
The sole dissenting Justice of the seven Justices of the Kansas Supreme Court (pictured above) was Justice Caleb Stegall, who relied on numerous dissenting opinions in both the United States Supreme Court and Kansas Supreme Court. He began his opinion by stating "This case is not only about abortion policy—the most divisive social issue of our day—it is more elementally about the structure of our republican form of government." In essence, he considers the majority to be taking an activist stance. The majority opinion does devote more than a little attention to refuting and engaging with the dissent's arguments.
Because the case cannot be reviewed by the United States Supreme Court (given that the state's highest court decided it on the independent ground of its state constitution, unless it is argued it infringes on another constitutional right), subsequent constitutional law issues will be concentrated on what happens in the trial court and what might happen in other states.
April 26, 2019 in Abortion, Courts and Judging, Due Process (Substantive), Family, Federalism, Fourteenth Amendment, Jurisdiction of Federal Courts, Opinion Analysis, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0)
Tuesday, March 12, 2019
In its en banc opinion in Planned Parenthood of Greater Ohio v. Hodges, the Sixth Circuit reversed a permanent injunction by the district judge against Ohio Rev. Code §3701.034 which bars any state funding — including government-sponsored health and education programs that target sexually transmitted diseases, breast cancer and cervical cancer, teen pregnancy, infant mortality, and sexual violence — to any organization that performs or promotes abortion.
In less than 12 pages, Judge Jeffrey Sutton, writing for the 11 judge majority, rejected the claim that the Ohio statute was an unconstitutional condition on the due process right encompassing the right to abortion by stating that Planned Parenthood had no substantive due process right to provide abortions: "The Supreme Court has never identified a freestanding right to perform abortions." Moreover, Sutton's opinion rejected the argument that
the Ohio law will deprive Ohio women of their constitutional right of access to abortion services without undue burden, because it will lead Planned Parenthood and perhaps other abortion providers to stop providing them. Maybe; maybe not. More to the point, the conclusion is premature and unsupported by the record.
In this way, the majority distinguished the United States Supreme Court's most recent abortion case, Whole Woman's Health v. Hellerstedt (2016), albeit briefly (with one "cf." citation and one "see" citation).
In the dissenting opinion, Judge Helene White writing for 6 judges, criticizes the majority for not mentioning "much less" applying,
the test the Supreme Court has recently articulated governing the unconstitutional-conditions doctrine. That doctrine prohibits the government from conditioning the grant of funds under a government program if: (1) the challenged conditions would violate the Constitution if they were instead enacted as a direct regulation; and (2) the conditions affect protected conduct outside the scope of the government program.
citing Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (2013) [the "prostitution pledge" case].
The dissent concludes that because "(1) the funding conditions in this case would result in an undue burden on a woman’s right to obtain nontherapeutic abortions if imposed directly, and (2) the six federal programs have nothing to do with Plaintiffs’ performing abortions, advocating for abortion rights, or affiliating with organizations that engage in such activity, all on their own 'time and dime,' " the Ohio statute should be unconstitutional.
The dissenting opinion also discusses the First Amendment argument, which the district court judge had credited but which the majority discounted because to prevail Ohio need only show that one limitation satisfied the Constitution and because "the conduct component of the Ohio law does not impose an unconstitutional condition in violation of due process, we need not reach the free speech claim." For the dissent, the free speech claim was not mooted and should be successful as in Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (2013).
March 12, 2019 in Abortion, Courts and Judging, Due Process (Substantive), First Amendment, Fourteenth Amendment, Gender, Opinion Analysis, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0)
Wednesday, February 13, 2019
Check out Leah Litman's piece at Take Care on the Court's orders last week in June Medical (granting a stay of the Fifth Circuit's rejection of a challenge to Louisiana's admitting-privileges requirement for doctors who perform abortion) and Dunn v. Ray (granting a stay of the Eleventh Circuit's stay of execution for an inmate who was denied an imam to attend his execution). Litman argues that these rulings "are not really about the district court's general role as fact-finders. They are, instead, about the factual, procedural, and equitable standards that courts hold different kinds of plaintiffs to--who they indulge, and who they hold to increasingly insurmountable or prohibitively difficult standards."
Friday, November 23, 2018
In an opinion in Jackson Women's Health Organization v. Currier, United States District Judge Carlton Reeves enjoined the Mississippi law banning abortions after 15 weeks as unconstitutional.
Judge Reeves had previously entered a temporary restraining order, which this order and opinion makes permanent. Judge Reeves holds that Mississippi's H.B. 1510 is a clearly unconstitutional violation of due process under Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) which makes viability the marker before which states may not ban abortions. Judge Reeves's opinion then asks "So, why are we here?" The opinion answers its own query by explaining that "the State of Mississippi contends that every court who ruled on a case such as this “misinterpreted or misapplied prior Supreme Court abortion precedent," and argues that the bill only "regulates" abortions. Judge Reeves concluded that the State "characterization" of the law as a regulation was incorrect; the law's very title stated it was "to prohibit." Additionally, Judge Reeves concluded:
The State is wrong on the law. The Casey court confirmed that the “State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child” and it may regulate abortions in pursuit of those legitimate interests.Those regulations are constitutional only if they do not place an undue burden on a woman’s right to choose an abortion.But “this ‘undue burden’/‘substantial obstacle’ mode of analysis has no place where, as here, the state is forbidding certain women from choosing pre-viability abortions rather than specifying the conditions under which such abortions are to be allowed.”There is no legitimate state interest strong enough, prior to viability, to justify a ban on abortions.
Judge Reeves also expressed "frustration" with the Mississippi legislature passing a law it knew was unconstitutional, "aware that this type of litigation costs the taxpayers a tremendous amount of money," to "endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade." Judge Reeves chastised the Mississippi Legislature for its "disingenuous calculations," augmented with a footnote (n.40) that begins "The Mississippi Legislature has a history of disregarding the constitutional rights of its citizens," and followed by citation and parenthetical explanations of a half-dozen cases.
Judge Reeves' concluding section to the seventeen page opinion reiterates some of these concerns and adds that "With the recent changes in the membership of the Supreme Court, it may be that the State believes divine providence covered the Capitol when it passed this legislation. Time will tell." Judge Reeves specifically mentions the amicus brief of women in the legal profession regarding their abortions in Whole Woman's Health v. Hellerstedt (2016), and also adds:
The fact that men, myself included, are determining how women may choose to manage their reproductive health is a sad irony not lost on the Court. As Sarah Weddington argued to the nine men on the Supreme Court in 1971 when representing “Jane Roe,” “a pregnancy to a woman is perhaps one of the most determinative aspects of her life.”As a man, who cannot get pregnant or seek an abortion, I can only imagine the anxiety and turmoil a woman might experience when she decides whether to terminate her pregnancy through an abortion. Respecting her autonomy demands that this statute be enjoined.
Wednesday, September 5, 2018
In an extensive opinion in Whole Woman's Health v. Smith, District Judge David Alan Ezra ruled that Texas statute and regulations requiring internment (or cremation) for "embryonic and fetal tissue disposal" were unconstitutional. Judge Ezra's opinion occurred after a one-week bench trial in which the issue of cost of compliance was excluded.
Judge Ezra found that the Texas laws violated both the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
On the equal protection issue, Judge Ezra found that the Texas laws' distinction between "pre-implantation and post-implantation embryos and the facilities that handle them" was not rationally related to the legitimate government interest in "respecting potential life." Thus, even under the rational basis test, the laws did not survive.
On the due process issue, Judge Ezra applied the doctrine from the Supreme Court's decision in Whole Woman's Health v. Hellerstedt, and found that the Texas laws
place substantial obstacles in the path of women seeking pregnancy-related medical care, particularly a previability abortion, while offering minimal benefits.
By endorsing one view of the status and respect to be accorded to embryonic and fetal tissue remains, the State imposes intrusive burdens upon personal decisions concerning procreation, especially upon the right of the woman to chose to have an abortion. And most importantly, the evidence in this case overwhelmingly demonstrated that if the challenged laws were to go into effect now, they would likely cause a near catastrophic failure of the health care system designed to serve women of childbearing age within the State of Texas.
This failure, Judge Ezra makes clear, is not simply for women seeking an abortion, but for all women seeking pregnancy care for complications.
Thus the court declared the laws and implementing regulations unconstitutional and enjoined their enforcement.
Tuesday, July 10, 2018
There is obviously much to read and discuss regarding the President's nomination of D.C. Circuit Judge Brett Kavanaugh but two pieces from the Washington Post today stand out.
First, Aaron Blake considers Kavanaugh's comment, made immediately after thanking the president for the nomination, “No president has ever consulted more widely, or talked with more people from more backgrounds, to seek input about a Supreme Court nomination." Banks characterizes this statement as "thoroughly strange and quite possibly bogus." As Banks notes, it is a "completely unprovable assertion — and one that would require a basically unheard-of level of research to substantiate," although perhaps it is also "difficult, if not impossible, to disprove." It seems, Banks concludes, a "thoroughly inauspicious way to begin your application to the nation's highest court, where you will be deciding the merits of the country's most important legal and factual claims."
Second, law professor Nancy Leong in her op-ed argues essentially that men need to enter the conversation surrounding abortion in a more honest manner: "Mathematically speaking, millions of men have such [abortion] stories. The one-in-four women who have had an abortion did not get pregnant on their own." Leong references the amicus brief by women attorneys regarding abortions as an effective communication with (soon to be former) Justice Kennedy and implies that a similar brief by men is long overdue. "For decades, men have benefited from the availability of safe and legal abortion. It’s time for men to start taking threats to reproductive freedom personally."
Tuesday, June 26, 2018
In its closely divided opinion in National Institute of Family and Life Advocates (NIFLA) v. Becerra, Justice Thomas writing for the Court found California's FACT Act regulating "crisis pregnancy centers" violates the First Amendment.
Recall that the Ninth Circuit upheld the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act), which requires that licensed pregnancy-related clinics, also known as crisis pregnancy centers, or CPCs, must disseminate a notice stating the existence of publicly- funded family-planning services, including contraception and abortion, and requires that unlicensed clinics disseminate a notice stating that they are not licensed by the State of California. The California legislature had found that the approximately 200 CPCs in California employ “intentionally deceptive advertising and counseling practices [that] often confuse, misinform, and even intimidate women from making fully-informed, time-sensitive decisions about critical health care.” The California law is not unique, but as we previously discussed when certiorari was granted, other courts have consider similar provisions with mixed conclusions.
The majority's opinion found the regulations as to both the licensed and unlicensed pregnancy centers violated the First Amendment.
As to the required notice for licensed pregnancy centers, the majority found it was a content-based regulation subject to strict scrutiny under Reed v. Town of Gilbert (2015). The Court rejected the category of "professional speech," relied on by the Ninth Circuit, stating the "Court’s precedents do not recognize such a tradition for a category called “professional speech.”" However, the majority opinion recognized that the Court had "afforded less protection for professional speech in two circumstances," but stated that neither "turned on the fact that professionals were speaking." First, citing Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985), the majority discussed the more deferential review accorded to laws that require professionals to disclose factual, noncontroversial information in their “commercial speech.” However, the majority found Zauderer inapplicable because "the licensed notice is not limited to 'purely factual and uncontroversial information about the terms under which . . . services will be available." "Instead, it requires these clinics to disclose information about state-sponsored services— including abortion, anything but an “uncontroversial” topic." Second, citing Planned Parenthood of Southeastern Pa. v. Casey, the majority acknowledged that the Court had rejected a First Amendment challenge to a law requiring physicians to obtain informed consent before they could perform an abortion.The majority distinguished Casey, however stating that:
The licensed notice at issue here is not an informed- consent requirement or any other regulation of professional conduct. The notice does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed.
The majority's opinion states that regulating medical speech is especially problematical given that "Throughout history, governments have “manipulat[ed] the content of doctor-patient discourse” to increase state power and suppress minorities, quoting language regarding the Chinese Cultural Revolution and Nazi Germany.
Even if strict scrutiny did not apply, the majority stated that "the licensed notice cannot survive even intermediate scrutiny. California asserts a single interest to justify the licensed notice: providing low-income women with information about state-sponsored services. Assuming that this is a substantial state interest, the licensed notice is not sufficiently drawn to achieve it."
As to the unlicensed notice, the majority found that it did not survive even under Zauderer, because it was “unjustified or unduly burdensome.”
Even if California had presented a nonhypothetical justification for the unlicensed notice, the FACT Act unduly burdens protected speech. The unlicensed notice imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from California’s informational interest. It requires covered facilities to post California’s precise notice, no matter what the facilities say on site or in their advertisements.
In a concurring opinion, Justice Kennedy, joined by Roberts, Alito, and Gorsuch, argued that the California law was viewpoint discrimination.