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.
Thursday, April 19, 2018
In its opinion in Planned Parenthood of Greater Ohio v. Himes, a unanimous Sixth Circuit panel, affirming the district judge, found Ohio 's Revised Code § 3701.034 unconstitutional under the unconstitutional conditions doctrine. The Ohio statute prohibited all funds it receives through six non-abortion-related federal health programs, such as the Violence Against Women Act, from being used to fund any entity that performs or promotes nontherapeutic abortions, or becomes or continues to be an affiliate of any entity that performs or promotes nontherapeutic abortions. The statute was aimed at Planned Parenthood and similar organizations.
The state relied upon cases such as Maher v. Roe and Rust v. Sullivan, but the court's opinion, authored by Judge Helene White, stated:
Plaintiffs do not claim an entitlement to government funds. They acknowledge the government’s right to define the parameters of its own programs, and have complied with all program requirements. What they do claim is a right not to be penalized in the administration of government programs based on protected activity outside the programs.
Instead, Judge White wrote, the correct precedent was Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (AOSI) (2013). Recall that in the "prostitution-pledge" case, the United States Supreme Court held unconstitutional under the First Amendment a provision of a federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work. For the Sixth Circuit, AOSI "reiterated that the government may not require the surrender of constitutional rights as a condition of participating in an unrelated government program." In short,
the government cannot directly prohibit Plaintiffs from providing and advocating for abortion on their own time and dime, [ and thus ] it may not do so by excluding them from government programs for which they otherwise qualify and which have nothing to do with the government’s choice to disfavor abortion.
The Sixth Circuit found that the Ohio statute violated unconstitutional conditions based on constitutional infringements of both the Due Process Clause and the First Amendment. On the due process issue, the court found that the due process right to an abortion was at issue. The court rejected the "importation" of the undue burden standard into this analysis, but also reasoned that even under the undue burden analysis, especially in the United States Supreme Court's most recent abortion ruling in Whole Woman's Health v. Hellerstedt (2016), the statute violated due process.
On the First Amendment claim, relating to the Ohio statute's denial of funds to any organization that promotes abortions, again the Sixth Circuit quoted Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (AOSI): the government does not "have the authority to attach ‘conditions that seek to leverage funding to regulate speech outside the contours of the program itself.’ "
While there is some potential for a circuit split given the Seventh Circuit's opinion in Planned Parenthood of Indiana, Inc. v. Commissioner of Indiana State Department of Health, 699 F.3d 962 (7th Cir. 2012), cert. denied, 569 U.S. 1004 (2013), the Sixth Circuit extensively analyzes the Seventh Circuit's opinion and concludes that because it was decided before Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l (AOSI), it is no longer persuasive.
Tuesday, March 20, 2018
The United States Supreme Court heard oral arguments in National Institute of Family and Life Advocates (NIFLA) v. Becerra in which the Ninth Circuit upheld the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act).
The California law 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 arguments raised several questions but one that recurred was the relevance of Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) in which the Court upheld the informed consent provisions of a state law mandating "providing information about medical assistance for childbirth, information about child support from the father, and a list of agencies which provide adoption and other services as alternatives to abortion." Justice Breyer's invocation of the maxim "sauce for the goose, sauce for the gander" pointed to the question of why California could not also mandate that CPC's provide notice. Arguing for the challengers, Michael Farris argued that the distinction was that the CPC's were not medical, although there was much discussion of this including the definition of medical procedures such as sonograms and pregnancy tests.
Appearing for neither party, Deputy Solicitor General Jeffrey Wall nevertheless strongly advocated against the California law. Near the end of Wall's argument, Justice Alito raised the subject of professional speech proposed by the United States brief, stating that it "troubles me" and seemed inconsistent with United States v. Stevens (2010) regarding not recognizing new categories of unprotected speech. (Recall that Alito was the lone dissent in the Court's conclusion that criminalizing "crush porn" violated the First Amendment). Alito also referenced the Fourth Circuit's "fortune teller" case, in which the court upheld special regulations aimed at fortune tellers. For Wall, laws that mandate disclosures by historically regulated professions such as doctors and lawyers should be subject only to minimal scrutiny.
The main issue raised regarding California's position was whether or not the statute was targeted at pro-life clinics, especially given the "gerrymandered" nature of the statute's exceptions. The Justices also directed questions to Deputy Solicitor of California Joshua Klein regarding the advertising requirements and disclaimers: must a facility state it is not licensed even if it is not advertising services, but simply has a billboard "Pro Life"?
Will it be sauce for the goose as well as for the gander?
The intersection of First Amendment principles and abortion jurisprudence makes the outcome even more difficult to predict than notoriously difficult First Amendment cases.
Monday, November 13, 2017
SCOTUS Grants Certiorari on First Amendment Challenge to California's Regulation of "Crisis Pregnancy Centers"
The United States Supreme Court has granted certiorari in National Institute of Family and Life Advocates (NIFLA) v. Becerra to the Ninth Circuit's opinion upholding the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act). The California law 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.”
Recall that affirming the district judge, the unanimous Ninth Circuit panel rejected both the free speech and free exercise of religion claims advanced by NIFLA in seeking a preliminary injunction. After finding that the challenge was justiciable as ripe, the panel opinion, authored by Judge Dorothy W. Nelson, first considered the free speech challenge which is at the center of the case. The panel concluded that the California statute's requirement of disclosure of state-funded services merited intermediate scrutiny under the First Amendment, which it survived, and that the unlicensed disclosure requirement survived any level of scrutiny. The Ninth Circuit rejected the argument that the FACT Act was viewpoint-discrimination subject to strict scrutiny. The Ninth Circuit did agree with the challengers that the disclosure requirement was content-based, but held that not all content-based regulations merit strict scrutiny under Reed v. Town of Gilbert (2015). The court looked back to Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), noting that it did not announce a standard for abortion-related disclosure and applied Ninth Circuit precedent of Pickup v. Brown (2013) in which the court upheld a California statute banning conversion therapy under a "professional speech" intermediate standard of scrutiny. The panel upheld the statute applying intermediate scrutiny.
The Ninth Circuit ruling is at odds with other opinions, including, as the opinion noted, the Second Circuit in Evergreen Ass’n, Inc. v. City of N.Y.(2014) and the Fourth Circuit en banc in Centro Tepeyac v. Montgomery Cty. (2013) applied strict scrutiny and held similar provisions unconstitutional because there were other means available to inform pregnant women, including advertising campaigns. Thus, it is this circuit split that will inform the United States Supreme Court arguments.
The Supreme Court's decision should resolve the debate concerning state regulation of crisis pregnancy centers but could also be much broader concerning so-called professional speech.
Wednesday, August 2, 2017
In an extensive opinion in Reproductive Health Services v. Marshall, United States Magistrate Judge Susan Russ Walker (ruling as district court by consent), concluded that substantial portions of a 2014 Alabama statute regulating abortion access for minors contravened well-settled precedent.
The doctrine regarding a minor's access to abortion requires that statutes requiring parental permission also provide the alternative of a "judicial bypass proceeding." As explained in Bellotti v. Baird, 443 U.S. 622 (1979) (“Bellotti II”) (plurality) and affirmed in Planned Parenthood Ass’n of Kansas City v. Ashcroft, 462 U.S. 476 (1983), at a judicial bypass proceeding, a minor must be allowed to show the court either that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents’ wishes; or that even if she is not able to make this decision independently, the desired abortion would be in her best interests. The Court has further required that the judicial bypass proceeding “must insure the minor’s anonymity” and that it occur with the expediency necessary “to allow an effective opportunity to obtain the abortion.”
At issue in Reproductive Health Services were provisions of the 2014 Alabama Act that mandated the participation of District Attorney and a Guardian Ad Litem (GAL) for the fetus, and provisions that allowed the participation of the minor's parent or guardian as a party. Additionally, the Act allowed disclosure of the minor's identity to anyone who needs to know and allowed the subpoena of witnesses.
Judge Walker easily decided that these provisions were unconstitutional under Bellotti II. Indeed, in her analysis she declared the wide disclosure was a "far cry" from established doctrine. She also observed that the 2014 Alabama Act was unique: in not one of the other of the 37 states that mandate parental notification and therefore require a judicial bypass proceeding, does a state "mandates or permits participation by a parent or guardian, the DA, a GAL for the fetus, or witnesses (other than
those called by the minor) in bypass proceedings for the purpose of providing the court
with assistance in arriving at informed and proper decisions – or, indeed, for any other
She therefore did not reach Reproductive Health Services' additional claim that these same provisions of the Alabama Act also interfered with "informational privacy," although the opinion spends many pages discussing why this additional claim was no longer justiciable given the conclusion that the Bellotti II claim was successful. The judge also found that the provisions of the 2014 Alabama Act were severable.
As Judge Walker concluded:
[T]he following provisions of the Act are unconstitutional in their entirety: Alabama Code § 26-21-4(i) (the participation of the DA as a party), § 26-21-4(j) (the participation of a GAL for the unborn child as a party), and § 26-21-4(l) (the participation of a parent, parents, or legal guardian of the minor petitioner as a party). The references to the DA, GAL, and other parties will be severed from Alabama Code §§ 26-21-4(c), (e), (f), (k), and (n). The Act’s provisions permitting disclosure of a minor petitioner’s identity to “any witness who has a need to know the minor’s identity or any other person determined by the court who needs to know” are too broad to ensure a petitioner’s anonymity and, consequently, are unconstitutional; thus, that language will be severed from § 26-21-4(c). The provisions of Alabama Code § 26-21-4(f) that permit the bypass court, if it determines that “additional evidence or testimony is necessary,” to delay the bypass proceeding sua sponte to issue “subpoenas … to bring before the court admissible evidence or testimony either in support of or against the petition,” does not reasonably safeguard the petitioner’s anonymity; it opens the door to the unrestricted notification of the minor’s relatives, teachers, friends, acquaintances, and other potential witnesses concerning her bypass proceeding.
The judge did not enter a preliminary injunction, finding that the declaratory judgment sufficient.
[image: Vermeer, Girl with a Pearl Earring, circa 1665]
Tuesday, April 4, 2017
In her Opinion and Order in Planned Parenthood of Indiana and Kentucky v. Commissioner, Indiana State Dept of Health, Judge Tanya Walton Pratt enjoined Indiana Code § 16-34-2-1.1(a)(5), requiring a woman to have an ultrasound at least eighteen hours prior to an abortion.
The judge found that Planned Parenthood of Indiana and Kentucky (PPINK) was likely to prevail on the merits under the undue burden standard rearticulated most recently in Whole Woman’s Health v. Hellerstedt (2016) regarding the substantive due process right to an abortion. The new statute combined two prior Indiana laws – an ultrasound requirement and a time sensitive informed consent requirement – into one new law that required a woman seeking an abortion to obtain an ultrasound at least 18 hours before her abortion. Indiana's
principle rationale for the statute was fetal life, but the judge found that “the State has not provided any convincing evidence that requiring an ultrasound to occur eighteen hours prior to an abortion rather than on the day of an abortion makes it any more likely that a woman will choose not to have an abortion.” The judge was similarly unconvinced by the state's "alternative justification" of the "psychological importance" to the woman of viewing the ultrasound if she chose to do so. Even accepting the proposition that there could be psychological benefit, the evidence did not address the relevant question of the difference between "women having an ultrasound eighteen hours prior to the abortion as opposed to the day of the abortion."
The judge found that the burdens imposed by the statute, including increased travel distances and delays in obtaining abortion services, were not balanced by the state's unsubstantiated interest. Moreover, the judge found it relevant that the burdened women were mainly low-income women who would suffer financial burdens disproportionately, explaining that many women miss work because of these laws, and may have to reserve childcare for the days that they are away or traveling. Additionally, the judge weighed delays, explaining increases in double booked appointments, as well as increases in delays for women struggling to meet timing requirements for their abortions. The judge relied both on expert testimony as well as "specific examples" from nine woman relating to these burdens.
In sum, Judge Pratt concluded:
The new ultrasound law creates significant financial and other burdens on PPINK and its patients, particularly on low-income women in Indiana who face lengthy travel to one of PPINK’s now only six health centers that can offer an informed-consent appointment. These burdens are clearly undue when weighed against the almost complete lack of evidence that the law furthers the State’s asserted justifications of promoting fetal life and women’s mental health outcomes. The evidence presented by the State shows that viewing an ultrasound image has only a “very small” impact on an incrementally small number of women. And there is almost no evidence that this impact is increased if the ultrasound is viewed the day before the abortion rather than the day of the abortion. Moreover, the law does not require women to view the ultrasound imagine at all, and seventy-five percent of PPINK’s patients choose not to. For these women, the new ultrasound has no impact whatsoever. Given the lack of evidence that the new ultrasound law has the benefits asserted by the State, the law likely creates an undue burden on women’s constitutional rights.
The law was signed by now Vice President Pence when he was Governor of Indiana; it is uncertain whether the present state administration will pursue the same agenda.
h/t Juliet Critsimilios
Wednesday, December 21, 2016
In its unanimous opinion in Burns v. Cline, the Oklahoma Supreme Court held state SB 1848, a law restricting abortion, unconstitutional.
SB 1848 had similar requirements as the challenged Texas bill HB2, which the United States Supreme Court ruled unconstitutional in Whole Woman's Health v. Hellerstedt in June. Oklahoma’s bill, like Texas’ HB2, had an admitting privileges provision that required all abortion facilities, on any day an abortion was being administered, to have a doctor at the facility equipped with admitting privileges at a hospital within 30 miles. Additionally, the bill had twelve other regulations on abortions providers, including standards for supplies, equipment, training, screenings, procedures (both pre and post op), and record keeping. Certain violations of these standards implicated felony and civil penalties.
The Oklahoma Supreme Court cited Whole Woman’s Health v. Hellerstedt extensively, explaining that every woman has a constitutionally protected right to terminate a pregnancy pre-viability, and that laws that impose an undue burden on that right are unconstitutional. The court also elucidated that a law seeking to protect women’s health while actually impeding on the right cannot withstand constitutional review.
The court relied on the plaintiff doctor, outlining Burns’ 41 years of private practice experience and the singular time he had to call an ambulance for a patient over the course of that tenure. The court also considered Burns’ application to 16 different hospitals for admitting privileges. Burns was either rejected because his medical specialty does not have recognized board certification, or because he was unable to meet a requirement of admitting at least 6 patients per year. The court noted that his exemplary record was the blockade to his access to the 6 in-patient requirement.
SB 1848 would have closed Burns’ clinic or subject him to civil penalties if it remained open. SB 1848 would have rendered Oklahoma with only one operable abortion provider for the entirety of the state. Because of this, the Oklahoma Supreme Court found this an unconstitutional undue burden under both Hellerstedt and Casey. The court rejected the state’s argument that this bill advanced women’s health under the reasoning from Hellerstedt. Of note was the court’s reference to the Oklahoma State Medical Association, as well as various expert testimony and data points laid out in Hellerstedt, that explained both the safety of an abortion and the lack of safety for patients should these bills withstand constitutional review.
The Oklahoma Supreme Court also rejected the bill under the Oklahoma Constitution single subject rule. SB 1848 created 12 unrelated provisions against abortion providers, imposing major penalties on providers should the regulation be unheeded. The state argued that because all of the regulations were in some way related to abortion, they were not averse to the single subject rule. The Supreme Court of Oklahoma rejected this reasoning, stating that the legislation’s multiple sections were not “germane, relative and cognate” to a common purpose.
The most obvious importance of this case is its strict adherence to the undue burden standard outlined in Hellerstedt. But importantly, the court's rationale regarding the state constitutional standards for omnibus bills is likely to have a heavy impact.
[with assistance from Juliet Critsimillos, CUNY School of Law]