Constitutional Law Prof Blog

Sixth Circuit En Banc Majority Upholds Ohio's Ban on Funding Planned Parenthood

Professor Ruthann Robson, City University of New York (CUNY) School of Law

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).

 

 

Check it Out: Litman on the Substance of the Supreme Court's Procedure

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."

District Judge Enjoins Mississippi Abortion Law as Unconstitutional

Professor Ruthann Robson, City University of New York (CUNY) School of Law

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.

[footnotes omitted]. 

    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.

[footnotes omitted].

Texas Federal Judge Rules Texas Fetal Remains Law Unconstitutional

Professor Ruthann Robson, City University of New York (CUNY) School of Law

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.

Daily Reads: SCOTUS Nominee Kavanaugh's First Statement and Men's Interest in Abortion

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." 

 

 

SCOTUS Finds California's FACT Act Violates First Amendment

Professor Ruthann Robson, City University of New York (CUNY) School of Law

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.

 

Sixth Circuit Strikes Ohio Statute Defunding Planned Parenthood

Professor Ruthann Robson, City University of New York (CUNY) School of Law

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.

 

SCOTUS Hears Oral Arguments on First Amendment Challenge to Regulation of Crisis Pregnancy Centers

Professor Ruthann Robson, City University of New York (CUNY) School of Law

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. 

[image via]

SCOTUS Grants Certiorari on First Amendment Challenge to California's Regulation of "Crisis Pregnancy Centers"

Professor Ruthann Robson, City University of New York (CUNY) School of Law

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.

 

 

Federal Court Finds Alabama's Abortion Restrictions for Minors Unconstitutional

Professor Ruthann Robson, City University of New York (CUNY) School of Law

 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
purpose."

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]

 

Federal Judge Enjoins Indiana's Ultrasound Law as Undue Burden

Professor Ruthann Robson, City University of New York (CUNY) School of Law

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
 

Oklahoma Supreme Court Declares State Abortion Law Unconstitutional

Professor Ruthann Robson, City University of New York (CUNY) School of Law

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]

Ninth Circuit Upholds California's Disclosure Statute Regulating Crisis Pregnancy Centers

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in National Institute of Family and Life Advocates v. Harris, the Ninth Circuit rejected a First Amendment challenge to the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act, the FACT Act. The FACT Act mandates that licensed pregnancy-related clinics, including crisis pregnancy centers that specifically discourage abortion and employ "deceptive advertising and counseling practices" related to the availability of abortion, disseminate a notice stating the availability of publicly-funded family-planning services that include contraception and abortion.  Additionally, the FACT Act requires unlicensed clinics provide notice that they are not licensed.

Recall that mandatory disclosures by pregnancy crisis centers has previously been considered in Circuit opinions.  In The Evergreen Association, Inc. d/b/a Expectant Mother Care Pregnancy Centers v. City of New York, a divided panel of the Second Circuit in 2014 ruled that only one of the three major provisions of NYC's Local Law 17 seeking to mandate disclosures by pregnancy crisis centers was constitutional.  The en banc Fourth Circuit has also rules: First, in Greater Baltimore Center for Pregnancy Concerns, Incorporated v. Mayor and City Council of Baltimore, it reversed the granting of a preliminary injunction finding fault with the application of the summary judgment standard by the district judge, and second in Centro Tepeyac v. Montgomery County,  affirmed a finding that one of the mandated disclosures was constitutional and the other was not.

The Ninth Circuit opinion, authored by Judge Dorothy W. Nelson, rejected the argument that the mandated notice of other services available for pregnancy to be afforded by licensed facilities (the "Licensed Notice")  should be subject to strict scrutiny because "all" content-based regulations should be subject to strict scrutiny, notwithstanding  the United States Supreme Court's decision in Reed v. Town of Gilbert (2015).  Judge Nelson's opinion noted that abortion regulation and the practice of medicine have been subject to "reasonable regulation" even when speech is involved. Instead, the Ninth Circuit unanimous panel took as precedent its ruling in Pickup v. Brown regarding prohibition of sexual conversion therapy and the concept of "professional speech":

We now turn to the correct level of scrutiny to apply to the Licensed Notice and conclude that under our precedent in Pickup, intermediate scrutiny applies. Licensed Clinics are not engaging in a public dialogue when treating their clients, and they are not “constitutionally equivalent to soapbox orators and pamphleteers.” Pickup. Thus, it would be inappropriate to apply strict scrutiny. And, unlike in Pickup, the Licensed Notice does not regulate therapy, treatment, medication, or any other type of conduct. Instead, the Licensed Notice regulates the clinics’ speech in the context of medical treatment, counseling, or advertising.

Because the speech here falls at the midpoint of the Pickup continuum, it is not afforded the “greatest” First Amendment protection, nor the least.  It follows, therefore, that speech in the middle of the Pickup continuum should be subject to intermediate scrutiny.

 In applying intermediate scrutiny, Judge Nelson found that

California has a substantial interest in the health of its citizens, including ensuring that its citizens have access to and adequate information about constitutionally-protected medical services like abortion. The California Legislature determined that a substantial number of California citizens may not be aware of, or have access to, medical services relevant to pregnancy. * * * *

We conclude that the Licensed Notice is narrowly drawn to achieve California’s substantial interests. The Notice informs the reader only of the existence of publicly-funded family-planning services. It does not contain any more speech than necessary, nor does it encourage, suggest, or imply that women should use those state-funded services. The Licensed Notice is closely drawn to achieve California’s interests in safeguarding public health and fully informing Californians of the existence of publicly-funded medical services. And given that many of the choices facing pregnant women are time-sensitive, such as a woman’s right to have an abortion before viability, we find convincing the AG’s argument that because the Licensed Notice is disseminated directly to patients whenever they enter a clinic, it is an effective means of informing women about publicly-funded pregnancy services.

Additionally, the panel found that the Unlicensed Notice - - - the mandated disclosure that a facility is not licensed - - - survives every level of scrutiny, even strict scrutiny.

The Ninth Circuit panel opinion acknowledged that it was in agreement with the Second and Fourth Circuits on the Unlicensed Notice provision, but that the Second and Fourth Circuits had applied a higher level of scrutiny to similar mandated disclosures and found that they were not constitutional.

There is thus an arguable split amongst the circuits on the subject of mandated disclosures by so-called pregnancy crisis centers, with the Ninth Circuit's conceptualization of "professional speech" again ripe for a certiorari petition to the United States Supreme Court.

[image via]

Alaska Supreme Court Holds Parental Notification Law Violates State Constitution's Equal Protection Clause

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In its opinion in Planned Parenthood of the Great Northwest v. State of Alaska, the Alaska Supreme Court held unconstitutional the 2010 voter-enacted Parental Notification Law which required 48-hour advance parental notice before a physician may terminate a minor’s pregnancy, but importantly not before a physician could provide other care.  The court's majority opinion, authored by Justice Daniel Winfree, found that the Parental Notification Law violates the Alaska Constitution’s equal protection guarantee by unjustifiably burdening the fundamental privacy rights only of minors seeking pregnancy termination, rather than applying equally to all pregnant minors.

Although explicitly under the state constitution, the court's equal protection analysis is a familiar one and executed with great precision.  The court first identifies the classification - - - pregnant minors seeking termination and pregnant minors seeking to carry to term - - - and then identifies the level of scrutiny; because the right at stake is the fundamental one of reproductive choice is strict scrutiny. Applying the level of scrutiny, the court then examined the state's interests and the means chosen to effectuate those interests.

The court noted that to "justify differently burdening fundamental privacy rights, the State’s interests in doing so must be compelling," and that the State asserts two main interests as justifying the Notification Law’s disparate treatment of pregnant minors: (1) “aiding parents to fulfill their parental responsibilities” and (2) “protecting minors from their immaturity.” The court accepted that these were compelling interests, even as it refined the immaturity interest because "immaturity in and of itself is not a harm."  Instead, the court defined the interest in “protecting minors from their immaturity”  as "protecting minors from specific pitfalls and dangers to which their immaturity makes them especially susceptible" which in this case would be risks to mental and physical health and from sexual abuse.

The problem arose - - - as it so often does in equal protection - - - with the "fit" between the state's chosen means to effectuate its interests.  As to the parental responsibility interest:

We conclude that vindicating the State’s compelling interest in encouraging parental involvement in minors’ pregnancy-related decisions does not support the Notification Law’s disparate treatment of the two classes of pregnant minors. Parents do have an “important ‘guiding role’ to play in the upbringing of their children.” We have said that “it is the right and duty, privilege and burden, of all parents to involve themselves in their children’s lives; to provide their children with emotional, physical, and material support; and to instill in their children ‘moral standards, religious beliefs, and elements of good citizenship.’ ” But as the State acknowledged at oral argument, this must be true for all pregnant minors’ parents, not just those whose daughters are considering termination.

[footnotes omitted; emphasis added].  Similarly, regarding the minor's immaturity, the court concluded that the statute suffered from being

under-inclusive because the governmental interests asserted in this case are implicated for all pregnant minors — as they face reproductive choices and as they live with their decisions — and the asserted justifications for disparate treatment based upon a minor’s actual reproductive choice are unconvincing.

One of the complicating legal issues of the case was the effect of a previous decision regarding a parental consent law, which the concurring opinion argued precluded an equal protection analysis.  Instead, the concurring opinion argued that the 2010 statute was unconstitutional under the state constitution's privacy provision.

One of the five Justices of the Alaska Supreme Court dissented, arguing that the 2010 Parental Notification law violated neither equal protection nor privacy and was thus constitutional.

As the majority opinion notes, other states have similarly found state constitutional infirmities with parental notification laws. The Alaska opinion, however, is particularly well-reasoned and applicable to many state constitutions.

Alaska Skies mural in Alaska Supreme Court via

 

 

 

United States Supreme Court Reaffirms Abortion Access in Whole Woman's Health

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The United States Supreme Court's opinion in Whole Woman's Health v. Hellerstdet (previously Cole), declares unconstitutional both the admitting privileges and surgical center requirements of the controversial Texas HB2 statute passed in 2013 (despite the famous filibuster by Wendy Davis).  Justice Breyer, writing for the five Justice majority found that the regulations place a substantial obstacle and constitute an undue burden on the abortion right.

In the first case to address abortion since 2008, the Court clearly reaffirmed the substantial obstacle/undue burden test and found that the Texas' statutory scheme was too restrictive. The divisions amongst the Justices was clear in oral arguments and previous proceedings (a divided Supreme Court previously vacated the Fifth Circuit stay of the district judge's injunction against portions of the law, thus reinstating the district judge's injunction at least in part).

The bulk of the 107 page opinions is Justice Alito's dissent, joined by Chief Justice Roberts and Justice Thomas.  (Note that even if Justice Scalia was still on the bench, the result would have been the same).  Justice Thomas also wrote separately.

Justice Breyer's opinion for the Court rebuked the Fifth Circuit for incorrect doctrine.  

The Court of Appeals’ articulation of the relevant standard is incorrect. The first part of the Court of Appeals’ test may be read to imply that a district court should not consider the existence or nonexistence of medical benefits when considering whether a regulation of abortion constitutes an undue burden. The rule announced in Casey, however, requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer. And the second part of the test is wrong to equate the judicial review applicable to the regulation of a constitutionally protected personal liberty with the less strict review applicable where, for example, economic legislation is at issue. The Court of Appeals’ approach simply does not match the standard that this Court laid out in Casey, which asks courts to consider whether any burden imposed on abortion access is “undue.”

The statement that legislatures, and not courts, must resolve questions of medical uncertainty is also inconsistent with this Court’s case law.

[citations omitted].

With the correct standard (re)articulated, the Court then carefully considered the "record evidence" in this extensive litigation and agreed with the district judge that the Texas regulations placed substantial obstacles in the path of women seeking abortions, thus meeting the undue burden test.  The Court also found that the Texas restrictions did little to serve the state's articulated interests in protecting women's health and may actually have undermined the state's interests.

On the admitting privileges requirement, the Court rehearsed the expert evidence at trial and also pointed to amicus briefs, both to explain the context of admitting privileges and the effect of the requirement (including clinic closures). As to the relation to the state's articulated interest in women's health, the Court added:

when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.

The Court also specifically refuted the dissenting opinion's reliance on a well-known Pennsylvania scandal involving Gosnell:

Gosnell’s deplorable crimes could escape detection only because his facility went uninspected for more than 15 years.  Pre-existing Texas law already contained numerous detailed regulations covering abortion facilities, including a requirement that facilities be inspected at least annually.

 Justice Breyer's opinion for the Court engaged in a similar analysis as to the surgical center requirement.  Again, the Court stated that the mandate does not serve the stated interests in women's health" "many surgical-center requirements are inappropriate as applied to surgical abortions."  And again, the Court found that the record evidence as well as "common sense" meant that the (unnecessary) requirements would result in clinic closures which would result in a substantial obstacle to women's reproductive access.

While the Court's opinion is often very specific, Ginsburg's separate but very brief concurrence briefly strikes a broader note:

When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety.

But whether one takes the specific or broader view, Whole Women's Health is a clear message to lower courts that their judicial function is to apply the current rule in a rigorous manner to preserve abortion access.

Supreme Court Issues Stay in Louisiana Abortion Controversy

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Court issued an Order today in June Medical Services v. Gee involving Louisiana's abortion statute "The Unsafe Abortion Protection Act, HB 388.  The district judge had found the Louisiana's statute's admitting privilege provision was unconstitutional and issued a preliminary injunction.  The Fifth Circuit in a 15 page opinion granted the state's emergency motion to stay the district judge's preliminary injunction. Thus, the Court's Order essential reinstates the injunction against the Louisiana statute.

The Louisiana statute is similar to Texas's HB 2 at issue in Whole Woman's Health v. Hellerstdet (previously Cole), argued before the Court on Wednesday.   In today's Order regarding the Louisiana statute, the Court referenced Whole Woman's Health:

Consistent with the Court’s action granting a stay in Whole Woman’s Health v. Cole, No. 14A1288 (June 29, 2015), the application to vacate the stay entered by the United States Court of Appeals for the Fifth Circuit on February 24, 2016, presented to Justice Thomas and by him referred to the Court, is granted and the Fifth Circuit’s stay of the district court’s injunction is vacated.
Justice Thomas would deny the application.

In the Whole Woman's Health oral argument, Justice Alito mentioned the Louisiana litigation twice, both times in regarding to the evidence in the case about the precise number of abortions that were being performed.  But on the constitutional issues, it does seem as if the decision in Whole Woman's Health will be determinative regarding the Louisiana statute's constitutionality.

Court Hears Oral Arguments on Texas' HB2 Abortion Restrictions

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Court heard oral arguments today in Whole Woman's Health v. Hellerstdet (previously Cole), the case being touted as the most important abortion rights case in many years.   Recall that the Court granted certiorari to the Fifth Circuit's decision essentially upholding the bulk of the controversial HB2 statute passed in 2013 (despite the famous filibuster by Wendy Davis).   A divided Supreme Court previously vacated the Fifth Circuit stay of the district judge's injunction against portions of the law, thus reinstating the district judge's injunction at least in part.

The Fifth Circuit's most recent opinion, reversing the district judge, held that HB2's admitting privileges requirement and ambulatory surgical center (ASC) requirements, did not impose an "undue burden" on women and were thus constitutional under the Fourteenth Amendment's Due Process Clause.  Importantly, this is the decision that would stand should the Court split 4-4.   The most likely scenario of such a split would be Chief Justice Roberts, and Justices Alito, Thomas, and Kennedy on one side and Justices Ginsburg, Breyer, Kagan, and Sotomayor on the other.  The most likely scenario of a reversal of the Fifth Circuit and a finding that HB2's provisions are unconstitutional is generally considered to be Justice Kennedy joining the Justice Ginsburg group.  Not surprisingly then, Justice Kennedy will be the focus of most any analysis of today's argument.

And indeed, Justice Kennedy took an active role in today's argument in which each of the advocates was accorded extra time in part because of the procedural issues involved regarding the challenge to HB2 as applied and what contentions may have been precluded by the previous facial challenge.  While this issue did occupy the beginning of Stephanie Toti's argument on behalf of Whole Woman's Health, and questions regarding remand were raised - - - including by Justice Kennedy - - - it is unclear whether there is sufficient enthusiasm for deciding the case on procedural issues. 

Instead, as Solicitor General Donald Verrilli, arguing in support of Whole Woman's Health, phrased it, the question before the Court is whether the right to abortion "is going to retain real substance" and "whether the balance ­­ struck in Casey still holds."  Justice Kennedy was in the majority in the 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey authored by Justice O'Connor and which upheld the essential core of Roe v. Wade.  Scott Keller, the Attorney General of Texas, not only accepted Casey in his argument but argued that it was the petitioners - - - Whole Women's Health - - - that were "trying to upset the balance that was struck in Casey."  

The "balance" of Casey could be said to reside in the "undue burden" standard that the Court articulated, but today's argument displayed some of the ambiguities with that standard.  On one view, which seemed to be the one Chief Justice Roberts was articulating, the statute has to pass "rational basis" and then it is measured again as to whether there is an undue burden.  On the other view, the "undue burden" is measured with regard not only to the exercise of the right to an abortion but measured against the level of the state interests.  Justice Breyer articulated this understanding, but importantly, in a colloquy with the Texas Attorney General after a question by Justice Alito, Justice Kennedy also seemed to adhere to this view:

JUSTICE ALITO: Would it not be the case that - - - ­­ would it not be the case - - - that a State could increase the ­­ the standard of care as high as it wants so long as there's not an ­­ an undue burden on the women seeking abortion? So, you know, if they could ­­if they could increase the standard of care up to the very highest anywhere in the country and it wouldn't be a burden on the women, well, that would be a benefit to them. Would there be anything unconstitutional about that?

MR. KELLER: No. Provided that women do ­­are able to make the ultimate decision to elect the procedure.

JUSTICE KENNEDY: But doesn't that show that the undue ­burden test is weighed against what the State's interest is?

MR. KELLER: Justice Kennedy - - -

JUSTICE KENNEDY: I mean, are they ­­ are these two completely discrete analytical categories, undue burden, and we don't look at the State’s interest?

On the question of the state's interest, Texas Attorney General Keller had a difficult time responding to the questions from Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Comparisons to dental procedures and colonoscopies prevailed, and on the issue of nonsurgical abortions requiring the taking of two pills which Texas law required be done at an ambulatory surgical facility, some Justices pressed especially hard.  The "abortion is different" argument of Texas Attorney General Keller seemed especially unconvincing here.

The actual effect of the HB2's admitting privileges requirement and ambulatory surgical center (ASC) requirements on the closing of clinics was raised at numerous times, with Justice Kennedy interestingly interjecting the precise percentage - - - 20% - - - of the capacity of licensed facilities after the passage of HB2.  Justice Ginsburg found it "odd" that Attorney General Keller pointed to the ability of women to go across state lines to New Mexico - - - which does not have similar restrictions - - - to support his contention that women were not substantially burdened. 

The oral argument did little to upset the pre-argument predictions.  Justice Alito was most hostile to the petitioners, and although Justice Thomas asked no questions today unlike Monday,  his views on abortion do not seem in flux.  Justices Ginsburg, Breyer, Kagan, and Sotomayor did not seem to find the arguments on behalf of Texas credible.  While the Chief Justice has known to be surprising and could possibly craft a narrow opinion, Justice Kennedy is occupying the center.  It does seem, however, as if that center tilts slightly back toward Casey and away from HB2.

Federal District Judge Enters Preliminary Injunction Against Center for Medical Progress, Anti-Abortion Group

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Center for Medical Progress (CMP)  - - - including its founder David Daleiden, others (and their aliases) associated with the nonprofit, as well as "fake" companies - - - has been in the news a great deal of late. 

Daleiden and employee Merritt have recently been indicted in connection with an “investigation” of Planned Parenthood and the publication of a “heavily edited” video charging Planned Parenthood with unauthorized selling of fetal tissue. The video has prompted some lawmakers to urge defunding of Planned Parenthood and, interestingly, the grand jury indictment of Daleiden and Merritt in Texas sprung from an inquiry into whether Planned Parenthood had violated any criminal laws.  Planned Parenthood has recently sued CMP under RICO and for various tort-like claims. 

Judge William Orrick of the Northern District of California has issued a preliminary injunction that some might view as a prior restraint against CMP and its associates in an Order in National Abortion Federation v. Center for Medical Progress.  In July, Judge Orrick issued a TRO.  The discovery orders and motions were quite contentious, with CMP seeking relief from the Ninth Circuit, which was denied, and Justice Kennedy (in his role as Justice for the Ninth Circuit) refusing to intervene. The preliminary injunction prohibits:

(1) publishing or otherwise disclosing to any third party any video, audio, photographic, or other recordings taken, or any confidential information learned, at any NAF annual meetings;

(2) publishing or otherwise disclosing to any third party the dates or locations of any future NAF meetings; and

(3) publishing or otherwise disclosing to any third party the names or addresses of any NAF members learned at any NAF annual meetings.

Image by Jacek Halicki circa 1982 via

This injunction relates primarily to the enforcement of a “confidentiality agreement” required by attendees of the NAF national conference, which Center for Medical Progress admitted violating, engaging in over 250 hours at each of two conferences (2014 and 2015), including of personal conversations, intended - - - as CMP founder Daleiden admits, to “trap people into saying something really messed up” and to say the words “fully intact baby.” Judge Orrick found that enforcement of the confidentiality agreement does not violate the First Amendment, citing Cohen v. Cowles Media (1991). Judge Orrick also found that this was not a “typical ‘newsgathering’ case” in which "prior restraints" would be disfavored, but instead had exceptional circumstances:

The context of how defendants came into possession of the NAF materials cannot be ignored and directly supports preliminarily preventing the disclosure of these materials. Defendants engaged in repeated instances of fraud, including the manufacture of fake documents, the creation and registration with the state of California of a fake company, and repeated false statements to a numerous NAF representatives and NAF members in order to infiltrate NAF and implement their Human Capital Project. The products of that Project – achieved in large part from the infiltration – thus far have not been pieces of journalistic integrity, but misleadingly edited videos and unfounded assertions (at least with respect to the NAF materials) of criminal misconduct. Defendants did not – as Daleiden repeatedly asserts – use widely accepted investigatory journalism techniques. Defendants provide no evidence to support that assertion and no cases on point.

One of the cases that Judge Orrick's footnote distinguishes is Judge Winmill's decision in Animal Defense League v. Otter, finding Oregon's ag-gag law unconstitutional as a violation of the First Amendment, which is presently on appeal to the Ninth Circuit.  Undoubtedly, Center for Medical Progress will eventually follow the path to the Ninth Circuit.  Taken together, these cases raise controversial issues about the First Amendment's protection for what some might name "investigative journalism" and what others view as "illegal actions."

Kansas Appellate Court Affirms Finding That Kansas's "Dismemberment Abortion Act" is Unconstitutional under State Constitution

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Kansas Court of Appeals, the intermediate appellate court, has found that the Kansas Constitution includes a due process right applicable to abortion and that the Kansas Unborn Child Protection from Dismemberment Abortion Act (SB95) violates that right in its opinion by Judge Steve Leben in Hodes & Nauser v. Schmidt.

Before the discussion of the constitutionality of the Act, there were some preliminary - - - and unusual - - - issues, including some noteworthy matters of procedure. Unusually, the Court of Appeals heard the case en banc rather in a panel of three.  And presumably also unusual, the judges were "equally divided, seven voting to affirm the district court and seven voting to reverse."  Thus, the trial court's ruling granting a preliminary injunction against the Act was affirmed. 

Judges of the Kansas Court of Appeals via

Additionally, there were some state constitutional law issues.  Importantly, the plaintiffs' argument that the Act is unconstitutional rests solely on the state constitution.  As the Leben opinion stated, this was a case of first impression and a  "plaintiff has the procedural right to choose the legal theories he or she will pursue; we cannot force the plaintiffs here to choose another legal avenue.")  But the Kansas State Constitution does not include a due process clause - - - or even the words "due process" - - - unlike the United States Constitution's Fifth and Fourteenth Amendments, in which the right to an abortion has been anchored.  Instead, plaintiffs argued, and the court found, that §1 and §2 of the Kansas Constitution Bill of Rights include a due process right despite their explicit language:

§ 1. Equal rights. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.

§ 2. Political power; privileges. All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature, which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency.

Judge Leben's finding was based in large part on previous decisions of the Kansas Supreme Court.  Where the dissent differed was not on the matter of due process as a general matter but on the specific inclusion of "abortion."  Indeed, as Judge Leben's opinion admitted "What the Kansas Supreme Court has not yet done is apply substantive-due-process principles in a case involving personal or fundamental rights, like the right to contraception, the right to marry, or the right to abortion."  But as Judge Leben's opinion noted, "the Kansas Supreme Court has explicitly recognized a substantive-due- process right under the Kansas Constitution and has applied a substantive-due-process legal standard equivalent to the one applicable under the Fourteenth Amendment at the time of these Kansas decisions."  This past practice was an embrace of the present, and Judge Leben's opinion interestingly quotes the Court's recent opinion by Justice Kennedy Obergefell  as well as opinions from the Kansas Supreme Court.  Judge Leben nicely sums up the position:

The rights of Kansas women in 2016 are not limited to those specifically intended by the men who drafted our state's constitution in 1859.

Having decided that the Kansas constitutional text merits a co-extensive interpretation with the federal constitution, Judge Leben's opinion for the Kansas Court of Appeal does not rest on "adequate and independent state grounds" under Michigan v. Long.  Judge Gordon Atcheson's extensive and scholarly concurring opinion makes the case that §1 of the Kansas Bill of Rights provides "entirely separate constitutional protection without direct federal counterpart" for abortion and that such protection is greater under the Kansas state constitution than under the Fourteenth Amendment.

Under the co-extensive interpretation, Judge Leben's opinion thus confronted the constitutionality of the Kansas Act under the substantive due process "undue burden" standard.  This entailed an application of the disparate Carhart cases: Stenberg v. Carhart (2000) and Gonzales v. Carhart (2007).  In Stenberg, the Court concluded Nebraska's so-called "partial-birth abortion" statute was unconstitutional; in Gonzales, the Court concluded that the federal so-called "partial-birth abortion" statute was constitutional.

The Judge Leben opinion distinguished Gonzales:

But the circumstances here are quite unlike Gonzales. There, the Court considered a ban on an uncommon procedure and noted that the most common and generally safest abortion method remained available. Here, the State has done the opposite, banning the most common, safest procedure and leaving only uncommon and often unstudied options available.

Interestingly, Judge Atcheson's concurring opinion responded to the Justice Kennedy's language in Gonzales and the language of the Kansas Act:

The State's remaining argument rests on the unaesthetic description of a D &E abortion contained in Senate Bill 95 and in Gonzales v. Carhart (2007). But aesthetics really cannot justify legislative limitations on safe medical procedures. The lack of justification is even more pronounced when the procedure is integral to a woman's constitutional right to self-determination and reproductive freedom. The government cannot impose upon an essential right because some exercise of the right may be unaesthetic or even repulsive to some people. That's all the more true when those people needn't see or participate in the protected activity.

The dissenting opinion concludes that there is "nothing in the text or history of §§1 and 2 of the Kansas Constitution Bill of Rights to lead this court to conclude that these provisions were intended to guarantee a right to abortion."

This matter is surely going to the Kansas Supreme Court, as Judge Leben's opinion for the Kansas Court of Appeals acknowledged.  Rendered on the 43rd anniversary of the United States Supreme Court's decision in Roe v. Wade and as the Court prepares to consider its first abortion case in 8 years, Whole Woman's Health v. Cole, the Kansas Court of Appeals evenly split decision exemplifies how divided opinion on this issue can be.

Daily Read: Attorneys, Abortions, and the Amicus Brief in Whole Women's Health

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The amicus brief of Anice MacAvoy, Janie Schulman, and Over 110 Other Women in the Legal Profession Who Have Exercised their Constitutional Right to an Abortion filed in Whole Woman's Health v. Cole, the abortion case before the United States Supreme Court regarding Texas's controversial HB2 statute, puts the emotions and stories of legal professionals whose abortions have played a positive role in their lives and careers.

Although the amicus does not cite the Court's most recent abortion decision, Gonzales v. Carhart (Carhart II), the import of the amicus is a challenge to some of the reasoning in that case.  Specifically, Justice Kennedy writing for the majority in Carhart II stated that:

Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. Casey, supra, at 852–853 (opinion of the Court). While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. See Brief for Sandra Cano et al. as Amici Curiae in No. 05–380, pp. 22–24. Severe depression and loss of esteem can follow. See ibid.

The dissenting opinion of four Justices, authored by Justice Ginsburg, responded to this passage at length:

Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depression and loss of esteem.” Ante, at 29. Because of women’s fragile emotional state and because of the “bond of love the mother has for her child,” the Court worries, doctors may withhold information about the nature of the intact D&E procedure. Ante, at 28–29. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Cf. Casey, 505 U. S., at 873 (plurality opinion) (“States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning.”). Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.

 

Myra Bradwell, attorney, circa 1870

This way of thinking reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited. Compare, e.g., Muller v. Oregon, 208 U. S. 412, 422–423 (1908) (“protective” legislation imposing hours-of-work limitations on women only held permissible in view of women’s “physical structure and a proper discharge of her maternal funct[ion]”); Bradwell v. State, 16Wall. 130, 141 (1873) (Bradley, J., concurring) (“Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. … The paramount destiny and mission of woman are to fulfil[l] the noble and benign offices of wife and mother.”), with United States v. Virginia, 518 U. S. 515 , n. 12 (1996) (State may not rely on “overbroad generalizations” about the “talents, capacities, or preferences” of women; “[s]uch judgments have … impeded … women’s progress toward full citizenship stature throughout our Nation’s history”); Califano v. Goldfarb, 430 U. S. 199, 207 (1977) (gender-based Social Security classification rejected because it rested on “archaic and overbroad generalizations” “such as assumptions as to [women’s] dependency” (internal quotation marks omitted)).

Though today’s majority may regard women’s feelings on the matter as “self-evident,” ante, at 29, this Court has repeatedly confirmed that “[t]he destiny of the woman must be shaped … on her own conception of her spiritual imperatives and her place in society.” Casey, 505 U. S., at 852. See also id., at 877 (plurality opinion) (“[M]eans chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.”); supra, at 3–4.

[footnotes omitted].

The brief of the attorneys who have had abortions and are legal professionals clearly supports the view that women must be able to exercise reproductive free choice.  The stories of the women attorneys gathered in the amicus brief is a testament to the positive aspects of abortions - - - rather than the regrets - - - that women attorneys have experienced.