Constitutional Law Prof Blog

SCOTUS Denies Emergency Injunction by Church Challenging California COVID-19 Order

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

A closely divided Court in South Bay United Pentacostal Church v. Newsom denied the application for emergency injunction relief sought by the church from California Governor Newsom's Executive Order placing numerical restrictions on all gatherings to combat the spread of the highly infectious corona virus causing COVID-19. The Ninth Circuit panel and the district judge had similarly denied the church's motion for a preliminary injunction.

There is no opinion from the Court. Chief Justice Roberts, who joined the majority in rejecting the emergency application, filed a brief concurring opinion.  On the merits, Chief Justice Roberts wrote:

Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.

The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those officials “undertake[ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 545 (1985).

That is especially true where, as here, a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground. The notion that it is “indisputably clear” that the Government’s limitations are unconstitutional seems quite improbable.

In short, religious gatherings were not being treated any differently under the California Order and the judiciary should defer to the politically accountable entities in health situations, especially when these are uncertain and changing.

Justice Bret Kavanaugh wrote a dissenting opinion, joined by Justices Thomas and Gorsuch — but interestingly not Justice Alito — concluding that the California Order did not treat the religious institutions the same as "comparable secular businesses" such as grocery stores. Kavanaugh argues that given this differential treatment, struct scrutiny should apply, and California has not advanced a sufficiently compelling reason to treat religious gatherings differently.

As the pandemic continues, there is certainly sure to be more litigation, but for a majority of the Court, gatherings including those that are religious can be limited in service to public health.

SCOTUS Hears Oral Arguments in June Medical Abortion Case

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

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:

1. 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.

 

 

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.

Federal Judge: Injunction Against Transgender Military Ban Retained

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

United States District Judge Colleen Kollar-Kotelley has reaffirmed the injunction of  the ban on transgender individuals in the military, first announced on Twitter by the President in Doe v. Trump in two opinions.  Recall that in October, the judge issued a lengthy opinion and a preliminary injunction against the ban as likely to violate equal protection.

The case returned to Judge Kollar-Kotelley after an unsuccessful appeal and attempt to stay the preliminary injunction. The government moved to dismiss, essentially rearguing its contentions regarding standing.

In a 34 page opinion, the judge again rejected these arguments. But the government newly argued for dismissal and dissolution of the preliminary injunction because the 2018 "Mattis Implementation Plan" represents a “new policy” divorced and distinct from the President’s 2017 policy directives that were previously enjoined by this Court, and that the Mattis Implementation Plan does not harm the Plaintiffs in this case. However, the judge held that "whatever legal relevance the Mattis
Implementation Plan might have, it has not fundamentally changed the circumstances of this lawsuit such that Plaintiffs’ claims should be dismissed for lack of jurisdiction, or that the need for the Court’s preliminary injunction has dissipated." In evaluating the Mattis Implementation Plan, the judge stated:

the Mattis Implementation Plan in fact prohibits transgender military service—just as President Trump’s 2017 directives ordered. It is true that the plan takes a slightly less direct approach to accomplishing this goal than the President’s 2017 tweet and memorandum. Instead of expressly banning all “transgender individuals” from military service, the Mattis Implementation Plan works by absolutely disqualifying individuals who require or have undergone gender transition, generally disqualifying individuals with a history or diagnosis of gender dysphoria, and, to the extent that there are any individuals who identify as “transgender” but do not fall under the first two categories, only allowing them to serve “in their biological sex” (which means that openly transgender persons are generally not allowed to serve in conformance with their identity).

[emphasis in original]. In short, she concluded that "whatever legal relevance the Mattis Implementation Plan and associated documents might have, they are not sufficiently divorced from, or different than, the President’s 2017 directive." 

However, in a separate and relatively brief opinion, she did grant the government's motion to dismiss Donald Trump as a defendant. The government moved to dismiss the president as a defendant and for a protective order regarding discovery. Judge Kollar-Kotelly concluded that

Through this lawsuit, Plaintiffs ask this Court to enjoin a policy that represents an official, non-ministerial act of the President, and declare that policy unlawful.  Sound separation-of-power principles counsel the Court against granting these forms of relief against the President directly.

She noted that confrontation between the judicial and executive branch should be avoided whenever possible, but such confrontation 

can be easily avoided here, because dismissing the President will have little or no substantive effect on this litigation. Plaintiffs argue that the acts of the President himself are central to this case, and the Court agrees. But dismissing the President as a Defendant does not mean that those acts will not be subject to judicial review. The Court can still review those acts and, if Plaintiffs are successful in proving that they are unconstitutional, Plaintiffs can still obtain all of the relief that they seek from the other Defendants.

Given that the President is no longer a defendant, the judge ruled the motion for a protective order regarding discovery was moot, but

the Court reiterates that dismissing the President as a party to this case does not mean that Plaintiffs are prevented from pursuing discovery related to the President. The Court understands that the parties dispute whether discovery related to the President which has been sought by Plaintiffs is precluded by the deliberative process or presidential communication privileges, and the Court makes no ruling on those disputes at this point.

While the plaintiffs had argued that dismissing the president was not warranted, Judge Kollar-Kotelly's dismissal has little bearing on the ultimate resolution of the case, a conclusion she reiterated several times. It also has little effect on the present status of the case; the accompanying order emphasized that "The injunction remains in force as it applies to all other Defendants" (italics in original).

 

[image via]

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.

 

District Judge Partially Enjoins President's Transgender Military Ban

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

 In an Order and Opinion in Doe v. Trump, United States District Judge for the District of Columbia Colleen Kollar-Kotelly partially enjoined the president's actions to limits the service of transgender persons in the United States military. Judge Kollar-Kelly denied the motion for preliminary injunction regarding the Sex Reassignment Directive, but granted the motion for preliminary injunction regarding the Accession and Retention Directives.

Recall that this lawsuit, filed by lawyers for the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates and Defenders (GLAD) is one of several complaints challenging the president's military action, and included claims for a violation of equal protection, due process, and a nonconstitutional argument of equitable estoppel.

Judge Kollar-Kotelly's 76 page opinion, which begins with a recitation of the President's "statement via Twitter" on July 26, 2017, announcing that “the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military.” This was followed almost a month later by the President's Memorandum for the Secretary of Defense and Secretary of Homeland Security through the Office of the Press Secretary directing the halt of accession of transgender individuals into the military and the halt of all resources "to fund sex-reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex." The President's Twitter statement and the subsequent Presidential memorandum are the centerpiece of the Government's argument that the plaintiffs lack standing and that their claims are not ripe under Article III.

Judge Kollar-Kotelly wrote:

Defendants have moved to dismiss this case, principally on the basis that the Court lacks jurisdiction. Although highly technical, these jurisdictional arguments reduce to a few simple points: the Presidential Memorandum has not effected a definitive change in military policy; rather, that policy is still subject to review; until that review is complete, transgender service members are protected; and any prospective injuries are too speculative to require judicial intervention.

These arguments, while perhaps compelling in the abstract, wither away under scrutiny.

Judge Kollar-Kotelly's opinion then spends the majority of the opinion discussing the standing and ripeness issues. As to the Surgery challenge, the opinion concludes that "none of the Plaintiffs have demonstrated an injury in fact with respect to the Sex Reassignment Surgery Directive," because none of the "Plaintiffs have demonstrated that they are substantially likely to be impacted by the Sex Reassignment Surgery Directive"  In fact, the plaintiffs' medical procedures would be performed.  However, there was standing on the Accession and Retention Directives because although an Interim Guidance possibly protects some transgender service members and allows for waivers,

The President controls the United States military. The directives of the Presidential Memorandum, to the extent they are definitive, are the operative policy toward military service by transgender service members.

Moreover, "the injury in fact element of standing in an equal protection case is the denial of equal treatment resulting from the imposition of the barrier.”

Compared to the extensive analysis of the Article III issues, Judge Kollar-Ketelly's analysis of the equal protection claim based on the Fifth Amendment is much more succinct. The opinion first determines the level of scrutiny, deciding on intermediate scrutiny for two reasons.

First, "on the current record, transgender individuals—who are alone targeted for exclusion by the Accession and Retention Directives—appear to satisfy the criteria of at least a quasi-suspect classification," considering  whether they have "experienced a ‘history of purposeful unequal treatment’ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities," and whether they have been as a group “relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process," and whether the group “exhibit[s] obvious, immutable, or distinguishing characteristics that define them as a discrete group.” Judge Kollar-Ketelly found that transgendered people satisfied these criteria, noting that although there was no binding precedent on this issue, other courts had reached similar conclusions and citing Evancho v. Pine-Richland Sch. Dist.

Second, Judge Kollar-Ketelly was "also persuaded that the Accession and Retention Directives are a form of discrimination on the basis of gender, which is itself subject to intermediate scrutiny. It is well-established that gender-based discrimination includes discrimination based on non- conformity with gender stereotypes."

In the application of intermediate scrutiny, Judge Kollar-Ketelly recited the rule of United States v. Virginia (VMI) (1996), and held that the Accession and Retention Directives relied on overbroad stereotypes and were not substantially related to the Government's stated interests.  The opinion then considered the question of deference in the military context:

Nonetheless, given the deference owed to military personnel decisions, the Court has not based its conclusion solely on the speculative and overbroad nature of the President’s reasons. A second point is also crucial. As far as the Court is aware at this preliminary stage, all of the reasons proffered by the President for excluding transgender individuals from the military in this case were not merely unsupported, but were actually contradicted by the studies, conclusions and judgment of the military itself. As described above, the effect of transgender individuals serving in the military had been studied by the military immediately prior to the issuance of the Presidential Memorandum. In connection with the working group chaired by the Under Secretary of Defense for Personnel and Readiness, the RAND National Defense Research Institute conducted a study and issued a report largely debunking any potential concerns about unit cohesion, military readiness, deployability or health care costs related to transgender military service. The Department of Defense Working Group, made up of senior uniformed officers and senior civilian officers from each military department, unanimously concluded that there were no barriers that should prevent transgender individuals from serving in the military, rejecting the very concerns supposedly underlying the Accession and Retention Directives. In fact, the Working Group concluded that prohibiting transgender service members would undermine military effectiveness and readiness. Next, the Army, Air Force and Navy each concluded that transgender individuals should be allowed to serve. Finally, the Secretary of Defense concluded that the needs of the military were best served by allowing transgender individuals to openly serve. In short, the military concerns purportedly underlying the President’s decision had been studied and rejected by the military itself. This highly unusual situation is further evidence that the reasons offered for the Accession and Retention Directives were not substantially related to the military interests the Presidential Memorandum cited.

The opinion also considered "the circumstances surrounding the announcement of the President’s policy":

the President abruptly announced, via Twitter—without any of the formality or deliberative processes that generally accompany the development and announcement of major policy changes that will gravely affect the lives of many Americans—that all transgender individuals would be precluded from participating in the military in any capacity. These circumstances provide additional support for Plaintiffs’ claim that the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.

Finding a likelihood of success on the merits of the equal protection claim, the opinion quickly dispatched the other considerations used in evaluating the issuance of a preliminary injunction, finding them met.

Expect the government to appeal as well as opinions in the other pending cases.

 

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
 

Fifth Circuit Panel Denies Stays of Texas Executions by Pentobarbital

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

In its opinion in Wood v. Collier, Judge Patrick Higginbotham wrote for the panel and rejected the claims of death row inmates that Texas is obliged by the Eighth Amendment’s prohibition on cruel and unusual punishment and the Fourteenth Amendment’s guarantee of equal protection under the law to re-test the execution drug - - -a single, five-gram dose of pentobarbital - - -  to assure it does not present a high risk of unnecessary pain.

The identity and sources of drugs to accomplish "lethal injection" has been much litigated, including the Court's 2015 decision in Glossip v. Gross, rejecting an Eighth Amendment challenge to Oklahoma's three-drug lethal injection cocktail. As this Fifth Circuit opinion notes:

Texas originally used pentobarbital purchased from a pharmaceutical firm in its executions. However in 2011, Lundbeck, the Danish pharmaceutical firm that produces manufactured pentobarbital, refused to supply the drug to states that execute by lethal injection.In response, in September 2013, Texas began purchasing pentobarbital compounded by pharmacies.Texas alleges, and Appellants do not dispute, that Texas has used compounded pentobarbital to execute thirty- two prisoners since 2013 without issue.

Yet in June, Texas agreed to re-test the pentobarbital for a death sentenced inmate, mooting his civil action.  The inmates here argue that this settlement essentially substantiates their Eighth Amendment claim and creates an Equal Protection Clause claim.  The court disagreed:

However one kneads the protean language of equal protection jurisprudence, the inescapable reality is that these prisoners have not demonstrated that a failure to retest brings the risk of unnecessary pain forbidden by the Eighth Amendment. Attempting to bridge this shortfall in their submission with equal protection language, while creative, brings an argument that is ultimately no more than word play.

In short, the "strategic decision" of Texas to re-test the drug for one inmate is irrelevant for the others, especially "in the context of an ever-changing array of suits attacking its use of capital punishment from all angles."

 

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

 

 

 

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."

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. 

 

 

 

 

District Judge Finds "Obamacare" Contraception Mandate Unconstitutional as applied to "March for Life"

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

In an opinion that essentially extends religious protections to a nonreligious organization, Judge Richard Leon has ruled in March for Life v. Burwell that the so-called contraceptive mandate in the Patient Protection and Affordable Care Act (ACA or "Obamacare") cannot constitutionally be applied to a nonprofit anti-abortion employer.  While portions of Judge Leon's opinion predictably relied upon the Supreme Court's closely divided 2014 decision in Burwell v. Hobby Lobby, Inc. under the Religious Freedom Restoration Act (RFRA), Judge Leon notably found that the contraception mandate's exclusion of religious organizations - - - but not other organizations - - - violated the equal protection component of the Fifth Amendment.

Judge Leon applied rational basis review, but declared that

Were defendants to have their way here, rational basis review would have all the bite of a rubber stamp!

He continued:

Defendants contend that March for Life is not “similarly situated” to the exempted organizations because it “is not religious and is not a church.” Rational basis review is met, they argue, because the purpose served, “accommodating religious exercise by religious institutions,” is “permissible and legitimate.”  This not only oversimplifies the issue—it misses the point entirely! The threshold question is not whether March for Life is “generally” similar to churches and their integrated auxiliaries. It is whether March for Life is similarly situated with regard to the precise attribute selected for accommodation.  For the following reasons, I conclude that it most assuredly is.

[citations omitted]. 

image via "March for Life" about us

In short, Judge Leon found that "March for Life" was similarly situated to religious organizations given the HHS rationale for excluding religious organizations from the contraception mandate:

HHS has chosen to protect a class of individuals that, it believes, are less likely than other individuals to avail themselves of contraceptives. It has  consequently moored this accommodation not in the language of conscientious objection,  but in the vernacular of religious protection. This, of course, is puzzling. In HHS’s own  view, it is not the belief or non-belief in God that warrants safe harbor from the Mandate.  The characteristic that warrants protection——an employment relationship based in part on a shared objection to abortifacients—is altogether separate from theism. Stated  differently, what HHS claims to be protecting is religious beliefs, when it actually is  protecting a moral philosophy about the sanctity of human life. HHS may be correct that  this objection is common among religiously-affiliated employers. Where HHS has erred,  however, is in assuming that this trait is unique to such organizations. It is not.

In other words, the HHS's rationale - - - the government interest - - - was not specifically religious and thus should not be limited to religious organizations in keeping with principles of equal protection.  Some of this reasoning is reminiscent of Hobby Lobby, of course, but there the level of scrutiny under RFRA was strict (or perhaps even stricter than strict) scrutiny, while Judge Leon is applying rational basis scrutiny. 

Interestingly, Judge Leon states that  "'religion' is not a talisman that sweeps aside all constitutional concerns," and quotes the classic conscientious objector case of Welsh v. United States (1970) for the "long recognized" principle that  “[i]f an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content . . . those beliefs certainly occupy in the life of that individual a place parallel to that filled by God in traditionally religious persons.”  Taken to its logical conclusion, this reasoning has the potential to eliminate - - - or at least ameliorate - - - the "special" protection of religious freedom.

In his application of RFRA, Judge Leon's opinion is on more well-plowed ground.  He notes that while "March for Life is avowedly non—religious, the employee plaintiffs do oppose the Mandate on religious grounds."  This brings the case within the purview of Hobby Lobby.  As Judge Leon phrases it:

The final question the Court must ask under RFRA is whether the current Mandate is the least restrictive means of serving this governmental interest. Assuredly, it is not!

While Judge Leon dismissed the free exercise claim,  based upon the DC Circuit's opinion and denial of en banc review in Priests for Life v HHS, the judge granted summary judgment in favor of plaintiffs on the Equal Protection and RFRA claims (as well as a claim under the Administrative Procedure Act).  

When this case reaches the DC Circuit, it will be interesting to see how the court - - - as well as religious organizations and scholars - - - views Judge Leon's potentially destabilizing equal protection analysis.

Second Circuit Upholds NY's Vaccination Requirement

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

In a relatively brief per curiam opinion in Phillips v. City of New York the Second Circuit has upheld New York's vaccination requirement to attend public school, N.Y. Pub. Health Law § 2164(7)(a), against constitutional challenges.

The court rejected arguments that the statutory vaccination requirement and its enforcement by exclusion of students from school violates substantive due process, the Free Exercise Clause of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment, as well as state and municipal law.  Important to the court's rationale, and which the opinion took care to mention even in its description of the statute, the law includes medical and religious exemptions.

The religious exemption is most interesting in the context of this litigation.  For one plaintiff, the court affirmed the rejection of the religious basis for her sought-for exemption, agreeing with previous determinations that "her views on vaccination were primarily health‐related and did not constitute a genuine and sincere religious belief."  For another plaintiff, who had a religious exemption, the court found that the exclusion of her children from school during a vaccine-preventable outbreak of chicken pox was constitutional: "The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” quoting and citing Prince v. Massachusetts, 321 U.S. 158, 166‐67 (1944).

The centerpiece of the court's analysis was predictably and correctly the Supreme Court's 1905 decision in Jacobson v. Commonwealth of Massachusetts, rejecting a constitutional challenge to a state vaccination mandate.

The issue of vaccinations and constitutional challenges has received renewed attention in light of outbreaks of childhood illnesses thought to be essentially eradicated.  For example, as the LA Times reported yesterday, a recent outbreak of measles in California could be connected to vaccine-resistance:

"The current pertussis and measles outbreaks in the state are perfect examples of the consequences and costs to individuals and communities when parents choose not to vaccinate their children," [Gil] Chavez [epidemiologist with the California Department of Public Health] said.

Ther have also been widespread reports of illness outbreaks in Michigan, arguably attributable to its liberal opt-out allowance for school children.

[image via]

Fourth Circuit Finds North Carolina's Anti-Abortion "Right to Know" Statute Violates First Amendment

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

[updated below]

In the unanimous panel opinion today in Stuart v. Camnitz, authored by Judge J. Harvie Wilkinson, the court agreed with the district judge that North Carolina's "Woman's Right to Know Act" violates the First Amendment.  The Act required a physician "to perform an ultrasound, display the sonogram, and describe the fetus to women seeking abortions."

The Fourth Circuit ruled that the statute is

quintessential compelled speech. It forces physicians to say things they otherwise would not say. Moreover, the statement compelled here is ideological; it conveys a particular opinion. The state freely admits that the purpose and anticipated effect of the Display of Real-Time View Requirement is to convince women seeking abortions to change their minds or reassess their decisions.

The court rejected the state's contention that the statute was merely a regulation of professional speech that should be subject to the low standard of rational basis review.  Instead, the court reasoned that because the statute was a content-based regulation of speech, it should be evaluated under an intermediate scrutiny standard akin to that of commercial speech.

Importantly, the court also acknowledged its specific disagreement with the Eighth Circuit's en banc opinion in Planned Parenthood v. Rounds (2012) and the Fifth Circuit's opinion in Tex. Med. Providers Performing Abortion Servs. v. Lakey (5th Cir. 2012).   The Fourth Circuit states that its sister circuits were incorrect to reply on a single paragraph in Planned Parenthood of Southeastern Pa. v. Casey, and "read too much into Casey and Gonzales [v. Carhart]," neither of which, the court points out, were First Amendment cases.

As the court stated,

In sum, though the State would have us view this provision as simply a reasonable regulation of the medical profession, these requirements look nothing like traditional informed consent, or even the versions provided for in Casey and in N.C. Gen. Stat. § 90-21.82. As such, they impose an extraordinary burden on expressive rights. The three elements discussed so far -- requiring the physician to speak to a patient who is not listening, rendering the physician the mouthpiece of the state’s message, and omitting a therapeutic privilege to protect the health of the patient -- markedly depart from standard medical practice.

It concluded,

Abortion may well be a special case because of the undeniable gravity of all that is involved, but it cannot be so special a case that all other professional rights and medical norms go out the window. While the state itself may promote through various means childbirth over abortion, it may not coerce doctors into voicing that message on behalf of the state in the particular manner and setting attempted here.

Most likely North Carolina will seek en banc review or petition for certiorari based on the conflicting opinions in the Fifth and Eighth Circuits.

UPDATE: On June 15, 2015, the United States Supreme Court's Order denied certiorari in the case now styled Walker-McGill v. Stuart, with a notation "justice Scalia dissents," but with no accompanying opinion.

[image via]

 

Supreme Court Vacates Fifth Circuit Stay of Texas HB 2 Injunction

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

The controversial Texas law limiting abortion access known as HB 2, which began law despite a well-publicized filibuster by state senator Wendy Davis, is now effectively enjoined  - - - in part - - -by the United States Supreme Court in its Order in Whole Woman's Health Center v. Lakey.

Here's the entire text:

The application to vacate stay of final judgment pending appeal presented to Justice Scalia and by him referred to the court is granted in part and denied in part. The Court of Appeals’ stay order with reference to the district court’s order enjoining the admitting-privileges requirement as applied to the McAllen and El Paso clinics is vacated. The Court of Appeals’ stay order with reference to the district court’s order enjoining the ambulatory surgical center requirement is vacated. The application is denied in all other respects.

Justice Scalia, Justice Thomas, and Justice Alito would deny the application in its entirety.

To recap: the United States Supreme Court is vacating 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.Recall also that this is an as-applied challenge.  A panel of the Fifth Circuit in March upheld the admitting privileges provision after it had issued a stay of Judge Yeakel's decision enjoining the provision as unconstitutional.

Fifth Circuit Stays Injunction Against Texas' Restrictive Abortion Law HB2

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

In Whole Woman's Health Center v. Lakey, the Fifth Circuit today issued a stay of the majority of the district judge's injunction against portions of Texas HB 2 passed despite a well-publicized filibuster by state senator Wendy Davis.  A panel of the Fifth Circuit in March upheld the admitting privileges provision after it had issued a stay of Judge Yeakel's decision enjoining the provision as unconstitutional. 

This newest round of opinions consider the as-applied challenge to the admitting privileges provision combined with the the ambultory-surgical-center requirement. 

In the stay opinion, authored by Judge Jennifer Elrod (pictured below) the majority states that there is some confusion concerning whether the district judge's opinion is actually limited to the as-applied challenge or whether it goes further.

The majority interjects some confusion of its own with its statement that the district judge was wrong to conclude that "the severity of the burden imposed by both requirements is not balanced by the weight of the interests underlying them" because

In our circuit, we do not balance the wisdom or effectiveness of a law against the burdens the law imposes.

The Fifth Circuit's majority opinion states that

the district court’s approach ratchets up rational basis review into a pseudo-strict-scrutiny approach by examining whether the law advances the State’s asserted purpose.  Under our precedent, we have no authority by which to turn rational basis into strict scrutiny under the guise of the undue burden inquiry.

It is this point on which Judge Stephen Higginson, concurring in part and dissenting in part, disagrees.  He states that he does not read the earlier HB 2 case, Abbott, "to preclude consideration of the relationship between the severity of the obstacle imposed and the weight of the State’s interest in determining if the burden is 'undue.'" And that consistent with the correct analysis, "the district court considered the weight of the State’s interest in its undue-burden review."

With one small exception - - -the district court’s injunction of the physical plant requirements of the ambulatory surgical provision remaining in force for El Paso - - - the Fifth Circuit stayed the district judge's injunction.  While the court states that the merits panel is not bound by its determination, it will certainly be persuasive when the Fifth Circuit considers the next round in the saga of the constitutionality of HB2.

Second Circuit Finds NYC's MBP Circumcision Regulation Merits Strict Scrutiny

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

Reversing the district judge's decision rendered more than 18 months ago which we discussed here, the Second Circuit's  opinion in Central Rabbinical Congress v. NYC Department of Health & Mental Hygiene holds that the NYC regulation targeted at a certain circumcision practice is essentially one that as targeted at a certain religion and thus merits strict scrutiny under the First Amendment's Free Exercise Clause.

The NYC regulation, §181.21, amended the NYC Health Code, by requiring specific consent and a warning for "oral suction" circumcision.   The Second Circuit's unanimous panel, in an opinion authored by Judge Debra Ann Livingston, disagreed with the district judge and found that the regulation was not a neutral and generally applicable law. [*]

The opening of the court's opinion is telling:

In Judaism, the “bris milah,” or ritual circumcision of infants, which has been practiced for millennia, celebrates a covenant with God and“derives explicitly from a commandment . . . in the Hebrew Bible.” 11 Encyclopedia of Religion, “Rites of Passage: Jewish Rites,” at 7818 (2d ed. 2005). As part of this ritual circumcision, some Orthodox Jews, particularly Satmar, Bobov, Lubavitch, and other Hasidic groups, perform direct oral suction of the circumcision wound in a ritual act known as metzitzah b’peh (“metzitzah b’peh” or “MBP”).

Relying on  Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), the court reaches the conclusion that the

Regulation is not neutral because it purposefully and exclusively targets a religious practice for special burdens. And at least at this preliminary stage, the Regulation is not generally applicable either, because it is underinclusive in relation to its asserted secular goals: the Regulation pertains to religious conduct associated with a small percentage of HSV infection cases among infants, while leaving secular conduct associated with a larger percentage of such infection unaddressed.

Indeed, the court held that the question of whether the NYC Regulation singles out a specific religious practice is "simpler to address" than was true in Lukumi "in light of the Department’s own admission that metzitzah b’peh 'prompted' § 181.21 and that metzitzah b’peh is 'the only presently known conduct' covered by the Regulation."

 The court notes that "the conclusion that the Regulation is subject to strict scrutiny does not mean that § 181.21 is constitutionally deficient, for strict scrutiny is not invariably fatal in the context of free exercise claims." 

The Department has asserted interests that are substantial and may prove, on analysis, to be compelling. And the means it has chosen to address these interests (means that fall short of outright prohibition of MBP and that may further the goal of informed parental consent) may be appropriately tailored, albeit intrusive on a longstanding religious ritual. Mindful of the serious interests at stake on both sides, we express no view as to whether the plaintiffs have borne their burden of establishing a likelihood of success on the merits.

The court remanded, but denied the request for a stay of the enforcement of the regulation.  The district judge's original 93 page order and opinion was largely devoted to the empirical evidence regarding the health effects of the practice; it looks as if she will be hearing the evidence on those very issues, but applying a heightened standard.

[*] updated: The Second Circuit did not reach the compelled speech argument; h/t Josh Blackman.

Divided Fifth Circuit Upholds Preliminary Injunction Against Mississippi's Restrictive Abortion Law HB 1390

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

A panel of the Fifth Circuit in its opinion today in Jackson Women's Health Organization v. Currier upheld the district judge's injunction against the enforcement of a restrictive abortion statute known as  Mississippi HB 1390.

The statute required physicians performing abortions to have admitting privileges to a nearby hospital.   As the court noted, a similar provision in Texas (HB 2) was recently upheld by the Fifth Circuit in Planned Parenthood of Texas Surgical Providers v. Abbott. As to the rational basis of such a law, the panel stated it was "bound" by Abbott as precedent to accept that the Mississippi statute survives a constitutional challenge.

Regarding undue burden, however, the panel majority, in an opinion by Judge E. Grady Jolly  (who interestingly hails from Mississippi) and joined by Judge Stephen Higginson, the effects of HB 1390 were relevant in this as-applied challenge.   In assessing the undue burden, the court found it highly relevant that “if enforced, the admitting privileges requirement would likely require JWHO, the only currently licensed abortion facility in Mississippi, to lose its license.”   The panel rejected the State's attempt to "walk back" this statement - - - which is actually a quote from the State's opening brief - - - as "too little, too late."  Additionally, the majority found it important that the hospitals had rejected the physicians' applications for admitting privileges based on the fact that the physicians performed abortions.

 The central - - - and exceedingly interesting - - - question of the undue burden analysis is the relevance of the clinic's status as the only abortion clinic remaining in Mississippi.  The State argued that there is no undue burden because women could travel to another state and many of these distances would not be unduly burdensome in and of themselves.  Recall that in Planned Parenthood of S.E. Penn. v. Casey, 505 U.S. 833 (1992) the plurality opinion rejected the contention that traveling long distances constituted an undue burden.  But, as Judge Jolly notes, there was no suggestion that women should have to go to neighboring states in Casey or in any other opinion, and there is at least one circuit court opinion that finds it "dispositive" that women had to leave the state to exercise their constitutional right. 

Additionally - - - and this is the interesting part - - - the court relies upon State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) in the United States Supreme Court rejected Missouri's argument that its failure to admit an African-American man to its law school was essentially cured by its offer of a tuition stipend to allow Mr. Gaines to attend law school in another state.  Here's the passage from Gaines that Judge Jolly finds worthy of quoting at length:

[T]he obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. . . . That obligation is imposed by the Constitution upon the States severally as governmental entities, —each responsible for its own laws establishing the rights and duties of persons within its borders. It is an obligation the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do. That separate responsibility of each State within its own sphere is of the essence of statehood maintained under our dual system.

Id. at 350.  Judge Jolly admits that Gaines can be distinguished, but finds Gaines nevertheless determinative: " a state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights." 

In a lengthy and somewhat vehement dissent - - - complete with quotations from Albert Camus - - - Senior Judge Emilio Garza finds many things to criticize in the majority's opinion, including the majority's failure to recognize there is not sufficient state action for a constitutional claim (it is the hospitals denying admitting privileges rather than the statute that are the cause); the majority's failure to honor the distinction between equal protection (as in Gaines) and due process (in the abortion context); the majority's belief that there is relevance to crossing state lines (given the constitutional right to travel across state lines articulated in Saenz v. Roe); the majority's failure to recognize that Casey is nothing more than a "verbal shell game" (quoting Justice Scalia's dissent in Casey); the majority's recognition of the "liberty" interest (quotes in original) in the Due Process Clause; and the majority's participation in "aggrandizement of judicial power."   

But the central issue of federalism including not only states' rights but states' responsibilities raised by this opinion and litigation is one that merits close consideration.