Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, December 4, 2018

At Least For Now, Women Have Reproductive Rights

Joanna Grossman, At Least for Now, Women Have Reproductive Rights, Justia

It’s hard to read a single day’s news without encountering a new threat to reproductive rights. To take just one egregious example, Republican legislators in Ohio recently introduced a bill that would abolish abortion in all circumstances, including cases of rape, incest, and a threat to the woman’s life. The fetus would be treated as a person, and women and providers could potentially be punished with life in prison or even the death penalty. This bill might not make it out of the Ohio House of Representatives; it might not be passed by the Senate; and it might not be signed by the current governor or the one who will replace him in January. But it might leap over all of those hurdles and become the strictest abortion law in the nation. Similar bills, maybe one notch less extreme, have become law in several states in recent years. * *  *

 

Extreme anti-abortion measures proposed or passed in recent years have a number of things in common. First, they do not reflect the will of Americans, seven in ten of whom support abortion in all or almost all circumstances. Second, they are unconstitutional. Third, the legislators who support or vote for these bills know both of these things. * * *

 

In a recent case, a federal judge in Mississippi permanently enjoined one of these ultra-restrictive laws. In that case, Jackson Women’s Health Organization v. Currier, the court concluded that a ban on abortions after 15 weeks imposed an unconstitutional burden that could not be squared with the applicable caselaw. In response to the question whether this law violates the Fourteenth Amendment, the court concluded that “[i]t does, unequivocally.”

December 4, 2018 in Abortion, Constitutional, Legislation, Reproductive Rights | Permalink | Comments (0)

Tuesday, November 20, 2018

The Modern Legal History of the Equal Rights Amendment

With Virginia seeking to be the third state to ratify the ERA in recent times, the discussion has reignited over passing the ERA.  An excerpt from my recent book chapter places this development in legal historical context: 

See Tracy Thomas & TJ Boisseau, After Suffrage Comes Equal Rights? ERA as the Next Logical Step, in 100 Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism (Holly McCammon & Lee Ann Banaszak eds.) (Oxford Univ. Press 2018) (tracing the complete legal and political history of the ERA from 1921).

The National Organization for Women (NOW), newly formed in 1966 by Betty Friedan and Murray, pressed for full enforcement of the new Title VII and actualizing its mandate of equality in employment (Fry 1986). By 1970, federal courts, the Department of Labor, and the EEOC all interpreted Title VII as invalidating women-specific rules, including protective labor legislation and, more importantly, requiring extension of any protections like minimum wages to men rather than eliminating them for women (Mansbridge 1986). Union and social feminist opposition to the ERA finally began to wane, with the long-standing concern over worker protection laws now addressed (Mayeri 2004).

NOW quickly prioritized the ERA. The 1960s had seen few litigation successes with the judicial approach, and legal activists believed they needed the political leverage, if not the substantive right, of an equality amendment campaign (Mayeri 2004). NOW adopted the ERA as a top priority at its conference in 1967. It rejected Pauli Murray’s alternative proposal for a human rights amendment that would have more broadly granted a “right to equal treatment without differentiation based on sex,” potentially encompassing sexual orientation and explicitly addressing private action and reproductive rights (Mayeri 2004: 787). Long-standing ERA proponents, now much older, adamantly opposed any change in the wording of the ERA that might broaden it to more radical agendas, fearing it would jeopardize existing support . This had the effect of reducing feminist demands to “their lowest common denominator” rather than pursuing a wider social justice agenda (Mayeri 2004: 785). Pursuing a constitutional amendment, however, did not mean abandoning the Fourteenth Amendment litigation. By 1970 “most legal feminists had reached a consensus that the constitutional change they sought could and should be pursued simultaneously through the dual strategy” of amendment and litigation (Mayeri 2004: 800).

In early 1970 the Pittsburgh chapter of NOW used direct action to support its demand for the ERA, disrupting a hearing of the US Senate Subcommittee on Constitutional Amendment on another proposed amendment, with protesters demanding hearings on the long-proposed ERA (Mansbridge 1986; Mathews and De Hart 1990). A Citizens’ Advisory Council on the Status of Women petitioned President Richard Nixon to endorse the amendment, and for the first time the US Department of Labor supported the ERA. In May, the Senate Amendment Subcommittee held hearings and referred the equality amendment positively to the Senate Judiciary Committee. There Senator Samuel Ervin Jr. (D-NC), a states’ rights opponent of the civil rights’ laws, and later of Watergate hearings fame, “became the amendment’s chief antagonist” (Mathews and De Hart 1990: 36). He opposed the ERA because of its threat to social norms, concerned about losing the traditional physiological and functional differences of gender to what he characterized as a passing fad. He attacked “militant women who back this amendment,” saying “they want to take rights away from their sisters” and pass laws “to make men and women exactly alike” (Mathews and De Hart 1990: 37–39). Ervin moved the debate beyond the abstract principles of equality to concerns with specific effects of gender equality, including the draft, divorce, family, privacy, and homosexuality. Harvard Law professor Paul Freund also testified about the “parade of horribles the ERA might produce, including the legalization of same-sex marriage, the abolition of husbands’ duty of familial support, unisex bathrooms, and women in military combat” (Mayeri 2004: 808). The opposition succeeded, and the bill failed in the Senate (Mansbridge 1986).

Meanwhile, the ERA passed in the House. Martha Griffiths used a rare procedural move of the discharge petition to “pry the ERA out of the House Judiciary Committee,” where it had languished for years while the liberal chair, Emanuel Celler (D-NY), “kept it in his bottom drawer” because of the persistent opposition by labor (Mansbridge 1986: 13). After only an hour’s debate, the House passed the ERA by a vote of 350-15 on August 10, 1970. When the Senate failed to pass the bill, it was reintroduced the next year, when the House passed the ERA for a second time on October 12, 1971, by a vote of 354-23. This time the Senate passed the ERA on March 22, 1972, by a vote of 84-8 with a seven-year timeline for the required three-fourths of the states to ratify the amendment (Mansbridge 1986). States initially rushed to ratify the ERA. Hawaii was the first state to ratify the amendment, twenty-five minutes after the Senate vote. The next day, three states ratified, and two more the following day. By early 1973, less than one year after Congress’s passage, twenty-four states had ratified, most unanimously or with quick hearings and debate.

This trajectory halted in 1973 with the Supreme Court’s decision in Roe v. Wade finding a woman’s constitutional right to choose abortion. Roe stopped the advancing ratifications, shifted the public discourse, and overturned previous support by Republicans (Ziegler 2015). “The battle against the ERA was one of the first in which the New Right used ‘women’s issues’ to forge a coalition of the traditional Radical Right” , of those concerned with “national defense and the Communist menace” (Mansbridge 1986: 5), and religious evangelicals to activate a previously apolitical segment of the working and middle classes that “was deeply disturbed by cultural changes” (Mansbridge 1986: 16). Through these groups, he ERA became linked with abortion as both were sponsored by radical “women’s libbers” who were a threat to traditional women and family values. The debate became framed as women versus women.

The face of women’s opposition to the ERA was conservative activist Phyllis Schlafly and her STOP ERA (Stop Taking Our Privileges) organization (Berry 1988; Neuwirth 2015). Schlafly, a mother to six children, offered herself to the anti-ERA movement as a voice for stay-at-home mothers in need of special privileges and protections under the law. The irony that she, much like all the most prominent reformers historically lining up on either side of the ERA amendment (such as Alice Paul, Florence Kelley, and Pauli Murray), held a law degree and enjoyed a flourishing decades-long career in the public eye, was utterly elided in her rhetoric. Doggedly focused on women’s roles as mothers and homemakers, Schlafly trumpeted the cause of women’s difference from men—championing the special rights of women as citizens who, ideally, did not work outside the home. She asserted that equality was a step back for women: “Why should we lower ourselves to ‘Equal Rights’ when we already have the status of ‘special privilege’?” (Wohl 1974: 56). She and other ERA opponents reframed the issue as forcing women into dangerous combat, coeducational dormitories, and unisex bathrooms. Feminist advocates responded by clarifying that privacy rights protected concerns about personal living spaces in residences and bathrooms, but their counsel was unheard in the din of threat to traditional family and gender roles. Opponents equated the ERA with homosexuality and gay marriage, as the amendment’s words “on account of sex,” “were joined with ‘sexual preference’ or homosexuality to evoke loathing, fear, and anger at the grotesque perversion of masculine responsibility represented by the women’s movement” (DeHart-Mathews and Mathews 1986: 49). Schlafly hurled insults at the ERA supporters, urging her readers to view photographs of an ERA rally and “see for yourself the unkempt, the lesbians, the radicals, the socialists,” and other activists she labeled militant, arrogant, aggressive, hysterical, and bitter (Carroll 1986: 65). When ERA supporters “gathered at the federally financed 1977 International Women’s Year Conference in Houston and endorsed homosexual rights and other controversial resolutions on national television, they helped to make the case for ERA opponents” (Berry 1988: 86).

The shift in debate slowed and then stopped ratification of the ERA. In 1974, three states ratified the amendment, one state ratified in 1975 and one in 1977, and then ended the campaign with only thirty-five of the thirty-eight required (Mansbridge 1986). At the same time, states began to rescind their prior ratifications, with five states voting to withdraw their prior approval (Neuwirth 2015). The legality of the rescissions was unclear, but these efforts had political reverberations in the unratified states (Mansbridge 1986).[1] When the deadline arrived without the required three-fourths approval, Congress voted in 1978 to extend the ratification deadline three years to June 30, 1982. Not a single additional state voted to ratify during this extension (Berry 1988). In 1980, the same year President Jimmy Carter proposed registering women for the draft, the Republican Party dropped ERA from its platform and newly elected president Ronald Reagan came out in opposition to the ERA. Businesses, manufacturers, and insurance companies all increasingly opposed the amendment (Burroughs 2015). ERA supporters escalated with more militant demonstrations of hunger strikes and marches. They chained themselves to the gates of the White House fence and Republican National Committee headquarters and trespassed on the White House and governors’ lawns. But such protests had little effect, proving counterproductive as they alienated Republican sponsors and reinforced portrayals of the radicalness of the proposed amendment (Carroll 1986). Despite an extension, the ERA was defeated on June 30, 1982, three states short of the required super-majority of states. Congress immediately reintroduced the amendment, holding hearings in late 1983. The floor vote of 278-147 in the House came six votes short of the two-thirds needed for passage. Despite how close this generation of campaigners had come to achieving their goal, for most, the ERA was now dead (Farrell 1983; Mayeri 2009).

The broader goals of the ERA, however, were not dead or abandoned. All through the previous decade, legal feminists led by the ACLU and Ruth Bader Ginsburg had been pursuing the second front of litigation and doing so with some success. In 1971, the Supreme Court struck down a law for the first time as arbitrary sex discrimination under the Fourteenth Amendment. In Reed v. Reed (1971), the high court overturned a state law that presumptively made a father, and not a mother, the administrator for a deceased child’s estate. Two years later in Frontiero v. Richardson (1973), a plurality of the Court applied heightened scrutiny to strike down a law automatically granting military benefits to wives, but requiring military husbands to show dependency. The pros and cons of the dual constitutional strategy played out in Frontiero. The Court’s plurality endorsed strict scrutiny for sex-based classifications because of congressional passage of the ERA, thus harmonizing the two. But the concurrence held that the pendency of legislation weighed against judicial decision, and required waiting for the final outcome of the constitutional process. In 1976 a majority of the Court definitively applied equal protection to sex discrimination in Craig v. Boren (1976), adopting, however, only an intermediate judicial scrutiny, one more permissive than that for race.[2] As Mayeri (2004: 826) notes, “This Goldilocks solution” in Craig captured the “Court’s ambivalence about both the procedural and the substantive aspects of a revolution in gender roles.” The ambivalence is apparent in that while striking down the law in Craig denying young men equal access to 3.2% beer, the Court upheld other discriminatory laws, like veterans’ preferences for men, statutory rape for minor women, and military pensions for men (Schlesinger v. Ballard 1975; Kahn v. Shevin 1974; Geduldig v. Aiello 1974). Equal protection proved an imperfect solution, and easily manipulable in the hands of the Court. For many activists, this indicated that perhaps an equal rights amendment was needed after all.

In the 1980s, at the time of ERA’s defeat, polling found that a majority of the electorate remained in support of the amendment (Businessweek 1983; Gallup Report 1981; Mansbridge 1986). According to Pleck (1986: 107–108), “In the midst of a national conservative tide, popular support for the ERA was very strong.” Most national leaders, political conservatives, and “major national organizations from the American Bar Association to the Girl Scouts had gone on record in favor of it” (Pleck 1986: 108). Then why did the ERA fail? Scholars and activists have searched for possible explanations. Some suggest that a rushed political process failed to build the necessary state consensus on women’s rights to match the federal consensus, along with inadequate state organizational structure to secure ratification, outdated campaign tactics and failure to use mass media, and lack of legislative prioritization (Berry 1988; Carroll 1986; Mansbridge 1986; Mayo and Frye 1986; Pleck 1986; Steinem 1984). Other scholars point to deep substantive disagreements about women in military combat and revolutionary changes in traditional motherhood, which threaten women personally as they perceive a danger to themselves and their daughters (DeHart-Mathews and Mathews 1986). Berry (1988: 85) notes that “equality may have seemed simple to proratificationists, but to others it meant sexual permissiveness, the pill, abortion, living in communes, draft dodger, unisex men who refused to be men, and women who refused to be women. . . . And a fear that men would feel freer to abandon family responsibilities and nothing would be fined in exchange.” Legal scholar Catharine MacKinnon (1987: 770) thought ERA failed because it did not go far enough, and more radically “mobilize women’s pain and suppressed discontent” derived from systemic, social realities of male supremacy. And still others  questioned the need for an equal rights amendment, given intervening Supreme Court decisions extending equal protection to women and federal legislation like Title VII and Title IX of the Education Amendments (Mansbridge 1986; Mayeri 2004).

Congress continued to reintroduce the Equal Rights Amendment every year after its defeat, but it went nowhere. Glimmers of action appeared in 2007 when a bipartisan group of lawmakers rechristened the amendment the “Women’s Equality Amendment” (Mayeri 2009: 1224) and in 2013 when Representative Carolyn Maloney (D-NY) proposed new language for an equality amendment to make the equality abstraction more concrete: “Women shall have equal rights in the United States and every place subject to its jurisdiction.” But the time and urgency for an equal rights amendment  seemed to have passed. If ERA was not politically dead, it was at least comatose (MacKinnon 1987).

Conclusion: Equal Rights One Hundred Years after Suffrage

In 2014 a new ERA Coalition of major women’s rights organizations formed, fueled by a new generation of young people outraged at continuing inequality and energized to action (Neuwirth 2015). The year brought renewed grassroots interest in the ERA, sparking popular reconsideration of an equality amendment endorsed by celebrities like Meryl Streep and feminist icon Gloria Steinem (Babbington 2015). Justice Ruth Bader Ginsburg publicly called for the ERA to ensure future generations that women’s equality is “a basic principle of our society,” just as she had thirty-five years earlier (Schwab 2014).[3] Even legal feminist scholar Catharine MacKinnon (2014: 569), previously opposed to the ERA as a weak, formalistic attempt at equality, now believed that an ERA is “urgently needed, now as much as or more than ever.” Surveys have shown over the last decade that most voters, as high as 96%, support equality for women, and 91% believe equality should be guaranteed by the Constitution (Neuwirth 2015), indicating perhaps a gendered cultural opportunity for change (McCammon et al. 2001). However, these surveys also show that 72% of people believe, incorrectly, that such rights are already included in the Constitution.

The ERA Coalition believes the time is ripe again for an equal rights amendment, given the next generation’s interest and recent political activity (Neuwirth 2015). In 2014 Oregon passed a state ERA referendum with 64% of the vote. Illinois and Virginia also passed state ERA laws, two states that had not previously ratified the federal ERA. Federal ERA  proponents advocate a “three-states-more” strategy, which assumes the continued validity of the prior ratifications and seeks ratification of ther required three additional states. One state, Nevada, ratified the ERA in March 2017. This extended ratification strategy is supported by the delayed the ratification of the Twenty-Seventh Amendment (salary change for Congress must take effect the following term),  as it was sent to the states for ratification in 1789, but not ratified until 1992, when the last states joined (Burroughs 2015).

A key question is whether women legally need the ERA, or whether its goals of general equality and specific rights have effectively been accomplished through other means. The virtually unanimous consensus of legal scholars is that the ERA’s goals have been effectively achieved through the Supreme Court’s equal protection jurisprudence (Mayeri 2009; Siegel 2006). Courts now review gendered state action under intermediate scrutiny, requiring that any laws treating women differently be justified by important governmental interests and that the laws be closely tailored to those interests (United States v. Virginia 1996; Mississippi University for Women v. Hogan 1982). Other scholars, however, have emphasized the limitations of equal protection analysis for sex equality (Brown et al. 1971; MacKinnon 2014; Mansbridge 1986). For gender discrimination cases under equal protection, the Court utilizes a lower standard of intermediate scrutiny, rather than the strict scrutiny used in race and religious discrimination. This lower standard tolerates many of the continuing instances of less overt sex discrimination and laws that have discriminatory effect rather than textual prohibitions on gender (Siegel 2002). The equal protection approach is also limited because it requires proof of intent—defendants thinking bad thoughts about women—which, MacKinnon (2014: 572) notes, “doesn’t address how discrimination mostly operates in the real world,” where “the vast majority of sex inequality is produced by structural and systemic and unconscious practices” inherited from centuries of gender hierarchy. Equal protection law’s formal classification structure, she explains, which rigidly treats only exactly similar things the same, is incapable of assessing the ways in which people “can be different from one another yet still be equals, entitled to be treated equally” or where affirmative diversity is needed to treat alike those whom are different (MacKinnon 2014: 571).

Some scholars ( Schwab 2014; Hoff-Wilson 1986) also conclude that equality for women has essentially been achieved for women without the ERA because the specific substantive goals of the amendment were accomplished through a variety of federal legislation on specific issues as well as the parallel state constitutional amendments. Twenty-three states adopted mini-ERAs, and such amendments have helped strengthen women’s ability to challenge discriminatory laws in those states. Courts often interpret the state ERAs to require strict scrutiny, and two states mandate an even higher absolute standard that presumes any discriminatory law to be unconstitutional (Burroughs 2015; Wharton 2005). In addition, federal legislation has mandated equal employment and education in the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Pregnancy Discrimination Act of 1978, and the Violence Against Women Act of 1994. Such piecemeal legislation, however, is subject to the political ebb and flow and can be rolled back, as the Violence Against Women Act was when the Supreme Court held in United States v. Morrison (2000) that Congress had no power to address civil remedies for domestic violence (MacKinnon 2014).

The renewed campaign for an equal rights amendment emphasizes the continued systemic harms to women of economic inequality, violence against women, and pregnancy discrimination and the limits of existing laws to address these concerns (MacKinnon 2014; Neuwirth 2015). Proponents of an equal rights amendment emphasize the need for a permanent constitutional guarantee to control an overarching legal and social principle of women’s equality. The United States, unlike the majority of other countries, has refused to incorporate such an express guarantee in its written constitution or adopt the international women’s bill of rights by ratifying the United Nations’ treaty (MacKinnon 2014; Neuwirth 2015).[4] The absence of an express guarantee permits traditional literalists like Justice Antonin Scalia to opine, “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t” (California Lawyer 2011). The ERA offers a corrective to this thinking and the equivocal state of women’s rights under the law. It offers a textual guarantee of sex equality, an inspiration for public policy, and a powerful symbolic support of women’s equality in all social and legal venues (Ginsburg 2014; MacKinnon 2014).

The equality amendment fulfills the hope first envisioned by proponents of a suffrage amendment to fully integrate women into every aspect of the citizenry with full recognition of their humanity (Siegel 2002). Now, almost one hundred years later, perhaps the time is right. Or perhaps the time is right to embrace the larger social justice legacy of the women’s equality movement and expand the amendment to all human rights to include aspects of sexual orientation discrimination and reproductive rights. These broaden the concept of sex discrimination to encompass the ways in which gender is practiced and experienced in our society. Perhaps dovetailing with recent advances and political consensus in civil rights of same-sex marriage will give women’s equality the final push it needs to be enacted.

Notes

[1] One federal court upheld the rescissions, but expiration of the ERA ratification deadline mooted the question before the Supreme Court could review the case. Idaho v. Freeman, 529 F. Supp. 1107 (1981), stayed, Jan. 25, 1982. The evidence against the legality of rescission is that states attempting to rescind their ratification of the Fourteenth Amendment were still included as enacting states (Berry 1988).

[2] The strict scrutiny test requires that state laws based on race be justified with compelling interests that are narrowly tailored to necessary regulation, thus invalidating most laws based on race. Loving v. Virginia, 388 U.S. 1 (1967); McLaughlin v. Florida, 379 U.S. 184 (1964).

[3] For Ginsburg’s early pro-ERA writings, see Ruth Bader Ginsburg, “The Fear of the ERA,” Washington Post, April 8, 1975: A21; Ruth B. Ginsburg and Kathleen W. Peratis, “Equal Rights for Women,” New York Times, December 31, 1975: 21; Ruth Bader Ginsburg, “Let’s Have E.R.A. as a Signal,” ABA Journal, January 1977: 70; Ruth Bader Ginsburg, “Sexual Equality under the Fourteenth and Equal Rights Amendment,” Washington University Law Review  (1979): 161-178.

[4] The United States is one of only seven countries that has not ratified the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), including Iran, Somalia, Sudan, South Sudan, Palau, and Tonga. The treaty was signed by President Carter in 1980, but failed to get the two-thirds congressional vote necessary for ratification (Neuwirth 2015).

November 20, 2018 in Abortion, Constitutional, Legal History | Permalink | Comments (0)

Wednesday, October 24, 2018

Pharmacist Refuses Medicine to Woman Having Miscarriage

Michigan Pharmacist Refuses Medicine to Woman Having Miscarriage

An Ionia woman is demanding that Meijer discipline a Petoskey pharmacist and implement a company-wide policy for how pharmacists should handle religious and moral objections to dispensing medication after she was denied a prescription to help complete a miscarriage.

 

Rachel Peterson, 35, alleges a pharmacist at the Meijer store on Lears Road in Petoskey refused to fill her prescription for a drug called misoprostol (brand name Cytotec) in July because of his personal religious views. She says he also refused to transfer the prescription to another pharmacy. 

 

Misoprostol can be used to prevent stomach ulcers and also can be used to induce labor during pregnancy, to aid in the completion of a miscarriage and in the treatment of postpartum hemorrhage. When combined with another drug, it can be used to induce an abortion. 

 

The American Civil Liberties Union of Michigan sent a letter Tuesday on Peterson's behalf to Meijer, saying what the pharmacist did was discriminatory and violated the state's public accommodation laws.

 

"Unfortunately in Michigan, we don’t have an explicit state law that goes so far as to protect patients like Rachel," she said. "What we would hope is that Meijer and other pharmacies would agree that they’re allowed to accommodate the personal beliefs of their employees, but that accommodation cannot include permitting discriminatory denials of care that burden patients and customers. 

October 24, 2018 in Abortion, Healthcare | Permalink | Comments (0)

Wednesday, September 19, 2018

The Impact of Liberal Feminism and Critical Race Theory on Reproductive Rights and Justice in the U.S.

Lisa Chiyemi Ikemoto, Reproductive Rights and Justice: A Multiple Feminist Theories Account in Research Handbook on Feminist Jurisprudence (Robin West and Cynthia Bowman eds., Elgar Press, Forthcoming)

This chapter examines the impact of liberal feminism and critical race theory on reproductive rights and justice in the United States. Liberal feminism has played a key role in this fight. Other feminist theories, including, prominently, critical race theory, have taken the mainstream reproductive rights movement to task for marginalizing the voices and experience of women of color and low-income women, thus reinforcing stratified reproduction. This work has put issues like surrogacy, coerced sterilization, welfare family caps and criminal prosecution of pregnant women on the reproductive rights and justice agenda. Interaction among feminist theories has produced a dialectic and evolution that enable them to meet new challenges. Similarly, a multi-theory account of reproductive rights and justice issues produces a more useful analysis and range of strategies than a single theory approach.

September 19, 2018 in Abortion, Family, Race, Reproductive Rights, Technology | Permalink | Comments (0)

Tuesday, July 31, 2018

Massachusetts NASTY Women Act Repeals Old Anti-Abortion Law

The NASTY Women Act: Massachusetts Repeals a 173-Year-Old Anti-Abortion Law in Case of a Roe v. Wade Reversal

Massachusetts wants to ensure that abortion continues to be officially legal in the state if Roe v. Wade is overturned by the Supreme Court after President Trump names a new justice to replace Justice Anthony Kennedy.

And so, while the procedure is already legal under state and federal law, Massachusetts moved to abolish a 173-year-old law that banned “procuring a miscarriage.”

The bill, called the Negating Archaic Statutes Targeting Young Women, or NASTY Women Act, passed in a landslide in the state legislature, gaining unanimous approval from the Senate in January, and passing by 138-9 in the House. It is now expected to be signed by Gov. Charlie Baker.

Massachusetts State Senate President Harriette Chandler explained to Timethat the retirement of Justice Kennedy spurred the drive to abolish the law, as “these are strange times we live in.”

July 31, 2018 in Abortion, Legislation | Permalink | Comments (0)

Wednesday, June 27, 2018

SCOTUS Overturns CAL Disclosure Law for Pro-Life Pregnancy Counseling Centers

In National Institute of Family and Life Advocates (NIFLA) v. Becerra, the US Supreme Court in a 5-4 decision blocked a California law that required “crisis pregnancy centers” to provide information about abortion.

The decision written by Justice Thomas and joined by Justices Roberts, Kennedy, Alito, and Gorsuch is here at NIFLA v. Becerra.  Concurrence by Justice Kennedy. Dissent written by Justice Breyer.

Commentary on the decision:

Mary Ziegler, Wash Post, The Supreme Court's Big Abortion Hypocrisy

On Tuesday, the Supreme Court struck down a California law regulating antiabortion crisis pregnancy centers, which are Christian counseling centers that try to persuade women to continue their pregnancies. California had required pregnancy centers with a medical license to tell women that the state provided free or low-cost services, including abortion, to low-income women. If a center wasn’t licensed, the facility had to post a sign saying so.

 

For all the justices, the case boiled down to a question of fairness. Writing for the majority, Justice Clarence Thomas accused California of discriminating against Christians. After all, the state demanded that crisis pregnancy centers — and no similar facilities — post notices about other services. Justice Stephen G. Breyer argued that the discrimination actually ran the other way: The Supreme Court had upheld laws requiring abortion providers to recite a state-mandated script but wouldn’t do the same when antiabortion activists made their case.****

 

But the court’s decision to treat crisis pregnancy centers as religious institutions has created two  contrasting sets of rules when it comes to free speech on abortion. While abortion providers have their speech rights curbed — they are required by law to say certain things to their patients — the majority seemed to suggest that crisis pregnancy centers are different. 

 

Emma Green, The Atlantic, The Supreme Court Hands a Win to the Pro-Life Movement

These radically different readings of the case suggest that the Court is still wrestling with how it thinks about abortion: as a medical procedure, an act with heavy moral consequences, or both. Looking ahead, the Court’s decision in NIFLA may be most consequential as a boundary line for the way the government treats pro-life groups. In this respect, Kennedy’s concurring opinion is most telling, wrote Mary Ziegler, a law professor at Florida State University, in an email. “He is concerned about freedom of thought and religion for conservative Christians, and he thinks the fact Act shows evidence of bias against believers who work in [crisis-pregnancy centers],” she said. “This may turn out to be the most significant part of the opinion.”

 

Volokh Conspiracy, NIFLA v. Becerra and Speech Compulsions

 

Caroline Corbin, Compelled Disclosures, 65 Alabama Law Review 1277 (2014)

 

Abortion Providers Have Less First Amendment Rights than Abortion Opponents

One of the centerpieces of the Supreme Court’s First Amendment decisions is that the Constitution does not permit “viewpoint discrimination.” The government may, in certain limited cases, enact laws that place restrictions on speech — but discriminating between two opposing sides of a debate is a big no-no.

 

On Tuesday, the Supreme Court created an “except when we do it” carve-out to this rule. When you boil down the opinion’s rhetoric, the holding of National Institute of Family and Life Advocates (NIFLA) v. Becerra is that abortion opponents enjoy the full force of a robust First Amendment, while abortion providers must accept a watered-down right to free speech.

June 27, 2018 in Abortion, Constitutional, Pregnancy, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, June 12, 2018

The Unfinished Story of Roe v. Wade

Reva Siegel & Linda Greenhouse, The Unfinished Story of Roe v. Wade, in Reproductive Rights and Justice Stories (Melissa Murray, Kate Shaw & Reva Siegel eds., forthcoming 2019)

We tell the story of Roe v. Wade for a forthcoming volume in the Foundation Press Law Stories series. To those who support abortion rights, Roe demonstrates the Court’s crucial role in protecting individual rights in the face of determined political opposition. For its critics, Roe was the work of an “unelected” Court creating new constitutional rights; supposedly, by deciding matters properly left to democratic determination, the Court inflamed conflict over abortion and riled our politics.

We explain the origins of the abortion right and conflicts over it differently. The story we tell is not simply a litigation history of a landmark case, but as importantly a story about the democratic foundations of our constitutional law. We start our account of the abortion conflict before Supreme Court litigation begins. Conflict enters the picture well before the courts do, as people argue over the Constitution’s meaning in their everyday lives. We recount how citizens who lacked power in any conventional sense were able over time to change the way the nation and its courts understood longstanding guarantees of liberty, of equality, and of life.

Roe itself, filed in federal district court in Dallas in March 1970, was one of many cases in the late 1960s and early 1970s that invoked the Constitution to challenge the century-old regime of criminal abortion statutes; Roe just happened to be first in line on the Supreme Court's docket. These cases emerged from principled and heated dialogue among powerful social movements that initially did not even have courts in view. The story of Roe v. Wade is the story of conflict born in democratic politics that engendered the rights claims that the Court would ultimately recognize. The conflict continues to this day, even as advocates and their arguments have changed as few would have expected. 

This framework offers a fresh context for reading Roe. Enlarging our perspective in this way allows us to recover claims for and against abortion rights to which the Court’s opinion in Roe responded, as well as claims that the Court ignored—claims for women’s equality and for protecting potential life that played an important role in reshaping the abortion right nearly twenty years later in Planned Parenthood of Southeastern Pennsylvania v. Casey

The account of Roe’s history the chapter offers can inform both normative and predictive debate about Roe’s future.

June 12, 2018 in Abortion, Constitutional, Legal History | Permalink | Comments (0)

Monday, June 11, 2018

The Jurisprudence of Uncertainty: Knowledge, Science & Abortion

Mary Ziegler, The Jurisprudence of Uncertainty: Knowledge, Science & Abortion, 2018 Wisconsin L. Rev. 316 (2018)

While the outcome of abortion cases seems to depend exclusively on the undue-burden standard, we have mostly missed the linchpin of recent decisions: conclusions about who has the authority to resolve uncertain scientific or moral questions. Using original archival research, this Article traces the history and present-day impact of the law and politics of uncertainty doctrine in abortion law.

 

The Article makes sense of the inconsistency running through the Court’s abortion jurisprudence: that the Court has not applied a single, coherent definition of uncertainty. Specifically, the Court has confused objective uncertainty, involving gaps in knowledge that can theoretically be closed through research, and subjective uncertainty, involving moral, ethical, or philosophical questions. Conflating these two kinds of uncertainty has led the Court to inject moral disapproval and disgust into what theoretically are questions of fact.

 

The Article proposes that the Court should formally distinguish between objective and subjective uncertainty. In cases of subjective uncertainty, the Court should generally defer to legislatures’ views on matters like the value of fetal life or equality for women, balancing them against the constitutional liberty recognized in Casey and Roe. When dealing with objective uncertainty, the Court should look for evidence on the purpose and effect of a law as the Court recently explained in Whole Woman’s Health v. Hellerstedt. Disentangling the two forms of uncertainty will make abortion jurisprudence more coherent, consistent, and faithful to the balance of competing constitutional values that Casey and Whole Woman’s Health command.

June 11, 2018 in Abortion, SCOTUS | Permalink | Comments (0)

Wednesday, April 18, 2018

SCOTUS Denies Cert in Abortion Protest Case Leaving in Place Noise Restriction Law

Supreme Court Declines Appeal of Ruling Against Pastor Who Preaches Outside Planned Parenthood

The U.S. Supreme Court has declined to hear an appeal of a ruling that overturned a lower court decision granting a preliminary injunction to a Maine minister who asserted that he was being unlawfully targeted by police outside of a Planned Parenthood facility for his pro-life preaching.

 

The high court declined certiorari in the case of March v. Mills, et. al. without comment on Monday, allowing a First Circuit ruling against the preacher’s public proclamations to stand.

 

However, as the courts ruled solely on the merits of the law and not how it was being applied specifically to Andrew March of Cell 53 Church, his attorneys will refile and continue the fight.

 
“The case is far from over,” Kate Oliveri of the Thomas More Law Center told the Bangor Daily News. “There are several challenges that we will go back to the District Court with.”...

 

In May 2016, U.S. District Judge Nancy Torresen, appointed to the bench by Barack Obama, sided with March, opining that the “intent to interfere” portion of the law would pertain to the content of the speech, and would therefore only relate to pro-life speech, which would consequently be an unconstitutional content-based restriction.

 

“Continued enforcement of a content-based restriction on speech would result in irreparable harm to the Plaintiff,” Torreson ruled.

 

She said that there are other ways to keep order on the public sidewalk, as police “can further their interests of maintaining order and protecting individual patients through the criminal code, most obviously the disorderly conduct and harassment statutes.”

 

However, in August, the First Circuit Court of Appeals overturned Torreson’s ruling, stating that they rather found the law to be content-neutral and that it does not ban abortion opponents from conversing with others, as opposed to lifting up one’s voice to preach—if in doing so the person’s voice can be heard inside the building.

 

“[T]he requirements laid out on the face of the noise provision do not indicate that the measure would apply to speech expressed at a normal, conversational tone—or even at a louder volume—absent the speaker’s intent to disrupt the provision or receipt of medical services,” it wrote.

The First Circuit Court of Appeals case is here, March v. Mills (2017)

April 18, 2018 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

Tuesday, April 10, 2018

Leveling Down Gender Equality

My latest article thinking about gender and remedies.

Tracy A. Thomas, Leveling Down Gender Equality

Introduction

The Supreme Court resurrected its “leveling down” jurisprudence in 2017 when it remedied an equal protection violation of gender discrimination by denying, rather than extending, the requested benefit. This approach of nullifying the benefit for all had previously been confined to a handful of cases, over thirty years old; but with the decision in Sessions v. Morales-Santana the Court brought new life and currency to this limitation of equality law. In Morales-Santana, a six-Justice majority of the Supreme Court led by Justice Ruth Bader Ginsburg and joined by Chief Justice Roberts and Justices Kennedy, Breyer, Sotomayor, and Kagan, struck down a gender-based distinction in the federal immigration statute.  The statute had two different standards for mothers and fathers for determining derivative citizenship for children born abroad to unwed citizen parents. It seemed to be an easy case of facially unequal rules based on gender: one year prior U.S. residence for mothers, five years prior residence for fathers. However, the Court then refused to grant the plaintiff father the same benefit of the shorter time frame allotted mothers.  It instead equalized the gendered rules by denying the previous benefit of the shorter one year to mothers. While Justice Ginsburg’s decision in Morales-Santana purported to be a strong, historic decision on the merits of equality, the denial of meaningful relief actually weakened the meaning of equality with a reach far beyond the contours of this one case. 

This “leveling down” of the remedy – responding to inequality by reducing benefits to all rather than leveling up and extending benefits to the disadvantaged group -- is unusual, but not unheard of.  It has been judicially endorsed in a few cases, where the courts have ratified the voluntary actions of defendants.  In one example, the city of Jackson, Mississippi remedied its racially segregated swimming pools by closing down all pools.  In another, Congress redressed the disparity of Social Security benefits that gave extra benefit to women by reducing the women’s benefit to the lower level previously applicable to men.  And in yet another example, a high school found to have discriminated against a pregnant teen by denying her membership in the school’s National Honor Society, eliminated the honor society for all students.

Defendants seem to choose this remedy almost in defiance, refusing to grant a benefit to the petitioner with the audacity to challenge inequality.  This retrenching is deemed an acceptable organizational response, as seen for example, in the example of the BBC and its overseas editors.  When the BBC (British Broadcasting Company) was exposed in the media for paying its women overseas editors substantially less than its men editors, it responded by reducing the men’s pay. The women were thus not only denied equal pay for the past discrimination, but were exposed to potential peer retaliation for “rocking the boat” and making the men worse off.  But for the BBC, as with other wrongdoing defendants, leveling down seemed to be a quick and easy way to erase the inequality problem.    

The Court in Morales-Santana similarly believed it needed to defer to the defendant’s choice of remedy for the gender discrimination.  This was ironic given that the Court in that same case expressly rejected such deference to Congress in the merits part of the decision.  It departed from previous decisions upholding gender distinctions in the derivative citizenship statute based on deference to Congress’s plenary power over immigration; this time, the Court forcefully applied constitutional norms of equality to a different end.  Yet, in the same breath, the Court turned around and espoused the importance of deference to the defendant’s choice for the remedy.  It struggled to find such legislative intent, trying to second guess what Congress would have done had it known its derivative citizenship statute was unconstitutional.  The Court decided Congress would have stricken the second of two statutory clauses, rather than the first provision or instead of utilizing the gender neutral term “parent” instead of “mother.” It thus achieved equality by a simple formal textual exercise which resulted in the elimination of the shorter-time benefit to all unwed parents.   

This textualist analysis, however, depended upon the assumption that leveling down is an equally-valid remedial option for inequality.  But this is where the Court went wrong.  The Court failed to question the constitutionally legitimacy of this nullification in light of the constitutional mandates of due process and equal protection.  Had the Court engaged in an analysis of the remedy as much as it did of the right, it might have discovered that more was demanded than mere neutral formality and equivalency of benefit across the board.  Equality itself, as a constitutional right, dictates more than just empty formalism.  And due process, I have argued, requires that rights be granted meaningful remedies. Together, this means that where the operative substantive right is based on equal protection, as in Morales-Santana, a meaningful remedy is one that grants the “protection” promised.  For equal protection does not merely mandate a logical parallelism of genders, but normatively values equal opportunity and benefit. Examining the leveling down remedy in light of equality, beyond the strict mandates of a particular statutory benefit, reaches a different conclusion than the Court.  Asking the additional question of whether the plaintiff has received a meaningful remedy for the past inequality casts doubt on the validity of leveling down relief for gender discrimination.  

This Article first examines the Court’s decision in Morales-Santana and its justification for choosing the “mean remedy” of leveling down and denying a citizenship benefit to the child of both mothers and fathers.  Part II then explores the Court’s general, but unexplained, impression that ordinarily leveling up is the proper remedial course.  It provides a normative foundation for this remedial presumption grounded in the meaning of equal protection and in the due process right to a meaningful remedy.  Given these constitutional norms, the Article then argues that the remedial calculus should be changed.  Rather than accepting the Court’s assumption, renewed in Morales-Santana, that leveling down and leveling up are equally valid remedial choices, it argues for a strong presumption of leveling up in cases of gender discrimination, with only narrow exceptions permitted to rebut.  Part III of the article explains that these exceptions permitting leveling down would be rare, and would be grounded in equity, but only in concerns that would inflict undue burden on the defendant or third parties from the leveling up itself.  Such a deferential rule to the plaintiff’s rights better effectuates the meaning of equal protection and protects against judicial and voluntary action that by remedial formalism of leveling down could eviscerate the very meaning of equality.

 

April 10, 2018 in Abortion, Constitutional, Courts, Family, Gender, SCOTUS, Theory | Permalink | Comments (0)

Friday, March 16, 2018

Federal Court Issues Preliminary Injunction Blocking Ohio Ban on Abortion in Down Syndrome Cases

Ohio Judge Blocks Legislation Preventing Abortion in Down Syndrome Cases

An Ohio federal district court judge blocked legislation that would have banned abortion in cases where a fetus is diagnosed with Down syndrome.

Republican Gov. John Kasich signed the legislation into law in December of last year, and it was scheduled to go into effect March 23. The legislation is now blocked until a final ruling is made in the lawsuit.
 
In a court order granting a preliminary injunction Wednesday, Southern District of Ohio Judge Timothy Black said that federal abortion law is "crystal clear" that "a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability."...
 
The law prohibits abortions after prenatal tests reveal Down syndrome in a fetus, or if there's "any other reason to believe" the fetus has the genetic condition.
 
A person performing an abortion in such a case could face a fourth-degree felony charge, and physicians could lose their licenses. The woman seeking the abortion would not be held accountable, according to the legislation.
 
The ACLU filed a complaint in mid-February calling the legislation unconstitutional.....
 
Similar laws have passed in North Dakota and Indiana, though a federal judge blocked the Indiana law. The North Dakota law went into effect in 2013.

FYI, Judge Black was also the trial judge in the Obergefell case on same-sex marriage.

The decision in Pre-Term Cleveland, et al v. Himes is here:  Order Granting Preliminary Injunction (March 14, 2018)

March 16, 2018 in Abortion, Constitutional | Permalink | Comments (0)

Thursday, February 15, 2018

Book Review "Scarlet A": More Talking and Less Shouting About Abortion, Ethics and Law

NYT, "Scarlet A" Wants Less Shouting About Abortion and More Talking, reviewing Katie Watson, Scarlet A: The Ethics, Law, & Politics of Ordinary Abortion (Oxford Press 2018)

Certain issues have become so noisy and stigmatized that they seem to be all-consuming and invisible at once. Abortion is one of them, and Katie Watson wants to change how Americans talk about it — when, that is, they deign to truly talk about it at all.

 

Rates of abortion may be on the decline, largely because of long-term contraceptive use, but as Watson points out in “Scarlet A: The Ethics, Law, & Politics of Ordinary Abortion,” the procedure is far from a fringe practice. Nearly one in five American pregnancies ends in abortion (a number that doesn’t include “spontaneous abortions,” the medical term for miscarriages). Nearly one in four American women will have an abortion in her lifetime.

 

Yet silence perpetuates a belief that abortion is atypical, even when the statistics say otherwise. The conversational void is then filled by advocates on both sides, who emphasize what Watson calls “extraordinary abortion.” Abortion rights activists highlight severe fetal abnormalities and pregnant 12-year-olds; anti-abortion activists highlight pregnancies that are terminated after viability. Such cases are all too real, but fixating on them distorts our understanding of what abortion ordinarily is....

 

Watson, a bioethicist at Northwestern’s medical school and a senior counsel for the American Civil Liberties Union of Illinois, comes to the debate with her own convictions. Forty-five years ago, with Roe v. Wade, “abortion was correctly identified as a constitutionally protected right, and it must remain legal,” she writes. “That’s not negotiable for me.” What she wants to do is engage directly with the fact that the majority of Americans, even those in favor of abortion’s legality, have deeply ambivalent feelings about abortion itself. “We should be able to acknowledge the complexity of private decision making,” she writes, “without threatening the right of private decision making.”

February 15, 2018 in Abortion, Books | Permalink | Comments (0)

Thursday, January 11, 2018

Comparing Reproductive Freedom in the US and China

Marisa Cianciarulo,  For the Greater Good: The Subordination of Reproductive Freedom to State Interests in the United States and China, 51 Akron Law Rev. 99 (2017)

This Article provides a comparative analysis of two very different restrictions on reproductive freedom that have startling parallels and similarities. Both China and the United States impose limits on reproductive freedom: China restricts the number of children that families can have, often in ways that violate international law, while some U.S. states have attempted to restrict access to abortion in ways that violate the precepts of Roe v. Wade as well as international law. Both China and U.S. states impose restrictions on reproductive freedom in order to achieve compelling state goals: protecting development and sustainability in China, and protecting prenatal life in the United States. Finally, both China and the United States have means other than severe restrictions on reproductive freedom at their disposal to achieve the governments’ goals: broad access to birth control and sex education. This Article uses the lens of international human rights law to evaluate the concept of subordinating individual reproductive choice to a perception of the common good. Part II provides an overview of the major international instruments addressing individual rights and how they interact with the rights and responsibilities of the state. Part III discusses anti-abortion laws in the United States and the anti-abortion movement’s rationale that protecting prenatal life justifies limiting reproductive choice. Part IV discusses China’s vast and population control system and the government’s rationale that providing a controlled, sustainable population justifies limiting reproductive choice. Part V examines three levels of coercion—compulsory sex education and unrestricted access to contraception, monetary incentive and disincentive programs, and forced abortion and forced child-bearing—and analyzes whether these levels of coercion are consistent with international human rights principles. Finally, the Article concludes that in light of modern access to education and contraception, and the ability to reduce the incidence of unwanted pregnancies via those means, more coercive means are unnecessary (in the case of monetary incentives and disincentives) and unjustifiable (in the case of forced abortion and forced child-bearing).

January 11, 2018 in Abortion, International, Reproductive Rights | Permalink | Comments (0)

Thursday, December 14, 2017

Ohio Passes Law Prohibiting Abortion for Down's Syndrome

Reuters, Ohio Passes Law Barring Abortion over Down Syndrome Diagnosis

Women in Ohio would be prohibited from receiving abortions because of a fetal Down syndrome diagnosis under a bill that passed the state senate on Wednesday and is heading to Republican Governor John Kasich’s desk.

 

Lawmakers voted 20-12 in favor of the law, which criminalizes abortion if the physician has knowledge that the procedure is being sought due to a diagnosis of Down syndrome, a genetic disorder caused when abnormal cell division results in an extra full or partial copy of chromosome 21.Doctors would lose their medical licenses in the state and face a fourth-degree felony charge under the law if they were to perform an abortion with that knowledge. Mothers would not face criminal charges.

 

The bill makes Ohio the third state to pass a law outlawing abortions due to fetal anomalies. Similar laws were passed in Indiana and North Dakota. The Indiana provision was struck down by a U.S. District Judge in September after a lawsuit filed by the American Civil Liberties Union.

 Ohio Senate Sends Down Syndrome Abortion Ban to Gov John Kasich

A bill banning abortion after a fetal diagnosis of Down syndrome has cleared the Ohio General Assembly and will now go to Gov. John Kasich's desk.

 

The Ohio Senate on Wednesday gave final approval to House Bill 214 in a 20-12 vote. The bill was passed by the House in November.

 

Three Republicans, including Gayle Manning of North Ridgeville and Matt Dolan of Chagrin Falls, voted with Democrats against the bill.

 

Kasich, who has signed 18 abortion restrictions into law since 2011, told cleveland.com last month he generally supported the idea but wanted to see the legislation before deciding how to act.

December 14, 2017 in Abortion, Legislation | Permalink | Comments (0)

Monday, November 13, 2017

SCOTUS Grants Cert in Case Challenging Disclosures Required by CAL Reproductive FACT Act

Today the US Supreme Court granted cert in National Institute of Family and Life Advocates v. Becerra

The petition for a writ of certiorari is granted and limited to the following question: “Whether the disclosures required by the California Reproductive FACT Act violate the protections set forth in the Free Speech Clause of the First Amendment, applicable to the States through the Fourteenth Amendment."

For a prior post on the case see Petition for Cert on Required CAL Disclosures for Pregnancy Crisis Centers as Violating Free Speech

See also USA Today, Abortion, Contraception Return to Supreme Court in Free Speech Case

The Ninth Circuit's decision below upholding the law and disclosures is here.

November 13, 2017 in Abortion, Constitutional, SCOTUS | Permalink | Comments (0)

Tuesday, October 24, 2017

DC Circuit en banc Allows Immigrant Teen's Abortion to Proceed

The DC Circuit sitting en banc overruled a panel decision from late last week delaying an immigrant teen's abortion, granted by a state court. 

Garza, as GAL to J.D. v. Hargan, No. 17-5236 (D.C. Cir. en banc, Oct. 24, 2017), overruling the panel decision in Garza v. Hargan (D.C. Cir. Oct. 20, 2017)

Concurring Opinion to the Order by Judge Millett (the dissent in the panel decision).

Abortion on demand? Hardly. Here is what this case holds: a pregnant minor who (i) has an unquestioned constitutional right to choose a pre-viability abortion, and (ii) has satisfied every requirement of state law to obtain an abortion, need not wait additional weeks just because she—in the government’s inimitably ironic phrasing—“refuses to leave” its custody, Appellants’ Opp’n to Reh’g Pet. 11. That sure does not sound like “on demand” to me. Unless Judge Kavanaugh’s dissenting opinion means the demands of the Constitution and Texas law. With that I would agree.

Dissenting Opinion by Judge Kavanaugh (majority opinion in the panel decision).

The en banc majority has badly erred in this case.

The three-judge panel held that the U.S. Government, when holding a pregnant unlawful immigrant minor in custody, may seek to expeditiously transfer the minor to an immigration sponsor before the minor makes the decision to obtain an abortion. That ruling followed from the Supreme Court’s many precedents holding that the Government has permissible interests in favoring fetal life, protecting the best interests of a minor, and refraining from facilitating abortion. The Supreme Court has repeatedly held that the Government may further those interests so long as it does not impose an undue burden on a woman seeking an abortion.

Today’s majority decision, by contrast, “substantially” adopts the panel dissent and is ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand, thereby barring any Government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision. The majority’s decision represents a radical extension of the Supreme Court’s abortion jurisprudence.

Judge Karen Henderson also dissent in a separate opinion.

October 24, 2017 in Abortion, Constitutional, Family, Reproductive Rights | Permalink | Comments (0)

Monday, October 16, 2017

Court Upholds Denial of Parole to Pregnant Woman to Protect Unborn Child

Commonwealth v. Becker, (Pa. Super. Ct. Oct. 10, 2017)

P & P opposed Becker's parole because of the risk that she may use heroin while pregnant. The trial court shared similar concerns, among others, and denied Becker's petition for parole. 

Becker first claims that the denial of her parole was manifestly unreasonable, as she had incurred no misconducts during her incarceration, attended treatment and counseling, and had a stable address and family support. Becker's claim is without avail.

“Parole is nothing more than a possibility, and, when granted, it is nothing more than a favor granted upon a prisoner by the state as a matter of grace and mercy shown by the Commonwealth to a convict who has demonstrated a probability of his ability to function as a law-abiding citizen in society.”

 Here, the record does not support Becker's assertion that the denial of her parole was manifestly unreasonable. First, we note, Becker's gender and concomitant pregnancy are incidental to her well-chronicled heroin addiction. As such, the basis of the Becker's parole denial, as stated by the trial court, was the substantial risk that she would use heroin, not her unique status. In coming to its decision, the trial court expressed concern for the health of Becker's unborn child. However, the trial court did not discuss prisoner access to women's healthcare, prenatal care, child welfare resources or other associated services that might indicate its decision was motivated entirely by Becker's status. Rather, it focused on Becker's prior use of heroin and the dangers it posed to her and others. Specifically, the trial court reiterated its concern with “[Becker] using drugs and ․ harming herself” and the potential for relapse. N.T. Parole Hearing, 8/22/16, at 7, 15–17, 69 (“[S]he has a bad history [of heroin abuse][,] and history dictates when she gets out [of prison], she uses”).

 The trial court's concerns are well founded.

 Becker next claims that the trial court violated her substantive due process rights when it denied her parole based solely on her pregnancy. Becker concedes that in Pennsylvania, “a prisoner has no absolute right to be released from prison on parole upon the expiration of the prisoner's minimum term.” However, citing Block v. Potter, 631 F.2d 233, 235 (3rd Cir. 1980), Becker argues that the trial court based its denial of parole on factors she avers are unconstitutional and/or arbitrary, including gender, pregnancy and the safety of the unborn child.

 Here, Becker asks us to determine whether the trial court's consideration of her gender, pregnancy and the health of the unborn child was, like in Block, an unconstitutional arbitrary government action. We decline to conduct such an analysis.

 Under the Administrative Agency Law, a court can only review an action of a Commonwealth agency where its decision constitutes an adjudication. The Supreme Court found that the act unambiguously defines adjudication to exclude parole decisions. The Court also addressed the theory that parole decisions would be applicable for review under the Due Process Clause of the Fourteenth Amendment of the United States Constitution. The Court rejected this argument, as there was no precedent to support it.

 Becker's next claim on appeal is that the trial court violated her equal protection rights by denying her petition for parole. Equal protection requires that “all persons similarly situated should be treated alike.” Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). Legislative classifications based on gender call for a heightened standard of review. See Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 295 (1993). However, the Supreme Court of the United States has repeatedly held that we cannot reasonably presume opposition to abortion reflects an animus against women and/or pregnant women as a class. See Id. at 269–70;  see also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983) (finding that discrimination based on pregnancy was discrimination based on gender only because Congress specifically intended it to be when it amended 42 U.S.C. § 2000e). “Where the challenged governmental action does not burden ‘fundamental’ or ‘important’ rights, and does not make a suspect classification or a quasi-suspect classification, it does not offend the Equal Protection Clause as long as it is rationally related to a legitimate governmental interest.” Small v. Horn, 722 A.2d 664, 672 (Pa. 1998) (citations omitted). Furthermore, drug users are not a suspect or a quasi-suspect class. New York City Transit Authority v. Beazer, 440 U.S. 568, 592–93 (1979). This argument affords Becker no relief.

 The trial court based its decision denying Becker's petition for parole on her status as an incarcerated, pregnant heroin addict. The court's action does not burden a fundamental or important right, nor is Becker's status a suspect or quasi-suspect classification. Therefore, the trial court's action need only pass a rational basis test. Small, 772 A.2d at 672. Our Supreme Court has defined the rational basis test as examining a law to find if it is “unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained.” Nixon, 839 A.2d at 286–87 (citation omitted). If it is not, then the discrimination is permissible under the Equal Protection Clause. Id. at 286. Here, we find protecting Becker's unborn child was a legitimate governmental interest. Planned Parenthood, 505 U.S. at 846. By denying Becker parole, the trial court ensured Becker could not use heroin and harm her unborn child. Denying parole until going into labor was reasonable, as the only other alternative was releasing Becker on parole. Therefore, there was no equal protection violation.

October 16, 2017 in Abortion, Constitutional, Family, Pregnancy | Permalink | Comments (0)

Tuesday, September 26, 2017

Are Women's Narrative Stories Admissible Evidence in the Supreme Court?

Linda Edwards, Telling Stories in the Supreme Court: Voices Briefs and the Role of Democracy in Constitutional Deliberation, 29 Yale J. L & Feminism 29 (2017)

On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.

The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of non-parties—strangers to the appellate case—with no vetting by cross examination or the rules of evidence. Yet, despite their controversial nature, they have thus far received little academic attention. 

The time has come to ask some tough questions: Are these briefs legally permissible? Theoretically legitimate? How do they compare with other sources consulted regularly by the Court? Are they really so different from the policy arguments we have accepted without blinking for over a hundred years?

These foundational questions quickly take us into even murkier waters—legal and constitutional theory; narrative theory; framing; and cognitive science. Voices briefs prompt us to look at constitutional decision-making in a new way. Soon we find that voices briefs are interrogating long-accepted assumptions rather than the other way around. The analysis produces some surprising reasons why voices briefs can play an important role in constitutional interpretation and some realistic ideas about handling the undeniable concerns that still haunt their use.

September 26, 2017 in Abortion, SCOTUS | Permalink | Comments (0)

Maintaining the Constitutional Theory of the Private Choice of Abortion

Erwin Chemerinsky & Michele Goodwin, Abortion: A Woman's Private Choice, 95 Tex. L. Rev. 1189 (2017)

The uncertainty about abortion rights makes it especially important to provide a strong constitutional foundation and the best possible constitutional defense for their protection. That is our purpose in this Article, because abortion rights in the United States are in serious jeopardy. Despite the fact that a legal abortion is medically safer than carrying a pregnancy to term in the United States, that right may soon be more illusory than real. If Roe v. Wade is overturned, lessons from the era preceding that landmark decision underscore the broad harms women will encounter, particularly because 49% of pregnancies in the United States are unintended. In traditionally conservative states, the rates of unintended pregnancies are even higher: 54% in Texas, 55% in Alabama and Arkansas, 60% in Louisiana, and 62% in Mississippi, among others. Yet these states also have some of the highest rates of maternal mortality in the developing world: Texas ranks worst in the developing world on maternal mortality.

The Article proceeds in three parts. First, it explains the flawed foundation for the protection of reproductive rights under the Constitution, noting that the problem began in Griswold v. Connecticut, the first case to protect reproductive freedom. Second, it seeks to reconceptualize abortion rights and underscore the value and relevance of a reproductive justice framework, including taking serious account of women’s lived lives. Finally, in Part III we discuss what it would mean for abortion to be regarded as a private choice. In this Part, we identify three implications: a) restoring strict scrutiny to examining laws regulating abortions, which would mean that the government must be neutral between childbirth and abortion; b) preventing the government from denying funding for abortions when it pays for childbirth; and c) invalidating the countless types of restrictions on abortion — often referred to as “targeted restrictions of abortion providers” — that have the purpose and effect of limiting women’s access to abortion rather than promoting safety and health. We especially focus on “informed consent” and waiting period laws and show that they are inconsistent with regarding abortion as a private choice for each woman.

and the response:

Aziza Ahmed, Abortion in a Post-Truth Moment: A Response to Erwin Chemerinsky and Michele Goodwin, 95 Tex. L. Rev. See Also 198  (2017)

In Abortion: A Woman’s Private Choice, Erwin Chemerinsky and Michele Goodwin respond to the crisis of abortion rights in our current political moment. While preserving the right to abortion is an ongoing challenge for reproductive-justice advocates and lawyers, the arrival of a new Republican administration led by Donald Trump and a Republican majority in the House and Senate heightens these concerns. In the face of ongoing and new threats to abortion access, Chemerinsky and Goodwin argue that abortion should be treated as a woman’s private choice. I agree with Chemerinsky and Goodwin, as all supporters of abortion rights should. This response to their insightful essay situates their argument in a set of debates and discussions that undergird many of the logics utilized by the court to justify their choice of standard: medical, psychological, and scientific evidence on abortion.

September 26, 2017 in Abortion, Constitutional | Permalink | Comments (0)

Wednesday, September 13, 2017

Ohio Supreme Court Hears Case on Abortion Clinic Closure

Ohio Supreme Court Hears Dispute on Abortion Clinic Closure

Government attorneys on Tuesday asked the Ohio Supreme Court to override lower court rulings and uphold the state Health Department’s order to shut down Toledo’s last abortion clinic.

 

A lawyer for the clinic told the court that the state is trying to prevent women in northwestern Ohio from seeking legal abortions and is putting them at greater risk.

 

The case involves one of several restrictions Ohio lawmakers have placed on abortion clinics in recent years.

 

The Ohio Department of Health issued an order in 2014 to close Capital Care of Toledo because the clinic didn’t have a patient-transfer agreement with a local hospital.

 

Such agreements were mandated, and public hospitals barred from providing them, under restrictions Ohio lawmakers passed in 2013. The University of Toledo Hospital, which is public, withdrew from its transfer arrangement with Capital Care after the law passed.

 

The clinic sued and won in the lower courts, which ruled the restrictions were unconstitutional. Judges have allowed the clinic to continue operating as the legal dispute carries on.

 

Abortion-rights groups contend the transfer agreements and other restrictions not at issue in the case are medically unnecessary. They also say the city of 275,000 residents would be the first major city in Ohio without access to abortion services.

 

Chief Justice Maureen O’Connor on Tuesday asked about alternatives women would have if the Toledo clinic closes.

 

The state’s attorney, Stephen Carney, said the closest options would be Detroit and Ann Arbor, Mich. — both about an hour’s drive from Toledo.

 

“Certainly we are not telling women, ‘You can’t have an abortion in Ohio, but you can go to Michigan’?” Justice William O’Neill asked.

 

Jennifer Branch, an attorney representing Capital Care, said women seeking an abortion would have to make more than one trip, adding up to several hundred miles.

 

“The danger to those women from an unlawful abortion would be health risks,” she said. “They could bleed. They could have an infection.”

 

Branch also argued that transfer agreements are unnecessary.

 

“They could call 911 if they needed to, there is nothing to prohibit that,” she told justices. “No one ever asks if there is a written transfer agreement.”

 

O’Connor asked, “Are there any other (ambulatory surgical centers) precluded from contracting or entering into a (written transfer agreement) with hospitals, any hospital public or private?”

 

Branch replied: “No, your honor, only abortion clinics.”

September 13, 2017 in Abortion | Permalink | Comments (0)