Reproductive Rights Prof Blog

Federal Judge Orders Trial on Alabama Admitting Privileges Law

Reuters: Legal challenge to Alabama abortion law will go to trial, judge rules, by Verna Gates:

A federal judge on Monday ordered a trial to determine whether a new Alabama law requiring doctors who perform abortions to obtain hospital admitting privileges poses a significant impediment for women seeking an abortion.

Since abortion clinics typically use traveling physicians, the law could cause the closure of three of Alabama's five facilities, a potential constitutional violation, abortion supporters have argued in court.

In an 86-page opinion, U.S. District Judge Myron Thompson cited the possibility of an "undue burden." . . .

Ninth Circuit Case Addresses Constitutionality of Requiring Porn Actors to Wear Condoms

The National Law Journal: A Condom Conundrum: Can Los Angeles demand that porn actors wear them?, by Amanda Bronstad:

At first blush, a case now before the U.S. Court of Appeals for the Ninth Circuit appears downright raunchy, brought by a Los Angeles studio whose films have titles like "Bedside Brat," and "Sex in Dangerous Places."

But the appeal, by Vivid Entertain­ment LLC, raises an intriguing constitutional issue: How far does the First Amendment go in protecting the free-speech rights of actors who have sex with each other in movies? . . .

Commentary on Hobby Lobby

Balkinization: Religious Accommodations Cost More than Money, by Kara Loewentheil: 

Yesterday the Supreme Court heard arguments in the consolidated cases ofHobby Lobby and Conestoga Wood. With the publication of the full argument transcript online, it became clear that even the experienced lawyers arguing these cases – along with the Supreme Court Justices themselves – were struggling to understand how to think about the relationship between religious accommodations and third party rights. In this context, that means the impacts that accommodations granted to religious employers would have on their female employees who would otherwise have access to contraception without cost-sharing under the Affordable Care Act’s contraceptive coverage requirement (and indirectly on their partners and children). 

 

This came as no surprise to me. In When Free Exercise Is A Burden: Protecting “Third Parties” In Religious Accommodation Law, a paper I authored that is shortly forthcoming in the Drake Law Review, I argue that neither scholars nor courts have thus far provided a satisfying account of how to balance free exercise rights against the impact of those rights on “third parties.” . . .

 

In my paper I argue that the contraceptive coverage requirement has an enormously important expressive element – it signifies a social and political commitment to women’s social and economic equality, and symbolizes an acceptance of social and shared responsibility for gender equality. . . .

 

Balkinization:  Do The Rights of Employees Count?: The Supreme Court Hears Oral Argument in Hobby Lobby, by David Gans:

 

Hobby Lobby is shaping up to be the most important free exercise of religion case the Supreme Court has heard in a very long time.    It’s also emerging as a key test for Justice Anthony Kennedy and his vision of individual liberty.  Will Justice Kennedy recognize that Hobby Lobby’s employees, who seek to protect their health and control their reproductive lives, are entitled to enjoy federal guarantees that safeguard women’s liberty and personal dignity by ensuring access to the full range of contraceptives? . . .

West Virginia Governor Tomblin Vetoes 20-Week Abortion Ban

ACLU press release: Governor Tomblin Vetoes West Virginia Abortion Ban:

Gov. Earl Ray Tomblin vetoed a bill today that would have banned abortions after 20 weeks. This bill, similar to one a federal appeals court struck down in Arizona last year, would have denied women basic health care.

“The governor rightly saw this bill as a blatantly unconstitutional restriction on women’s health,” said Sara Bird, president of the American Civil Liberties Union of West Virginia. “Every pregnancy is different, and we can’t know all of the circumstances a woman is facing. A woman who is planning for a child but develops complications doesn’t need politicians interfering with her decision, nor does any other woman.”

Earlier this year, thousands of West Virginians took action by sending letters, making phone calls, and signing petitions to let their legislators know they want politicians to stay out of women’s health care.

“This law would have taken away a woman’s ability to make a deeply personal and private decision for herself and her family,” said Talcott Camp, deputy director of the ACLU Reproductive Freedom Project. “Politicians have no place in matters that are best left to a woman, her family and her doctor.”

Fifth Circuit Panel Upholds Parts of Onerous Texas TRAP Law

CNN: Appeals court upholds challenged parts of Texas abortion law, by Greg Botelho:

A federal appeals court on Thursday upheld parts of a Texas abortion law pertaining to hospital privileges for physicians who perform abortions and protocols for abortion-inducing drugs, a decision that drew starkly contrasting reactions on both sides of the debate.

A U.S. district court previously struck down those provisions in the Texas law, which were challenged in court by lawyers for Planned Parenthood. But the 5th Circuit Appeals Court later issued a stay of that decision "pending appeal," meaning it would not go into effect.

The U.S. Supreme Court also weighed in, with a majority refusing to stop the law's implementation. . . .

Bloomberg: Texas Abortion Doctor Restriction Upheld by Appeals Court, by Margaret Cronin Fisk & Laurel Brubaker Calkins:

Texas can require abortion doctors to affiliate with local hospitals, although it can’t enforce the ban while doctors apply for those rights, an appeals court said, overturning a federal judge’s finding that the measure places an unconstitutional burden on women seeking to end pregnancies. . . .

“It is not the courts’ duty to second guess legislative fact-finding, ‘improve’ on, or ‘cleanse’ the legislative process by allowing relitigation of the facts that led to the passage of a law,” U.S. Circuit Judge Edith H. Jones wrote in a 34-page opinion stating the lower-court judge used the wrong legal standard in evaluating the restrictions. “Courts must presume that the law in question is valid” as long as it serves a “legitimate” state goal. . . .

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The opinion is available here.  I recently wrote a short piece for the Harvard Law Review Forum discussing recent litigation on admitting privileges laws, including the Fifth Circuit case, and its significance in fleshing out the meaning of the undue burden standard.  It is available here.

National Survey Shows Women Object to Religious Exemptions

Planned Parenthood: Women Voters' Reaction to Religious Exemptions, by Hart Research Associates:

Overview of Key Findings:

Our new national survey of 1,004 women voters between the ages of 18 and 55 shows that a large majority strongly object to the religious exemptions for corporations that are being sought in the Hobby Lobby case.

• Women voters consistently and overwhelmingly disagree with the idea that corporations should be able to exempt themselves from observing laws because those laws violate their religious beliefs.
• Women age 55 and younger specifically reject corporations’ claims that they should be exempted from covering prescription birth control in their health plans because of religious objections to contraception. 
• Democrats and independents reject these claims overwhelmingly, while Republicans are divided evenly.

These findings—underscoring strong objections to religious exemptions for corporations—are consistent with other public polls on the topic that show that more than half of all voters oppose allowing employers to opt out of covering prescription birth control in their health plans as required under the Affordable Care Act. . . .

Round-Up on Today's Oral Arguments in Hobby Lobby

SCOTUSblog: Birth Control, Business, and Religious Beliefs: In Plain English, by Amy Howe:

Almost two years ago to the day, the Supreme Court heard oral arguments in a challenge to the Affordable Care Act’s individual mandate, which requires virtually everyone in the United States to buy health insurance or pay a penalty.  This morning, it heard a new and different challenge arising out of the Affordable Care Act:  can a business be required to provide its female employees with health insurance that includes access to free birth control, even if doing so would violate the strong religious beliefs of the family that owns the business?  After the oral argument today, it looked like the Court’s answer may well be no, although the decision may not prove as sweeping as some of the challengers might prefer.  And as is so often the case, it looks like Justice Anthony Kennedy may hold the key vote in the case.  Let’s talk about the proceedings at the Court today in Plain English. . . .

Balkinization: Today's Oral Arguments in Hobby Lobby, by Nelson Tebbe:

The oral argument in Hobby Lobby and Conestoga Wood, which I attended today, provided some slight cause for optimism for those of us who have been arguing that accommodating the companies would raise serious concerns because it would mean shifting the cost of that accommodation onto third parties (the affected women employees). Not only did Solicitor General Verrilli open and close with the argument, but Justice Kennedy arguably displayed some sympathy for the point. First, Justice Kennedy asked Paul Clement (who was arguing for the companies) whether there are rules of statutory construction that should guide the Court in this case, such as the canon of constitutional avoidance. Later, Justice Kennedy asked directly what should happen when granting an accommodation for the companies would shift costs onto employees. Justice Kennedy asked whether the employer's interests should simply trump in such situations. . . .

NPR:  Justices Divide By Gender In Hobby Lobby Contraception Case, by Nina Totenberg:

There was a clear difference of opinion between male and female justices at the U.S. Supreme Court on Tuesday. The issue was whether for-profit corporations, citing religious objections, may refuse to include contraception coverage in the basic health plan now mandated under the Affordable Care Act.

The female justices were clearly supportive of the contraception mandate, while a majority of the male justices were more skeptical. . . .

 

Important but Little-Discussed Fact -- How Plan B Actually Works -- Undermines Hobby Lobby's Claims

The Wall Street Journal - Law Blog: In Contraceptives Case, Court May Run Into Plan B, by Joe Palazzolo:

As the Supreme Court weighs whether for-profit companies have the religious right to refuse to provide contraceptives, it may also run into another question: Whether the Plan B drug is a contraceptive or a form of abortion. . . .

When the Food and Drug Administration approved a drug known as Plan B One-Step in 1999, it wasn’t entirely clear how the drug worked. So the agency required that the label mention the possibility that the drug affected implantation. . . .

Abortion-rights advocates and medical groups, including the American College of Obstetricians and Gynecologists, say heaps of research since the late 1990s has produced no scientific evidence showing that Plan B inhibits implantation. There are fewer studies on ella, because it is a newer drug, but they have reached the same conclusion, they say.

“FDA labeling has not caught up with the recent research,” said Caitlin E. Borgmann a law professor at City University of New York Law School and former lawyer for the American Civil Liberties Union’s Reproductive Freedom Project. . . .

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See also Caroline Corbin's article on this issue.

Opinion on Hobby Lobby

The Washington Post - op-ed:  Contraception as a test of equality, by Walter Dellinger:

Walter Dellinger is an attorney in Washington. He co-authored, with Dawn Johnsen of the Indiana Maurer School of Law, a brief for the Guttmacher Institute and professor Sara Rosenbaum of George Washington University supporting contraception coverage.

Forty-nine years ago this week , the nine men on the Supreme Court heard arguments that would profoundly affect women’s access to birth control. By 21st-century standards, the oral arguments in the 1965 case Griswold v. Connecticut suggest that most of the justices were either uninformed about contraceptive methods or uncomfortable discussing them. When the court returns to the subject of birth control this week, it is critical that the justices understand the complexity of contraception and its role in women’s lives. . . .

The New York Times editorial: Crying Wolf on Religious Liberty:

This week, the owners of two secular, for-profit corporations will ask the Supreme Court to take a radical turn and allow them to impose their religious views on their employees — by refusing to permit them contraceptive coverage as required under the Affordable Care Act.

The Supreme Court has consistently resisted claims for religious exemptions from laws that are neutral and apply broadly when the exemptions would significantly harm other people, as this one would. To approve it would flout the First Amendment, which forbids government from favoring one religion over another — or over nonbelievers. . . .

Balkinization: Whose Faith Does RFRA Protect?  Everyone's, No One's, or Not Mine?, by Priscilla Smith:

One outcome of tomorrow's Hobby Lobby case that this reproductive rights supporter might be able to get behind involves granting the Hobby Lobby Executives an accommodation from the Affordable Care Act’s contraceptive coverage requirements under an expansive view of the Religious Freedom Restoration Act (RFRA).  I’ve written about this possibility in a forthcoming article here.  Under this view, it is the RFRA claimant, not the court, who decides if something is a “substantial burden” on “religious exercise” under RFRA.  Counsel for the University of Notre Dame promoted this view of RFRA in a recent Seventh Circuit oral argument in a related case, stating “[i]t is up to the believer to draw the line.”  As Marty Lederman's excellent posts here revealing the lack of burden on Hobby Lobby Executives religious exercise should establish, in order to find for Hobby Lobby the Court needs to adopt this broad view of RFRA's protections. . . .

Mexican Healthcare System Fails Pregnant Indigenous Women

Feministing: No Reproductive Justice for Pregnant Indigenous Women in Mexico, by Juliana:

In October of last year, Irma Lopez Aurelio arrived at a state health clinic in Oaxaca, Mexico, in labor with her third child. The doctors at the clinic told her to come back, that her labor was not advanced enough and no doctor was available to help her. Irma, who is Indigenous, spoke little Spanish and was unable to communicate how advanced her labor was to the monolingual doctors. After hours of waiting, Irma gave birth on the lawn outside of the clinic.

In the past nine months, seven Indigenous women in Mexico have been documented having their babies in the yard, waiting rooms, or front steps of state clinics. . . .

Hobby Lobby Round-Up

SCOTUSblog: Argument Preview: Religion, Rights, and the Workplace, by Lyle Denniston:

At 10 a.m. next Tuesday, the Supreme Court will hold ninety minutes of oral argument on the government’s authority to require private businesses to provide birth control and other pregnancy-related services to their employees under the Affordable Care Act.  Arguing for the challengers to the so-called “contraceptive mandate” will be Paul D. Clement, of the Washington, D.C., law firm of Bancroft PLLC.  Defending the mandate will be U.S. Solicitor General Donald B. Verrilli, Jr.   Each will have forty-five minutes of time, under an order issued Thursday expanding the time beyond the normal amount.  The consolidated cases are Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius. . . .

Newsweek: It's About Birth Control, Stupid, by Pema Levy:

For two years, Republicans have rallied against the Affordable Care Act's (ACA) provision that health insurance plans cover the full range of contraceptives approved by the Food and Drug Administration, charging that the rule is an assault on religious liberty.

Next week, when the Supreme Court hears oral arguments in two legal challenges to the contraception requirement, the issue of religious freedom will be front and center. . . .

But for political activists on both sides -- and perhaps for the justices themselves -- it all comes down to the decades-old left-right battle over birth control. . . .

ThinkProgress: If Hobby Lobby Wins, It Will Be Even Worse For Birth Control Access Than You Think, by Tara Culp-Ressler:

Next week, the Supreme Court will take up the issue of contraceptive coverage, hearing arguments in a closely-watched lawsuit against the Affordable Care Act. Two for-profit companies — the craft chain Hobby Lobby and the furniture-making company Conestoga Wood Specialties — are fighting for their right to withhold insurance coverage for certain types of contraceptive methods based on their religious beliefs. But there’s actually much more at stake than prescription drug coverage.

The two plaintiffs in these cases object not just to covering specific types of birth control, but also to providing counseling about that birth control. In Hobby Lobby’s lawsuit, for instance, the company states that it does not want to follow the Obamacare provision that forces employers to “provide health insurance coverage for abortion-inducing drugs and devices, as well as related education and counseling.”  . . .

The New York Times: Ruling Could Have Reach Beyond Issue Of Insurance, by Adam Liptak:

The Supreme Court on Tuesday will hear arguments in a case that pits religious liberty against women’s rights.

That issue is momentous enough. But it only begins to touch on the potential consequences of the court’s ruling in the case, notably for laws banning discrimination against gay men and lesbians. . . .

 

Judith Daar and Erez Aloni on Mitochondrial Replacement

The Los Angeles Times - op-ed:  Three genetic parents -- for one healthy baby, by Judith Daar & Erez Aloni (both of Whittier Law School):

New technology would enable women who carry harmful mutations in their mitochondria to have a child without those harmful mutations. Despite concerns, that's a good thing.

Since January, a new California law allows for a child to have more than two legal parents. But children are still limited to two genetic parents. That could change soon, if the Food and Drug Administration approves human clinical trials for a technique known as mitochondrial replacement, which would enable a child to inherit DNA from three parents.

News of the pending application has caused a kind of panic not seen since Dolly the sheep was cloned, raising the possibility of a single genetic parent. But far from being the end of the human race as we know it, the technique might be a way to prevent hundreds of mitochondrial-linked diseases, which affect about one in 5,000 people. . . .

Joint Birthing Center and Abortion Clinic Opens in Buffalo, New York

Jezebel: New Birthing/Abortion Clinic in New York Could Change Everything, by Hillary Crosley:

Last month, the first ever birthing center that also houses an abortion clinic opened in Buffalo, New York and it’s called Buffalo WomenServices. The space is one of the first where both the pro-choice and birthing communities coexist beneath the same roof, explicitly. Mind Blown. . . .

Michigan Law Takes Effect Requiring Women To Purchase Separate Insurance for Abortions -- Even for Rape and Incest

The Huffington Post: Michigan's 'Rape Insurance' Abortion Rider Law Goes Into Effect Today, by Ashley Young: 

Starting Thursday in Michigan, a woman must purchase an additional insurance policy if she wants reimbursement for an abortion, unless her life is at stake.

The new law drops coverage of most abortions from existing policies -- even to terminate a pregnancy resulting from rape or incest. Women who buy their own individual policies, rather than getting coverage through an employer-based plan, won't be able to purchase the additional coverage, called an abortion rider, from Michigan insurers. . . . 

Federal Judge Strikes Down Arkansas 12-Week Abortion Ban

Reuters: Federal judge strikes down Arkansas early abortion ban, by Steve Barnes:

A federal judge on Friday struck down an Arkansas law that would ban most abortions starting at 12 weeks of pregnancy, one of the most restrictive such statutes enacted in the United States, declaring the measure unconstitutional. . . .

Majority of Americans Think Employers Should Comply With Contraception Rule

The Wall Street Journal - Washington Wire blog:  WSJ Poll: Majority Agree With Obamacare Contraception Rule, by Louise Radnofsky:

A majority of Americans side with the Obama administration in saying that most employers should be required to include contraception coverage in workers’ health plans even if the business owners have moral objections.

An NBC News/ Wall Street Journal poll found 53% of Americans believed that employers who opposed the use of birth control should not be exempt from the coverage requirement in the 2010 federal health law. Some 41% said employers who had objections should have the same exemption as religious organizations. Around 6% said they were not sure. . . .

MSNBC Profiles Radical Anti-Choice Group, Abolish Human Abortion

MSNBC:  Meet the rebels of the anti-abortion movement, by Irin Carmon:

For the mainstream movement to ban abortion, graphic photos and aggressive language have generally gone out of style. The winning slogans, the ones Republican politicians prefer, are warmer, fuzzier: Thumbsucking ultrasound photos, or “women’s health” used as a pretext to shut down safe abortion clinics, including three in Texas this month alone. The losing slogans involve Akin-like “legitimate rape” and comparing Planned Parenthood to the Klan.

Abolish Human Abortion (AHA) begs to differ. Founded out of Norman, Oklahoma, and with chapters nationwide, AHA activists wear t-shirts emblazoned with “End Child Sacrifice” and proudly display photos of bloodied, fully developed fetuses. They protest outside churches – yes, churches – accusing them of not doing enough to end abortion, and talk scornfully of “pro-lifers” who make peace with rape exceptions to abortion bans. . . .

Watch here.

Thousands of Spaniards Protest Proposed Abortion Ban

The Independent: Spaniards take to the streets in protest over new abortion laws, by Alasdair Fotheringham:

Thousands of protesters marched through central Madrid and other major cities in Spain yesterday in the latest wave of demonstrations against controversial proposed reforms of the country's abortion laws.

Yesterday's International Women's Day gave fresh impetus to the protests against changes to abortion laws. Some 80 per cent of Spaniards are opposed to any changes to abortion laws, according to polls. . . .

Study Shows Free Contraception Does Not Increase Risky Behavior Among Women

live.science: Free Birth Control Has Little Effect on Women's Sexual Behavior, Study Suggests, by Cari Nierenberg:

Offering free contraception to women and teenage girls does not cause them to increase their risky sexual behavior over time, a new study suggests.

Researchers found that after receiving free birth control, most women reported no change in their number of sexual partners, and only a modest increase in sex frequency, from an average of four times a month before getting free birth control to six times a month after receiving it. . . .

Rio Grande Valley in South Texas Now Without Abortion Providers After Two More Clinics Shut Down in Wake of New Law

The New York Times:  Abortion Law Pushes Texas Clinics to Close Doors, by Manny Fernandez:

Shortly before a candlelight vigil on the sidewalk outside, employees of the last abortion clinic in the Rio Grande Valley in South Texas shut the doors early Thursday evening, making legal abortion unavailable in the poorest part of the state in the wake of tough new restrictions passed last year by the Texas Legislature. . . .

See also: CBS: 400-mile stretch of Texas now without an abortion clinic