Reproductive Rights Prof Blog

Battle lines drawn over abortion ahead of Trump's supreme court pick

The Guardian (Jul. 8, 2018): Battle lines drawn over abortion ahead of Trump's supreme court pick, by Ed Pilkington:

Battle lines have been drawn over the future of abortion in America on the eve of President Donald Trump’s nomination of a second justice to the U.S. Supreme Court that could put Roe v. Wade in jeopardy.

Trump has said he will announce his nominee for the seat in a characteristic display of political braggadocio on primetime TV at 9pm ET on Monday night (July 9). On Sunday there was no indication that he had yet made his decision, as speculation continued to swirl around the shortlist for the appointment.

Both sides in the increasingly acrimonious dispute took to the Sunday political talk shows at the start of what promises to be an epic tussle over the ninth seat on the nation’s highest court. The position will be left vacant by the retirement of Justice Anthony Kennedy, 81, who had acted as the swing vote on many critical issues including abortion.

In the course of the 2016 election, Trump made changing the face of the Supreme Court a key campaign pledge that was instrumental in firing up his base of right-wing conservative voters. In the presidential debates he vowed to appoint only Justices committed to “automatically” overturning Roe.

Now, key players in the appointment are reining back on the suggestion that the newly-composed court will target the pro-choice ruling and re-criminalise the practice. Leonard Leo, the vice president of the conservative Federalist Society who selected Trump’s longlist of 25 candidates for the Supreme Court, told ABC’s This Week that warnings about Roe v Wade were a “scare tactic." Leo said that it was impossible to predict the positions of any of the leading candidates for the seat on abortion. “Nobody really knows,” he said. “We’ve been talking about this for 36 years going all the way back to the nomination of Sandra O’Connor, and after that you only have a single individual on the court who has expressly said he would overturn Roe.”

Trump is known to have interviewed at least seven candidates for the post, all drawn from the Federalist Society longlist. Of those, the shortlist is understood to have boiled down to four judges from various US Courts of Appeals– Amy Coney Barrett, Thomas Hardiman, Brett Kavanaugh, and Raymond Kethledge.

Of those individuals, Barrett is considered to have the most hard-line record opposing abortion rights, but that could cause problems among more moderate Republicans in the Senate, notably Susan Collins of Maine, who is already the target of ads being put out by pro-choice groups.

The New York Times on Sunday reported that Senate Majority Leader Mitch McConnell was strongly urging Trump to opt for either Hardiman or Kethledge on grounds that the other two might be impossible to get confirmed. While Barrett is problematic on the abortion issue, Kavanaugh is unpopular among some Republican senators because of his track record as staff secretary under President George W. Bush.

Democrats and pro-choice groups stepped up their rhetoric on Sunday over the danger of Trump’s second pick. Richard Blumenthal, Democratic senator from Connecticut, told ABC’s This Week that it posed a fundamental threat to abortion rights. “This next nomination will be the swing vote to overturn Roe v. Wade and equally important to eviscerate the protections of millions of Americans who suffer from existing conditions and other healthcare rights along with workers’ rights, gay rights, voting rights.”

Steps the Next Supreme Court Might Take to Roll Back Abortion Rights

New York Magazine (Jun. 27, 2018): Steps the Next Supreme Court Might Take to Roll Back Abortion Rights, by Ed Kilgore: 

With the announcement of Justice Kennedy's imminent retirement comes the prospect of a much more conservative Supreme Court, particularly in relation to reproductive rights. Justice Kennedy stood in the majority of the 2016 Whole Women's Health v. Hellerstedt decision, which reaffirmed basic abortion access rights. Trump has promised to pursue the reversal of Roe v. Wade, though, and has stated his intentions to nominate a similarly-minded next justice. 

Many states have recently enacted stricter abortion access requirements--like Louisiana's legislation banning abortions after 15 weeks of pregnancy or Iowa's fetal heartbeat ban. "Such laws are aimed at setting up a challenge to Roe if the Supreme Court lurches to the right — which is now an imminent possibility."

While it's unlikely that, even under a more conservative court, Roe would be immediately overturned, a shift to the right on the Supreme Court will likely lead to affirmation of new, state-level abortion restrictions. For example, rather than overturn Roe, which is backed by additional, subsequent precedent in 1992's Casey and 2016's Hellerstedt, the court might instead find an opportunity to reverse Hellerstedt, as the more recent decision. Such a move might reinvigorate efforts to enact Targeted Regulation of Abortion Providers, likely forcing abortion providers out of business with burdensome requirements and eliminating much abortion access, especially in already-conservative states.

Either way, if Trump nominates an anti-Roe Supreme Court candidate this year, and the Senate approves them, we can expect many more legal battles on the availability of abortion. "With one SCOTUS appointment and one decision, that could all change, and we could enter a period of abortion-policy activism unlike anything America has seen in decades."

Supreme Court Backs Anti-Abortion Pregnancy Centers in Free Speech Case

New York Times (Jun. 26, 2018): Supreme Court Backs Anti-Abortion Pregnancy Centers in Free Speech Case, by Adam Liptak: 

Justice Thomas wrote for the five-justice, conservative majority who decided Tuesday that California's "crisis pregnancy centers" cannot be forced to provide information on abortion services in the state. 

The case, National Institute of Family and Life Advocates v. Becerra, No. 16-1140, centered on a California law that requires pregnancy centers whose aim is to dissuade pregnant people from abortions to provide information on the availability of abortions in California.

The state requires the centers to post notices that free or low-cost abortion, contraception and prenatal care are available to low-income women through public programs, and to provide the phone number for more information.

The centers argued that the law violated their right to free speech by forcing them to convey messages at odds with their beliefs. The law’s defenders said the notices combat incomplete or misleading information provided by the clinics.

The state legislature enacted the law after finding that hundreds of the pregnancy centers used "intentionally deceptive advertising and counseling" to confuse or intimidate women from making informed decisions about their health care. The law also required that unlicensed clinics disclose that they are unlicensed. 

Justice Thomas wrote that the requirements for the notices regarding abortion availability were too burdensome and infringed on the clinics' rights under the First Amendment. The ruling reverses a unanimous decision from a three-judge panel of the United States Court of Appeals for the Ninth Circuit, which had upheld the law.

Justice Breyer penned a dissent, joined by Ginsburg, Sotomayor, and Kagan, citing the contradiction between the majority's decision here and a Court decision in 1992 that upheld a Pennsylvania law that required abortion-performing doctors to inform their patients about other options, like adoption. 

Young Immigrant Women Have the Right to Access Abortion. Monday’s Supreme Court Decision Doesn’t Change That.

Jun. 4, 2018 (American Civil Liberties Union: Speak Freely): Young Immigrant Women Have the Right to Access Abortion. Monday’s Supreme Court Decision Doesn’t Change That, by Brigitte Amiri:

The Supreme Court on Monday steered around a long-pending abortion dispute between the Trump administration and ACLU lawyers over young immigrant women in custody, telling lower courts on Monday to start over in deciding the issue. In a short opinion, the justices wiped away rulings by several judges who last fall had cleared the way for a 17-year-old to see a doctor and obtain an abortion.

There has been a lot of confusion about Monday’s decision in the Jane Doe case, Azar v. Garza, but ACLU Senior Staff Attorney Brigitte Amiri provides two big takeaways "to clear things up."

First, Amiri writes that the ruling was limited to the case of one young woman, who already had her abortion. There is still a court order in place that prohibits the government from obstructing or interfering with unaccompanied minors’ access to abortion, and today’s decision does not change that. Second, the Supreme Court rejected what Amiri calls the "government’s baseless request to find" that Amiri and her colleagues acted unethically.

The Supreme Court ruling vacates Jane Doe’s individual victory in the court of appeals that paved the way for her to obtain an abortion. Because Jane Doe has already obtained an abortion, the Court ruled that her individual claim related to abortion access is now moot. The ruling does not say anything about the merits of the constitutional question presented in the underlying case, namely whether the government can violate decades of Supreme Court precedent by banning abortion for unaccompanied minors.

The ACLU is still seeking a ruling that the government's policy is unconstitutional, and the Supreme Court’s ruling that Jane Doe's individual case is moot does not affect the rest of the case in any way, nor does it diminish a district court order that blocks  the government’s policy of obstructing unaccompanied pregnant minors' access to abortion.

On March 30th, the district court allowed the case to proceed as a class action and issued a preliminary injunction blocking the government’s no-abortion policy. The government has appealed that decision and asked the court of appeals to allow the policy to go back into effect while the appeal is pending. The court of appeals denied that request on the evening of June 4th, 2018 (following the Supreme Court's ruling), reaffirming that unaccompanied minors must have access to abortion. The briefing on appeal will happen during the summer, and oral argument will take place in September. 

The Court also rejected the government’s request to impose discipline on Amiri and her colleagues for representing their client to the best of their abilities. The government’s ethics claims have always been baseless, Amiri writes, and they are merely an attempt to intimidate Amiri and her colleagues. 

Iowa Lawmakers Pass Strictest Abortion Law in the U.S.

The Hill (May 2, 2018): Iowa lawmakers pass strictest abortion law in the US, by Julia Manchester:

On Wednesday, May 2, 2018, Iowa legislators passed "the heartbeat bill." The legislation bans abortions once a fetal heartbeat is detected. Essentially, the heartbeat distinction would ban abortions by the sixth week of pregnancy. 

Opposition to the bill claims that it would ban abortions before some women even know they're pregnant. 

The passage of the bill comes as the Trump administration has taken a hard-line stance on abortion, spurring a slew of abortion laws across the nation.

Nineteen states adopted a total of 63 restrictions to the procedure in 2017, which is the highest number of state laws on the issue since 2013, according to the Guttmacher Institute.

The bill now goes to Gov. Kim Reynolds's (R) desk, but, if signed, is expected to be challenged as a violation of Supreme Court precedent including Roe v. Wade. 

Supreme court agrees to hear antiabortion challenge to California disclosure law for pregnancy centers

Los Angeles Times (Nov. 13, 2017): Supreme court agrees to hear antiabortion challenge to California disclosure law for pregnancy centers, by David G. Savage:

The Supreme Court has granted certiorari to hear NIFLA vs. Becerra, in which an anti-abortion group challenges a California law that requires crisis pregnancy centers to notify patients that the state offers contraception and abortion services. 

The case centers on the Reproductive FACT Act, which requires pregnancy centers to disclose whether they have a medical license and whether medical professionals are available. The law also requires centers to post a notice in the waiting room that reads: "California has public programs that provide immediate free or low-cost access to comprehensive family planning services, including all FDA-approved methods of contraception, pre-natal care and abortion."

California lawmakers passed the disclosure law two years ago after concluding as many as 200 pregnancy centers in the state sometimes used “intentionally deceptive advertising and counseling practices that often confuse, misinform and even intimidate women” about their options for medical care.

The National Institute of Family and Life Advocates (NIFLA) represents 110 pregnancy centers in California that all claim the disclosure provision violates their free speech as "compelled speech." Such a disclosure, they claim, conflicts with their faith-based goal of encouraging childbirth and preventing abortion. 

The Californian pregnancy centers initially lost their case under three federal district judges. On appeal, the 9th Circuit Court upheld the lower court's decision. Last month, however, a judge in Riverside County ruled that the law violated the free-speech provisions of California's own state Constitution. 

California's Attorney General Xavier Becerra stands by the disclosure provision and its intent to provide women accurate information about their health care options.

It takes five justices for a majority opinion, and many expect the Court's decision to turn on the vote of Justice Kennedy. 

Trump DOJ seeks possible disciplinary action against lawyers in abortion case of unaccompanied minor

ABC News (Nov. 3, 2017): Trump DOJ seeks possible disciplinary action against lawyers in abortion case of unaccompanied minor by, Geneva Sands

The U.S. Department of Justice (DOJ) filed a petition with the U.S. Supreme Court today asking for possible disciplinary action against the attorneys that represented an undocumented minor who had an abortion over objections from the Trump administration.

Last week, the U.S. Court of Appeals for the D.C. Circuit ruled in favor of 17-year-old Jane Doe. Doe learned she was pregnant after being placed in a detention facility for children under the purview of the Department of Health and Human Services. She says she knew immediately that an abortion was the right option for her.

Doe, represented by the ACLU, had been fighting the federal government to be granted a medical visit to a clinic to receive her abortion. The government had instead taken her against her wishes to a pro-life clinic that tried to persuade her not to abort and showed her sonograms against her will. 

Doe was finally able to get her abortion on October 25. 

The Trump administration has now accused the ACLU of misleading the government on the timing of Doe's abortion. They claim that after informing Justice Department attorneys that the teen's procedure would occur on October 26th, Doe's attorneys actually scheduled it for early on October 25, thereby avoiding Supreme Court review. 

Government attorneys allege that the ACLU, while advocating for their client, violated their duties to the court and to the Bar. The administration believes the judgment under review that enabled Doe to receive the abortion should be vacated and additionally seeks potential disciplinary action against Doe's attorneys.

In response, the ACLU says the government failed to file a timely review with the Supreme Court and that Doe's attorneys acted both in the best interest of their client and "in full compliance with the court orders and federal and Texas law."

 According to Jane herself:

"I’m a 17-year-old girl that came to this country to make a better life for myself. My journey wasn’t easy, but I came here with hope in my heart to build a life I can be proud of. I dream about studying, becoming a nurse, and one day working with the elderly," she wrote. "This is my life, my decision. I want a better future. I want justice," she concluded.

Trump administration narrows Affordable Care Act’s contraception mandate

Washington Post (Oct. 6, 2017): Trump administration narrows Affordable Care Act’s contraception mandate, by Juliet Eilperin, Amy Goldstein and William Wan:

In the next move on Trump's path to dismantle as many Obama-administration initiatives as possible, the Trump administration issued a rule today that many predict will leave hundreds of thousand of women without free access to contraceptives. 

The Health and Human Services Department now allows a much wider group of employers and insurers to exempt themselves from covering birth control on religious or moral grounds. Although the administration estimates that "99.9%" of women will still receive free birth control through their insurance, the only basis of that estimate is the finite number of lawsuits that have been filed since Obama introduced the contraceptive mandate provision in 2012. Officials do not know, however, how many employers denied contraceptive coverage on "religious" or "moral" grounds before the ACA, and so an accurate number of women who may lose coverage cannot yet be estimated. 

In 2014, the Supreme Court heard the Hobby Lobby case in which the Christian owners of the Hobby Lobby chain craft store objected to providing certain forms of birth control. The court ruled it illegal to impose the provision on "closely held corporations," the definition of which is sure to widen under Trump's provision. 

Senior Justice Department officials said the guidance was merely meant to offer interpretation and clarification of existing law. But the interpretation seemed to be particularly favorable to religious entities, possibly at the expense of women, LGBT people and others.

The guidance, for example, said the ACA contraceptive mandate “substantially burdens” employers’ free practice of religion by requiring them to provide insurance coverage for contraceptive drugs in violation of their religious of beliefs or face significant fines.

 

This new rule will almost certainly prompt fresh litigation against the Trump administration, likely on the grounds of sex discrimination--as the mandate disproportionately affects women--and religious discrimination based on the argument that these exceptions enable employers to impose their religious beliefs on their employees. 

The New Supreme Court

by Richard Storrow

In the wake of the confirmation of Justice Neil Gorsuch, two experts have weighed in on the future of the United States Supreme Court.  Both Adam Liptak and Lisa Marshall Manheim agree that we will see little difference in the work of the Supreme Court in the short term.  After all, Gorsuch is a "one-for-one" "close match" for Justice Antonin Scalia.   

Both Liptak and Manheim do predict notable changes in the long term, however.  Manheim believes the "realignment of checks and balances" that accompanied Gorsuch's confirmation has strengthened the executive branch's power to appoint.  With filibusters and the need for approval by sixty senators out of the way, presidents may feel emboldened to nominate ideologues that appeal to their political supporters.  Such nominations, if successful, could polarize the court and upend the "ideological balance" that currently prevails.  Yes, perhaps.  But Manheim admits that this scenario may depend on whether the president's party has control of the Senate. 

Liptak's contribution, noting that party affiliation has become a strong predictor of voting trends for the members of the Supreme Court, speculates on what would have happened had Judge Merrick Garland joined the supreme bench.  Chief Justice Roberts would have been ideologically sidelined and Citizens United would have been scheduled for the chopping block.  Oh, what might have been.  Reminding us that the Court's liberal wing is aging, Liptak believes the arrival of Gorsuch portends a reinvigoration of the projects of the Roberts court: deregulation of campaign finance, rollbacks of voting rights, roll forwards of gun rights and an insistence on race blindness in everything from education to housing.     

Neither author mentions that Gorsuch's claimed originalism remains inadequately categorized.  As David Dorsen notes in The Washington Post, as a lower court judge, Gorsuch was constrained by Supreme Court precedent, and his writings on euthanasia are not those of an originalist but of a moral philosopher.  Only in a 2016 law review article does Gorsuch embrace a vigorous originalism.  But the article is the transcript of a speech, which, delivered in the wake of Justice Scalia's death, became mired in encomium.  Given the context, the originalism it describes is a caricature without nuance.  It fails to grapple with the practicalities or the wider ramifications of being a judge who adheres to a particular brand of originalism.  It tells us little about what Gorsuch believes originalism is or how it should be used to address the issues of our day.    

Contrary to Dorsen, I would submit that we probably do gain good insight into Gorsuch's brand of originalism from his concurrences and dissents while serving on the 10th Circuit Court of Appeals.  It is a narrow originalism capturing Gorsuch's disdain for the administrative state.  It focuses squarely on ideas about the separation of powers and how those lines have become blurred with the mushrooming of the fourth branch.  But it is not an originalism that seeks to aggrandize power in the elected branches, as was Scalia's.  Instead, Gorsuch views the separation of powers as essential to due process and equal protection.  See, e.g., Gutierrez-Brizela v. Lynch (10th Cir. 2016).  This could be good news for those who worry about what position he will take on questions of affirmative action, immigration and abortion, subjects about which he has not yet said enough.

What We Know about Neil Gorsuch

New York Times (Feb. 7, 2017): Reading Between the Lines for a Nominee's Views on Abortion, by Adam Liptak:

Neil Gorsuch's 2006 book The Future of Assisted Suicide and Euthanasia (New Forum Books) may provide a window onto the nominee's views on abortion.  In the book, Gorsuch canvasses the Supreme Court's abortion jurisprudence for clues about whether a right to assisted suicide exists.  He concludes that it does not, because "human life is a good in itself." 

The learned tome does not critique the Supreme Court's abortion jurisprudence per se and reveals nothing about where Gorsuch stands on Roe v. Wade.  It likewise leaves unclear whether Gorsuch's perspective on human life would lead him to conclude that a fetus is a human life.  In his 2006 confirmation hearing following his nomination to the federal bench, Gorsuch remarked that his personal views have no effect on his judicial work and that his writings defend existing law "'in most places.'" 

Gorsuch does, however, acknowledge that jurists he respects hold views contrary to existing law.  This is most notably true of his former employer Byron White, for whom Gorsuch was a law clerk in the early 1990s.  In dissent in the 1986 case of Thornburgh v. American College of Obstetricians and Gynecologists, White notoriously called for the overruling of Roe v. Wade:

However one answers the metaphysical or theological question whether the fetus is a "human being" or the legal question whether it is a "person" as that term is used in the Constitution, one must at least recognize, first, that the fetus is an entity that bears in its cells all the genetic information that characterizes a member of the species homo sapiens and distinguishes an individual member of that species from all others, and second, that there is no nonarbitrary line separating a fetus from a child or, indeed, an adult human being. Given that the continued existence and development -- that is to say, the life -- of such an entity are so directly at stake in the woman's decision whether or not to terminate her pregnancy, that decision must be recognized as sui generis, different in kind from the others that the Court has protected under the rubric of personal or family privacy and autonomy. 

White's analysis was mercilessly skewered in the concurrence of Justice John Paul Stevens, though the perennially judicious Stevens was careful to remark, "I have always had the highest respect for his views on this subject."     

Perhaps more telling than Gorsuch's views on Roe v. Wade, which remain unknown, are his views on Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), which The Future of Assisted Suicide and Euthanasia argues should be "read narrowly."  Gorsuch objects to the use of the "flowery" language in the decision invoking "the mystery of life."  Like White before him, who favored limiting, nay, overruling Roe, Gorsuch favors cabining Casey within the confines of a "stare decisis decision," in other words one that merely pays deference to settled law.  But saying one is devoted to upholding settled law is not the same thing as affirming that a right should not have been declared fundamental in the first place.  The possibility that Gorsuch might be tempted to channel Bryon White in saying so lies well within the realm of possibility.       

Linda Greenhouse and Reva Siegel on Whole Woman's Health

Linda Greenhouse and Reva Siegel have posted their analysis of Whole Woman's Health v. Hellerstedt to SSRN.  The abstract follows:

This essay offers a brief account of the Supreme Court’s most recent abortion decision, Whole Woman’s Health v. Hellerstedt, and its implications for the future of abortion regulation. We draw on our recent article on health-justified abortion restrictions — Casey and the Clinic Closings: When “Protecting Health” Obstructs Choice, 125 Yale L.J. 1428 (2016) — to describe the social movement strategy and the lower court rulings that led to the decision. We show that in Whole Woman’s Health the Court applies the undue burden framework of Planned Parenthood v. Casey in ways that have the potential to reshape the abortion conflict.

In Whole Woman’s Health, the Court insisted on an evidentiary basis for a state’s claim to restrict abortion in the interests of protecting women’s health, and found none in the Texas law under review. The Court instructed judges how to assess the asserted health benefits of regulations that predictably will force clinics to close: it required judges to balance the demonstrated benefit of the law against the burden that a shrunken abortion infrastructure will have on the ability of women to exercise their constitutional rights.

As we show, Whole Woman’s Health clarifies the law defining what counts as a burden and what counts as a benefit to be balanced within the Casey framework. Particularly notable, even unexpected, is the Court’s capacious understanding of “burden” as the cumulative impact of abortion regulation on women’s lived experience of exercising their constitutional rights. The decision thus offers a robust reaffirmation of the right to abortion and of the need for judges to protect access to the right. By clarifying what counts as a burden and what counts as a benefit to be balanced within the Casey framework, the decision constrains regulations explicitly aimed at protecting fetal life as well as those ostensibly intended to protect women’s health.

Supreme Court Rejects Pharmacists' Religious Rights Appeal

ABC News (June 28, 2016): Supreme Court Rejects Pharmacists' Religious Rights Appeal, by Rachel La Courte:

SCOTUS declined to hear a Washington State appeal regarding a pharmacist's ability to refuse to administer Emergency Contraception (EC) should the have a religious objection. With SCOTUS passing on hearing the appeal, the regulations from 2007 still stand - pharmacists may pass the buck to another pharmacist, in the same store, should they feel religiously opposed to administering EC. 

Chief Justice Roberts, along with Justice Alito and Justice Thomas, wanted to hear the appeal: 

    Calling the court's action an "ominous sign," Alito wrote a stinging 15-page dissent for the three dissenting justices. "If this is a     sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great     concern," he wrote.

 

Victory in the Supreme Court

United States Supreme Court (Jun. 27, 2016): Whole Woman's Health v. Hellerstedt:

In a 5-to-3 decision, the United States Supreme Court has overturned a Texas law that threatened to drive more than half of Texas's abortion clinics out of business and place abortion services beyond the reach of countless women. 

Drawing on tenets established in Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey, the Court struck down a law requiring doctors performing abortions to have admitting privileges at a hospital and requiring clinics performing abortions to meet the standards imposed upon surgical centers. Regarding the admitting privileges requirement, the Court noted that the practice of abortion did not present a safety issue.  Moreover, abortion is safe enough that requiring clinics to meet the requirements of surgical centers would be superfluous.  Finally, the court could not reconcile the law with the lack of regulation of more dangerous surgical procedures and the wide distribution of waivers of the surgical-center requirements to clinics offering non-abortion services.  It declared that the restrictions placed substantial obstacles in the path of women seeking previability abortions in Texas. 

Here’s What You Need to Know About Your Birth Control Access

Rewire, June 9, 2016, Here’s What You Need to Know About Your Birth Control Access Post-Supreme Court Ruling, by Bridgette Dunlap 

In a well-thought-out and organized article, Bridgette Dunlap looks at the impact the Supreme Court’s “non-decision” in Zubik v. Burwell will actually have on women’s access to contraceptives. Quelling what she assumes to be a reader's ever present worry, Dunlap discusses the current legal mandates in place for employers of all kinds and emphasizes that “the vast majority of people with insurance are currently entitled to contraption without a co-payment – that includes people for the most part, who work for religiously affiliated organizations.” Dunlap emphasizes the importance that coverage of the Supreme Court's ruling in Zubik not not overstate the impact of the non-decision:      

    The fact that equitable coverage of women’s health care is the new status quo is a very big deal that can be lost in the news     about the unprecedented litigation campaign to block access to birth control and attacks on Obamacare more generally.     Seriously, tell your friends.

Brief in Zubik v. Burwell Filed

 

Professor Caroline Mala Corbin has posted to SSRN (here) the issue brief she wrote for the American Constitution Society on why the Religious Freedom Restoration Act does not provide a defense to the contraception mandate under the Affordable Care Act.  The issue is presented in the case of Zubik v. Burwell.
 

Here is the abstract:

The Affordable Care Act requires that health care plans include all FDA-approved contraception without any cost sharing. In Hobby Lobby v. Burwell, for-profit businesses with religious objections successfully challenged this “contraception mandate.” In this term’s Zubik v. Burwell, it is religiously affiliated nonprofits like Baptist universities and Catholic Charities challenging the contraception benefit. But there is a major difference: these religiously affiliated nonprofits are exempt from the contraception mandate. Once they certify that they are religiously opposed to contraception and notify either their insurance carriers or the Department of Health and Human Services, the responsibility for contraception coverage shifts to private insurance companies. The nonprofits do not have to provide, pay for, or even inform their employees or students of the separate coverage.

Despite the ability to opt out of contraception coverage, many nonprofits complain that the religious accommodation itself imposes a substantial religious burden in violation of the Religious Freedom Restoration Act (RFRA). According to these nonprofits, providing notice of their objections triggers the provision of contraception to their employees and students, thus making them complicit in sin. Their RFRA claim cannot succeed. RFRA requires that the contraception regulations impose a substantial religious burden and fail strict scrutiny, and neither requirement is met. First, filing paperwork to receive an exemption is not a substantial burden on the nonprofits’ religious exercise. The nonprofits’ claims to the contrary are based on a mistake of law, and while court must defer to the nonprofits’ interpretation of religious theology, courts should not defer to their interpretation of federal law. Second, the contraception mandate passes strict scrutiny: it advances compelling government interests in women’s health and equality, and the accommodation provided to objecting nonprofits is the least restrictive means of accomplishing those interests.

SCOTUS Enforces Recognition of Same-Sex Adoption

SCOTUS Blog (Mar. 7, 2016): Court Restores Woman’s Right to Be a Mother, by Lyle Denniston:

In a victory for LGBTQ advocates, the Supreme Court issued a unanimous decision on Monday, restoring a mother’s legal parenting rights to the children she had adopted with her same-sex partner, the children’s birthmother. The case, V.L. v. E.L., originated in Alabama, where plaintiff E.L. appealed a visitation order granted to V.L. to the Alabama Court of Civil Appeals. The Alabama Supreme Court nullified the visitation order, refusing to recognize the adoption decree granted in Georgia.

The Court’s unsigned (“per curiam”) decision in the Alabama adoption case was based entirely on the provision in the Constitution’s Article IV declaring that “full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state,” and on the Court’s prior interpretations of that clause.  If a state court has jurisdiction under its own laws to issue a decision, Monday’s opinion said, then that decision is entitled to respect in the courts of every other state.

What Does Scalia's Death Mean for Reproductive Rights Cases Before SCOTUS?

Atlantic (Feb. 19, 2016): The Muddled Future of Reproductive Rights, by Julie Rovner: 

Prior to Justice Scalia's death, the Supreme Court frequently voted 5-4 votes on controversial decisions.  Following Justice Scalia's death, there is a chance that the Court could deadlock, 4-4 in cases this term.  When there is a tie vote, the appellate court's decision will stand, but it does not create national precedent. 

This March the Supreme Court is scheduled to hear two reproductive rights cases,  one on abortion and one on contraceptive insurance coverage. Whole Women's Health v. Hellerstadt challenges a Texas law that imposes restrictions on abortion clinics.  The district court struck down the law, but the Fifth Circuit's decision reversed the district court and would allow the law to go into effect with minor changes.   Zurbik v. Burwell challenges the religious accommodation that has been created for religious-affiliated institutions who wish to opt-out of contraceptive coverage.  Current rules do not require that religious hospitals or schools contract for contraceptive coverage.  Instead, they must inform the government who their insurer is so that the government can arrange for coverage.  The lower courts in the cases consolidated in Zurbik found that the administration's rules don't violate religious rights. 

Because appellate courts have ruled differently on both the contraceptive regulations and the constitutionality of laws like the Texas law challenged in Whole Women's Health, a tied Supreme Court decision would prolong Circuit splits.  If the Supreme Court cannot reach a decision in the two cases, it can also hold them over and re-hear them next term. 

Mother Jones Chronicles the Travails of Roe v. Wade

Mother Jones (Jan. 22, 2016): How Roe v. Wade Survived 43 Years of Abortion Wars, by Hannah Levintova:

Mother Jones has been on the front lines throughout the abortion wars with its up-close-and-personal profiles of women making difficult, personal reproductive choices and clinic staff dedicated to helping them.  In this chronicle of its coverage, MJ traces the current spate of legislative rollbacks of Roe v. Wade to the unveiling of the "undue burden" standard in the 1992 Supreme Court decision Planned Parenthood v. Casey and the Partial Birth Abortion Ban Act of 2003.  Perhaps most poignant is the following insight: In contrast to what Roe v. Wade accomplished back in 1973--stopping deaths from botched abortions "overnight"-- today "discussions of women's safety are more often heard in statehouses enacting further restrictions on abortion."  There have been more anti-abortion laws passed since 2010 than in any other five-year period since Roe was decided. 

Supreme Court Likely to Hear Abortion Case This Term

Scotus Blog (Oct. 9, 2015): Relist Watch OT2015Edition, by John Elwood:

Currier v. Jackson Women's Health Clinic was one of several cases relisted by the court last week, but a conference has yet to be scheduled.

A challenge to a similar Texas law arrived at the Court in June.  The Court issued a stay in that case, Whole Women’s Health v. Cole, 15-274, by a five-to-four vote. The Court likely rescheduled Currier to allow Whole Women’s Health, which is still being briefed, to “catch up.”  Since a stay requires a showing of a “reasonable probability” of a cert. grant and a “fair prospect” that a majority of the Court will conclude that the decision below was erroneous, there is a good chance we’ll see a grant of at least one of these cases once all the briefing is in.

Mississippi Files Cert Petition in TRAP Law Challenge

ThinkProgress: The Nation’s Most Restrictive Anti-Abortion Law Just Reached The Supreme Court, by Ian Millheiser:

A Mississippi law that would eliminate access to abortion within that state — a law so restrictive that it was halted by one of the most conservative federal appeals courts in the nation — arrived in the Supreme Court on Wednesday after the state filed a petition asking the justices to hear the case. Should the Court agree to do so, Mississippi could win the right to close down its only abortion clinic. . . .