Tracking the latest developments in the fight for a fair America
From AFJ President Nan Aron’s latest column in The Huffington Post:
This is a very bad time for American women in the Supreme Court.
Three big cases were decided right at the end of its term that will profoundly affect women’s lives, subject them to conditions that are never applied to men, and damage their ability to control their own lives and health.
In McCullen v. Coakley, the Court in a “faux-nanimous” decision in which the four moderate-liberals clearly played defense, found that a 35-foot buffer zone around the entrance to abortion clinics in Massachusetts was a violation of the First Amendment. The Commonwealth had established the zones in reaction to the brutal murder of two people at a Boston clinic in 1994 and the endless harassment of women and their families attempting to enter reproductive health clinics.
But Chief Justice John Roberts, writing for the Court, swept aside reality, superimposed his own view of what happens outside clinics, and somehow found that so-called “sidewalk counselors” need to be protected more than the people who work at or make use of the clinics.
By Adam Sonfield
Senior Public Policy Associate, Guttmacher Institute
Burwell v. Hobby Lobby Stores on June 30 has already been the subject of reams and megabytes of analysis, speculation and rhetoric. You have undoubtedly read about how the majority’s decision, written by Justice Samuel Alito, allows closely held for-profit corporations—such as Oklahoma-based arts and crafts chain Hobby Lobby and Pennsylvania-based furniture manufacturer Conestoga Wood Specialties—to exclude coverage of certain contraceptive methods to which they have religious objections from the health insurance plans they sponsor for their employees and their family members, undermining a well-known requirement of the Affordable Care Act (ACA). And you have surely read about the concerns—raised in dissent by Justice Ruth Bader Ginsburg and commented on by the federal government and countless outside observers—that granting corporations religious rights that can let them ignore laws that apply to other companies could have a host of negative consequences for workers, customers and society.
(I have written here before about many of the key facts behind this case, including the benefits of contraceptive use for women and families and the importance of covering the full range of contraceptive methods and services without out-of-pocket costs, such as copayments or deductibles.)
As with many important Supreme Court rulings, this one raises far more questions than it answers. Here are some of the most important of those questions: Read more
By Gretchen Borchelt
Senior Counsel and Director of State Reproductive Health Policy, National Women’s Law Center
The majority opinion in Hobby Lobby erases women from the picture altogether. In a decision that is squarely about women’s health and equality, the male justices in the majority refuse to acknowledge the centrality of women. And in evidencing greater concern for protecting corporations from discrimination than in protecting women from discrimination, the majority opinion creates a hierarchy of discrimination where women are at the bottom (if they even merit consideration at all).
To begin with, Justice Alito’s opinion for the majority barely mentions women. As the Washington Post reported, the opinion uses the word “women” or “woman” a mere 13 times in 49 pages. Closer reading of the majority decision makes clear that seven of those mentions were either because the majority was refuting Justice Ginsburg (and her use of “women”); summarizing the government’s position (and its use of “women”) or describing the birth control coverage requirement (a simple recitation of fact).
That leaves precisely six instances in which the majority—on its own—mentioned the word “women.” There are two possible explanations. Both are troubling.
One is that the majority purposely, as a legal and literary strategy, left out “women”—the better to hide the actual women whose rights are at stake behind asserted concerns about religious freedom. Alternately, it was unintentional, but nevertheless the result of an unacknowledged but deep-seated and culturally-reinforced worldview that just does not take women into account.
Either way, women’s literal absence from the majority opinion highlights how this decision furthers legal doctrine that denigrates and erases women’s reproductive health and rights and recognizes certain forms of discrimination while dismissing others.
The majority opinion does this in a two-step process. The first is by treating birth control as different and less worthy of health coverage than other basic preventive health care services. This is clear in a passage that negatively compares the birth control coverage requirement to other coverage requirements like immunizations. Legal requirements to provide these other health care services are not automatically invalidated by this decision because, the majority explains, they “may be supported by different interests (for example, the need to combat the spread of infectious diseases).” In other words, the majority is saying, birth control is not like those other good, valuable preventive services that actually help people live better, healthier lives.
The majority opinion also merely assumes, for the sake of argument, that the interests served by the birth control coverage requirement—namely promoting public health and gender equality— are compelling and satisfy that prong of the Religious Freedom Restoration Act test. In making an assumption rather than delving into the analysis, the justices in the majority get to avoid any discussion of the benefits of birth control to women, including its place alongside immunizations in promoting public health and its value in furthering women’s equality by addressing discrimination in health care and promoting women’s social and economic opportunities. In fact, the majority opinion puts these interests in quotations, suggesting that they are questionable or invalid (believe me, they are not).
By setting up birth control as separate and less valuable than other health care needs, the majority opinion sets the stage for step two: creating a hierarchy of discrimination with women at the bottom.
The justices in the majority are very concerned about discrimination, but only when it appears to harm for-profit corporations. The majority opinion paints a picture of for-profit corporations that are trying to operate according to religious beliefs, but are threatened by discrimination at every turn. Focusing on the need to protect these corporations allows the majority to ignore the other harm that is at issue in the case: discrimination against women.
If birth control does not really promote public health, then it doesn’t matter if taking the benefit from these female employees means more unintended pregnancies. If requiring insurance plans to cover birth control isn’t acknowledged to close gender gaps in health care, then it doesn’t matter if only female employees lose a health insurance benefit that they earned with their work. If gender equality is not a real result of birth control access, then there is no need to consider whether women are forced to give up educational or career opportunities. If birth control is not directly linked to a woman’s health and the course of her life, then sex discrimination deserves no attention by the majority. And so it gets none.
The bottom line for the majority is that when discrimination against women is tied to their reproductive health, it is different from other forms of discrimination and consequently less important. In this case, it is certainly less important to the majority than protecting for-profit corporations—which the majority decided, for the first time, can exercise religion—from asserted religious discrimination. That justifies the decision’s final conclusion: it is not just acceptable but legally required that the religious beliefs of bosses are allowed to trump a woman’s health and access to the health care she needs.
By Alicia Bannon
Counsel for the Brennan Center’s Democracy Program
On June 26, the Supreme Court invalidated three of the president’s appointments to the National Labor Relations Board. The case, National Labor Relations Board v. Noel Canning, dealt with the president’s constitutional power to make recess appointments. The decision heralds a shift in power to the Senate in the appointments process—making it even more important for the Senate to reform its rules and practices so that vacancies are filled in a timely manner and our courts and agencies are fully staffed.
Noel Canning started as a collective bargaining dispute between a Pepsi bottler and the Teamsters. It turned into a blockbuster case about executive power, however, after the D.C. Circuit decided that three of the NLRB members who had ruled on the dispute had been unconstitutionally appointed by President Obama in 2012.
Noel Canning turned on the scope of the president’s constitutional power to make temporary appointments to fill executive and judicial branch vacancies when the Senate is in recess. Throughout our nation’s history, recess appointments have helped the government run smoothly when the Senate was unable to confirm nominees—including in recent years when the filibuster and other forms of Senate obstruction of the confirmation process would have otherwise left agencies like the NLRB without a quorum. As the Brennan Center detailed in a recent white paper, thousands of temporary appointments throughout history would have been illegal under the D.C. Circuit’s reasoning. Read more
By Megan Amundson
Executive Director, NARAL Pro-Choice Massachusetts
Last week the U.S. Supreme Court released its unanimous decision striking down the Massachusetts Buffer Zone Law in McCullen v. Coakley. The law, passed in 2007, created a 35-foot buffer zone around the entrance to reproductive healthcare clinics. The majority decision was written by Chief Justice Roberts. Justice Scalia filed an opinion concurring in the judgment that Justices Kennedy and Thomas joined. Justice Alito also filed an opinion concurring in the judgment.
The anti-choice petitioners who challenged the Massachusetts law claimed it violated their First Amendment right to free speech. And, in fact, the Supreme Court ruled that the buffer zone did place too large a burden on the First Amendment rights of the petitioners because it curtailed speech on public sidewalks and roadways where individuals have long had robust First Amendment protections. But the Court went further by distinguishing between protestors, who can become threatening and violent, and what the anti-choice movement is now calling “sidewalk counselors”—grandmotherly figures like 77 year-old Eleanor McCullen—who “peacefully” try to talk women out of their decision to have an abortion.
The buffer zone was meant to curtail violent and harassing conduct. But because the anti-choice community effectively argued that the petitioners are instead having “gentle and consensual conversations” to “counsel” women, the Court found that the Commonwealth of Massachusetts had not tried the “least restrictive” tool to prosecute violent behavior before putting in place a buffer zone that impacts the First Amendment rights of the so-called nonviolent “sidewalk counselors.” In short, the Massachusetts buffer zone law simply went too far in responding to the violence on the ground by being applied to all abortion clinics in the state, whether there was a proven need for it or not.
The majority opinion acknowledged the existence of clinic violence and the state’s legitimate interest in protecting public safety. The decision also found that the buffer zone is content neutral, and does not, as the anti-choice petitioners tried to show, allow pro-choice speech within the zone while prohibiting anti-choice speech. Despite the acknowledgement that there is a history of violence at Massachusetts’ clinics, however, the decision largely ignores the very real threat of violence, intimidation, and harassment that still exists for women, doctors, and clinic staff at abortion clinics around the country. Calling protestors by another name, particularly “sidewalk counselors,” is a clear failure to understand the relentless harassment faced daily by women and staff at abortion clinics.
While some protestors may seem “peaceful” in the sense that they say hello before they pummel you with intimidating comments about your private healthcare decision, anyone trying to shame a woman out of a legal decision or block access to health care is just as harassing and capable of provoking violence as the violent protestor. The Court’s decision lends people who call themselves “sidewalk counselors” credence that they do not deserve. The “sidewalk counselors” are not trained counselors: they are people with an ideological agenda who often offer medically inaccurate information to shame and coerce women out of making what is already a difficult decision. Their actions are no less harassing or intimidating because they come from a petite elderly woman rather than a muscular man. For any woman who has struggled with the decision to have an abortion, it does not matter if it is a protestor or a so-called “sidewalk counselor” who approaches her on the sidewalk—both are harassing and intimidating.
The Buffer Zone Law was originally passed because Massachusetts has a history of violence at abortion clinics. In Massachusetts alone, two clinic workers were murdered and five people injured in 1994 when an anti-abortion zealot went on a shooting rampage in two Massachusetts abortion clinics. Fixed buffer zones, such as the law challenged in McCullen, are important preventative measures to help reduce escalating situations that may lead to violence and intimidation at abortion clinics. They prevent protestors from being close enough to women and employees to commit physical acts of violence. They also encourage public safety officers to take the threats of violence seriously. In jurisdictions that have imposed buffer zones around healthcare clinics, 75 percent of abortion providers say that the laws have improved police response time to threats.
Without a buffer zone law, Massachusetts is left to prosecute protestors after violence, intimidation, or harassment has occurred. This makes protecting the public’s safety around clinics much more resource intensive for both law enforcement and the court system. The relatively safe atmosphere in which Massachusetts women accessed abortion care with the buffer zone law in place is in jeopardy. Law enforcement now must wait until a woman is intimidated or harassed before they can act. In Massachusetts, the clock is being turned back to a time of uncertainty and fear when women never knew if they might be physically intimidated and harassed while accessing basic healthcare.
The McCullen decision did not touch Hill v. Colorado, the 2000 Supreme Court decision that upheld Colorado’s 8-foot, no-approach “bubble zone” law around any person within a buffer zone stretching 100 feet from a healthcare facility. While the McCullen decision is narrowly written and only immediately strikes down Massachusetts’ buffer zone law, the court opened the door to litigation against other existing fixed or floating buffer zone laws including statewide laws in Colorado, Montana, and New Hampshire, as well as laws in municipalities across the country, such as Burlington, VT; Portland, ME; Pittsburgh, PA; Chicago, IL; and Sacramento, CA. The anti-choice community has vowed to challenge the remaining laws in light of the McCullen decision, as it set a high bar for any court to uphold those laws.