Tracking the latest developments in the fight for a fair America
By Megan Amundson
Executive Director of NARAL Pro-Choice Massachusetts
Tomorrow the US Supreme Court hears oral arguments in McCullen v. Coakley, a case challenging the Massachusetts Buffer Zone Law. The law, passed in 2007, creates a 35-foot, content-neutral “buffer zone” around the entrance to reproductive health care clinics.
Anti-choice protestors are challenging the law, claiming it violates their First Amendment right to free speech. They assert that, as peaceful sidewalk counselors, they are unable to provide women with information about options for their pregnancy that they are not receiving from abortion clinics because they cannot approach patients within the buffer zone to look them in the eye, hand them a flyer, and convince them to make a different decision.
The Massachusetts Buffer Zone Law does not violate the First Amendment, and it protects another important constitutional right—the right to abortion care. The law does not discriminate based on the content of the speech, nor does it favor one type of speech over another; all protestors—regardless of their message—must abide by the 35-foot buffer zone. In addition, the law furthers the Commonwealth’s substantial interest in ensuring safe access to reproductive health care facilities, especially given the persistent violence targeted at abortion clinics.
The Supreme Court decision in Hill v. Colorado in 2000 set out the applicable constitutional standards for buffer zone laws. The Hill decision upheld a Colorado law that created an 8-foot, no-approach bubble zone around any person within a buffer zone stretching 100 feet from a health care facility and made it a misdemeanor to obstruct entry to or exit from a health care facility. Using this decision as a guide, the First Circuit Court of Appeals upheld the Massachusetts Buffer Zone Law, both on its face and as applied to specific reproductive health services clinics. The Supreme Court agreed to take up the case on the anti-choice protesters’ petition for a writ of certiorari. By hearing this case, the Supreme Court could reopen its own precedent around buffer zones.
The Massachusetts legislature passed the Buffer Zone Law because Massachusetts has a history of violence at abortion clinics: on December 30, 1994, John Salvi opened fire in abortion clinics in Boston and Brookline, MA, killing two and wounding five others. The Buffer Zone Law was passed to ensure the safety of patients and clinic staff, after other efforts—including a floating bubble zone—proved unsuccessful in blocking protestors from physically intimidating patients and staff, and from obstructing patients’ ability to enter clinics.
Buffer zones are critical to reducing violence and intimidation because they prevent protestors from being physically close enough to commit acts of harm against those accessing health care. They also encourage public safety officers to take the threats of violence seriously. In jurisdictions that have imposed buffer zones around health care clinics, 75 percent of abortion providers say that the laws have improved police response time to threats.
While the passage of the Massachusetts Buffer Zone law has caused a steep decline in violence at Massachusetts’ abortion clinics, the rest of the country has not seen a decline in violence. Between 2007 and 2012, across the country there have been eight reported arsons, 41 incidents of assault and battery, more than 200 acts of vandalism, 37 bomb threats, 41 death threats, 81 suspicious packages, 50 reports of staff and patients being stalked, and 30 facility blockades that shut down services.
The buffer zone has been the only tool to effectively reduce violence at abortion clinics in Massachusetts. In 2013, NARAL Pro-Choice Massachusetts conducted a survey of seven abortion providers to determine the success of the buffer zone at clinics across the state and the impact protestors still have on patients’ access to abortion care. Every abortion clinic in Massachusetts still has protestors, even with the buffer zone—with some clinics seeing as many as 70 protestors on weekends—because protestors are still able to talk to patients and hold signs to communicate their message. Abortion providers in Massachusetts agree that the buffer zone law has made access to health care safer for women and their loved ones, although all seven abortion clinics surveyed still consider protestors to be a serious concern for patients and providers.
Depending on the scope of the Supreme Court’s ruling in the case, buffer zone laws around the country could be in jeopardy, including those in Colorado, Montana, and municipalities such as Burlington, VT; Portland, ME; Pittsburgh, PA; Chicago, IL; and Sacramento, CA. Additionally, the case might even impact buffer zones that protect access to other constitutionally protected rights, like those around polling locations to protect voters from intimidation by political workers. It potentially could take away the most effective tool to prevent violence at abortion clinics and to protect the safety of clinic staff and women accessing basic health care.
Megan Amundson is the Executive Director of NARAL Pro-Choice Massachusetts.
By Alicia Bannon
Counsel for the Brennan Center’s Democracy Program
Thurgood Marshall, Alan Greenspan, and Dwight Eisenhower aren’t often listed together in the same sentence. But all three, along with thousands of other judicial and executive officers throughout our nation’s history, received presidential appointments that would be illegal under a narrow reading of the Constitution’s “Recess Appointments Clause” currently being considered by the Supreme Court.
The case, National Labor Relations Board v. Noel Canning, which is being argued today, has the potential to profoundly alter the balance of power between the president and the Senate in the appointments process, with major implications for the functioning of our democracy.
As the Brennan Center explained in a recent analysis, Noel Canning concerns the scope of the president’s recess appointment power, by which the president can make temporary executive and judicial appointments during Senate recesses without Senate confirmation. These appointments expire either at the end of the Senate’s next session or when a nominee is confirmed. Noel Canning reviews a decision by the D.C. Circuit Court of Appeals that interpreted this recess appointment power narrowly.
The specific legal questions in Noel Canning are complex, and neither the text of the Recess Appointments Clause nor its “intent” is a model of clarity. In hearing a challenge to a decision by the National Labor Relations Board (NLRB), which relied upon recess appointments to maintain its quorum, the Supreme Court will consider three questions:
1.) Do recesses that take place during the Senate’s annual sessions qualify as a “recess” for purposes of the recess appointment power?
2.) Is the Senate in recess if it is holding “pro forma” sessions where it does no business? and
3.) Can vacancies that opened before a recess began be filled using recess appointments?
Answering no to any of these questions would dramatically narrow the recess appointment power, with the potential to substantially weaken the president’s ability to execute the law and keep our government working.
Our agencies and courts cannot function without people to keep them running. Presidents throughout our nation’s history have relied on recess appointments to keep the government functioning when the Senate was unable to provide its advice and consent on nominees, for reasons ranging from lengthy holidays to minority obstruction through the filibuster. While incomplete record-keeping makes it impossible to identify every appointment that would have been illegal under the narrow interpretation being considered by the Supreme Court, such appointments go back at least as far as James Monroe, and may date all the way back to George Washington and James Madison.
In recent years, recess appointments have played an important role in keeping the agencies functioning in the face of Senate obstruction of the confirmation process. According to the Congressional Research Service, nearly half of all cloture motions ever filed or reconsidered on nominations were made from 2009-2013.
The appointments at issue in this case are a good example. The NLRB has seen a long history of obstruction around nominations—by both Democrats and Republicans—in efforts to deny the agency the three-member quorum it needs to resolve disputes. If President Obama had not repeatedly exercised the recess appointment power to maintain an NLRB quorum, its operations would have been paralyzed for approximately two years during his presidency. In fact, without recess appointments, the NLRB would have lacked a quorum for 2,885 days since 1988– almost eight years. Instead, during these periods, the agency issued 4,240 decisions.
Of course, recent changes to the filibuster have changed the confirmation landscape and lessened the urgency around recess appointments, at least temporarily. In November, Senate Democrats changed the filibuster procedure to require only a majority vote to end debate regarding executive and judicial nominees (other than Supreme Court justices).
Yet recess appointments continue to be important. New obstruction tactics are already taking hold. Likewise, a future hostile Senate majority may one day play a similar role in refusing to put nominees to a vote in an effort to sideline the president’s capacity to execute the law. If the Supreme Court follows the lead of the D.C. Circuit and substantially narrows the recess appointment power, our democracy will lose an important tool for ensuring a functioning government.
Alicia serves as Counsel for the Brennan Center’s Democracy Program, where her work focuses on judicial selection and promoting fair and impartial courts.
Because of their profound impact on Americans’ fundamental rights, reproductive rights cases are among those watched most closely when they reach the United States Supreme Court. This term, the Court is scheduled to decide at least three such cases.
McCullen v. Coakley deals with the constitutionality of a Massachusetts law establishing a 35-foot “buffer zone” around entrances to clinics that perform abortions, in order to protect women and families from harassment when accessing reproductive and family planning services. Opponents argue that the law violates the First Amendment. Oral argument in McCullen is set for January 15, 2014.
The Court also is expected to decide two cases—Hobby Lobby Stores, Inc. v. Sebelius and Conestoga Wood Specialties Corp. v. Sebelius—concerning whether profit-making companies owned by individuals with religious objections to birth control must be exempted from the contraception coverage requirement in the Affordable Care Act.
Today,AFJ releases a comprehensive report on the views of the current justices on reproductive rights issues, as expressed through their public statements before and during their confirmation hearings, their legal writing and their decisions. The full report is available here. An executive summary and the voting records of the justices on the most significant reproductive rights cases are below. Read more
By Kyle C. Barry
AFJ Legislative Counsel
Efforts to reform the Foreign Intelligence Surveillance Court (FISA Court) got a major boost last week when the White House released an independent report that advises significant structural and procedural changes to the FISA Court. Among other recommendations, the report argues that FISA Court reforms are necessary to ensure fair process, and to strike a better balance between national security interests and fundamental civil liberties.
In response to the disclosures of former NSA contractor Edward Snowden, President Obama convened an independent “Review Group” to fully evaluate our national surveillance programs. The Review Group’s report, made public last Wednesday, offers 300 pages of sweeping reforms and broad recommendations that touch all aspects of our foreign intelligence gathering activities. Included are suggested reforms to the FISA Court, the judicial body tasked with approving electronic surveillance applications made by the executive branch.
The proposed changes to the FISA Court address two problems that Alliance for Justice identified in a report, Justice in the Surveillance State, issued in August.
First, FISA Court judges – who are all federal district court judges, already nominated by the President and confirmed by the Senate – are all selected by a single person, the Chief Justice of the United States. It should go without saying that such centralized, unchecked authority will diminish the diversity of viewpoints necessary to making fair and balanced decisions. Under Chief Justice Roberts, this selection process has led to a Court with ten judges first appointed to the bench by Republican presidents, and only one judge appointed by a Democratic president. The Review Group correctly recognized the danger inherent in this approach, explaining that,
[a]lthough the role of a judge is to follow the law and not to make political judgments, Republican-appointed and Democratic-appointed judges sometimes have divergent views, including on issues involving privacy, civil liberties, and claims of national security. There is therefore a legitimate reason for concern if, as is now the case, the judges on the FISA Court turn out to come disproportionately from either Republican or Democratic appointees.
The Review Group further noted that “[t]here are several ways to deal with this concern,” and suggested that appointment authority be spread among the other Supreme Court justices.
The second problem is that the FISA Court only hears one side of every case. All proceedings before the FISA Court are ex parte, meaning that only the government – and neither the target of surveillance, nor the party asked to hand over information – is allowed to present argument. The Review Group expressed skepticism of any judicial process that abandons our long adherence to the adversarial system. “The adversary system,” the report explains, “is an engine of truth. It is built on the assumption that judges are in a better position to find the right answer on questions of law and fact when they hear competing views.”
This is true of the FISA Court now more than ever because its decision making authority has expanded in recent years. Rather than making narrow factual assessments to simply grant or deny surveillance applications, the FISA Court has been presented with complex issues of statutory and constitutional law. The Review Group highlights the NSA’s bulk data collection as a primary example:
A good example is the question whether section 215 [of the PATRIOT Act] authorized the bulk telephony meta-data program. That question posed serious and difficult questions of statutory and constitutional interpretation about which reasonable lawyers and judges could certainly differ. On such a question, an adversary presentation of the competing arguments is likely to result in a better decision. Hearing only the government’s side of the question leaves the judge without a researched and informed presentation of an opposing view.
The Review Group proposes the creation of a “Public Advocate” to represent the interests of those whose privacy rights might be at stake in FISA Court proceedings. The Advocate could be invited to participate by a FISA Court judge, or could appear on her own motion.
The Review Group report is an important step toward a better functioning FISA Court, one that affords fair process and better protects the privacy rights of all Americans. But many of the Review Group’s recommendations are broad suggestions that leave for Congress and the President the job of implementing practical solutions. Currently, there are two bills pending in the House and Senate that would address the flaws in FISA Court raised by AFJ, the Review Group, and others. The FISA Court Reform Act of 2013 would create the Office of the Special Advocate to argue on behalf of privacy interests, and appeal decisions that favor the government. It would also mandate increased transparency and disclosures of FISA Court opinions. The FISA Judge Selection Reform Act would increase the number of FISA Court judges from 11 to 13, and spread the authority to select judges among the chief judges for our federal courts of appeals. Each of these bills has bipartisan support, and Congress should act on them quickly when it returns to work in January.
Of course, fixing the FISA Court is not sufficient to address all of the problems with the NSA’s expansive surveillance programs, some of which, one federal judge recently observed, are “Orwellian” in nature. Legislators and the White House should also be working on comprehensive substantive reforms.
The momentum toward these changes, both to the FISA Court and more broadly, has been growing, and the findings of the independent Review Group should be a call to act now.
By John Walke
Clean Air Director, Natural Resources Defense Council
Two of the most important health standards ever adopted by the Environmental Protection Agency to reduce harmful air pollution from power plants had their day in court last week. Actually two courts: the Supreme Court heard arguments on EPA’s Cross-State Air Pollution Rule (CSAPR), which targets smog and soot pollution emitted from power plants in upwind states that travels across state boundaries to foul the air in downwind states. Down the street in the U.S. Court of Appeals for the D.C. Circuit, a three-judge panel heard challenges from industry, conservative states and some environmental groups to EPA’s Mercury and Air Toxic Standards (MATS) for coal- and oil-burning power plants.
Court-watchers observed that both EPA standards appeared to fare well with the jurists. This is a good sign not just for lawyers and regulators, but for the well-being of the American people. EPA has projected that together these two rules will prevent up to 45,000 premature deaths, 20,000 nonfatal heart attacks, and more than a half million asthma attacks every year once the standards are implemented.
Legal Issues & Oral Argument in the Cross-State Air Pollution Rule Case
The Supreme Court granted certiorari on three issues, but spent time in oral argument mostly discussing only one: Whether the EPA permissibly interpreted the statutory term “contribute significantly” so as to define each upwind State’s “significant” interstate air pollution contributions in light of the cost-effective emission reductions it can make to improve air quality in polluted downwind areas.
EPA and just the industry challengers (importantly, see below) disagree over whether EPA may consider the cost and cost-effectiveness of pollution reductions in determining each upwind state’s contribution to transboundary pollution problems. During oral argument, the industry challengers argued that EPA could not consider costs, and must instead apportion responsibility based solely on each upwind State’s physically proportionate responsibility for each downwind air quality problem. EPA and all the parties supporting the agency in the Supreme Court view this to be overly simplistic, less effective, and perhaps even impossible to administer. Instead, EPA argues that it may consider the costs of effectively controlling upwind air pollution contributions in conjunction with air quality factors.
With the exception of Justice Scalia, who spoke out forcefully against EPA’s position, most of the remaining Justices who did speak appeared receptive to siding with EPA. Justice Kennedy, for example, remarked that “the word ‘significantly’ does import a judgmental component” granting EPA some degree of latitude and could mean more than merely physical “amounts” of pollution, as the industry parties argued. Comments from other justices―including a series of increasingly entertaining hypotheticals involving sheep and basketball and knives―suggested the understanding that the realities of air pollution are more complex than the simplistic “proportionality” approach adopted in the lower court ruling. Read more