Tracking the latest developments in the fight for a fair America
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.
By Bill Lurye
General Counsel, American Federation of State, County and Municipal Employees
On Monday, the Supreme Court issued its opinion in Harris v. Quinn, a case that was largely ignored by court watchers and much of the media until very recently. At bottom, the case presented a very straightforward question: could the State of Illinois enter into a collective bargaining agreement with SEIU Healthcare Illinois and Indiana that required homecare workers who were not members of SEIU HII to pay to the union their fair share of the union’s cost of representing it? In the lower courts, the National Right to Work Legal Defense Foundation (NRTW), which brought the lawsuit, sought to block home care and other independent providers, like child care providers, from forming unions and having collective bargaining agreements that include fair share fees.
But with Justice Alito at the helm, the Supreme Court entertained new arguments from NRTW that placed before the Court the very existence of public sector unions. NRTW aggressively challenged the constitutional right of all public service employees to form unions to be their exclusive bargaining representative in the workplace; to have their union bargain over matters of concern to them, like wages, benefits, and working conditions; and to have collective bargaining agreements that permit the payment of fair share fees by nonmembers for the services the union provided to them and other bargaining unit members, seeking to overturn Abood v. Detroit Board of Education. Read more
Monday’s Supreme Court decisions in Hobby Lobby and Harris v. Quinn threaten women’s right to participate equally in the workplace
By Michelle D. Schwartz,
AFJ Director of Justice Programs
It’s probably fair to speculate that the vast majority of the 60,000 SCOTUSblog readers Monday morning were there to see what happened in Hobby Lobby—the Affordable Care Act contraception case—and that most casual Supreme Court observers have at most a passing awareness that the Court also decided a major union case, Harris v. Quinn. There are many reasons why we all should pay attention to Harris v. Quinn, but here I will focus on just one that is at the heart of both Hobby Lobby and Harris: In both cases, a majority of five men led by Justice Alito put at risk women’s ability to participate fully and equally in the modern American workforce.
The availability, accessibility, and affordability of contraceptive care are critical to women’s ability to excel and compete in the workplace. Planned Parenthood has demonstrated that birth control has led to dramatically increased workplace participation, higher college graduation rates, and better wages for women. Furthermore, contraceptive coverage is a benefit women have earned—and paid for. As Gretchen Borchelt of the National Women’s Law Center wrote on this page in March:
[I]t’s actually women workers who are paying for this benefit. Health insurance is part of an employee’s compensation—women pay with their labor and through the premium they contribute for their health insurance. A woman worker is entitled to all of the preventive services without cost-sharing, as guaranteed by the law. She deserves to be able to meet her health care needs through her regular insurance plan, just as she accesses other health care benefits, and just as men are able to access the health care they need. This critical health care service—which 99% of women have used at one point in their lives—should not be carved out just because her employer objects to it. Read more
Nominations are a good start, but it’s only just over a quarter of the job
We are pleased that, at long last, Senators John Cornyn and Ted Cruz stopped dithering long enough to allow President Obama to send the Senate nominees to fill three vacancies on federal courts in Texas. And we are pleased that, in keeping with his strong record on diversity, one of the President’s nominees would be the first openly gay judge on the Texas federal courts.
But Cornyn and Cruz still have done little more than a quarter of the job. There still are eight judicial vacancies without nominees in Texas – the most, by far, of any state. California and New York, for example, have only one each.
- Texas still has more than a quarter of all vacancies nationwide for which there is not even a nominee (eight out of 30).
- Six Texas seats on United States district courts still are vacant without nominees.
- There are two more Texas vacancies on the U.S. Court of Appeals for the Fifth Circuit.
- It’s been 2,035 days – more than five years – from the day Judge Royal Furgeson stepped down from his bench in the Western District until today – when a replacement finally was nominated.
- Three more Texas federal judges have announced plans to retire or take senior status – so soon there will be three more vacancies to fill.
- None of the nominees would fill a seat in the Southern District, which has the most vacancies.
All this would be bad enough in any state, but it’s worse in Texas, which wouldn’t have enough judges even if every bench were filled. According to the Judicial Conference of the United States—headed by Chief Justice John Roberts—Texas needs at least eight new judgeships to meet its growing federal caseload, in particular criminal cases, which have skyrocketed in recent years.
We intend to keep the pressure on Senators Cruz and Cornyn to make sure today’s nominations are only the beginning. And if you’re from Texas, you can help!
The computer giant is trying to force us into forced arbitration
Microsoft, the company that gave us Vista, Ctrl-Alt-Delete and Clippy, has something in store for us that’s even worse. The company has been phasing in forced arbitration clauses in its “services agreement.”
That means if you are harmed by a Microsoft product or service, you can’t stand up for your rights in court. Instead, you have to take your case to an arbitrator hired by Microsoft. Arbitrators do not need to be lawyers or follow precedent, yet their word is nearly always final and unappealable. One study found that such arbitrators rule for the businesses that hire them 94 percent of the time.
Microsoft also won’t let you band together with others the company has wronged and bring a class-action suit – often the only way to stop a corporation from cheating millions of consumers. The latest version of the services agreement makes this ban even more strict.
One can see why Microsoft might be fond of forced arbitration. In a 2003 e-mail, company founder Bill Gates used the following terms to describe what it was like to use one of his own products:
disappointed, backwards, unusable, totally confusing, strange, pathetic, completely odd, weird, scary, crazy, slow, garbage, not usable, crapped up, crap, absolute mess, craziness, terrible.
Perhaps the best indicator of just how bad a deal forced arbitration is for consumers is the sneaky way big businesses force it on us.
Take Microsoft’s latest email announcing the changes. “Our users’ needs are at the center of everything we do,” says the happy little email. “That’s why we are updating the Microsoft Services Agreement.” But there’s no mention of forced arbitration in the email itself. And there’s no mention of it in the FAQ that supposedly offers the “highlights.”
No, you have to click on the link to the fine print and scroll down to Section 10 before you find out what Microsoft is taking away. If forced arbitration is so great, why does it have to be forced? Why not offer it on a voluntary basis? And why aren’t companies bragging about it instead of tucking it away in those long, long “agreements” that few of us have the time to read?
There is a solution. The Arbitration Fairness Act would put an end to these outrages. If you don’t want your rights “clipped” by the company that gave us Clippy – or by all the other corporations on the forced arbitration bandwagon – tell your Members of Congress to pass the Arbitration Fairness Act.