We are currently witnessing an unprecedented attack on women’s reproductive rights in the United States, one that has materialized on two fronts: the proliferation of more aggressive attempts to ban abortion procedures at the state level, and the nomination and confirmation of growing numbers of anti-choice federal judges. Clearly, the two are related, and they pose an existential threat to reproductive rights as we know them.
In mid-July, the Center for Medical Progress, a pseudo-bioethics advocacy group, began posting videos online falsely accusing Planned Parenthood of trafficking in fetal tissue, and prompting a firestorm of attacks against the women’s health organization. Senator Joni Ernst, R-Iowa, soon after introduced a bill to defund Planned Parenthood. Eighteen GOP Senators even pledged to force a government shutdown unless it is successful. Though the bill failed to pass a procedural vote earlier this week, the efforts of its supporters are far from over.
While the bill ostensibly responded to the allegations in the videos, it is but the latest in a string of legislative and judicial attacks on women. Even before the videos, anti-choice advocates fought at every turn to defund and eliminate Planned Parenthood. Their goal is the complete reversal of Roe v. Wade, and with it, women’s constitutional right to reproductive freedom. Heavily edited and mischaracterized videos are a convenient way to generate faux-outrage, but the attacks on women’s health were ongoing long before them.
Even before the videos, anti-choice advocates were engaged in an ongoing two-pronged strategy: use lawsuits based on religious freedom to cut off access to contraception, and enact draconian state laws that make safe, affordable abortions almost impossible to obtain. On both fronts, the activists have been helped by conservative judges.
In a Supreme Court case decided last year, Burwell v. Hobby Lobby, the Court ruled that, despite the Affordable Care Act’s contraceptive mandate, closely-held, for-profit corporations could invoke the religious beliefs of their owners to deny employees health insurance that covers contraceptives. The decision left important questions regarding women’s health not to the women themselves, but to their bosses.
In the year since, conservatives have returned to court seeking to drastically expand the ruling. Consistent with the decision, the Obama administration implemented exemption rules for religious institutions and other organizations like Hobby Lobby who object to providing contraception. These groups would only need to report their objection to their insurance company or the federal government, and then the cost of employees’ birth control will be paid by the government.
But for fifty-six nonprofit organizations, even that was a step too far. They filed a variety of suits challenging their already minimal obligation under the mandate. Many argued that simply notifying the government they were opting out of the mandate placed a “substantial burden” on their exercise of religion. In rejecting one suit brought by Wheaton College, Seventh Circuit Judge Richard Posner explained how the school misconceived its legal obligations:
“[W]hen Wheaton College tells us that it is being ‘forced’ to allow ‘use’ of its health plans to cover emergency contraceptives, it is wrong. It’s being ‘forced’ only to notify its insurers . . . that it will not use its health plans to cover emergency contraception, that it is out of the loop, that the insurers will have to deal directly with the students, faculty, and staff, bypassing the college health plans,” explained Judge Richard Posner in a Seventh Circuit ruling against the college.
Although the government has so far won all six cases decided in the courts of appeals, the real-world results have been less rosy. After losing its suit, Wheaton College chose to stop providing student health insurance of any kind in order to avoid the non-existent requirement that with insurance it must also provide emergency contraception.
The issue may soon return to the Supreme Court. There are currently six appeals involving the contraception mandate pending at the Court. That number is likely to grow as nine other cases are still pending in the circuit courts.
As those cases percolate, state lawmakers are striking at the heart of Roe itself and finding support from conservative judges. In June, the Fifth Circuit upheld a series of Texas anti-abortion laws that are some of the strictest in the country. The provisions require all clinics to have the same building equipment and staffing standards as hospital-style surgical centers, and for doctors to have admitting privileges at an area hospital. Disguised as a public safety protection, these laws are designed to be impossible to comply with. The result is the potential permanent closure of almost half of Texas’ few remaining abortion clinics.
Mississippi is currently seeking certiorari at the Supreme Court to close its last remaining abortion clinic, a feat it has been attempting for years. We tell the story of that clinic in our short documentary, Roe At Risk. And an Eighth Circuit decision last month, while preserving abortion rights in North Dakota for the moment, spent the majority of its opinion urging that Roe be overturned.
Republicans may not have succeeded in defunding Planned Parenthood this week, but their attempt is nothing new. And anti-choice advocates are stepping up the fight. The misleading and heavily edited Planned Parenthood videos are an excuse to push for what they’ve wanted for decades: an end to women’s reproductive freedoms.
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 Brent Ferguson
Counsel, The Brennan Center for Justice
at NYU School of Law
Intriguingly, last week’s Supreme Court argument over corporations’ claims of religious rights unfolded without any mention of the last blockbuster case to touch on corporate constitutional rights—Citizens United. Yet whether and how the justices choose to incorporate the 2010 political speech case in resolving this term’s religious dispute will matter a great deal to the place of corporations in American society.
In last week’s consolidated cases, two companies, Hobby Lobby and Conestoga Wood Specialties—and their religiously devout owners—challenged the Affordable Care Act’s mandate that any employee health coverage they provide include access to certain forms of contraception. Use of these contraceptives, they claim, is religiously objectionable, and providing access amounts to complicity in the contraceptives’ use. The challengers argue that the coverage mandate therefore violates their right to freely exercise their religion under the federal Religious Freedom Restoration Act (RFRA) and under the First Amendment.
A key preliminary question is whether a for-profit corporation can exercise religion in the first place. Can a legal entity created for economic benefit acquire the ability and right to worship? The Supreme Court has never before answered this question directly. In the Hobby Lobby case, however, a federal appeals court said that the highest court indirectly did, when in Citizens United it held that the First Amendment required lifting limits on corporate spending in political campaigns. The lower court read Citizens United to be the sanctification of a corporate free speech right under the First Amendment, and reasoned that there was no sense in denying corporations a religious exercise right under the same amendment. Read more
By Gretchen Borchelt
Senior Counsel and Director of State Reproductive Health Policy, National Women’s Law Center
The companies seeking to deny women access to a benefit guaranteed under the health care law—coverage of all FDA-approved methods of birth control and related education and counseling without cost-sharing—made some questionable claims yesterday before the Supreme Court. Two in particular are worth exploring, especially since they’ve gotten short shrift in the post-argument analysis.
The first troubling argument was that the government does not have as compelling an interest in requiring insurance coverage for birth control as compared to other health care services. Paul Clement (the lawyer representing the companies) framed his opening by talking about how “religiously sensitive” it is to require birth control coverage. Justices Sotomayor and Kagan questioned this notion, asking how far an exemption for companies with religious objections would go. What about an owner who has religious objections to vaccinations or blood transfusions? Are those “religiously sensitive”? Should a boss be able to deny employees coverage of those health care services because of a religious belief? Clement responded that this case is “easier than” those cases because birth control is “so religiously sensitive, so fraught with religious controversy” and the government may have a “stronger compelling interest [in those cases] than it does” in this case. Read more
By Emily Rooke-Ley
AFJ Outreach Intern
Just over two weeks ago on the morning on Jan. 15, the House Judiciary Committee held a hearing and mark-up on the latest piece of legislation that aims to deny women access to abortion. Just before the hearing, legislators concerned with women’s access to comprehensive health care held a press conference outside of the committee room. Rep. Louise Slaughter, D-N.Y., co-chair of the House Pro-Choice Caucus said: “Women are sick and tired of these constant attacks on our constitutionally-protected right to choose, while priorities like equal pay, fair wages and paid family leave go unaddressed.”
The so-called “No Taxpayer Funding for Abortion Act,” (HR 7) sponsored by Rep. Chris Smith, R-N.J., would eliminate all federal funding for abortion services. The Hyde Amendment, first enacted in 1977 and reenacted as a rider every year, has already done just that by prohibiting federal Medicaid funding for abortion. Rep. John Conyers, D-Mich., insisted during Wednesday’s hearing that the bill be called what it really is: a government intrusion that will effectively eliminate health insurance plans that provide abortion coverage.
According to Planned Parenthood Federation of America, HR 7 will ban abortion coverage in private insurance plans (37 million women of reproductive age are covered by private plans), raise taxes on families choosing private insurance plans that include abortion coverage, and raise taxes on small businesses if they offer their employees insurance plans that include abortion coverage. It will do so with only the limited exceptions for some cases of rape, incest, and life of the mother.
The earliest version of what is now HR 7 allowed exceptions only for “forcible” rape. Another version required the IRS to audit rape victims who claimed a medical expense deduction for abortion to ensure that she was not committing fraud. Although the final version of the bill dropped such language, its provisions on abortion have not been changed and the bill would, in fact, go further than Hyde ever did.
Congresswomen and pro-choice activists crowded the hallway holding signs reading “Where are the women?” This refers to the absence of women in the drafting, debate, and mark-up of the bill. HR7 was drafted by Congressman Chris Smith, R-N.J., the initial House subcommittee was comprised of 12 men, and the full committee includes 35 men and only five women.
Many of those attending the press conference and bill mark-up represented organizations in partnership with the All Above All pro-choice coalition, which includes Alliance for Justice. The coalition strongly opposes this legislation, which severely limits access to women’s constitutionally-protected right to safe and legal abortion. The full video of the hearing and mark-up is available here.
Fewer than two weeks after the committee hearing and on the eve of President Obama’s State of the Union address, the House voted to pass HR 7. Despite some changes in language—such as the removal of the “rape audit” portion—the bill would still be detrimental to women and families if signed into law. Fortunately, it has little chance of passing in the Senate, and President Obama has already said he plans to veto the bill if necessary.
The Pro-Choice Caucus convened Wednesday morning for a press conference with House Minority Leader Nancy Pelosi, expressing their members’ disappointment in the House passage of HR 7. As we reflect on the 41 years that have passed since Roe v. Wade, we must recognize that it is more important now than ever before to be vigilant, to speak out, and to stand up against the relentless attacks on women’s reproductive rights.
AFJ releases a new report on the court that hears appeals in Texas, Louisiana and Mississippi
Last week’s decision by the Fifth Circuit Court of Appeals to reinstate Texas’ draconian abortion law can be described in many ways—shocking, appalling, disturbing, unjust, and a vital reminder of how much judges matter—but no one familiar with the Fifth Circuit should be surprised.
As Alliance for Justice explains in a new report profiling the court’s 15 judges.
Ten of its 15 active judges were appointed by Republican Presidents, and its decisions often reflect a concerted effort by Republican administrations to impose a conservative policy agenda through the courts.
That agenda shows itself in all sorts of ways, including decisions favoring powerful special interests at the expense of everyday Americans. Among the examples cited in the report:
After a group of Hurricane Katrina victims received a favorable ruling from a three-judge panel in their suit against polluter energy companies, the court decided to hear the case “en banc”—meaning that the panel decision would be vacated and the court’s full roster of judges would decide the case. But because ties to the energy industry forced so many judges to recuse themselves, there weren’t enough judges left to hear the appeal. The result was that the hurricane victims lost without ever getting their day in court. Their favorable panel decision had already been set aside, and the lost quorum meant that the trial court’s decision—which sided with the energy companies—was reinstated.
The court’s decisions have also eroded civil rights, marginalized criminal defendants, and demonstrated insensitivity and even outright hostility toward racial minorities and women.
As the report documents, last week’s abortion law decision was only the most recent example.
The Fifth Circuit judges
The Fifth Circuit Court of Appeals has appellate jurisdiction over the federal courts in Texas, Louisiana, and Mississippi. It often has the last word on questions of federal law, so it’s imperative that the court is staffed with fair-minded judges who uphold the rule of law and treat all litigants equally. Here are some examples, culled from the report, of what we are getting instead:
● A high school cheerleader is raped, allegedly by a member of the school basketball team. The school then forces her to cheer for the alleged rapist. She sues, arguing the school’s actions violated her First Amendment rights. In a decision written by Judge Edith Brown Clement, the Fifth Circuit not only dismisses the claim, but it orders the rape victim to pay legal fees for filing a “frivolous” suit.
● Judge Priscilla Owen, who wrote the opinion reinstating the Texas abortion restrictions law, has a history of anti-abortion activism. Consider what happened when Owen and Alberto Gonzalez—a man with such stellar conservative credentials that he would go on to serve as President George W. Bush’s attorney general—both were serving on the Texas Supreme Court: Owen and other dissenters tried to impose restrictions on minors seeking abortions that were even more severe than those permitted under state law. Their views prompted Gonzalez to accuse them of committing “an unconscionable act of judicial activism.”
Owen had far more sympathy for corporations like Enron. She wrote an opinion cutting Enron’s school taxes by $15 million—after accepting thousands of dollars in campaign contributions from Enron.
● In 2009, Judge E. Grady Jolly attended a conference on the so-called “criminalization of corporate conduct” sponsored by the American Petroleum Institute and the U.S. Chamber of Commerce. Three years later, he ruled in favor of two organizations suing to invalidate a decision by the Environmental Protection Agency. The organizations were the American Petroleum Institute and the U.S. Chamber of Commerce.
● Judge W. Eugene Davis and Judge Jerry Smith have attended seminars funded by the so-called Foundation for Research on Economics and Environment (FREE), an anti-regulation think tank funded by the oil industry. Only months after the Deepwater Horizon disaster, these judges ruled in favor of oil companies challenging the president’s partial moratorium on offshore drilling in the Gulf. (Judge Clement goes them one better—or one worse. She actually serves on the board of FREE—despite an opinion by the Judicial Conference’s Committee on Codes of Conduct that it is an ethics violation to do so.) Judge Smith also was one of the Fifth Circuit judges who rejected an ineffective assistance of counsel claim. He apparently felt it was no big deal that the lawyer in question slept through key parts of a capital murder trial.
● Perhaps the most notorious judge on this court is Edith Jones. She’s taken it upon herself to urge the Supreme Court to overturn Roe v. Wade and criticized the Supreme Court for “struggl[ing] with the particular facts … of death penalty cases.” But that’s just the tip of the iceberg. She is the subject of a formal complaint from ethics experts and civil rights organizations alleging, among other things, that she made overtly racist remarks during a speech on the death penalty. Full details are in this previous post to Justice Watch.
Of course not all the judges are like this. But fair-minded Fifth Circuit judges like James Dennis often must write in dissent, as Judge Dennis did when the majority wrote a decision declaring that undocumented immigrants don’t have fundamental constitutional rights because they are not “people.” And President Obama had to nominate Judge James Graves twice before winning confirmation; the first time the nomination was stalled by Senate Republicans.
Ever since the Supreme Court ruled that banning abortion violates a woman’s right to privacy, those seeking to deny women control over their own bodies have sought to change state and federal laws to chip away at that right.
Today, Alliance for Justice zeros in on the threat to reproductive rights as we launch our annual “First Monday” social justice campaign. Alliance for Justice has been canvassing the field in the battleground states of Texas and Mississippi, listening to women’s stories and witnessing the day-to-day struggles of women who are watching their reproductive rights slip away. The centerpiece of the campaign is a short video, Roe at Risk: The Fight for Reproductive Justice, documenting both the struggle and the hope of the men and women fighting to preserve the constitutional right to reproductive freedom and justice. It is more important now than ever to take action, to speak out, and to organize for reproductive rights and access for all.
You can preview the video here: