You are browsing the archive for SCOTUS.

Six Supreme Court Cases to Watch This Term

12:08 pm in Uncategorized by RH Reality Check

Written by Jessica Mason Pieklo for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

The US Supreme Court

These Supreme Court cases could affect women’s rights in the near future.

The United States Supreme Court term begins in October, and while the entire docket has not yet been set, already it’s shaping up to be a historic term, with decisions on abortion protests, legislative prayer, and affirmative action, just to name a few. Here are the key cases we’re keeping an eye on as the term starts up.

1. Cline v. Oklahoma Coalition for Reproductive Justice

The Supreme Court looks poised to re-enter the abortion debate, and it could do so as early as this year if it takes up Cline, the first of the recent wave of state-level restrictions to reach the high court.

Cline involves a challenge to an Oklahoma statute that requires abortion-inducing drugs, including RU-486, to be administered strictly according to the specific Food and Drug Administration labeling despite the fact that new research and best practices make that labeling out of date. Such “off-label” use of drugs is both legal and widespread in the United States as science, standards of care, and clinical practice often supercede the original FDA label on a given drug. In the case of cancer drugs, for example, the American Cancer Society notes that “New uses for [many] drugs may have been found and there’s often medical evidence from research studies to support the new use [even though] the makers of the drugs have not put them through the formal, lengthy, and often costly process required by the FDA to officially approve the drug for new uses.” Off-label use of RU-486 is based on the most recent scientific findings that suggest lower dosages of the drug and higher rates of effectiveness when administered in conjunction with a follow-up drug (Misoprostol). According to trial court findings, the alternative protocols are safer for women and more effective. But, according to the state and defenders of the law, there is great uncertainty about these off-label uses and their safety.

When the issue reached the supreme court of Oklahoma, the court held in a very brief opinion that the Oklahoma statute was facially invalid under Planned Parenthood v. Casey. In Casey, a plurality of justices held that a state may legitimately regulate abortions from the moment of gestation as long as that regulation does not impose an undue burden on a woman’s right to choose an abortion. Later, in Gonzales v. Carhart, a majority of the Supreme Court, led by Justice Anthony Kennedy, interpreted Casey to allow state restrictions on specific abortion procedures when the government “reasonably concludes” that there is medical uncertainty about the safety of the procedure and an alternative procedure is available.

Cline, then, could present an important test on the limits of Casey and whether, under Gonzales, the Court will permit states to ban medical abortions. But it’s not entirely clear the Court will actually take up Cline. At the lower court proceedings, the challengers argued that the Oklahoma statute bars the use of RU-486’s follow-up drug (Misoprostol) as well as the use of Methotrexate to terminate an ectopic pregnancy. If so, the statute then bars both any drug-induced abortion and eliminates the preferred method for ending an ectopic pregnancy. Attorneys defending the restriction deny the law has those effects, and do not argue that if it did such restrictions would be constitutional. With this open question of state law—whether the statute prohibits the preferred treatment for ectopic pregnancies—the Supreme Court told the Oklahoma Supreme Court those disputed questions of state law.

So a lot depends on how the Oklahoma Supreme Court proceeds. Should the Oklahoma Supreme Court hold that the Oklahoma statute is unconstitutional because it prohibits the use of Misoprostol and Methotrexate, this case could be over without the Supreme Court weighing in. But if the Oklahoma Supreme Court invalidates the law insofar as it prohibits alternative methods for administering RU-486, the Supreme Court will almost certainly take a look.

2. Town of Greece v. Galloway

The Roberts Court is set to weigh in on the issue of when, and how, government prayer practices can exist without violating the Establishment Clause’s ban on the intermingling of church and state. In Marsh v. Chambers, the Supreme Court upheld Nebraska’s practice of opening each legislative session with a prayer, based largely on an unbroken tradition of that practice dating back to the framing of the Constitution. In Marsh, the Court adopted two apparent limits to a legislative prayer practice: The government may not select prayer-givers based on a discriminatory motive, and prayer opportunities may not be exploited to proselytize in favor of one religion or disparage another.

Read the rest of this entry →

20-Week Abortion Bans and the Pathway to the Supreme Court

12:47 pm in Uncategorized by RH Reality Check

Written by Imani Gandy for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Supreme Court

Anti-Abortion laws are part of a complex strategy to retest Roe V Wade at the Supreme Court.

In the “war on women,” 20-week abortion bans have become a rallying point for both pro- and anti-choice camps alike. While Texas’ recently-enacted law, which among other things bans abortions after 20 weeks, may have garnered most of the media attention in recent weeks, so far 13 states have passed similar bans, and three states have passed even more restrictive laws, prohibiting abortions as early as six weeks’ gestation. Nevertheless, these 20-week abortion bans have been gaining traction.

Much has been written about the politics behind these laws—especially the false claims that they are designed to protect women—but so far, there has been relatively little coverage of the anti-choice litigation strategy in relation to these bans. For instance, how do anti-choice campaigners intend to persuade the Supreme Court to reverse Roe v. Wade? Of all the various state anti-abortion laws, which one is most likely to be used as the test case at the national level?

The Supreme Court won’t review its long-standing abortion jurisprudence unless it has to. Given the controversial nature of abortion, a simple appeal from a state to clarify abortion law probably won’t prompt the Court to act. (The Oklahoma supreme court recently tried this tactic when it struck down Oklahoma’s ultrasound law and practically begged the U.S. Supreme Court to hear the case; the Court didn’t bite.) What will prompt the Supreme Court to act is a conflict between the laws that apply in one circuit and the laws that apply in another.

“Circuit” is a fancy legal term for a group of states. The country is split into eleven circuits, plus the D.C. Circuit, with one federal appeals court in charge of setting the law for each of the circuits. If one circuit court sets law that is different than the law that applies in another circuit, then a legal mess—or, as it is sometimes called, a “circuit split”—results. And since the Supreme Court likes to have laws that bind the entire country, it will intervene to resolve the circuit split.

The push for 20-week abortion bans is part of a national strategy implemented by anti-choice advocates to create exactly the sort of legal mess that will force the Supreme Court to reconsider Roe v. Wade and Planned Parenthood v. Casey, and to revisit the viability standard that has served as the constitutional foundation for abortion rights for 40 years.

An analysis by RH Reality Check suggests that the strategy deployed by anti-choicers is deeply subversive. It capitalizes on personal feelings and anti-abortion hostilities by enticing judges and legislatures to abandon empirical science in favor of biased, agenda-driven science or, as it is sometimes called, “junk science.” Proponents of junk science, which has become a cottage industry among anti-abortion advocates, confuse the issue of fetal viability, invent claims about fetuses feeling pain (or masturbating in utero), and call into question established medical standards.

The strategy is a smart one, to be sure. Anti-choicers understand that once junk science has been incorporated into legislation, courts are not inclined to question those scientific findings—no matter how agenda-driven they are—and will simply apply the law to those “facts.” In cases when junk science is presented to a court, a judge (or justice) hostile to abortion rights requires only the flimsiest reasoning to ground their legal opinion in fact, even if those “facts” are anything but factual.

It is hard to fathom that any court would find these pernicious bans constitutional. After all, the Constitution guarantees a right to choose abortion up until the point of fetal viability, which occurs well after 20 weeks’ gestation. Nevertheless, anti-choice advocates are alarmingly optimistic about their chances in making these bans stick—at least, some are.

Read the rest of this entry →

Justices Alito and Kennedy Mansplain Away Your Rights

7:01 am in Uncategorized by RH Reality Check

Written by Jessica Mason Pieklo for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Portrait of Justice Alito

Alito is one of the Supreme Court justices who helped make it harder to sue for sexual harassment.

It’s hardly a surprise that a culture that fundamentally denies and perpetuates rape culture would produce Supreme Court justices that can’t grasp the basic dynamics of co-worker power plays and harassment. In a pair of devastating civil rights decisions issued Monday, they’ve left workers more exposed and employers more insulated from claims of harassment and discrimination than ever before.

The first of the decisions, Vance v. Ball State, addresses the question of who is defined as a “supervisor” under Title VII of the Civil Rights Act, the historic legislation designed to remedy workplace discrimination. Maetta Vance, an African-American woman, filed a number of complaints of racial discrimination and retaliation stemming from interactions with a fellow employee, Saundra Davis, a white woman. Davis didn’t have the power to hire or fire Vance, but she did consistently and persistently harass and intimidate her, including blocking her entrance to an elevator and glaring at her. The situation got so bad Vance sued, arguing her employer, Ball State University, should be responsible for the racially hostile work environment created by Davis. Ball State University moved for summary judgment at the trial level, and both the lower court and the court of appeals held that the university couldn’t be liable because Davis was not a supervisor and therefore her actions, even if they were racially harassing and discriminatory, wouldn’t create liability for the university. In short, the school gets a shield.

Prior to the Vance decision, when determining whether workplace harassment by a co-worker was bad enough to trigger employer liability the appropriate question courts would ask was: Has the employer given the alleged harasser authority to take tangible employment actors or to control the conditions under which subordinates do their work? If the answer to either of those questions was yes, the employer would be liable. Just who is and is not a supervisor is a critical question, because as the Vance decision makes clear, only those employees in supervisory roles are the ones who are potential sources of liability for employers. That means harassment and/or discrimination by a co-worker is not covered, and, thanks to Justice Samuel Alito, those who are covered as supervisors will be only a few.

It’s hard not to hear the condescension in Justice Alito’s majority opinion, a good portion of which he directs at the one sitting justice on the Supreme Court with any real experience litigating workplace discrimination cases, Justice Ruth Bader Ginsburg. This is most apparent when the conservative majority tries to take Ginsburg on directly. The result is the closest thing we get to mansplaining in a judicial opinion. He wrote:

In any event, the dissent is wrong in claiming that our holding would preclude employer liability in other cases with facts similar to these. Assuming that a harasser is not a supervisor, a plaintiff could still prevail by showing that his or her employer was negligent in failing to pre­vent harassment from taking place. Evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed would be relevant.

Justice Alito was even seen rolling his eyes at Justice Ginsburg while she was reading her dissent.

Read the rest of this entry →

Is Marriage Equality Almost Here? Six Possible Outcomes of the DOMA and Prop 8 Cases

11:11 am in Uncategorized by RH Reality Check

Written by Jessica Mason Pieklo for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

The Defense of Marriage Act

A Rainbow flag

There are several different possible outcomes of upcoming Supreme Court decisions.

In 2007 Edie Windsor married Thea Spyer after already being together for 40 years. When Spyer died, in 2009, their home state of New York recognized marriage equality, but because of the Defense of Marriage Act (DOMA), the federal law that defines marriage as a union between one man and one woman, the federal government did not. As a result, Windsor was faced with paying more than $363,000 in federal estate taxes because Spyer had left her estate to Windsor. Had the federal government recognized their marriage and given it the same status as opposite-sex married couples in the state, Windsor would not have to pay any estate taxes.

But it didn’t, and Windsor sued, arguing DOMA violates Equal Protection protections and seeking a refund in her estate tax bill. In October 2012 the Second Circuit Court of Appeals ruled DOMA was unconstitutional. In that decision, the court for the first time held that when government passes laws that discriminate against gay and lesbian individuals those laws will be presumed unconstitutional and that the must have a compelling reason to justify that discrimination.

The Supreme Court now has to answer those two questions: Is Section 3 of DOMA (the part of the law that defines marriage) constitutional, and do gay and lesbian individuals qualify as a protected class for purposes constitutional protections? There are three ways the Court could answer those questions.

1. DOMA Is Unconstitutional

Equality advocates are hoping for a ruling from the Supreme Court that would broadly declare DOMA unconstitutional. Should the Supreme Court strike DOMA in its entirety, then same-sex couples who receive marriage licenses in the 12 states and District of Columbia that recognize same-sex marriages will enjoy the benefits of more than 1,000 federal laws, benefits, programs, and protections that currently favor opposite-sex marriages. A ruling declaring DOMA unconstitutional would likely have no impact on marriage equality bans though.

If the Court does rule DOMA unconstitutional, it could do so via several different analytical tracts. First, the Supreme Court could issue a sweeping ruling under the equal protection clause of the 14th Amendment to the U.S. Constitution. Historically the courts have applied the equal protection clause to protect against the government unfairly infringing on the rights of specific groups and to ensure that certain fundamental rights such as marriage receive heightened legal protection. Advocates have argued that DOMA violates the 14th Amendment both because it targets a specific group of people for unequal treatment and because it affects the fundamental right to marriage.

If the Supreme Court relies on the 14th Amendment to strike DOMA and rule that LGBTQ individuals make up a class that should receive heightened protections because their history of being discriminated against, then the ruling could reach beyond invalidating DOMA and would mean that any law — state or federal — that treats gay or lesbian individuals differently based on their status as gay or lesbian would likely be struck down. That kind of broad ruling is not very likely though, especially given the conservative majority on the Court. But that doesn’t mean hope is lost. The Court doesn’t have to decide the issue of gay and lesbian people as a protected class to strike down DOMA. The Court could rule that because DOMA does not serve legitimate governmental interests it is unconstitutional. Typically, evidence of animosity toward a particular group and the desire to impose a set of morals on the public are not considered by the courts legitimate reasons for the government to pass a law. If ever a law fit that example, it’s DOMA.

There is one other way the Court could find DOMA unconstitutional, and that is through some variation of a “states’ rights” or federalism argument. During oral arguments Justice Anthony Kennedy seemed very concerned with whether or not the federal government had any role in defining marriage to begin with. According to this reasoning, Congress never had the authority to pass DOMA in the first place since it is an attempt to regulate what is traditionally considered within the power and regulation of the states.

The states’ rights theory is not likely to get a majority of votes, but it could be a way for the conservatives on the court to strike DOMA without advancing LGTBQ equality beyond the issue of marriage like a broad 14th Amendment ruling would. But such a decision would be a short-term win, as conservatives have argued federalism concerns invalidate the majority of the social safety net programs. Should the Roberts Court give conservatives broad legal reasoning to support that theory then we can expect to see a host of new legal challenges to everything from Social Security benefits to Medicare and Title X programs.

2. DOMA Is Constitutional

As hard as it is to imagine, the Court could find Section 3 of DOMA constitutional. Should that happen, then those legally married same-sex couples in the 12 states and Washington, D.C., that recognize marriage equality will continue to face systematic discrimination and be denied equal protection under the law as well as access to federal benefits related to more than 1,000 federal laws and programs.

3. SCOTUS Punts on the Merits of the Case Read the rest of this entry →

Griswold v. Connecticut and the Evolution of Personal Privacy Rights

8:16 am in Uncategorized by RH Reality Check

Written by Jessica Mason Pieklo for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Birth control pills

How the fight for contraceptive freedom & LGBTQ rights sheds light on privacy protections.

Over the past three years, more than 60 lawsuits have been filed in federal court challenging the Affordable Care Act contraceptive coverage benefit. These legal challenges are based on a central theme of today’s conservative movement, which argues contraception is immoral, and that the Supreme Court decision preventing states from criminalizing birth control was wrongly decided. That’s where things stand on the 48th anniversary of Griswold v. Connecticut.

Why now? Why is the right gunning so hard to take down Griswold and gut individuals’ rights to privacy that include keeping the government out of their most intimate decisions? And what has changed legally, to bring this issue to a boil now? As it turns out, the answer has very little to do with contraception and more to do with same-sex marriage. At its core, the legal foundation of personal privacy rights rests in the institution of marriage and family. As older definitions of “traditional families” give way to more expansive realities, including same-sex partnerships, single-parenting, co-parenting, and myriad family arrangements today, conservatives must face a stark legal reality: Without drastically changing the way the courts define issues that once were simply matters of privacy, they will have lost the culture wars. It’s now or never.

The Supreme Court first laid the foundation for an individual right to privacy early in the 20th century in Lochner v. New York, a case that has become synonymous with activist judges looking for any means to support and expand corporate, monied interests. In Lochner the majority relied on the reference to “liberty” in the 14th Amendment’s Due Process Clause to support striking down a New York state law that restricted the number of hours bakers could work each week. The 14th Amendment states that no person “shall be deprived of life, liberty or property, without due process of law.” According to the court majority, the law was an unconstitutional violation of an individual’s privacy rights because the Due Process Clause implicitly guarantees citizens the “fundamental” right to enter into employment arrangements free from state intrusion in this “liberty” interest.

From Lochner, privacy rights more clearly became associated with the home and traditional, patriarchal constructions of family. In Pierce v. Society of Sisters (1925), the court ruled that an Oregon law banning all private education violated the Due Process Clause because it directed how parents may educate their children, infringing upon parents’ fundamental right to rear their children as they see fit. The majority opinion in Pierce lists a series of other privacy rights guaranteed by the Due Process Clause, including “the right of the individual … to marry, establish a home and bring up children … and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

But it wasn’t until 40 years later, in Griswold, that the Supreme Court turned its attention to whether the Constitution implicitly contains fundamental privacy guarantees that are not dependent on the Due Process Clause. Writing for the majority, Justice William O. Douglas departed from the Lochner line of privacy reasoning and held that a right to privacy exists not because of a specific constitutional provision but rather because it flows from several provisions relating to privacy, to create “penumbras”, or shadows, in which “zones of privacy” exist. Within these zones, the court explained, are other rights, including the right of married couples to determine whether or not to have children.

Two years later the court would again reach the issue of privacy rights in Loving v. Virginia, the famous case that challenged a Virginia law banning interracial marriage. In a unanimous decision, the court ruled the Virginia law violated the 14th Amendment’s Equal Protection Clause, which guarantees all citizens equal protection under the law and thus prohibits the government from discriminating on the basis of race. The court could have stopped there with its analysis, but it didn’t. Instead, it pushed further, moving beyond the obvious issues of racial discrimination to hold that the right to marry is itself protected by the Constitution. By the end of the 1960s, and with the civil rights and anti-war movements smoldering in the background, the Supreme Court’s jurisprudence showed both a slow acceptance of racial equality and a preference for the traditional construction of marriage and family.

Griswold v. Connecticut may have recognized a right of married couples to use contraception, but it wasn’t until March of 1972 in Eisenstadt v. Baird that the Court recognized a corresponding privacy right to use contraception for individuals. “If the right of privacy means anything,” Justice William Brennan wrote, “it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” The following year, the court famously extended these individual privacy rights even further when, in Roe v. Wade, it established a constitutional right to choose abortion grounded in an individual right to privacy and this legally recognized zone of intimacy that inherently surrounds issues of reproduction but that was no longer immediately anchored in the constructs of traditional marriage.

Read the rest of this entry →

Self-Certification and the Contraceptive Coverage Rule: What Does It Mean for an Institution to “Hold Itself Out as Religious?”

12:53 pm in Uncategorized by RH Reality Check

Written by Bridgette Dunlap for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Birth Control Pills

The Obama administration is considering who should be exempt from providing contraceptive coverage under the Affordable Care Act.

The Obama administration is accepting comments from the public until April 8th on the Notice of Proposed Rule-Making for the birth control benefit or contraceptive coverage rule. The proposed rule amends the exemption for houses of worship and their affiliates and adds an accommodation for other non-exempt non-profits opposed to birth control.

The accommodation requires that insurance companies offer separate contraceptive coverage directly to the employees of objecting organizations at no additional cost. To take advantage of the accommodation, an organization need only self-certify to its health insurer or plan administrator that it is a non-profit opposed to some of the required contraceptive services and that it “hold[s] itself out as a religious organization.”

It is not enough for an institution seeking special treatment to simply assert that it holds itself out as religious. I expect the Obama administration is loathe to define what it means to be a religious organization or police whether an institution is in fact holding itself out as such, and rightly so. Nevertheless, the institution should have to make a statement describing how it holds itself out as religious and what that religiousness entails. This statement should be made easily available to the public and organizations should have give to notice of it to those with whom it seeks to contract, such as employees, students, patients, and funders.

This is necessary due to a pattern of religiously-affiliated institutions characterizing themselves one way when recruiting or seeking public funding and another when demanding to be exempt from laws that govern secular institutions. The trend in First Amendment Establishment Clause jurisprudence has permitted increasing public funding for religious organizations. This means we need whatever protections the free market can provide individuals from the imposition of religion by institutions active in the public sphere. We can only avoid involvement with institutions that will discriminate on the basis of religious control if we know which institutions those are.

To understand some particularly flagrant examples of religiously-affiliated institutions trying to have it both ways, we turn to a bit of state constitutional law. Over 37 state constitutions contain explicit prohibitions on the use of public money for religious institutions or instruction. New York is among them and its Constitution prohibits public funding of any educational institution “wholly or in part under the control or direction of any religious denomination.”

In the mid-60s many private universities throughout the country were in dire financial straits. New York sought to rescue its private universities with taxpayer funding through a program known as “Bundy aid.” However, giving public funds to religiously-controlled universities was clearly unconstitutional. So religious universities, particularly Catholic ones, underwent re-organizations to separate themselves from the control of their founding religious orders and other church authorities and endeavored to become more suitable places for people of any or no faith to work and study. By becoming non-sectarian, while maintaining only a religious affiliation, they qualified for public funding.  The motivation behind secularization was not exclusively financial, but part of a larger attempt by Catholic universities to strengthen their academic and intellectual legitimacy.

By accepting funds each year, a New York college makes a representation to the state that it is an independent institution free from religious control. Despite this, a number of universities receiving Bundy aid, have asserted that they are church-controlled in order to be free from various generally applicable laws.

In 2010, adjunct professors at Manhattan College sought to unionize. To block them, Manhattan College claimed it was not subject to the jurisdiction of the National Labor Review Board because it is “church-operated.” Among the evidence on which the NLRB board relied in rejecting the claim Manhattan College holds itself out as a religious institution was the fact that Manhattan College deliberately eliminated church control to get Bundy aid and continues to claims to be non-sectarian by accepting it.

In 2009, St. John’s University argued it was exempt from the Americans with Disabilities Act because it is “controlled by a religious organization.” Prior to that, St. John’s successfully argued it was eligible for an exemption from New York’s Human Rights Law for the same reason. In agreeing that St. John’s is controlled by a religious organization, the Court did not take notice of the fact that St. John’s represents to the state that it is not controlled, even in part, by a religious organization in order to get taxpayer funding each year.

Multiple universities that receive Bundy aid have health policies that are controlled by the U.S. Conference of Catholic Bishops through the USCCB’s Ethical and Religious Directives for Catholic Health Care Services.  The Directives are 43 pages long and as detailed as a statute. These schools tend to be less than forthcoming as to how the Directives are implemented in school policy, and some fail to give notice that the Directives control at all.

For a further example of conflicting self-characterizations, we now turn to the permissibility of funding under the federal Constitution. In 2000, the University of Notre Dame received a $500,000 federal grant that funded a program that included training teachers to work in parochial schools. Taxpayers sued the federal government, alleging the grant violated the First Amendment’s prohibition of government establishment of religion. Notre Dame intervened in the case as a defendant to defend its interest in the funds. Inherent to Notre Dame’s argument that the funding did not violate the First Amendment, is the fact that Notre Dame engages in many secular activities. In fact, just by applying for the grant, for which the “[u]se of funds for religion” was explicitly prohibited, Notre Dame represented to the government that despite its religious affiliation, not everything it does is an exercise of religion.

Read the rest of this entry →

In Malpractice Case, Catholic Hospital Argues Fetuses Aren’t People

11:12 am in Uncategorized by RH Reality Check

Written by John Tomasic for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Cross-posted in partnership with the Colorado Independent.

For further coverage of the treatment of pregnant women in Catholic Hospitals, click here.

A fetus at 9 weeks

"This is not a person." --The Catholic Church

Lori Stodghill was 31-years old, seven-months pregnant with twin boys and feeling sick when she arrived at St. Thomas More hospital in Cañon City on New Year’s Day 2006. She was vomiting and short of breath and she passed out as she was being wheeled into an examination room. Medical staff tried to resuscitate her but, as became clear only later, a main artery feeding her lungs was clogged and the clog led to a massive heart attack. Stodghill’s obstetrician, Dr. Pelham Staples, who also happened to be the obstetrician on call for emergencies that night, never answered a page. His patient died at the hospital less than an hour after she arrived and her twins died in her womb.

In the aftermath of the tragedy, Stodghill’s husband Jeremy, a prison guard, filed a wrongful-death lawsuit on behalf of himself and the couple’s then-two-year-old daughter Elizabeth. Staples should have made it to the hospital, his lawyers argued, or at least instructed the frantic emergency room staff to perform a caesarian-section. The procedure likely would not have saved the mother, a testifying expert said, but it may have saved the twins.

The lead defendant in the case is Catholic Health Initiatives, the Englewood-based nonprofit that runs St. Thomas More Hospital as well as roughly 170 other health facilities in 17 states. Last year, the hospital chain reported national assets of $15 billion. The organization’s mission, according to its promotional literature, is to “nurture the healing ministry of the Church” and to be guided by “fidelity to the Gospel.” Toward those ends, Catholic Health facilities seek to follow the Ethical and Religious Directives of the Catholic Church authored by the U.S. Conference of Catholic Bishops. Those rules have stirred controversy for decades, mainly for forbidding non-natural birth control and abortions. “Catholic health care ministry witnesses to the sanctity of life ‘from the moment of conception until death,’” the directives state. “The Church’s defense of life encompasses the unborn.”

The directives can complicate business deals for Catholic Health, as they can for other Catholic health care providers, partly by spurring political resistance. In 2011, the Kentucky attorney general and governor nixed a plan in which Catholic Health sought to merge with and ultimately gain control of publicly-funded hospitals in Louisville. The officials were reacting to citizen concerns that access to reproductive and end-of-life services would be curtailed. According to The Denver Post, similar fears slowed the Sisters of Charity of Leavenworth’s plan over the last few years to buy out Exempla Lutheran Medical Center and Exempla Good Samaritan Medical Center in the Denver metro area.

But when it came to mounting a defense in the Stodghill case, Catholic Health’s lawyers effectively turned the Church directives on their head. Catholic organizations have for decades fought to change federal and state laws that fail to protect “unborn persons,” and Catholic Health’s lawyers in this case had the chance to set precedent bolstering anti-abortion legal arguments. Instead, they are arguing state law protects doctors from liability concerning unborn fetuses on grounds that those fetuses are not persons with legal rights.

As Jason Langley, an attorney with Denver-based Kennedy Childs, argued in one of the briefs he filed for the defense, the court “should not overturn the long-standing rule in Colorado that the term ‘person,’ as is used in the Wrongful Death Act, encompasses only individuals born alive. Colorado state courts define ‘person’ under the Act to include only those born alive. Therefore Plaintiffs cannot maintain wrongful death claims based on two unborn fetuses.”

The Catholic Health attorneys have so far won decisions from Fremont County District Court Judge David M. Thorson and now-retired Colorado Court of Appeals Judge Arthur Roy.

In September, the Stodghills’ Aspen-based attorney Beth Krulewitch working with Denver-based attorney Dan Gerash appealed the case to the state Supreme Court. In their petition they argued that Judges Thorson and Roy overlooked key facts and set bad legal precedent that would open loopholes in Colorado’s malpractice law, relieving doctors of responsibility to patients whose viable fetuses are at risk.

Whether the high court decides to take the case, kick it back down to the appellate court for a second review or accept the decisions as they stand, the details of the arguments the lawyers involved have already mounted will likely renew debate about Church health care directives and trigger sharp reaction from activists on both sides of the debate looking to underline the apparent hypocrisy of Catholic Health’s defense.

At press time, Catholic Health did not return messages seeking comment. The Stodghills’ attorneys declined to comment while the case was still being considered for appeal.

The Supreme Court is set to decide whether to take the case in the next few weeks.

Read the rest of this entry →

Despite a Failed Nomination, Robert Bork’s Legacy Lives On at the Supreme Court

6:56 am in Uncategorized by RH Reality Check

Written by Jessica Mason Pieklo for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Robert Bork

Robert Bork (Photo: US Government / Wikimedia Commons)

There are few personalities in the legal profession that are divisive as Robert Bork. And, while his name has not often come up this election cycle, his legacy with the Supreme Court and possibility that his vision will shape its future deserves to be discussed.

Bork, who currently serves as the chairman of Mitt Romney’s Justice Advisory Committee, built a career on divisive partisan politics, beginning in 1973 when, as solicitor general, he fired Archibald Cox as special prosecutor to facilitate Richard Nixon’s attempted coverup of the Watergate scandal. In 1987, then – president Ronald Reagan nominated Bork to the Supreme Court. Bork’s nomination went down in flames as the Senate rejected him by a vote of 58 to 42, the largest margin in American history.

Bork’s candidacy was largely rejected because of his strong opposition to civil rights and women’s reproductive freedoms. Bork flat – out rejects the idea of a constitutional right to privacy, believes both Griswold v. Connecticut and Roe v. Wade were wrongly decided and thinks there is no such thing as gender discrimination under the law. While those views are what tanked his nomination, they’ve managed to find a place in the jurisprudence of the high court still, proving the tenacity of the Bork legacy.

Bork’s failed Supreme Court nomination paved the way for Anthony Kennedy’s confirmation. At the time Kennedy was considered a moderate to Bork’s extreme-right positions, but civil rights advocates have come to understand that was not the case. Perhaps no single Supreme Court justice has had the effect of effectively undoing the protections granted women through the Griswold and Roe decisions as Kennedy. In many ways, it didn’t matter that Bork’s nomination failed to be confirmed by the Senate because the very act of airing his extremist views managed to move the pendulum far enough to the right to pave the way for Anthony Kennedy’s ascendance to the high court and later Clarence Thomas.

In fact, without Bork’s nomination justices like Thomas and Samuel Alito would hardly be possible. After all it was as an appellate court judge that Alito embraced the idea of spousal consent as failing to create an undue burden on a woman’s right to chose in a decision the Supreme Court would later largely affirm in Planned Parenthood v. Casey.

To that end, Bork’s legacy on the Court is very much alive today, and should Romney succeed in his quest for the presidency, that legacy will be cemented in future Supreme Court nominations. As it stands the Court is at best a mere one vote away from a majority that would overturn Roe together, if it is not there already. If Robert Bork has his way, the gains made by women and racial and political minorities will be undone within this decade.

Using “Religious Liberty” to Hide Religious Overreach

8:12 am in Uncategorized by RH Reality Check

Written by Rabbi Dennis S. Ross for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Birth Control Pills

Photo: Sarah C / Flickr

We have been hearing plenty about “religious liberty” lately. Now let’s see who’s using the term “religious liberty” in a novel way, trying to conceal a campaign of religious overreach.

The issue has to do with the faith-based legal challenges to the Affordable Care Act (ACA). Recently, a Missouri mining and manufacturing holding company, O’Brien Industrial Holdings, filed a lawsuit against the U. S. Department of Health and Human Services.

The lawsuit challenges the ACA employer requirement to include birth control coverage in employees’ health insurance. The American Civil Liberties Union (ACLU), along with the American Civil Liberties Union of Eastern Missouri filed an amicus brief supporting the ACA contraception rule. The brief examines the O’Brien complaint and considers the arguments in light of modern legal history.

Even though O’Brien is a secular business, the company maintains that the birth control rule violates its religious liberty — a claim that does not stand up to deeper examination. First of all, workers earn their employer-sponsored health insurance. The insurance belongs to the worker like any other earned benefit, such as salary and pension; it is as much a worker’s personal property as a pay check — the employer’s religion doesn’t belong there. After all, workers may well have different and personal moral understandings about access to birth control and no judge, politician, or office boss has any business barging in.

Moreover, a look back at recent history shows two things. First, similar laws in New York State and California have prevailed in state-level legal challenges. And second, as described in the ACLU brief, a business cannot use religious liberty as an excuse to practice religious discrimination.

Read the rest of this entry →

Affirmative Action, Marriage Equality, and Voting Rights: A Look at the New Supreme Court Term

10:33 am in Uncategorized by RH Reality Check

Written by Jessica Mason Pieklo for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Last year’s historic decisions upholding the constitutionality of the Affordable Care Act and striking as unconstitutional most of Arizona’s “papers please” immigration law set the tone for what promises to be an even more exciting and historic 2012-2103 term at the high court.

The term, which begins today, Monday, October 1, already promises a handful of marquee cases, including a direct challenge to affirmative action in the case of Fisher v. University of Texas. In 2003, the Supreme Court ruled in two separate but parallel cases — Grutter v. Bollinger and Gratz v. Bollinger — that universities have a compelling interest in creating a diverse student body and that they may consider race as one factor, among many, in deciding which students to admit. In 2005, after those cases were decided and in an effort to increase diversity of its student body, the University of Texas adopted an admissions program that was modeled in part on the Michigan program the Supreme Court had upheld in those decisions and as a supplement to its Ten Percent Plan — which automatically admitted the top 10 percent of each high school graduating class. The shift was based on the assumption that, de facto, most Texas schools are still segregated.

Abigail Fisher, a white student who was not in the top ten percent of her class, was denied admission to the school and challenged the policy by arguing that the court erred in looking at race as a factor in her admission decision. Now the Roberts Court will decide the case, a fact that makes many affirmative-action defenders anxious since the Chief Justice is on record as opposing any kind of policy that is not “race neutral” across the board.

The other sure-thing case before the Court is Kiobel v. Royal Dutch Petroleum, a case the Court will hear on the first day of arguments. In that case the Court will consider whether Congress intended the Alien Tort Statute, a law that says non-citizens can sue American corporations in American courts for conduct of those corporations abroad, to also hold American corporations accountable for human rights abuses committed abroad. The Kiobel challenge gets to the very heart of the law by questioning whether individuals who suffered severe human rights abuses abroad can sue those responsible for the abuses in the United States or whether those individuals are stuck with the laws and jurisdiction of where the abuses took place. If there’s been one consistent theme from the Roberts Court it is the expansion of corporate rights at the expense of individual rights and Kiobel looks to be another case that may cement that theme at a time when corporate accountability abroad is needed now more than ever.

There are two other big issues likely to come before the Court this term: marriage equality and a challenge to the Voting Rights Act. The question is how they get before the Court because that answer will tell a lot about how the Court will likely rule.

E.J. Graff has a great overview on the various challenges to the Defense of Marriage Act (DOMA) working their way up to the Court, as well as the challenge to California’s Prop 8. Which case the Court decides to hear will make all the difference in outcome, because Supreme Court law all depends on the way an issue is framed. There are five challenges to DOMA from which the Court could chose; each are limited in their scope and framing and each places the issue of same-sex marriage in the context of federal power. Specifically, the DOMA challenges ask: Does the federal government have the right to pick and choose which state marriages it recognizes without violating the equal protection guarantees of the Constitution?

In many ways that’s an easier question to frame for a conservative-leaning court than the question at the heart of the Proposition 8 challenge: Do same-sex couples have a fundamental right to marry under the Constitution? The Roberts Court has been outright hostile to the idea of any kind of fundamental rights, and would undoubtedly see this as an expansion of constitutional access, something the most strident of its justices have made a career trying to prevent. If the Court decides to hear Perry v. Brown in an effort to answer this question it could spell bad news for marriage equality.

Similar to marriage equality the Court has several avenues to attack the constitutionality of the Voting Rights Act (VRA). First is the possibility of the Court agreeing to review Shelby County v. Holder, a case where the Department of Justice objected to changes in Alabama voting law on which the DOJ has since backed off, or through several other challenges to the VRA in the appellate courts from Florida and Texas.

Each of the possible challenges question Section 5 of the VRA which requires the federal government to “pre-clear” any changes to election laws in certain jurisdictions with a history of racial discrimination. In an earlier voting rights challenge Chief Justice Roberts questioned the constitutionality of Section 5 but did not rule on it outright. This term may give him a chance to strike one of the most important achievements of the modern civil rights statutes.

There are a handful of other important questions the Court will also answer with regard to the rights of criminal defendants, and with a future challenge to Roe v. Wade only a year or two away at most, history may look at the Roberts Court as the conservative response to the great progressive days of the Warren Court. At least that’s how it is shaping up right now.