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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specific Food and Drug Administration labeling despite the fact that new research and best practices make that labeling out of date.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.

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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.

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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.

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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.

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The Abortion Battle: Are Pro-choice Litigators Gun-Shy?

6:49 am in Uncategorized by RH Reality Check

Written by Nancy Northrup for RHRealityCheck.org – News, commentary and community for reproductive health and rights.

There’s no question that the anti-choice takeover of state capitols has emboldened zealots to aggressively push through as many abortion restrictions as possible. It seems like every day there’s news about the hundreds of bills percolating in state legislatures across the country. Bill sponsors keep upping the ante with proposals that significantly intrude on a woman’s personal medical decision to have an abortion or severely limit her ability to get one. And for many pro-choice supporters, the future for abortion rights seems bleak.

Media pundits are stoking the anxiety by painting pro-choice litigators as gun shy.  Slate’s Dahlia Lithwick recently wrote a piece suggesting that the pro-choice movement won’t challenge the new abortion restrictions for fear of losing in the Supreme Court. She writes that the Court’s 2007 decision to uphold the so-called “partial birth” abortion act has “frightened those who are pro-abortion rights into being grateful for what they have.” She then asks, “Do supporters of reproductive freedom really want to cede all this actual legislative ground for concern over a judicial hypothetical?” Rachel Maddow also aired a segment that delivered a similar message, concluding that so many of the anti-abortion bills that are blatantly unconstitutional have gone unchallenged because the pro-choice movement has “apparently so far made the calculated decision to let it slide” in order to protect Roe v. Wade from being overturned. 

Nothing could be further from the truth. … Read more

Twelve Things You Can Do To Help Increase Abortion Access

9:16 am in Government, Health care by RH Reality Check

Written by Frances Kissling for RHRealityCheck.org – News, commentary and community for reproductive health and justice.

The end of the year is a special time. Some of us make a slew of year-end contributions; others make New Year’s resolutions. We think back and we think forward. My thoughts as the year ends turn to the greatest challenge facing abortion-rights supporters: the absence of adequate federal, state and personal financial support for women who have chosen to have abortions and simply don’t have the money. I am struck by the almost absolute apathy of most of the movement when it comes to this pressing concern.

When we look back, we are critical of the movement of the mid-seventies which chose to focus its attention on rallying the troops about a less-than-real challenge to Roe’s constitutionality rather than on the first and most significant blow to Roe: the 1980 Harris v. McRae Supreme Court decision which ruled that neither the states nor the federal government were obliged to pay for abortions through various funding mechanisms.

Efforts to overturn the Hyde Amendment as well as state laws prohibiting the use of state money for abortions have consistently taken a back seat to efforts designed to secure adolescent access to abortion services and fight waiting periods, phony informed consent laws and restrictions on later term abortions and on specific types of medical procedures.  . . . Read the rest of this entry →

Citizens United: An Unprecedented Threat to Reproductive and Sexual Justice

7:30 am in Uncategorized by RH Reality Check

Written by Jodi Jacobson for RHRealityCheck.org – News, commentary and community for reproductive health and justice.

What’s the connection between the personhood of a fertilized egg and the personhood of corporations?

Both can and will undermine the fundamental rights of women.

On January 21st of this year, perhaps in some cosmically ironic sense a day before the 37th anniversary of Roe v. Wade, the Supreme Court handed down a decision on the Citizens United case.

In the 5 to 4 opinion, the Court held that:

Political spending is a form of protected speech under the First Amendment, and the government may not keep corporations or unions from spending money to support or denounce individual candidates in elections. While corporations or unions may not give money directly to campaigns, they may seek to persuade the voting public through other means, including ads, especially where these ads were not broadcast.

Corporations can take money, funnel money, and use money to their political advantage in campaigns for U.S. elected offices and…they do not have to disclose a dime.  . . . Read the rest of this entry →

Kagan and Reproductive Rights: No Time for Complacency

6:51 am in Health care, Judiciary by RH Reality Check

Written by Amanda Marcotte for RHRealityCheck.org – News, commentary and community for reproductive health and justice.

So far, the issue of reproductive rights hasn’t really been much of a factor in the discussion about Obama’s new nominee to the Supreme Court, Elena Kagan.  For the most part, this is because the right is occupied with the game of trying to figure out how to call Kagan a lesbian without coming right out and saying it. Because it’s not on the table right now, it’s awfully tempting for pro-choice activists to assume that it may never really become an issue.  Perhaps the Obama administration’s decision to find a candidate with as obtuse a record on the issues as possible might be enough to keep the rabid dogs of the anti-choice movement out of this?

Don’t bet on it. When we relax our shoulders and start to believe that anti-choicers won’t be able to find an angle to make something All About Them, that’s when they strike.  They did it with the economic stimulus package, lashing out at funding for family planning services in an effort to kill the bill.  Pro-choice attempts to make health care reform abortion-neutral failed miserably, and anti-choicers were very close to killing health care reform entirely over abortion. And even if Elena Kagan never uttered the word “abortion” in her life, there’s a good chance that won’t stop them.  They’re very rarely bothered by reality, and in the absence of any evidence to support their views, will just make it up.

Of course, things are far more complicated because we really don’t have much evidence about Kagan’s beliefs about choice one way or another.  There’s been a memo where she urged then-President Clinton to support a late term abortion ban, but it appears that her motivation was to back a compromise that would prevent a more severe restriction down the road.  As it was, her prediction did play out—as soon as an anti-choice President was elected, he signed a serious federal restriction on late abortion—but it’s hard to imagine that a compromise bill passed earlier would have done much to stop the more severe restriction.  But the whole incident calls into question Kagan’s commitment to choice.  It’s hard to believe that President Obama would nominate someone without being assured of her commitment to abortion rights, but understandably, pro-choicers don’t want to take this on faith.

My sense is that Kagan is a purely political animal, who seems to value what’s popular over what’s right. Take this story, for example.  Kagan also urged President Clinton to support sentencing laws that treat the possession of crack cocaine as more serious than the possession of powder cocaine, even though it’s the same drug.  The only real difference between the drugs is a class difference, and the result of these sentencing laws is functionally racist.  There’s really no question that the sentencing laws are deeply unjust, but Kagan advised Clinton to support them anyway, because it sent the signal that the President is “tough on crime.”

The hope no doubt among progressives is that Kagan’s tendency to be a middle-of-the-road political animal will fall away when she’s ensconced in the lifetime position of Supreme Court justice.  But I’m skeptical.  Being a political animal is rarely a conscious choice, but more of a personality trait.  Odds are that Kagan’s behavior off the court will be a good predictor of her behavior on the court.  And her history inclines me to think she’ll be quite a bit like Sandra Day O’Connor, a moderate who tended to value politically popular opinions over rigorously argued ones.  In his book "The Nine," Jeffrey Toobin explained that O’Connor had an uncanny ability to absorb the most politically centrist sentiment in the country and channel that into her decisions. Kagan is going in on a reputation as a great compromiser, a person who can bring disparate people together by appealing to common ground. 

On abortion rights, this tendency can be incredibly dangerous, even when a justice is technically pro-choice.  O’Connor, despite being pro-choice, struck an enormous blow to abortion rights when she wrote the majority opinion in Planned Parenthood v. Casey.  The decision overturned the standard laid out in Roe v. Wade that made it difficult for state governments to restrict abortion, especially in the first trimester, and replaced it with a standard where states are allowed to regulate abortion as long as there was no “undue burden” on women seeking abortion.  From a legal perspective, the standard is hazy and ill thought out, but it was a politically popular one in a nation where most people support legal abortion but want it to be severely restricted.  Unfortunately, the decision opened a floodgate of absolutely undue burdens on abortion access, from parental notification and waiting periods to laws that exist mainly to harass providers.

Sadly, we saw this kind of thinking in the memo advising President Clinton to support a compromise bill restricting access to late term abortion.  One can be pro-choice and make decisions that are anti-choice under the misguided belief that compromises and common ground will placate anti-choicers.  I can’t imagine a scenario where passing a less restrictive abortion ban under a pro-choice President would suffice and thereby stop anti-choicers from trying to pass another more restrictive one as soon as they got an anti-choice President.  If anything, gaining victories under a pro-choice administration would probably embolden them to reach for more under an anti-choice administration.

Let’s hope Kagan proves me wrong once she passes confirmation, which she almost surely will.  It’s hard to imagine the court isn’t going to revisit the issue of abortion soon, with challenges to it rising up in states like Nebraska.  And as hard as it is to imagine that the restrictions on abortion could get any worse, the sad reality is they can.  

Kagan Urged Clinton to Ban Late Abortions

6:42 am in Uncategorized by RH Reality Check

Written by Jodi Jacobson, editor of RHRealityCheck.org – News, commentary and community for reproductive health and justice.

In 1997, while serving as a White House adviser to President Bill Clinton, current Solicitor General and Supreme Court nominee Elena Kagan urged the president to support a ban on late-term abortions for what appear to be purely political reasons, according to a report by the Associated Press.  The AP article notes this was "a political compromise that put the administration at odds with abortion rights groups."

Documents reviewed Monday by The Associated Press show Kagan encouraging Clinton to support a bill that would have banned all abortions of viable fetuses except when the physical health of the mother was at risk. The documents from Clinton’s presidential library are among the first to surface in which Kagan weighs in on the thorny issue of abortion.

The position favored by Kagan was a "compromise" of abortion rights crafted by Democratic Sen. Tom Daschle in response to efforts by Republicans to pass the so-called partial birth abortion ban. "Clinton supported it," reports AP, "but the proposal failed and Clinton vetoed a stricter Republican ban."

In a May 13, 1997, memo from the White House domestic policy office, Kagan and her boss, Bruce Reed, told Clinton that abortion rights groups opposed Daschle’s compromise. But they urged the president to support it, saying he otherwise risked seeing a Republican-led Congress override his veto on the stricter bill.

Clinton generally supported banning late-term abortions but insisted there be an exception when the mother’s health was at risk.

The memo, reports AP,  is more of a political calculation than a legal brief, but "Kagan and Reed urged Clinton to support the compromise despite noting that the Justice Department believed the proposal was unconstitutional."

”We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto,” they wrote.

The memo noted that another White House adviser, Rahm Emmanuel, also supported the idea. Emmanuel is now Obama’s chief of staff.

Memos reviewed by AP were contained in Reed’s files. "They do not include Kagan’s papers from her time as domestic policy adviser and associate White House counsel. Those records, a several-thousand page collection that could provide the most revealing look at Kagan’s legal work, are expected to be released this summer."

This appears to be the first insight into Kagan’s own thinking around political expediency and women’s rights. "Partial-birth" abortion is a term created by the anti-choice community and is not a medical term. Moreover, late abortions–those in the third trimester–invariably occur because of fetal anomalies incompatible with life, the death of a fetus in utero, or because of threats to the life and health of the mother.  Banning these procedures takes out of the hands of women and men decisions they feel they need to make for themselves and their families often based on wrenching, life-threatening conditions. It is no surprise to hear now that any of these three advisors to President Clinton supported this "compromise" because it has become almost axiomatic that self-described pro-choice politicians these days rarely stand up on principle for the ultimate right of women to make the decisions they need to make for themselves and their families.

That the role of a Supreme Court judge is different than that of a political advisor to the President and that such positions might vary according to the specific role is a given.  However with so little to go on regarding Kagan’s record, it is difficult to feel comforted by that realization.