ACS Issue Brief

  • January 17, 2013

    by Jeremy Leaming

    So a new Pew poll finds a majority of Americans under 30 do not know what the landmark U.S. Supreme Court case, Roe v. Wade was all about. Well this month marks the 40th anniversary of that landmark decision, so maybe a few more of those under 30 will get a clue about a case that advanced liberty for women. They might also learn that Roe has been undercut by subsequent Supreme Court opinions, which have helped state lawmakers create and enact measures making it far more difficult for women to make decisions about their health.

    The opinion issued on Jan. 22, 1973 invalidated a state law banning abortion. A majority of the court led by Justice Harry Blackmun found that the state ban on abortion violated personal privacy. Blackman wrote, in part, that a “right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state actions, as we feel it is, or as, the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

    On Jan. 18 – 19 as part of the Constitution in 2020 project, several groups, including ACS, will host a conference examining two landmark Supreme Court cases, one being Roe, that helped advance liberty and equality for minorities. The conference at UCLA called “Liberty/Equality: the View from Roe’s 40th and Lawrence’s 10th Anniversaries,” will include some of the nation’s leading experts on gender, sexuality and equality to examine conflicts that led to the landmark decisions and look at how the current Supreme Court has handled ongoing debate over reproductive rights and equality for the LGBT community (The high court in Lawrence v. Texas invalidated a state law banning sex between consenting adults of the same gender.)

    Dawn Johnsen, an ACS Board Member, will be among the participants at the Constitution in 2020 gathering. Johnsen (pictured), a distinguished law professor at Indiana University Maurer School of Law, authored an ACS Issue Brief in 2008 on the 35th anniversary of Roe. It’s a prescient piece, noting that challenges to reproductive rights were intensifying, partly because of high court decisions that followed Roe, which opened the door to more onerous restrictions on women’s autonomy.

    As noted here recently Reva Siegel and Linda Greenhouse, writing for Balkinization’s Constitution in 2020 conference forum, suggested that a backlash to reproductive freedom was swelling even before Roe was handed down. But in her ACS Issue Brief, Johnsen noted that the setbacks to Roe really got underway with the high court’s 1992 Planned Parenthood v. Casey opinion.

  • November 29, 2012
    Guest Post

    By Frederick Mark Gedicks, Guy Anderson Chair & Professor of Law, Brigham Young University Law School


    John Breen, Professor of Law at Loyola University Chicago School of Law recently criticized on the Mirror of Justice blog my ACS Issue Brief defending the Affordable Care Act’s contraception mandate, and several of his points require a response.

    1. Professor Breen, like many mandate opponents, refuses to recognize that employers’ free exercise of religion rights are not the only liberties at stake in this conflict. Using the Religious Freedom Restoration Act (RFRA) to exempt employers from the mandate would deny their employees contraceptive coverage without-cost sharing under employer health insurance plans. Employees would be denied this benefit because of religious beliefs they do not share. This is an obvious intrusion on employee liberty in general -- it denies employees covered by an employer health plan their statutory right to no-cost contraception coverage under the ACA -- and an obvious intrusion on their religious liberty in particular -- it imposes the burdens of observing the employer’s religious beliefs on employees who do not share them. The fact that employees would remain free to purchase contraceptives with their own money is no justification for loss of the statutory right to contraceptives without spending their own money.

    Professor Breen maintains that no government action is involved when employers are exempted from the mandate -- indeed, that government action is “entirely absent” when an employer decides “to refrain from paying for contraceptives under its health plan.” But an employer may make this decision to violate the mandate, if at all, only because it is permitted to do so (a) by RFRA as (b) applied by a judge. These are both government actions that, in the event, would result in an intrusion on employee liberty.

  • October 31, 2012
    Guest Post

    By Frederick Mark Gedicks, Guy Anderson Chair & Professor of Law, Brigham Young University Law School


    Fr. Robert Araujo, Professor of Law at Loyola University Chicago, and Richard Garnett, Professor of Law & Political Science at the University of Notre Dame, have posted critical reactions on Mirror of Justice to my ACS Issue Brief, “With Religious Liberty for All: A Defense of the Affordable Care Act’s Contraception Coverage Mandate.”

    Many of Fr. Araujo’s questions are answered in the Issue Brief, but one comment deserves a direct response. He suggests that I have elevated statutory and regulatory claims to no-cost contraception under the Affordable Care Act over more fundamental constitutional claims under the Free Exercise Clause, which he believes is violated by the mandate. One hears this free exercise rhetoric frequently from mandate opponents, but it misreads constitutional history and misunderstands the content of free exercise rights.

    The Free Exercise Clause does not protect a right of believers to be excused or exempted from complying with laws that generally apply to the rest of society, even when such laws burden their religious exercise. The Supreme Court has rarely recognized rights to free exercise exemptions, and then only in a few instances between the early 1960s and the late 1980s. The Court decisively rejected a general right to free-exercise exemptions in Employment Division v. Smith (1990), which it has repeatedly affirmed in the years since, most recently in Christian Legal Society v. Martinez (2010).

  • August 16, 2012
    Guest Post

    By Stan Liebowitz, an economics professor at the University of Texas at Dallas


    Andrew Popper, in his insightful paper on problems and remedies of software theft, focuses on an aspect of theft that is not often considered. Instead of considering the theft of final consumer goods, he focuses on the theft of intermediate goods used in the production of other goods. The thieves in this case are companies, not individuals, and they produce products using stolen software, giving themselves an advantage over their more honest competitors.

    Theft is normally considered harmful to society for several reasons. Most importantly, if theft is allowed to become common, the linkage between effort and reward is weakened for law abiding citizens, thus reducing or eliminating incentives for individuals to provide the efforts to be productive. If the neighborhood thug is capable of taking all the fruits of your labors, you lose an incentive to labor. It is also the case that individuals and governments spend resources trying to reduce theft (so that individuals will have incentives to work) and these are resources that could have been used for other more productive purposes if not for theft.

    The economic model of competition provides clear predictions of how competition would work for firms within an industry when this type of theft is permitted. In the short run, the low cost producers (using pirated software) will earn higher profits than the high cost producers. In the longer run, the low cost producers will drive the high cost producers out of business.

    Normally, we want more efficient firms to drive out the less efficient firms because that lowers the cost of the product and lowers prices for consumers. There is another, probably more important reason to want the more efficient firms to prevail, although this is often left out of the simplistic economic models of competition. The expectation is that the current lower cost firms are generally the better and more capable firms, and thus as conditions change over time, the fitter firms are likely to better handle these changes. This is the same reason that sports teams try to pick the players with the best statistics — because the expectation is that the players who have been above average will stay above average during their productive careers.

  • June 8, 2012

    by Jeremy Leaming

    Florida’s Republican Gov. Rick Scott has attracted plenty of attention for his heavy-handed attempt to purge “noncitizens” from the voter rolls. But that voter purge, which the Department of Justice has ordered the state to halt, is only part of that state’s Republican-led effort to suppress voter turnout.

    A relatively new Florida law, H.B. 1355, created onerous restrictions on voter-registration drives, cut early voting opportunities and created new burdensome voter identification requirements. Similar laws have been enacted in other states with Republicans in charge, such as Ohio, Pennsylvania, Texas and Wisconsin. In all those states, Republicans claim widespread voter fraud is the justification for the onerous restrictions.

    Civil liberties groups, such as Brennan Center, NAACP Legal Defense and Educational Fund, Inc. (LDF), ACLU, however, argue that voter fraud is practically nonexistent, and thus a blatantly lame excuse for the new laws. This is really an effort to suppress the vote of minorities, college students, and the poor.

    A new ACS Issue Brief by Loyola Law School Professor Justin Levitt examines the new Florida law, concluding that “these burdens are not only real and inequitable but also unnecessary, which renders them suspect as a matter of constitutional law and fundamentally flawed as a matter of public policy. Not only do they make it more difficult for eligible Americans to vote, but they do so without any meaningful benefit.”

    Levitt’s Issue Brief, “The New Wave of Election Regulation: Burden Without Benefit,” details how Florida’s new law disproportionately burdens minority voters, saying that it is now very likely non-Hispanic white voter turnout will remain much higher than minority voters in 2012. In 2008, Levitt notes that a persistent gap between minority voters and non-Hispanic white voters had substantially narrowed for the first time.

    The restrictions on early voting and the new voter identification requirements are likely to sharply restrict minority, low-income and elderly voters. The “available date clearly show that those without government-issued photo ID are more likely to be nonwhite, more likely to either younger voters or seniors, and more likely to be from low-income households, and more likely to have less formal education,” Levitt states.