Civil rights

  • April 9, 2015

    by Nanya Springer

    On “mommy blogs” across the Internet, pregnant women lament that perfect strangers feel entitled to pat their bellies, offer unsolicited diet and parenting advice, and ask intrusive questions about their personal health.  For most women, such invasions are at most a temporary social annoyance.  But it should come as no surprise that in this culture of entitlement to pregnant women’s bodies, legislation that effectively strips pregnant women of their privacy and autonomy is widespread and, in many instances, has resulted in incarceration and forced intervention by the state.

    The ceaseless barrage of measures restricting the liberty of pregnant women takes many forms.  First, there are laws that place medically unnecessary (and sometimes irrational) mandates on abortion procedures: waiting periods, crisis pregnancy center counseling, ultrasounds, physician scripts, ambulatory surgical center requirements, hospital admitting privileges, hospital transfer agreements, procedure-specific bans, parental consent laws, restrictions on private insurance coverage, and the list goes on.

    In Texas – a state where judges are elected – a bill is being considered that would publicize the names of judges who give minors permission to obtain an abortion.  The Ohio House last week passed a bill that would ban abortion once a fetal heartbeat is detected – possibly before a woman even knows she is pregnant – and provide for doctors who violate the ban to be imprisoned.  A new Arizona law requires doctors to tell patients, contrary to medical evidence, that drug-induced abortions can be reversed.  And on Tuesday, Kansas became the first state to ban dilation and evacuation as an abortion method.

    Such restrictions and state-sanctioned intrusions into the doctor-patient relationship are alarming, but they are not the end of the story.  At least 38 states have enacted “fetal homicide” laws, the majority of which apply to even the earliest stages of gestation.  These laws, which were originally sold to the public as tools to prosecute abusive boyfriends and others who may harm pregnant women, are increasingly being used to prosecute pregnant women themselves.

  • March 31, 2015
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    The controversy over Indiana’s recently enacted Religious Freedom Restoration Act shows the importance of context in understanding a law. The bill signed by Indiana Governor Mike Pence is very similar to the federal Religious Freedom Restoration Act (RFRA) and laws that exist in 19 states. But the timing of the enactment of the Indiana law and the rhetoric surrounding it give every reason to believe that it was intended to allow businesses in Indiana to discriminate against gays and lesbians based on claims of religious freedom. Governor Pence reinforced this impression when on Sunday talk shows he repeatedly refused to deny that it would have exactly this effect.

    Governor Pence constantly emphasizes that the Indiana law is much like the federal RFRA signed by President Clinton in 1993. He stresses that nothing within the Indiana law expressly authorizes discrimination against gays and lesbians.

    That is true, but Governor Pence and supporters of the Indiana law are ignoring its context. Why is Indiana adopting the law now, 25 years after Employment Division v. Smith changed the law of the free exercise clause and 22 years after the enactment of the federal RFRA?

    It is clear that Indiana’s goal is to permit businesses to discriminate against gays and lesbians. Last June, in Burwell v. Hobby Lobby, the Supreme Court for the first time held that secular corporations can claim to have a religious conscience and free exercise of religious belief. In fact, the protection of corporations and businesses is much more explicit in the Indiana RFRA than in the federal statute.

    The Indiana RFRA comes soon after the decision of the United States Court of Appeals for the Seventh Circuit declaring unconstitutional the Indiana law prohibiting same-sex marriage and soon before the Supreme Court is likely to recognize a right to marriage equality for gays and lesbians. It is telling that repeatedly in his interviews, Governor Pence refused to deny that the Indiana law would have the effect of permitting businesses to discriminate based on sexual orientation. He also was emphatic that there would be no expansion of rights for gays and lesbians on his “watch.”

    This is why there are loud protests against the Indiana law and calls for boycotts of Indiana. If Indiana does not mean to allow such discrimination based on sexual orientation, it should amend the law to provide that no one can discriminate against others based on race or sex or sexual orientation or religion based on the statute or on the grounds of religious beliefs. 

    Governor Pence has refused to say that he favors such an amendment to the law. He can’t have it both ways:  either the Indiana law was meant to allow discrimination against gays and lesbians and the vehement objections to it are justified, or the law was not meant to permit discrimination against gays and lesbians and it should be amended immediately to say this. Discrimination in the form of the refusal to do business with a person because of his or her religion or race or sex or sexual orientation is wrong whether based on religion or anything else. Until Governor Pence and the supporters of the law recognize this and amend the law to say this, the protests and boycotts are justified.

  • March 23, 2015
    Guest Post

    by Suja A. Thomas, Professor of Law at the University of Illinois College of Law; author of The Other Branch: Restoring the Jury’s Role in the American Constitution (forthcoming Cambridge University Press).  This post is based on her essay, Text-Bound Originalism (and Why Originalism Does Not Strictly Govern Same Sex Marriage).

    Many assume originalism has an important place in the debate about whether states can prohibit same sex marriage.  As the argument goes, the original public meaning of the Equal Protection Clause was the protection of African-Americans, so there is no constitutional barrier to states' prohibition of same sex marriage.  In deciding that states could prohibit same sex marriage, a panel of the U.S. Court of Appeals for the Sixth Circuit recognized the relevance of this originalist interpretation of the Equal Protection Clause along with other arguments for permitting the prohibition of same sex marriage—all of which the Supreme Court will soon consider.

    But does originalism have a significant place in the interpretation of the Equal Protection Clause and thus in the same sex marriage decision?  Those advocating the use of originalism believe that originalism must strictly govern the interpretation of the Constitution.  Thus far in arguing for this originalist methodology, however, they have not acknowledged that the text of the Constitution explicitly requires the application of originalism for the interpretation of one provision in the Constitution—the Seventh Amendment.  In ignoring this textual inclusion of originalism and corresponding textual exclusion of originalism elsewhere, originalists have not shown why originalism should strictly govern other parts of the Constitution.

  • February 10, 2015

    by Nanya Springer

    In recent years, there has been much discussion about whether America is now a “post-racial” society.  The introduction of the first non-white family into the White House was accompanied by some enthusiastic declarations of victory over the scourge of racism.  Observers looked to the president and to other successful minorities and decided that yes, racism is indeed over.

    But focusing on the most successful elements of any demographic group proves little, for wealth has the ability to elevate and to insulate.  One area where this is most evident is in the American criminal justice system.  When navigating the justice system, the ability to hire top-notch legal counsel or to post a significant bond drastically affects the outcome of a case.  This is true for both white citizens and for citizens of color.

    Unfortunately, however, racial inequality in this country remains tightly intertwined with economic inequality, and aspects of the criminal justice system that disadvantage poor people disproportionately disadvantage people of color.  There also exists implicit racial bias, if not outright prejudice, in the hearts of some police, prosecutors, judges and jurors which can manifest itself during any phase of a criminal case.

    The result is that Americans of color face disadvantages at every stage of the criminal justice system.  From arrest to sentencing, obtaining bail to obtaining a lawyer, plea bargaining to jury selection, and even in being put to death, criminal defendants consistently fare better when they are white.

  • January 28, 2015
    BookTalk
    Cases on Reproductive Rights and Justice
    By: 
    Melissa Murray and Kristin Luker

    by Melissa Murray, Professor of Law and Faculty Director of the Berkeley Center on Reproductive Rights and Justice (CRRJ), University of California, Berkeley

    I must admit that for much of my academic career, I never thought of myself as someone who “did” reproductive rights.  When asked at dinner parties, I volunteered that I taught criminal law and family law.  When pressed ― “what on earth do those subjects have to do with each other?” ― I would explain that I was interested in the regulation of sex, sexuality and family formation.  Criminal law and family law, I would explain, were principal sites in which this sort of regulation took place.

    It was not until my colleague, Kristin Luker, a well-known sociologist and scholar of the abortion rights movement, nudged me to view my work more expansively that I began to see it fitting comfortably within the rubric of reproductive rights and justice.  As she reminded me, limitations on access to contraception and abortion are, by their very nature, efforts to regulate sex and sexuality by curtailing women’s efforts to control reproduction.  The legal regulation of reproduction is merely part of a broader story of efforts to discipline and regulate sex.

    My interest in reproductive rights and justice piqued, I joined Berkeley Law’s newly-formed Center on Reproductive Rights and Justice (CRRJ) as an affiliated faculty member in 2012 and assumed the role of Faculty Director in 2015.  Before its official founding, CRRJ hosted a meeting with staff from Law Students for Reproductive Justice (LSRJ) where we discussed the state of the field, including the availability of law school courses on reproductive rights and justice.  As I learned, although there was huge demand from students for such classes, many interested professors were reluctant to teach reproductive rights and justice courses because there was no casebook.  Because of the lack of a casebook, those willing to teach the subject were forced to compile their own materials ― a burdensome task, even for the most enthusiastic teacher.