Senator Blumenthal noted that a woman’s right to make health care decisions, including the ability to obtain abortions, without government or public interference is presently facing an unprecedented number of threats and legal challenges. For example there are restrictions currently being enacted by state and local governments have the effect of deterring women from making fundamental reproductive choices. There should be no regulation applied to abortions that is not similarly applied to comparable medical procedures, the Senator noted.
A panel discussion featuring some of the foremost scholars and practitioners in the realm of reproductive rights preceded Senator Blumenthal’s comments and was moderated by Juliet Eilperin, White House Correspondent for the Washington Post. Roger Evans, Senior Director of Public Policy Litigation and Law at Planned Parenthood Federation of America, noted that the next major legal battle in this arena will be focused on a rising number of state laws that require abortion providers to have hospital admitting privileges.
Last November, Planned Parenthood of Greater Texas (and assorted affiliates) filed an emergency application with the Supreme Court to vacate a stay granted by the U.S. Court of Appeals for the Fifth Circuit, which temporarily blocked the permanent injunction that federal district court judge Lee Yeakel placed on Texas’ H.B. 2. The law requires that, among other anti-choice restrictions, doctors preforming abortions must have admitting privileges at a hospital within 30 miles of the abortion clinic. The Supreme Court rejected that application, but Evans stated that it was “inevitable” that the issue of admitting privileges would eventually make it before the Court.
by Susan D. Carle, Professor of Law, American University Washington College of Law
As the nation heads towards the 50th anniversary of the Civil Rights Act of 1964, the time is ripe for revisiting the origins of the social movement that gave this important legislation its birth. We commonly think of the federal civil rights legislation of the 1960s, including both the Civil Rights Act of 1964 and the Voting Rights Act of 1965, as a product of a social movement that began just a few decades before. In fact, however, both the ideas for new national civil rights legislation to enforce the U.S. Constitution’s dictates of citizenship equality, and the activism that propelled those ideas into law, have far older origins.
Defining the Struggle: National Organizing for Racial Justice, 1880-1915, uncovers the almost forgotten “prehistory” of national organizing to promote racial citizenship equality. The book traces this history’s basis in the activism of lawyers and other civil rights leaders of the late 19th and first years of the 20th century. Through organizations rarely remembered today, such as the National Afro American League, the National Afro American Council, the Niagara Movement and others, early national leaders and activists began to experiment with a panoply of law-related strategies for advancing the equality principles embedded in the nation’s constitutional texts. These activists deeply believed in these fundamental equality principles, but they just as deeply distrusted the bureaucrats charged with enforcing law. Put otherwise, they were not naive “legal liberals” who believed the courts would enforce racial equality principles simply because they were petitioned to do. Early civil rights lawyers understood that the struggle would be a political one, and they were pessimistic about the advances that could be made without gaining more political power. At the same time, they believed that the courts were one forum in which the battle for racial equality should be fought, if only by exposing the nation’s hypocrisy on racial equality to the world. Even recognizing the great odds against them, this early generation of legal activists was willing to take on the challenge of using principles of constitutional law to challenge the unjust application of law.
* Editor's Note: The State of Arizona debuts tonight, January 27, on the PBS series Independent Lens. Check local listings.
The fact that our documentary, The State of Arizona broadcasts the night before The State of the Union has put each of us in mind of the state of immigration reform and the challenges we’ve continuously faced in adopting it.
Why should the issue be so vexing? After all, everyone agrees the immigration system in place is broken. One of the greatest indicators that the system broke down was the state of Arizona when we first started filming.
We were drawn to Arizona by SB 1070, the state’s controversial law, nicknamed the “Show Me Your Papers” law. It was the most extreme immigration law our country had seen in generations. It had a smorgasbord of provisions, including one that, as past by the legislature, required any state entity to request documents from anyone deemed “reasonably suspicious” of being undocumented. If a county, city or town employee failed to ask for papers, they risked sanctions or a private right of action embedded in the law. The law codified racial profiling, which was why it drew international headlines.
We landed in Arizona soon after Governor Brewer signed an amended version of the bill, one that cabined SB1070 to legitimate stops by law enforcement. Still a scary proposition given the way Maricopa County Sheriff Joe Arpaio’s office was, as a federal district court judge later ruled in Melendres v. Arpaio, engaging in systematic racial profiling of Latino drivers under the color of law.
Last week, I attended the argument before the U.S. Supreme Court in McCullen v. Coakley, a case challenging Massachusetts’ law creating a 35-foot buffer zone around abortion clinics.
The law limits anyone from occupying the space around the entrance or driveway of an abortion clinic. These limits apply whenever people identify as pro-choice or anti-choice, and have exceptions for patients, those accompanying them into the clinic, clinic staff, those on official business, and pedestrians who happen to cross a clinic’s path while on their way somewhere else. Anyone can still distribute literature, hold signs, protest, or engage in conversation—just not within that 35-foot neutral zone to let patients through.
During the oral arguments, Justice Antonin Scalia acknowledged that “if it was a protest, keeping them back 35 feet might not be so bad.” But then he added that this particular case is, in his view, “a counseling case, not a protest case.”
This distinction is not warranted. Whether people shout loudly or talk softly is not the point. The statute’s goal is to diffuse congestion, not regulate speech. It simply ensures that patients have safe passage into clinics when exercising their own constitutional rights.
In the decades since abortion was legalized in the U.S, doctors and clinic staff have been constantly threatened with harm, patients have been routinely harassed, and abortion clinics have suffered bombings, arson, and blockades. In fact, according to the National Abortion Federation, there have been eight murders, 17 attempted murders, 42 bombings, 181 incidences of arson, and thousands of incidents involving other criminal activities since 1977.
by Alan E. Brownstein, Professor of Law, Boochever and Bird Chair for the Study and Teaching of Freedom and Equality, UC Davis School of Law
Massachusetts law creates a 35 foot buffer zone around the entrances of clinics that provide abortion services. As written and applied, the law prohibits even a single individual standing on a public sidewalk near a clinic’s entrance from calmly trying to counsel women against having an abortion. During last week’s oral argument in McCullen v. Coakley, many Justices appeared to be convinced that a regulation prohibiting such seemingly quiet and persuasive speech violated the First Amendment.
Massachusetts argued the law was a permissible content-neutral attempt to eliminate congestion preventing people from safely entering and leaving clinics. The regulation satisfied intermediate level scrutiny, the appropriate standard of review, because the law served an important state interest, allowed adequate alternative avenues of communication, and did not ignore less restrictive alternatives – that is, the law did not burden substantially more speech than necessary to further its purposes.
The Court seemed unconvinced. Several Justices returned repeatedly to a single inquiry: If the state’s goal was to prevent people from blocking access to the clinics, why couldn’t it draft a narrower, more precise law prohibiting obstruction? One or two peaceful “counselors” would not block access to a clinic. Yet the challenged law substantially burdened their ability to communicate their message. Perhaps loud protestors with signs could communicate their message 35 feet away from the targeted audience, but soft spoken counselors needed to be closer to the women they were addressing. Even Justice Kagan, who seemed somewhat sympathetic to the state’s position, suggested the 35 foot size of the buffer zone was problematic.