Individual liberties

  • December 8, 2015
    Guest Post

    by Rachel Easter, Legal Fellow, National Women’s Law Center

    Over the last five years, politicians have enacted an onslaught of abortion restrictions—more than 280 throughout the country. Politicians designed these laws to make it more difficult— often impossible—for women to access abortion, jeopardizing a woman’s constitutional right to decide whether to have an abortion. The state of Texas has been at the center of anti-abortion efforts with HB 2, a law passed in 2013 that has already closed more than half of the clinics in the state, leaving some Texas women hundreds of miles from the closest clinic. This term, the Supreme Court will hear a challenge to parts of the Texas law in Whole Woman’s Health v. Cole, the Court’s first major abortion case in nearly a decade.

    With this case, the Court has the opportunity to reaffirm that women have a fundamental right to abortion and make clear that right is rooted in both liberty and equality. The right to abortion is part of a line of cases recognizing that matters “involving the most intimate and personal choices a person may make in a lifetime” are “central to personal dignity and autonomy.” That principle underlies constitutional protection for parental rights, the right to access contraception and abortion, and the right to marriage. These cases have traditionally been understood to stem from the Due Process Clause of the 14th Amendment, but the constitutional principles of liberty and equality are fundamentally connected. The Court’s decision in Planned Parenthood v. Casey recognizes the interrelated nature of Due Process and Equal Protection. In that case, the important truth that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives” played a key role in the Court’s decision to reaffirm women’s constitutionally protected right to abortion.

    Since that case, the connection between liberty and equality has become more explicit. In Lawrence v. Texas, the Court struck down laws criminalizing certain sexual acts between two people of the same sex because the laws both perpetuated inequality and infringed on the liberty to control certain personal relationships. And in Obergefell v. Hodges the Court held that bans on same-sex marriage subordinate same-sex couples by denying them the rights and privileges of marriage, a denial that both burdens liberty interests and “abridge[s] central precepts of equality.” In that case, the Court made clear that Due Process and Equal Protection are “instructive as to the meaning and reach of the other.…[I]nterrelation of the two principles furthers our understanding of what freedom is and must become.” Looking at HB 2 through this lens, it is clear that the law unconstitutionally burdens women’s liberty and equality interests.

  • November 17, 2015
    Guest Post

    by Adam Winkler, Professor of Law, UCLA Law. Winker is author of Gunfight: The Battle over the Right to Bear Arms in America.

    As the Supreme Court has made clear, the Second Amendment is not an insurmountable barrier to gun control. President Barack Obama should not let the stalemate in Congress be one either. That’s why I, along with numerous other law professors, signed the “Statement of Law Professors on the Constitution and Executive Action to Reduce Gun Violence.” Even in the absence of new federal gun legislation to require every gun buyer to pass a simple background check, the president should continue to seek ways to reduce gun violence through executive action.

    Although Obama’s use of executive powers follows longstanding presidential tradition, it has proven controversial. Some have suggested – incorrectly – that executive action on guns would be unauthorized under the Constitution or undermine the Second Amendment right to keep and bear arms. In fact, however, the Second Amendment gives the government wide leeway to regulate guns to enhance public safety. Moreover, the Constitution vests Obama with the obligation to insure that congressional mandates “be faithfully executed,” enabling him to take executive action.

    Executive action designed, for instance, to clarify existing federal statutes is clearly within the president’s power. The president can, and should, clarify when a gun seller is “engaged in the business” of dealing firearms and thus required to have a federal license. He should also apply the existing federal law barring gun possession by people convicted of misdemeanor crimes of domestic violence to non-married couples and prioritize prosecution of illegal gun buyers. None of these reforms undermine the individual’s right to keep and bear arms for self-defense.  

    As with all individual rights, the president should be sure to pursue only those executive actions that do not infringe the Constitution. As the Statement suggests, however, there is much President Obama can still do to reduce gun violence well within the Constitution’s boundaries.

  • November 13, 2015
    Guest Post

    by Samuel A. Marcosson, Professor of Law, University of Louisville Louis D. Brandeis School of Law

    On November 6, the Supreme Court granted cert in seven cases (which it promptly consolidated for briefing and argument as Zubik v. Burwell) to resolve the issue it left open when it ruled in Burwell v. Hobby Lobby that private, for-profit companies are entitled to a religious exemption from the Affordable Care Act’s mandate to provide contraceptive coverage to their employees. At issue is whether the accommodation the government provides to nonprofit employers satisfies the requirements of the Religious Freedom Restoration Act (RFRA). If it doesn’t, employees of these nonprofits will, like their counterparts at Hobby Lobby, lose their contraceptive coverage. A decision exempting the nonprofits from the contraceptive mandate would make Zubik one of the landmarks of the Term, and a disaster in the Court’s religion jurisprudence.

    Zubik tests the limits of the dangerous path the Court began to walk in Hobby Lobby. The majority opinion there departed from the Court’s long-standing approach in religious accommodation cases of carefully considering the impact of a proposed accommodation on third parties who would be burdened by it. In Hobby Lobby, of course, those third parties were the employees who lost coverage for contraceptive care that, under the ACA, is an essential element of comprehensive health insurance and which, for many, avoids enormous expense and “helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening.” The Court gave almost no weight to the interests and needs of those employees who would be deprived of the essential coverage the ACA had mandated.

    The Court faces an even starker choice in Zubik because the claim on the other side of the scale, the burden claimed by the employers to their religious exercise, is more attenuated than it was in Hobby Lobby. A nonprofit that objects to providing contraceptive coverage receives an accommodation simply by certifying to HHS that it has a religious objection. As Justice Alito admitted in Hobby Lobby, a nonprofit which files the certification is “effectively exempted . . . from the contraceptive mandate.” In other words, to be accommodated under the ACA regulations, all the objecting nonprofits must do is tell HHS exactly what they are telling the Supreme Court: that they have a religious objection to providing contraceptive coverage.

  • June 23, 2015
    Guest Post

    by Linda Greenhouse, Knight Distinguished Journalist in Residence and Joseph Goldstein Lecturer in Law at Yale Law School, and Reva Siegel, Nicholas deB. Katzenbach Professor at Yale Law School.

    *This post originally appeared on Balkinization.

    "Liberty finds no refuge in a jurisprudence of doubt," the famous first line of the joint opinion in Planned Parenthood v. Casey, sounds more than a little ironic following the Fifth Circuit's latest endorsement of the unrelenting anti-abortion campaigns conducted by the elected leaders of the states within the circuit. Liberty of reproductive choice finds no refuge in the Fifth Circuit.

    Unless stayed by the Supreme Court, the recently-decided Whole Women's Health v. Cole will soon close three-quarters of the abortion clinics left in Texas.  Where there were 41 clinics less than two years ago, there will soon be as few as eight in a state of 27 million people. The disappearing clinics can't meet the law's requirements that their doctors have admitting privileges at local hospitals or that the clinics be retrofitted as mini hospitals themselves. There is no evidence that either regulation contributes to the health or safety of abortion patients. But the state justified both requirements as serving its interest in protecting women's health, and the Fifth Circuit, invoking Casey and Gonzales v. Carhart, accepted the state's claim at face value.

    In a forthcoming article in the Yale Law Journal, we argue that Casey and Carhart require more: that courts must examine how effectively a health-justified regulation actually serves the state’s asserted health interests in order to determine whether the burden it imposes on women’s access to abortion is undue.  On this analysis, a roadblock statute of the kind the Fifth Circuit recently upheld is plainly unconstitutional. We demonstrate this, not only through the language of Casey/Carhart, but also through an understanding of the compromise the undue burden framework represents.

    Recall that, in neither overturning nor wholly reaffirming Roe v. Wade, Casey authorized government to take steps to protect potential life throughout a woman's pregnancy, but only by means of persuading a woman to forego abortion and become a mother.  “[T]he means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.” Thus, Casey upheld a 24-hour waiting period and a mandatory counseling requirement, while striking down a law requiring married women to notify their husbands of their intention to terminate a pregnancy. The line Casey drew—allowing the state to persuade a woman to choose childbirth, but forbidding the state to "hinder" her choice of abortion—is one that protects women's dignity, a value as much at the core of the Casey compromise as the protection of prenatal life.

  • June 22, 2015
    Guest Post

    by Suzanne B. Goldberg, Director of the Center for Gender and Sexuality Law at Columbia Law School and Executive Vice President for University Life at Columbia University.

    *This post originally appeared on The HuffPost Blog.

    As the U.S. Supreme Court considers taking up another case related to abortion rights, now is the time to reexamine the old-chestnut narrative that abortion rests solely on a tenuous right to privacy and take heed that the Court ‒ yes, this Court ‒ has a long track record of protecting not only privacy but also the liberty that is part of such deeply personal decision-making.

    Over the last several decades, a popular, but inaccurate, narrative has taken hold about the constitution and abortion. Many argue that the right to privacy, set out in Roe v. Wade in 1973, is the sole constitutional protection for a woman's right to end a pregnancy. But this analysis rests on a limited and restrictive understanding of the law.

    The right to abortion is grounded in the Fourteenth Amendment, which protects all of us from undue government interference with our liberty interests. More than 20 years ago, the Supreme Court made this clear when it reaffirmed the constitutional right to abortion in Planned Parenthood v. Casey. There, the Court explained that this right was rooted in a woman's Fourteenth Amendment liberty right, which covers decisions about marriage, procreation, contraception, family relationships, child rearing and education. 

    In the words of the linchpin justices, Souter, O'Connor and Kennedy:

    These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.

    At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.