Reproductive freedom

  • November 25, 2015
    Guest Post

    by B. Jessie Hill, Judge Ben C. Green Professor of Law, Case Western Reserve University School of Law

    What is at stake for reproductive rights in Whole Woman’s Health v. Cole, which will be heard by the U.S. Supreme Court this Term? In a word, everything. Whole Woman’s Health may well be the most significant abortion case in 24 years.

    The Supreme Court established the “undue burden” standard for evaluating the constitutionality of abortion restrictions in 1992 in Planned Parenthood v. Casey. The vagueness of that standard, combined with the Court’s apparent willingness to uphold numerous restrictions in that case, opened the door for states to continually pass new and ever more restrictive regulations on abortion in the decades since Casey was decided. Meanwhile, the Supreme Court has largely declined to speak further on the meaning or scope of the undue burden standard.

    What’s more, states began to try a new kind of restriction – restrictions adopted in the name of protecting women’s health but really aimed at reducing access to abortion. These differed from the sorts of restrictions at issue in Casey, which were primarily laws aimed at affecting the woman’s decision making process, such as waiting periods, parental consent requirements, and informed-consent requirements. Casey was relatively deferential toward measures intended to ensure the woman’s choice was fully informed, but it did not have occasion to consider the sort of pretextual health regulations at issue in Whole Woman’s Health.

    In Whole Woman’s Health, the Court will decide the constitutionality of a Texas law that imposes onerous requirements on abortion providers—namely, that doctors providing abortions have admitting privileges at a local hospital and that abortion clinics conform to the requirements for “ambulatory surgical centers,” including requirements pertaining to the physical plant, staffing, parking, and the like. These requirements are often impossible for older clinics to meet without spending enormous sums of money. Although other types of ambulatory surgery centers—clinics that provide minor surgery on an outpatient basis—are generally offered waivers or grandfathered from when new regulations are instituted, abortion providers are specifically denied grandfathering and waivers.

  • 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.

  • November 10, 2015
    Guest Post

    by Leslie C. Griffin, Boyd Professor of Law, UNLV Boyd School of Law

    Now that the Supreme Court has granted cert. in Zubik v. Burwell on seven related religious nonprofits’ cases, we will have an opportunity to learn if Hobby Lobby was a “decision of startling breadth,” as Justice Ginsburg predicted in her dissent. In Zubik, the religious nonprofits allege that the government’s accommodation of the contraceptive mandate of the Affordable Care Act (ACA) violates the Religious Freedom Restoration Act (RFRA). An important part of the case turns on what the Court views as a “substantial burden” on the exercise of religion.

    Under RFRA, a plaintiff must demonstrate as a threshold matter that the government substantially burdened his exercise of religion. Only then does the government have to meet the most difficult test in constitutional law, namely that its action constitutes the least restrictive means of serving a compelling government interest. If the courts make it easy for plaintiffs to prove a substantial burden, each and every federal law can be constantly put to this strict standard.

    The appeals courts in the nonprofit cases ruled that plaintiffs’ religious exercise was not substantially burdened by the accommodation. An Eighth Circuit opinion, however, suggests that those courts misread Justice Alito’s analysis in Hobby Lobby. Zubik will test just how deferential the Court intends to be toward religious plaintiffs who allege a substantial burden on their religion.

    Hobby Lobby’s Substantial Burden

    The contraceptive mandate of the ACA requires employers to include preventive health care services in their insurance coverage. Hobby Lobby involved a successful challenge to the mandate by religious for-profit employers who believe as a matter of faith that four covered contraceptives cause abortion. At the beginning of his opinion upholding the for-profits’ challenge, Justice Alito observed that if the employers did not provide contraceptive coverage, they would be taxed $100 per day for each affected employee, which could amount to $1.3 million per day and $475 million per year for employer Hobby Lobby, and $90,000 per day and $33 million per year for Conestoga Wood. That amount of money, Justice Alito concluded, is “surely substantial.”

    Responding to the argument that the employers need not provide insurance in the first place, Alito then identified an alternative substantial burden. If at least one of their employees qualified for a government subsidy on the health care exchanges, the companies would be fined $2,000 per employee per year, totaling $26 million for Hobby Lobby and $1.3 million for Conestoga. Still substantial, in Justice Alito’s eyes.

  • October 29, 2015
    Guest Post

    by Leslie C. Griffin, Boyd Professor of Law, UNLV Boyd School of Law

    Should judges tell the Little Sisters of the Poor, a group of Roman Catholic nuns who devote their lives to caring for the elderly poor, how to analyze moral complicity?

    That’s a question the Supreme Court will consider on Friday, October 30, when the Justices decide whether to grant certiorari on cases brought by religious nonprofits challenging the contraceptive mandate of the Affordable Care Act (ACA). This particular question about nuns and moral complicity comes from the pen of Paul Clement, the seasoned Supreme Court litigator who represents the sisters. Clement and the Sisters are competing with the Archbishop of Washington for the attention of the Court.

    Background: Challenges to the Accommodation, not the Contraceptive Mandate

    The ACA requires employers to provide insurance coverage for preventive health services, which for women include reproductive care. The insurance regulations specifically require employer health care plans to cover twenty FDA-approved contraceptives as well as sterilization procedures and reproductive counseling.

    The Little Sisters are among 140 plaintiffs in 56 cases brought by religious nonprofits challenging, not the contraceptive mandate itself, but the accommodation that allows religious employers to opt out of the mandate. Under the opt-out mechanism, the employer merely has to inform the Department of Health and Human Services (HHS) of its objection to contraception, identify what kind of insurance plan it offers, and provide the name and contact information of the insurance plans’ third party administrators (TPAs) and health insurance issuers. Once HHS or the insurers receive the notification, the burden of coverage shifts completely to the TPAs and health insurance companies, who provide the contraceptive coverage in separate plans, with no financial input from the religious employers.

    The religious nonprofits argue that this accommodation violates the Religious Freedom Restoration Act (RFRA), which holds that [g]overnment may substantially burden a person’s exercise of religion . . . [only if it is] in furtherance of a compelling government interest; and it is the least restrictive means of furthering that government interest.”

    How Many Angels Can Dance on the Head of a Pin?

    A central debate in the cases is whether the “substantial burden” of RFRA is a theological term or a legal one. As Paul Clement’s question suggests, the moral casuistry of these cases would make a medieval monk proud. Unlike many of the non-Catholic plaintiffs, who oppose only four of the contraceptives that they believe to be abortifacient, all the Catholic plaintiffs believe that the use of artificial contraception is always immoral. The Sisters therefore believe that even signing the compliance form would “make them morally complicit in grave sin.” Their lawyer argues that the courts may not question that this moral belief is automatically a substantial burden under RFRA because it appears substantial to the sisters.

    The plaintiffs differ about just where the immorality occurs – in providing insurance, in signing the form, in authorizing the TPAs, in knowing that contraceptive access will occur, all of the above, or none of the above. Although the moral description varies from case to case, however, the plaintiffs uniformly want no judicial scrutiny of their moral analyses.

  • October 8, 2015

    by Paul Guequierre

    As the political right, including many Republican members of  Congress, continue an  attack on women’s healthcare in the form of ongoing  assaults on Planned Parenthood, American Constitution Society President Caroline Fredrickson testified today before the House Judiciary Committee in its second hearing in a series misleadingly titled, “Planned Parenthood Exposed: Examining Abortion Procedures and Medical Ethics at the Nation’s Largest Abortion Provider." 

    In her testimony, Fredrickson said:

    In reality, these videos are not about alleged illegal sales of fetal tissue. They are not about alleged violations of the Partial Birth Abortion Ban. They are about a persistent campaign by a small group of people who believe that abortion should be illegal, by any means necessary.

    But the truth is that abortion is an essential component of women’s health care.’ It is also one of the safest medical procedures performed in the United States. And three in ten women in the U.S. will have a safe, legal abortion during her lifetime. Women and their doctors clearly understand that abortion is a safe, legal, and essential part of women’s health care. Women who seek access to abortion, like any patient seeking access to essential health care, are entitled to “privacy, dignity, respect, and support.”  Elected officials should listen to what women and their doctors already know – sham laws and baseless investigations that serve only to burden a woman’s right to choose have no place in our nation’s statehouses.

    Fredrickson’s testimony can be read here. See video of entire hearing from C-SPAN.