Reproductive freedom

  • July 22, 2014

    by Ellery Weil

    At Vox, Adrianna McIntyre explains today’s decision by the U.S. Court of Appeals for the D.C. Circuit in Halbig v. Burwell, the “greatest existential threat” to the Affordable Care Act since NFIB v. Sebelius. Abbe Gluck explains at Balkinization why the opinion in Halbig “does a disservice to textualism.”

    Katie McDonough takes to Salon and discusses the case of a nurse in Florida who is suing a Tampa-area medical center for religious discrimination after they told the nurse that her objections to prescribing birth control made her ineligible for a position with their reproductive health department.

    The Associated Press reports on Arizona’s decision to appeal to the Supreme Court a recent decision by the U.S. Court of Appeals for the Ninth Circuit which prohibited the execution of an Arizona death row inmate because the state refused to disclose the lethal injection drug cocktail it planned to use.

    Naureen Shah at Al Jazeera America discusses a report by Human Rights Watch and Columbia Law School which claims that not only are the FBI’s current counterterrorism stings violating basic rights, they are targeting the wrong people, sowing distrust of the government, and failing to stop legitimate threats.

  • July 21, 2014

    by Ellery Weil

    Amy Lieberman at Slate writes on mounting protests against immigration checkpoints in Arizona..

    In  The Atlantic, Molly Ball argues that Burwell v. Hobby Lobby Stores, Inc. is a major setback for both the political left and the gay rights movement.

    The Human Rights Campaign Blog discusses President Obama’s historic executive order, signed this morning, barring employment discrimination against the LGBT community.

    At Public Justice, Adrian Alvarez discusses the upcoming Supreme Court case of Young v. United Parcel Services, and what it means for the future of pregnancy discrimination laws.

    ACS sends its deepest condolences to the family of Florida State University School of Law Professor, and founder of PrawfsBlog, Dan Markel, who was shot and killed Friday morning.

  • July 18, 2014

    by Ellery Weil

    From The Huffington Post, lieutenant gubernatorial candidate Lucy Flores speaks out about her position on reproductive rights, as influenced by her own abortion at age sixteen.

    In light of several recent controversies surrounding attorneys’ representations of controversial defendants, San Francisco Public Defender Jeff Adachi for The Sacramento Bee argues that criminal defense lawyers are “safeguards against vigilantism, kangaroo courts, and mob justice.” (Adachi is a member of the Bay Area Lawyer Chapter’s Board of Advisors.)

    Ciarra Torres-Spelliscy of the Brennan Center for Justice argues that, despite an outwardly polarized government, bipartisanship is still present in Congress, on issues including voter reform.

    From SCOTUSblog, Florida will take the question of same-sex marriage to a higher court, after officials in Monroe County were required to marry same-sex couples.

    Louise Melling of the ACLU argues that Hobby Lobby, and particularly the potential it opens up for discrimination against the LGBT community, violates basic human dignity of those refused services.

  • July 11, 2014
    Guest Post

    by Caroline Mala Corbin, Professor of Law, University of Miami School of Law

    There is much to lament in the Supreme Court’s Burwell v. Hobby Lobby decision, which held that first, closely held for-profit corporations like Hobby Lobby may bring religious liberty claims under the Religious Freedom Restoration Act (RFRA), and second, that the contraception mandate – the requirement that health insurance plans provide contraception at no additional cost – violated Hobby Lobby’s RFRA rights. Thanks to the decision, owners who are religiously opposed to contraception may exclude it from their employees’ health plan.  For several reasons, the winners are corporate owners, and the losers are all the men and women who must work for them. 

    First,  Hobby Lobby allows owners of for-profit corporations to have their cake and eat it too. One of the main reasons people incorporate their businesses is to gain the protection of limited liability, which shields owners from the liabilities of their corporation. For example, the debts of the corporation are not the debts of the owners. After Hobby Lobby, owners are considered separate and distinct from their corporations for purposes of limited liability, but one and the same for the purposes of religious rights. In other words, the owners and corporations are alter-egos when it is convenient, and not when it is not. That is not how the law is supposed to work.

    Second, at the same time, Hobby Lobby virtually ignores the rights of employees. The Justices could barely bring themselves to acknowledge that a religious exemption created any kind of burden on the thousands of workers who just lost their contraception coverage. Instead, in a footnote (a placement in keeping with the Court’s marginalization of employees), the Court characterized the contraception mandate as a burden but a potential religious exemption as merely the loss of a benefit. Apparently, only corporate owners are burdened. The bottom line is that the owners’ rights are privileged over their workers’ rights. Never mind that health insurance is part of employees’ compensation, and owners should not be able to dictate how employees spend their own earnings. And never mind that sincere religious obligations can point towards contraception use as well as away from it, as people may have faith-based reasons for limiting their family size.

  • July 7, 2014
    Guest Post

    by Charlotte GardenAssistant Professor of Law and Litigation Director of the Korematsu Center for Law & Equality, Seattle University School of Law. She co-authored an amicus brief in Harris v. Quinn on behalf of more than thirty labor law professors. Follow her on Twitter @ProfCGarden.

    The Supreme Court’s final week turned out to be an even bigger blockbuster than expected. Not only did the Court issue decisions in Harris v. Quinn and Burwell v. Hobby Lobby, it also gave an encore performance, exempting Wheaton College from filing with its insurance company the form required to opt out of the ACA’s contraceptive mandate. These decisions share an important characteristic: they allow some to shift the costs of their ideological or religious commitments onto workers who may disagree.

    At first blush, Harris and Hobby Lobby appear to have little to do with each other: Harris is a First Amendment case about whether home health care workers could be required to pay a “fair share fee” covering their share of their union’s representation costs; Hobby Lobby is about a for-profit corporation’s right to opt out of the Affordable Care Act’s contraceptive mandate under the Religious Freedom Restoration Act (RFRA).  But Harris and Hobby Lobby share a number of similarities.  Both were 5-4 decisions authored by Justice Alito, and, as others have pointed out, they will both disproportionately impact women.  There is an additional similarity: while the majority opinions in both cases reflect concern for the rights of religious and political objectors, they ignore the fact that the real costs of these objections could be shifted directly onto other workers with different beliefs. 

    In Harris v. Quinn, the Court held that home healthcare aides in Illinois have a First Amendment right to avoid paying their share of the costs that an elected union incurs in representing them. But, under Illinois law, the workers who choose not to pay are not then excluded from union representation.  Instead, the union must continue to represent these workers fairly, which in turn means the union will incur tangible costs on their behalf during bargaining and while enforcing the resulting contract.  As others have explained, this creates an incentive to free ride. But who pays for that free riding? It is the union that incurs the representation costs, but it is other workers who ultimately pay those costs, in the form of their own dues and fees. In other words, Harris didn’t just create a right to opt out of union activity with which one disagrees; it will also result in some workers having to pick up the financial slack left when their co-workers opt out. This is a significant extension of the law: the Court had never before found a right to opt out of costs for activities that a union is statutorily obligated to perform. (The Court previously held that union-represented workers have a right to opt out of funding union political speech, but of course unions are under no statutory obligation to engage in politics.) Yet, the workers who will bear the costs of this ruling were entirely absent from the Court’s First Amendment analysis. And, while this rule does not yet extend to traditional public sector employees, Justice Alito made clear in his opinion that he thinks it should.