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  • 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 23, 2015
    BookTalk
    The Grasping Hand
    "Kelo v. City of New Lond" and the Limits of Eminent Domain
    By: 
    Ilya Somin

    by Ilya Somin, law professor at George Mason University and an adjunct scholar at the Cato Institute. He writes regularly for the popular Volokh Conspiracy Blog, affiliated with The Washington Post.

    Ten years ago today, in Kelo v. City of New London, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in order to transfer them to a new private owner for purposes of promoting “economic development.” Although the Fifth Amendment only permits the taking of private property for  “public use,” the Court ruled that  virtually any potential public benefit qualifies as such, even if the government fails to prove that the supposed benefit will ever actually materialize. My new book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, is the first work by a legal scholar about one of the Supreme Court’s most controversial modern decisions.

    In the book I argue that Kelo was a grave error. In chapters 2 and 3, I discuss why economic development and “blight" condemnations that transfer property to private interests, are unconstitutional under both originalist and most “living constitution” theories of legal interpretation. Though the ruling was consistent with previous precedents, the Supreme Court can and should have either overruled those badly flawed prior decisions or at least limited their scope (as Justice Sandra Day O’Connor advocated in her dissent).

    These types of condemnations victimize the poor and the politically weak for the benefit of powerful interest groups, and often destroy more economic value than they create. Since the Supreme Court first ruled that a “public use” can be almost anything the government says it is, hundreds of thousands of people have lost homes or small businesses to  blight and economic development takings. Most were poor, racial or ethnic minorities, or lacking in political influence. Kelo itself exemplifies some of these patterns. The residents targeted for condemnation lacked the influence needed to combat the formidable government and corporate interests arrayed against them, including Pfizer, an influential pharmaceutical firm that expected to benefit from the condemnations.  Moreover, the city's poorly conceived development plan ultimately failed: the condemned land lies empty to this day, occupied only by feral cats. The only “development” produced so far consists of some improvised shelters constructed for the cats, by neighborhood residents.
     
    The Supreme Court's unpopular ruling triggered an unprecedented political reaction. Polls showed that over 80 percent of Americans oppose the ruling, a sentiment that cut across partisan, ideological, and racial lines. This is one of the rare issues where Ralph Nader, Rush Limbaugh, and the NAACP, were all on the same side.

  • June 23, 2015

    by Caroline Cox

    Frank Bruni argues in The New York Times that the fight for marriage equality was not an overnight victory, but one spanning decades.

    At the blog for the Brennan Center for Justice, Ciara Torres-Spelliscy considers how the failure of the Federal Election Commission to regulate money in politics is threatening the rule of law.

    Brianne Gorod of Slate considers the pending Supreme Court decisions outside of same-sex marriage and King v. Burwell.

    At Mother Jones, Stephanie Mencimer explains how the Chief Justice could save the Affordable Care Act in order to protect big business.

    In The Atlantic, Conor Friedersdorf takes a look at a victory for privacy rights at the Supreme Court.

    The Balitmore police officers involved in the death of Freddie Gray plead not guilty, reports Tom Liddy of ABC News.

  • 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.

  • June 22, 2015

    by Caroline Cox

    Geoffrey R. Stone argues at The Huffington Post that “Justice Alito had it right” in the Texas license plate case the Supreme Court decided last week.

    Simon Lazarus writes at The New Republic that Justice Kennedy could use a conservative principle in order to save the Affordable Care Act.

    At Salon, Corey Robin urges the United States to rethink its “politics of prevention and protection, of safety and security…that [are] all too friendly to racial inequality.”

    David Savage explains the ruling in the Texas license plate case at the Los Angeles Times and its impact on First Amendment cases in the future.

    Kenneth Jost writes at Jost on Justice about whether Justice Kennedy argued that solitary confinement is cruel and unusual punishment.