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  • July 5, 2016
    Guest Post

    by Neil S. Siegel, David W. Ichel Professor of Law and Professor of Political Science, Co-Director of the Program in Public Law, and Director of the DC Summer Institute on Law and Policy at Duke University

    Rarely is a Supreme Court decision both reassuring and concerning. Whole Woman’s Health v. Hellerstedt is such a decision. Supporters of women’s reproductive freedom can breathe a sigh of relief, but they should not celebrate too much or too long. 

    The Court’s decision offered the strongest reaffirmation of the constitutional status of abortion rights in America since its 1992 decision in Planned Parenthood v. Casey. The five-Justice majority in Whole Woman’s Health held that it is unconstitutional under Casey for states to restrict access to abortion in the name of protecting women’s health when those restrictions lack medical justification and have the effect of making it significantly more difficult for women to obtain safe reproductive healthcare. 

    The Court’s ruling is correct under Casey, which prohibits laws that have the purpose or effect of imposing an “undue burden” on the abortion right—and which, in applying that standard, balanced the asserted benefits and actual burdens of the abortion regulations at issue. Abortion is so safe that complications rarely arise. Yet Texas, notwithstanding the absence of any health justification, required doctors who perform abortions to have admitting privileges at local hospitals (which they cannot obtain). Texas also required abortion clinics to be outfitted as mini-hospitals (which is prohibitively expensive for most clinics). No such requirements were imposed on childbirth, colonoscopy or liposuction, which have substantially higher mortality rates than abortion. As the Court concluded, a “burden” on abortion access that is imposed in the name of protecting women’s health is “undue” when the burden is both severe and very unlikely to protect women’s health. 

    TRAP laws (targeted regulation of abortion providers) around the country are in serious constitutional trouble. So are many fetal-protective regulations of abortion, because they too are governed by Casey and so are subject to the same balancing test.

  • July 1, 2016
    Guest Post

    by Harvey L. Fiser, Associate Professor Business Law,  Millsaps College

    As the celebrations of gay pride month came to a close and LGBT Americans herald the major advances in the court of public opinion and honor the anniversaries of the Windsor and Obergefell decisions, Mississippians were facing the prospect of waking up on July 1 with another attack on LGBT rights, HB 1523 – arguably the most comprehensive and blatantly discriminatory “religious freedom” bill any state has yet to pass.  Rather than following the advice of Indiana University Maurer School of Law Professor Steve Sanders  and taking time to celebrate the role these pioneering cases had in elevating “gays and lesbians to a place of constitutional dignity,” Mississippians waited for news on whether a federal court would stop this newest state sanctioned discrimination.    

    In response to the Supreme Court’s rulings finding that gays and lesbians have equal dignity in marriage, Mississippi’s legislature, Lieutenant Governor and Governor went further than any state has gone before – putting into law their own personal religious doctrines. On April 5, 2016, House Bill 1523 was signed into law over the protest of many companies, civil rights organizations and a major public outcry.  The bill purports to protect numerous public and private actions based wholly or partially on three, and only three, religious beliefs – that “(a) Marriage is or should be recognized as the union of one man and one woman; (b) Sexual relations are properly reserved to such a marriage; and (c) Male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”

    This bill has been described as “narrower and broader” than any religious freedom act to date. Narrower in that it names specific religious beliefs that are protected and broader because it applies to both religious and secular businesses and organizations. According to testimony by Douglas NeJaime, professor of law at UCLA and faculty director of the Williams Institute, after Windsor, in the 2015 legislative session, there were more than 50 LGBT related religious accommodation bills introduced. In 2016, after Obergefell, there were over 100 introduced – HB 1523 being one of two enacted that year. According to Professor NeJaime, HB 1523 was based on model legislation drafted by the Alliance Defending Freedom, an organization “of the Christian right with the express purpose of seeing Christian principles enacted into law” and was passed in direct response to Obergefell.

  • July 1, 2016
    Guest Post

    by William P. Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina School of Law

    *This post is part of the ACSblog symposium: Members of the ACS Board of Academic Advisors reflect on the 2015-2016 Supreme Court Term.

    Who knew that the United States Supreme Court considered itself a forum for alternative dispute resolution? In what may have been the most high-level effort ever to broker the settlement of a case, eight Supreme Court Justices essentially told the parties in Zubik v. Burwell and six other cases to work out their differences among themselves.  

    Never mind that the issue in Zubik had been deeply contested in numerous cases around the country; never mind that the Court had heard 90-minute oral arguments on the matter; and never mind that the Court had already attempted to encourage settlement by taking the unusual step of ordering supplemental briefing about how the rights of the challengers could be accommodated. The Court was still not ready to decide whether requiring entities, objecting on religious grounds, to providing notice in order to receive an exemption from the Affordable Care Act’s contraception coverage requirements violated the Religious Freedom Restoration Act.

    Of course, the Court’s unusual disposition [non-disposition?] in Zubik and its companion cases is readily understood as a product of a deadlocked eight-person court. After all, oral arguments in the case had foreshadowed that neither side had the necessary votes for an all-out win.  Moreover, unlike other 4-4 cases, the Court could not simply affirm the judgment of the lower court because, in this instance, there were multiple lower court decisions that had reached differing results. So unless it was going to hold the cases over for reargument, the Court had to take some action. Remand, with the instruction that “the parties . . . should be afforded an opportunity to arrive at an approach going forward,” was the path it chose.

  • July 1, 2016
    Guest Post

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

    The United States has made tremendous progress on LGBTQ rights. We are, after all, celebrating the one-year anniversary of Obergefell v. Hodges and marriage equality. White House executive orders and EEOC guidelines have also expanded anti-discrimination protections. At the same time, there is still much that needs to be done.  Congress has not amended civil rights law to bar LGBTQ discrimination in employment, education, housing, or public accommodations. Even when such protection exists, individual, organizations and businesses have claimed they have a religious right to discriminate against the LGBTQ community. In particular, the Supreme Court’s 2014 decision in Burwell v. Hobby Lobby Stores, Inc. expanded the Religious Freedom Restoration Act (RFRA), raising concerns about RFRA’s use as a means to discriminate in the name of religious freedom.

    Hobby Lobby was a challenge to the Affordable Care Act requirement that large employers include FDA-approved contraception in their health care plans. Hobby Lobby Stores, Inc., a billion-dollar chain of arts and crafts stores with thousands of employees, argued that it was religiously opposed to certain forms of contraception and that consequently this contraception benefit violated its RFRA rights. Under RFRA, “persons” are entitled to exemptions from federal laws that impose a substantial burden on their religious conscience unless the challenged law passes strict scrutiny. A law passes strict scrutiny if it advances a compelling state goal in a narrowly tailored way. While RFRA itself applies to federal law, many states have counterparts that apply to state law.

  • June 30, 2016
    Guest Post

    by Steve Sanders, who teaches constitutional law, constitutional litigation, and family law at the Indiana University Maurer School of Law.  He was co-counsel on the Human Rights Campaign’s amicus brief in Obergefell v. Hodges.    

    The mid-summer anniversaries of Supreme Court’s marriage equality decisions, United States v. Windsor (2013) and Obergefell v. Hodges (2015), should be celebrated not only for the ends they accomplished – ending the federal non-recognition of same-sex marriages, then bringing about full nationwide marriage equality – but for the way they elevated gays and lesbians to a place of constitutional dignity.  This principle of equal dignity must play a central role as the legal and political movements for LGBT equality continue to evolve. 

    The Supreme Court laid important groundwork for marriage equality in Romer v. Evans, where it observed that states could not single out gays and lesbians for special legal and political disadvantages that were intended “not to further a proper legislative end but to make them unequal to everyone else.”  It continued the project in Lawrence v. Texas, where it said gays and lesbians “are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime” under sodomy laws.  In earlier posts on this blog, Sarah Warbelow and Paul Smith have reflected on the significance of these cases. 

    Marriage equality was, of course, a considerably larger and more controversial question, because it implicated the social meaning of homosexuality and whether gays and lesbians were entitled to have their lives and relationships accorded the same value and respect by government as heterosexuals.  Religious conservatives and their agents in the Republican Party had been working for years to prevent the possibility of such equal dignity. The federal Defense of Marriage Act (DOMA), which was struck down in Windsor, and the state bans on same-sex marriage, struck down in Obergefell, represented some of the worst characteristics of American politics. They were enacted through campaigns of fear, dishonesty and anti-gay animus. One of the marriage bans invalidated by the Supreme Court was a Kentucky state constitutional amendment passed in 2004; a state legislator told the Louisville Courier-Journal at the time that the amendment’s supporters had shown “an unparalleled level of zeal, intolerance and hatred” toward gays. In 2010, the federal judge who struck down California’s Proposition 8 found that the campaign in support of that 2008 ballot measure had presented voters with a “multitude of … advertisements and messages” intended to “convey[] to voters that same-sex relationships are inferior to opposite-sex relationships and dangerous to children.”

    As challenges to DOMA and state marriage laws made their way through the federal courts, two things were becoming clear. First, these laws rested on flimsy and disingenuous justifications that were easily dismantled by most judges who confronted them. Second, public opinion was undergoing a stunning sea change, and a majority of Americans were becoming ready to accept marriage equality. Social change was moving hand-in-hand with legal change.