by Geoffrey Stone, ACS Board of Advisors Member and Edward H. Levi Distinguished Service Professor at the University of Chicago Law School
My new book, Sex and the Constitution, will officially be released on March 21, but is now available for pre-order on Amazon at a discount. I have worked on this book, on-and-off, for roughly a decade. My goal was to explore the history of sex, religion, law and constitutional law from the ancient world to the 21st century. It was probably a crazy goal, which is no doubt at least partly why it took so long to complete. Now that it is complete, though, I have to admit that I am quite pleased with the result, and the early reviews have been glowing, including from such folks as Lawrence Tribe, Linda Greenhouse, Cass Sunstein, Erwin Chemerinsky, David Cole and George Chauncey.
I have been invited to write this ACS BookTalk in order to inform readers about the work and, hopefully, to entice your curiosity. Rather than writing something “new” for this purpose, I decided that the best way to accomplish the goal is simply to set forth below the opening paragraphs of the Prologue. Hopefully, that will give you a sense of what this work is all about.
We are in the midst of a constitutional revolution. It is a revolution that tests the most fundamental values of the American people and that has shaken constitutional law to its roots. It has bitterly divided citizens, politicians and judges. It is a battle that has dominated politics, inflamed religious passions and challenged Americans to rethink and reexamine their positions on issues they once thought settled. It is a story that has never before been told in its full sweep. And, best of all, it is about sex.
by Louise Melling, Deputy Legal Director and Director of the Center for Liberty at the ACLU
Religious freedom protects the right to our beliefs. But does it protect the right of institutions to discriminate? The ACLU, staunch defender of religious liberty, says no. The answer for United States Supreme Court nominee Judge Neil Gorsuch appears to be yes. It is the province and duty of the Senate to press Judge Gorsuch on his stance during the confirmation hearings, as this question promises to be central to significant cases likely to come before Court in the near future.
The opinions of the U.S. Court of Appeals for the Tenth Circuit that Judge Gorsuch joined and authored addressing Religious Freedom Restoration Act challenges to the contraceptive coverage rule of the Affordable Care Act raise troubling questions about his understanding of religious liberty, principles of equality, and their intersection. Three points are worth noting.
First, and most significant, in the Hobby Lobby case, the Tenth Circuit, ruling en banc, gave short shrift, and even embraced the harms, to women that would result were the rule enjoined as to Hobby Lobby. The court acknowledged that women denied coverage (in that case to four methods of contraception) would suffer an economic burden, but went on to say, “Accommodations for religion frequently operate by lifting a burden from the accommodated party and placing it elsewhere.” In other words, the court, with Judge Gorsuch joining, accepted that employees should bear the cost of their employer’s religion.
That’s a position the Supreme Court declined to embrace in its Hobby Lobby decision. The Court affirmed the Tenth Circuit and ruled for the arts and crafts giant, but its ruling, unlike that of the Tenth Circuit, rested on the premise that the government could extend the accommodation it provided to religiously affiliated nonprofit entities to for-profit companies. Critically, that accommodation was designed to ensure that employees would continue to receive seamless coverage of contraception from the insurer. In the Court’s opinion, the effect then on “the women employed by Hobby Lobby … involved in these cases would be precisely zero.” The same cannot be said under the Tenth Circuit’s reasoning, which Judge Gorsuch joined.
Throughout his campaign and in the months since his election, President Trump has repeatedly pledged that his nominee to replace the late Justice Antonin Scalia on the Supreme Court will vote to overturn Roe v. Wade, the landmark 1973 Supreme Court case which guarantees the right to abortion. Always a fan of suspense, Trump released twolists of potential nominees before his election, and legal and advocacy organizations began compiling profiles on each of the names. But it was not until Feb. 1, 2017, that speculation regarding the potential nominee to fill Justice Scalia’s seat ended, and President Trump formally transmitted the nomination of Tenth Circuit Court of Appeals Judge Neil Gorsuch to the Senate for confirmation.
Despite the president’s campaign pledges, we cannot know with certainty how Judge Gorsuch would rule if the Court were asked to overturn Roe v. Wade. What we do know, however, is the following.
Judge Gorsuch is no champion of women’s access to contraception and reproductive healthcare more broadly. He joined the 2013 decision of the U.S. Court of Appeals for the Tenth Circuit in Hobby Lobby v. Sebelius, which found that Hobby Lobby, a for-profit corporation, can have a sincerely-held religious belief that certain contraceptive methods are actually abortifacients (though experts argue they are not) and that facilitating coverage of those methods would be a sin. Moreover, the decision ruled, Hobby Lobby’s religious beliefs would be substantially burdened by a provision under the Affordable Care Act (ACA) that requires the corporation to provide health insurance to its employees that includes coverage of those contraceptive methods. Finally, the decision reads, the requirement of such coverage is not narrowly tailored to further the government’s interest in “public health” and “gender equality.” While the government sought to provide comprehensive and seamless coverage of preventative health services to women and men alike, the Tenth Circuit, joined by Judge Gorsuch, essentially found that the religious beliefs of a for-profit corporation outweighed the corporation’s employees’ right to such coverage.
by Priscilla J. Smith, Associate Research Scholar in Law at Yale Law School and the Senior Fellow and Director of the Program for the Study of Reproductive Justice at the Information Society Project
The 2016 presidential election is already making a difference in our conversation about women’s role in society, about gender stereotypes, about what constitutes sexual assault. I would like to think this is because a new generation of young women and men, those who have been raised by women and men who fought for sexual equality, have completely different expectations for gender equality than generations that came before them. After all, their parents may have fought to change things but they had not been raised to take these changes for granted the way their kids have.
Let us recognize the change that we have already experienced. It was only a few election cycles ago that abortion remained a third rail for progressives. If forced to discuss it, they would mumble that abortion should be safe, legal and rare and then pivot to discuss the economy as quickly as possible. More recently, especially after all the “slut-shaming” that came from conservatives when women demanded access to contraceptives and the discussion of “real”—and thus implicitly “unreal”—rape, things had begun to shift. Progressives began to recognize that being outspokenly pro-women and pro-choice increased their support among women voters in ways that could decide elections. Still, few progressives seemed to actually enjoy discussing abortion. Especially dreaded was any discussion of so called “late term” abortions.
That all changed during the last presidential debate, when one candidate seemed to puff up and beam when the other starting ranting about abortion. Could it be that this election can help us shift what it means to be pro-life? Could being pro-“life” mean that you would support kids and their parents when a child is born, no matter your view of the status of the embryo or fetus before birth? A truly pro-“life” politician would change policies that discourage families from having more children, like the welfare “family caps” that deny additional support to families who have additional children; s/he would institute programs of paid family leave and free or low-cost child-care to enable parents, both single and coupled, to provide for their children; s/he would make sure that families had adequate health care; s/he would support the right of a pregnant woman to protect her own life and her health status by ending her pregnancy. At least, that kind of pro-“life” position has the benefit of not being hypocritical. In this view of what it means to be pro-“life,” we could ask when a state claims to be promoting potential life, does it undermine its claim by failing to support these policies that support the lives of the people who are born or live in that very same state?
by Nimra Chowdhry, Reproductive Justice Fellow, and Stephanie Zhou, Communications and Development Associate at the National Asian Pacific American Women’s Forum
Women, specifically women of color, in the United States are being criminalized for their abortions. Purvi Patel’s experience is representative. Patel, a South Asian American woman, was convicted in Indiana for the loss of her pregnancy outside of a medical setting after the State charged her in response to an alleged self-induced abortion. She now awaits certification of an appellate decision after the Indiana Court of Appeals recently ruled in her favor. On Friday, July 22, the Court of Appeals released its opinion overturning Patel’s feticide conviction and downgrading her neglect of a dependent conviction from a class A felony to a class D felony. Patel has already served nearly a year and a half in the Indiana Women's Prison. The Appellate Court’s decision is in accord with widely held public opinion that women who terminate or attempt to terminate their pregnancies should not be put behind bars.
Patel is the first woman in the United States to be sent to prison for terminating her own pregnancy under a state’s feticide law. She was charged and convicted after she sought medical attention from an emergency room due to heavy bleeding and pain following the loss of her pregnancy. Yet, once her healthcare providers became aware of her pregnancy, they assisted local police in her arrest. Prosecutors centered their argument on whether Patel obtained and used abortifacient medication, and whether the fetus took a single breath. The State questioned Patel’s motives as an Indian woman and repeatedly asked her to disclose the ethnicity of the father of her pregnancy. Subsequently, Patel was convicted under conflicting charges of feticide and child neglect. The charges are inconsistent because the feticide charge is intended to prosecute someone who purposefully harms a fetus in utero, whereas neglect of a child or dependent laws are intended to punish those who neglect their affirmative duties as guardians by knowingly or intentionally causing harm to a living, breathing child. Feticide laws are meant to protect pregnant women against harm from third party actors who cause injury to their pregnancies, not punish pregnant women themselves. Yet Patel was punished for having, or attempting to have, an abortion under this law. Fortunately, the Indiana Court of Appeals agreed with reproductive rights advocates and held that the State’s Feticide Statute was not meant to be a tool to criminalize women for their abortions.
Patel’s prosecution is not only a demonstration of anti-abortion animus leading to negative health outcomes for women across the country, but it is also an example of stereotyping of women of color, specifically the reproductive decision-making of Asian American women. In fact, neither the state of Indiana nor Congress has shown signs of progress against anti-immigrant stereotyping or anti-Asian rhetoric. Asian American and Pacific Islanders (AAPI) are among the fastest growing racial group in the United States, yet make up only two percent of the total population in Indiana. At the same time, the only two women in Indiana who have been prosecuted for feticide have both been Asian American. The other woman, Bei Bei Shuai, is Chinese American.