Women's rights

  • May 25, 2017
    Guest Post

    *This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Learn more about the Convention here

    by Jamille Fields, Policy Analyst, Government Relations at Planned Parenthood Federation of America

    We are not long past President Trump’s first 100 days and the start of this new Congress. Despite this short timeframe, there have been several legal and policy proposals that threaten reproductive rights and women’s health care access more broadly. Here are six ways in which reproductive rights have been threatened since the start of this year alone:

    1.     Attempting to Block Access to Planned Parenthood

    The American Health Care Act (AHCA) not only attempts to repeal the Affordable Care Act (ACA), which greatly advances women’s health care, but also includes a politically motivated provision that would block low-income women and men enrolled in the Medicaid program from using their coverage to receive services at Planned Parenthood. This provision is the only non-health insurance related provision in the bill and the intent is clear--restrict low-income individuals’ access to the provider of their choice and block people’s access to safe and legal abortion. If the bill becomes law, it will harm the 2.5 million people who annually visit Planned Parenthood health centers to access birth control, cancer screenings, STI counseling, HIV treatment and other preventive health care services. Unlike most other parts of the bill, this provision would take effect immediately.

  • May 19, 2017
    Guest Post

    *This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Learn more about the Convention here

    by Stephanie Toti, Reproductive Rights Advocate

    In an unbroken line of precedent spanning more than four decades, the Supreme Court has consistently held that a woman’s right to end a pregnancy is a fundamental component of the liberty protected by the Due Process Clauses of the Fifth and Fourteenth Amendments. The right at stake encompasses not merely the right to obtain an abortion procedure, but also, more broadly, “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992). Despite seemingly relentless efforts by anti-choice advocates to undermine, overrule, or chip away at this right, it remains on solid constitutional footing. Last year’s historic decision in Whole Woman’s Health v. Hellerstedt, 579 U.S. __, 136 S. Ct. 2292 (2016), provides a potent reaffirmation of the Supreme Court’s abortion jurisprudence, clarifying both the robust nature of the protection the Constitution affords to “the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy” Casey, 505 U.S. at 851, and the role of the courts in enforcing that protection.

  • April 11, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution

    by Pamela S. Karlan, ACS Board Member and Kenneth and Harle Montgomery Professor of Public Interest Law, Co-Director of the Supreme Court Litigation Clinic, Stanford Law School

    “Always it is by bridges that we live,” the poet Philip Larkin wrote. One of the problems with the way we have tried to build a more just constitutional law is our failure to draw lessons across constitutional subfields – to build constitutional bridges.

    Several years ago, I published an article in the Indiana Law Journal called “Taking Politics Religiously: How Free Exercise and Establishment Clause Cases Illuminate the Law of Democracy.” It is an example of what I mean by building constitutional bridges: I used themes developed in the religion clause cases – like the “radical” idea that “[f]ree people are entitled to free and diverse thoughts, which government ought neither to constrain nor to direct,” that the Constitution should combat the creation of an outsider class and that it should prevent capture and exploitation of the machinery of government – to suggest how we ought to think about political party regulation, redistricting and campaign finance.

    Now, I want to begin a conversation about two areas of law that might seem rather disconnected from one another: voting rights and reproductive justice. I often joke about that connection: politics, like reproduction, combines lofty goals, deep passions about identity and instincts for self-preservation, increasing reliance on technology and often a need – as the Supreme Court put it in a redistricting case – to “pull” and “haul” rather indelicately at the very end. And of course, it often involves somebody getting screwed.

  • April 10, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution"

    by Reva Siegel, ACS Board Member and Nicholas deB. Katzenbach Professor of Law, Yale Law School

    An aroused public can shape judicial appointments, and shape law.

    Only a few constitutional cases provoke sustained public engagement. But in those few cases where the public is fiercely engaged, judges often respond. Justice Kennedy expressly acknowledged public deliberation about same-sex marriage in Windsor and Obergefell. Justice Scalia, who denounced the living Constitution, wrote an originalist opinion in Heller responding to the claims of living Americans opposed to gun control.

    Mobilization can influence not only the outcome of cases, but even their reasoning. Opponents of health care spread fear of death panels and government-mandated consumption of broccoli, and, in the process, transformed constitutional arguments against the law from “off the wall” to “on the wall.” In Sebelius, the Justices addressed Congress’s power to enact the health care law in opinions that repeatedly discussed vegetables and the importance of protecting individual liberties.

    *   *   *

    Looking back over a half century of abortion conflict, we can see this dynamic in action and imagine new forms it might take.

    For decades, supporters of the abortion right sought protection for women’s health, liberty and equality, while opponents sought protection for unborn life. The Court balanced these claims in Roe’s trimester framework and in Casey’s undue burden standard.

  • February 23, 2017
    Guest Post

    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.