Women's rights

  • December 8, 2015
    Guest Post

    by Rachel Easter, Legal Fellow, National Women’s Law Center

    Over the last five years, politicians have enacted an onslaught of abortion restrictions—more than 280 throughout the country. Politicians designed these laws to make it more difficult— often impossible—for women to access abortion, jeopardizing a woman’s constitutional right to decide whether to have an abortion. The state of Texas has been at the center of anti-abortion efforts with HB 2, a law passed in 2013 that has already closed more than half of the clinics in the state, leaving some Texas women hundreds of miles from the closest clinic. This term, the Supreme Court will hear a challenge to parts of the Texas law in Whole Woman’s Health v. Cole, the Court’s first major abortion case in nearly a decade.

    With this case, the Court has the opportunity to reaffirm that women have a fundamental right to abortion and make clear that right is rooted in both liberty and equality. The right to abortion is part of a line of cases recognizing that matters “involving the most intimate and personal choices a person may make in a lifetime” are “central to personal dignity and autonomy.” That principle underlies constitutional protection for parental rights, the right to access contraception and abortion, and the right to marriage. These cases have traditionally been understood to stem from the Due Process Clause of the 14th Amendment, but the constitutional principles of liberty and equality are fundamentally connected. The Court’s decision in Planned Parenthood v. Casey recognizes the interrelated nature of Due Process and Equal Protection. In that case, the important truth that “[t]he ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives” played a key role in the Court’s decision to reaffirm women’s constitutionally protected right to abortion.

    Since that case, the connection between liberty and equality has become more explicit. In Lawrence v. Texas, the Court struck down laws criminalizing certain sexual acts between two people of the same sex because the laws both perpetuated inequality and infringed on the liberty to control certain personal relationships. And in Obergefell v. Hodges the Court held that bans on same-sex marriage subordinate same-sex couples by denying them the rights and privileges of marriage, a denial that both burdens liberty interests and “abridge[s] central precepts of equality.” In that case, the Court made clear that Due Process and Equal Protection are “instructive as to the meaning and reach of the other.…[I]nterrelation of the two principles furthers our understanding of what freedom is and must become.” Looking at HB 2 through this lens, it is clear that the law unconstitutionally burdens women’s liberty and equality interests.

  • November 25, 2015
    Guest Post

    by B. Jessie Hill, Judge Ben C. Green Professor of Law, Case Western Reserve University School of Law

    What is at stake for reproductive rights in Whole Woman’s Health v. Cole, which will be heard by the U.S. Supreme Court this Term? In a word, everything. Whole Woman’s Health may well be the most significant abortion case in 24 years.

    The Supreme Court established the “undue burden” standard for evaluating the constitutionality of abortion restrictions in 1992 in Planned Parenthood v. Casey. The vagueness of that standard, combined with the Court’s apparent willingness to uphold numerous restrictions in that case, opened the door for states to continually pass new and ever more restrictive regulations on abortion in the decades since Casey was decided. Meanwhile, the Supreme Court has largely declined to speak further on the meaning or scope of the undue burden standard.

    What’s more, states began to try a new kind of restriction – restrictions adopted in the name of protecting women’s health but really aimed at reducing access to abortion. These differed from the sorts of restrictions at issue in Casey, which were primarily laws aimed at affecting the woman’s decision making process, such as waiting periods, parental consent requirements, and informed-consent requirements. Casey was relatively deferential toward measures intended to ensure the woman’s choice was fully informed, but it did not have occasion to consider the sort of pretextual health regulations at issue in Whole Woman’s Health.

    In Whole Woman’s Health, the Court will decide the constitutionality of a Texas law that imposes onerous requirements on abortion providers—namely, that doctors providing abortions have admitting privileges at a local hospital and that abortion clinics conform to the requirements for “ambulatory surgical centers,” including requirements pertaining to the physical plant, staffing, parking, and the like. These requirements are often impossible for older clinics to meet without spending enormous sums of money. Although other types of ambulatory surgery centers—clinics that provide minor surgery on an outpatient basis—are generally offered waivers or grandfathered from when new regulations are instituted, abortion providers are specifically denied grandfathering and waivers.

  • November 13, 2015
    Guest Post

    by Samuel A. Marcosson, Professor of Law, University of Louisville Louis D. Brandeis School of Law

    On November 6, the Supreme Court granted cert in seven cases (which it promptly consolidated for briefing and argument as Zubik v. Burwell) to resolve the issue it left open when it ruled in Burwell v. Hobby Lobby that private, for-profit companies are entitled to a religious exemption from the Affordable Care Act’s mandate to provide contraceptive coverage to their employees. At issue is whether the accommodation the government provides to nonprofit employers satisfies the requirements of the Religious Freedom Restoration Act (RFRA). If it doesn’t, employees of these nonprofits will, like their counterparts at Hobby Lobby, lose their contraceptive coverage. A decision exempting the nonprofits from the contraceptive mandate would make Zubik one of the landmarks of the Term, and a disaster in the Court’s religion jurisprudence.

    Zubik tests the limits of the dangerous path the Court began to walk in Hobby Lobby. The majority opinion there departed from the Court’s long-standing approach in religious accommodation cases of carefully considering the impact of a proposed accommodation on third parties who would be burdened by it. In Hobby Lobby, of course, those third parties were the employees who lost coverage for contraceptive care that, under the ACA, is an essential element of comprehensive health insurance and which, for many, avoids enormous expense and “helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening.” The Court gave almost no weight to the interests and needs of those employees who would be deprived of the essential coverage the ACA had mandated.

    The Court faces an even starker choice in Zubik because the claim on the other side of the scale, the burden claimed by the employers to their religious exercise, is more attenuated than it was in Hobby Lobby. A nonprofit that objects to providing contraceptive coverage receives an accommodation simply by certifying to HHS that it has a religious objection. As Justice Alito admitted in Hobby Lobby, a nonprofit which files the certification is “effectively exempted . . . from the contraceptive mandate.” In other words, to be accommodated under the ACA regulations, all the objecting nonprofits must do is tell HHS exactly what they are telling the Supreme Court: that they have a religious objection to providing contraceptive coverage.

  • October 8, 2015

    by Paul Guequierre

    As the political right, including many Republican members of  Congress, continue an  attack on women’s healthcare in the form of ongoing  assaults on Planned Parenthood, American Constitution Society President Caroline Fredrickson testified today before the House Judiciary Committee in its second hearing in a series misleadingly titled, “Planned Parenthood Exposed: Examining Abortion Procedures and Medical Ethics at the Nation’s Largest Abortion Provider." 

    In her testimony, Fredrickson said:

    In reality, these videos are not about alleged illegal sales of fetal tissue. They are not about alleged violations of the Partial Birth Abortion Ban. They are about a persistent campaign by a small group of people who believe that abortion should be illegal, by any means necessary.

    But the truth is that abortion is an essential component of women’s health care.’ It is also one of the safest medical procedures performed in the United States. And three in ten women in the U.S. will have a safe, legal abortion during her lifetime. Women and their doctors clearly understand that abortion is a safe, legal, and essential part of women’s health care. Women who seek access to abortion, like any patient seeking access to essential health care, are entitled to “privacy, dignity, respect, and support.”  Elected officials should listen to what women and their doctors already know – sham laws and baseless investigations that serve only to burden a woman’s right to choose have no place in our nation’s statehouses.

    Fredrickson’s testimony can be read here. See video of entire hearing from C-SPAN.

  • September 4, 2015

    by Nanya Springer

    On The Huffington Post BlogJudith E. Schaeffer of the Constitutional Accountability Center weighs in on the controversy in Rowan County, Kentucky, arguing that obtaining a marriage license should be hassle-free for everyone.

    In a press release, Demos announced that the U.S. Court of Appeals for the Ninth Circuit on Thursday reinstated a case challenging Nevada’s failure to provide voter registration services to its low-income citizens. The decision comes after the case was thrown out by the U.S. District Court for the District of Nevada.

    Sam Ross-Brown and Amanda Teuscher report in The American Prospect that the Department of Labor’s new rules allowing workers at higher income levels to qualify for overtime pay will not only result in an effective raise for millions of people, but will also give workers more control over their work hours and personal lives.

    The Center for Reproductive Rights announced in a press release yesterday that it has petitioned the U.S. Supreme Court for review of a decision by the U.S. Court of Appeals for the Fifth Circuit. In June, the Fifth Circuit upheld onerous restrictions on abortion clinic access in Texas which, if allowed to stand, would close more than 75 percent of clinics in the state.