Women's rights

  • 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.

  • February 10, 2017

    by Katie O’Connor

    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 two lists 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.

  • November 2, 2016
    Guest Post

    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?