Toni Van Pelt spoke this morning at a rally organized by the ACLU legal team on the steps of the U.S. Supreme Court.
Newport News Times, 29 June 2016
By Nel Ward, Central Oregon Coast Chapter of the National Organization for Women (NOW)
WASHINGTON — The Supreme Court, in an unsigned unanimous opinion, announced on Monday that it would not rule in a major case on access to contraception, instructing lower courts to explore whether a compromise was possible.
The ruling was the latest indication that the eight-member Supreme Court is exploring every avenue to avoid 4-to-4 deadlocks, even if the resulting action avoids deciding the question it had agreed to address.
The case, Zubik v. Burwell, No. 14-1418, was brought by religious groups that object to providing insurance coverage for contraception to their female workers.
Less than a week after the case was argued in March, the court issued an unusual unsigned order asking the parties to submit supplemental briefs on a possible compromise. In Monday’s ruling, the court said those briefs suggested that a compromise was possible, but that it should be forged in the lower courts.
“Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans receive full and equal health coverage, including contraceptive coverage,’” the court said, quoting from a brief filed by the government.
The Supreme Court urged the lower courts to “allow the parties sufficient time to resolve any outstanding issues between them.”
The justices stressed that they were deciding nothing.
“The court expresses no view on the merits of the cases,” the opinion said. “In particular, the court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.”
Justice Sonia Sotomayor filed a concurrence, which was joined by Justice Ruth Bader Ginsburg, underscoring the limited nature of the court’s action and cautioning lower courts not to read anything into it.
“Today’s opinion does only what it says it does: ‘affords an opportunity’ for the parties and courts of appeals to reconsider the parties’ arguments in light of petitioners’ new articulation of their religious objection and the government’s clarification about what the existing regulations accomplish, how they might be amended, and what such an amendment would sacrifice,” she wrote. “As enlightened by the parties’ new submissions, the courts of appeals remain free to reach the same conclusion or a different one on each of the questions presented by these cases.”
The case was the court’s second encounter with the contraception requirement and the fourth time it has considered an aspect of President Obama’s health care law, the Affordable Care Act. It built on one from 2014, Burwell v. Hobby Lobby Stores, which said a regulation requiring family-owned corporations to pay for insurance coverage for contraception violated a federal law protecting religious liberty. Justice Samuel A. Alito Jr., writing for the majority, said there was a better alternative, one the government had offered to nonprofit groups with religious objections.
That alternative, or accommodation, was at issue in the new case. It allowed nonprofit groups like schools and hospitals that were affiliated with religious organizations not to pay for coverage and to avoid fines if they informed their insurers, plan administrators or the government that they sought an exemption.
Many religious groups around the nation challenged the accommodation, saying that objecting and providing the required information would make them complicit in conduct that violates their faith.
The groups added that they should be entitled to the outright exemption offered to houses of worship like churches, temples and mosques. Houses of worship are not subject to the coverage requirement at all and do not have to file any paperwork if they choose not to provide contraception coverage.
At arguments in March, several justices indicated that they thought the accommodation violated the federal Religious Freedom Restoration Act because it allowed the government to “hijack” the insurance plans of the religious groups that are the petitioners in the case.
Days later, the court called for more briefs in an order that asked the parties to “address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.”
The order sketched out how this might work, asking the two sides to address whether it would be acceptable for the groups to do no more than to buy insurance plans for their workers that do not include contraception coverage.
On Monday, the court said the unusual tactic had worked and that both sides “now confirm that such an option is feasible.”
The religious groups, the court said, quoting their brief, “have clarified that their religious exercise is not infringed where they ‘need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,’ even if their employees receive cost-free contraceptive coverage from the same insurance company.”
“The government,” the court continued, “has confirmed that the challenged procedures for employers with insured plans could be modified to operate in the manner posited in the court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.’”
Most federal appeals courts have ruled for the government in challenges to the accommodation.
Among the religious groups challenging the accommodation are an order of nuns based in Baltimore called the Little Sisters of the Poor, which operates nursing homes around the country. The nuns object to playing any role in providing any of the forms of contraception approved for women by the Food and Drug Administration.
Other challengers only object to covering intrauterine devices and so-called morning-after pills, saying they are akin to abortion. Many scientists disagree.
The religious groups sued under the Religious Freedom Restoration Act of 1993, which says that government requirements placing a substantial burden on religious practices are subject to an exceptionally demanding form of judicial scrutiny.
The two sides differed about whether the accommodation was such a burden. The religious groups said that adhering to their faith would subject them to crushing fines in the tens of millions of dollars.
“The government wants petitioners to do precisely what their sincere religious beliefs forbid — and it is threatening them with draconian penalties unless they do so,” Paul D. Clement, a lawyer for several religious groups, told the justices in a brief.
Solicitor General Donald B. Verrilli Jr., in a brief for the Obama administration, said, “We do not question the sincerity or importance of petitioners’ religious beliefs.” But, he added, “a sincere objection to opting out of a legal requirement based on the knowledge that the government will then arrange for others to fulfill the requirement does not establish a substantial burden.”
Some protected women from “the embarrassment of hearing filthy evidence” as members of a jury, a sheltering instinct that resulted in female defendants being judged by panels composed only of men.
Some shielded women from having to work nights as pharmacists in hospitals – but not as low-wage custodians.
Some barred women from working as bartenders – jobs coveted by men – but not as cocktail waitresses.
The brief is filed by professors from across the country in the court’s upcoming abortion case, Whole Women’s Health v. Hellerstedt. The brief urges the justices to examine the intent of Texas legislators who say they approved new restrictions on abortion providers as health safeguards for the women undergoing the procedure.
“Any new law that claims to protect women’s health and safety should be scrutinized carefully to assess whether its ostensibly protective function actually serves to deny liberty and equal citizenship to women,” said the brief filed by 16 historians, 13 of whom are women.
It is part of an avalanche of amicus briefs filed by both sides in the case, which will be the court’s most important look at abortion rights in decades.
And the attempt at persuasion, like many of the others, is representative of a specialized brand of legal brief that aims to school the court not about law but about life.
“Brandeis briefs” are long on history and science and short on detailed legal citations. The first of its kind was filed in 1908 by lawyer Louis D. Brandeis, who eight years later became famous as the first Jewish Supreme Court justice.
Last month, Justice Ruth Bader Ginsburg discussed the importance of the revolutionary brief at – where else? – Brandeis University, in Waltham, Mass., at a ceremony marking the centennial of his Supreme Court appointment.
Brandeis’s submission “was unlike any the court had yet seen. It was to be loaded with facts and spare on formal legal argument,” Ginsburg said. The facts consumed 98 of the brief’s 113 pages.
“The aim of the Brandeis brief was to educate the judiciary about the real world in which the laws under inspection operated,” Ginsburg said.
Some have criticized such briefs as a way to bring before the justices arguments and unverified conclusions that are outside the record.
But they are an important part of modern life at the court, and both the Texas attorney general and the Center for Reproductive Rights lawyers challenging the state’s law make great use of them.
The one that has gotten the most attention is a brief filed by 113 lawyers who recount their own abortions and say they “would not have been able to achieve the personal or professional successes they have achieved” without access to the right.
It is answered by a “Brandeis-style brief” in which the group Priests for Life “presents to this court the compelling testimonies of individuals who have been harmed by the adverse effects of abortion.”
There are similar competing visions on both sides from physicians to social scientists and legal scholars.
What makes the feminist historian offering stand out is that it is, in effect, a Brandeis brief that seeks to refute the original Brandeis brief.
“You noticed,” said San Francisco lawyer Kenneth M. Fong, who wrote the brief with colleague Christine A. Scheuneman.
Brandeis’ 1908 brief was filed in Muller v. Oregon, defending that state’s law limiting the daily hours of women working in factories and laundries (but not those of males). Brandeis argued that it was constitutional for the state to recognize the differences between the sexes.
According to one source quoted in his brief, for women, “free time is no resting time, as it is for a man.” A “working girl” should be “learning to keep house if her future household is not to be a disorderly failure.”
He added: “The overwork of future mothers directly attacks the welfare of the nation.”
The court upheld the law unanimously, and Ginsburg said “New Deal-oriented professors” in her late-1950s law classes taught the case as a triumph for the efforts to improve conditions and the lives of workers. The Oregon law was meant as a first step in limiting hours for all workers.
If she disagreed with the substance of Brandeis’s arguments, Ginsburg liked the tactic. In her speech at the university, she said that “copying Brandeis’s method” was useful in her efforts as a lawyer challenging laws that treated men and women differently.
“Laws once thought to operate benignly in women’s favor – keeping them off juries and relegating them to ‘women’s work’ in the military, for example – in time came to be seen as measures impeding women’s opportunity to participate in and contribute to society,” Ginsburg said.
The Brandeis brief had come full circle, and not surprisingly, the historians’ effort notes Ginsburg’s victories at the Supreme Court, and echoes her arguments from decades ago.
“Even when protection is a genuine goal, not a pretext, and even where an apparently protective regulation in theory might serve to safeguard health, such laws may function in practice to limit women’s freedom and autonomy,” it says.
In oral arguments for the Texas abortion case, the three female justices upend the Supreme Court’s balance of power.
JAN 25, 2016 1:08 PM
The Supreme Court won’t allow North Dakota to implement a law that criminalizes abortion after just six weeks — a point before many women even realize they’re pregnant — in a move that effectively blocks the harshest abortion ban in the country.
Although North Dakota’s six-week ban was first passed in 2013, it has been prevented from taking effect ever since then. A lower court decision determined the law violates women’s constitutional right to an abortion under Roe v. Wade. North Dakota officials appealed to the Supreme Court hoping for a reversal of that decision, but on Monday, the justices declined to take up the case.
The Supreme Court also recently turned away a similar case from Arkansas, where officials are seeking to implement a 12-week abortion ban, ensuring that law will remain blocked as well.
Both North Dakota’s and Arkansas’ abortion laws are known as “fetal heartbeat” bans. This legislation seeks to criminalize abortion after a fetal heartbeat can first be detected, though the two laws define different points in pregnancy because they rely on different kinds of ultrasound technology.
It makes sense that these states’ aggressive efforts to ban abortion have been unsuccessful in the courts. Under Roe v. Wade, abortion is legal up until the point of viability — generally understood to be around 24 weeks of pregnancy — and at least while Roe still stands, courts have been hesitant to dramatically narrow the available window for legal abortion services. Although some states are testing the bounds by enacting 20-week abortion bans, particularly blatant attempts to curtail Roe‘s protections represent a riskier strategy for abortion opponents.
“We knew it was unlikely and it came as no surprise,” North Dakota Attorney General Wayne Stenehjem said in response to the Supreme Court’s refusal to take up the case.
But that doesn’t mean abortion rights are safe at the Supreme Court. This year, the justices are set to hear a different abortion-related case regarding a Texas law — a law that doesn’t ban abortion outright, but that limits access to the procedure with sham regulations enacted under the guise of protecting “women’s health.”
Under that law, which requires abortion providers to comply with burdensome and expensivestandards, dozens of Texas clinics have been forced to close because they can’t afford to navigate the extra red tape. Although these new standards are medically unnecessary, abortion opponents have successfully framed the law as an effort to make the procedure safer and better regulated — ultimately leaving abortion access out of reach for thousands of women.
“We continue to look to the nation’s highest court to protect the rights, health, and dignity of millions of women and now strike down Texas’ clinic shutdown law,” Nancy Northup, the president of the Center for Reproductive Rights, said in a statement.
However, there are no guarantees. Unlike harsh abortion bans, this more indirect strategy to undermine abortion rights has been quite successful for abortion opponents.
As Texas-style regulations have swept the country, lower courts have been compelled by arguments that these laws don’t directly violate Roe v. Wade — as opposed to, for example, a six-week ban. And if the high court agrees that Texas’ law should be allowed to stand, states will have even more legal cover to enact laws that don’t explicitly ban abortion, but that essentially barricade access to legal abortion services for women who can’t afford to travel hundreds of milesto get to the nearest clinic.
On Roe Anniversary, Let’s Remember the U.S. Women for Whom Abortion Is a Right on Paper Only (Including Women on the Oregon Coast and Eastern Oregon)
Abortion is legal, it is a right, and it is a medical procedure that should be available to every woman in the United States. However, even in Oregon, which has absolutely no restrictions on abortion, access to abortion is almost non-existent. There are only 12 clinics in Oregon** that perform abortions, and, except for one in Bend, they are ALL along the I-5 corridor. If a woman lives on the Oregon Coast or Eastern Oregon, she must travel 50 miles or more (some over 100 miles) to access abortion services. Not only does this add significantly to the cost (after the procedure she will have to stay overnight near the clinic), it also adds emotional stress.
By Heather Boonstra January 19, 2016
This March, the Supreme Court will hear a case that presents the most serious threat to abortion rights in decades. At issue in this case, Whole Woman’s Health v. Cole, is whether Texas politicians can enact sham health regulations that are a thinly veiled attempt to force most or all abortion providers in the state to close down.
If the court upholds the Texas law, it will make legal abortion harder or impossible to obtain for many women. Some other states have already enacted similar laws or would rush to do so. And, unquestionably, the effect will fall hardest on the most vulnerable women.
But forgotten in this debate is that, for many women in the United States, safe and legal abortion has long been out of reach. Since 1976, the Hyde Amendment has severely restricted abortion coverage for low-income women enrolled in Medicaid, making real reproductive choice a privilege of those who can afford it—rather than a fundamental right.
To counter the harmful impact of this long-standing policy, supporters of abortion rights in Congress have coalesced behind a bill that would lift the Hyde Amendment. The Equal Access to Abortion Coverage in Health Insurance (EACH Woman) Act would restore Medicaid abortion coverage so that our country’s poorest women no longer face a financial barrier to safe and legal abortion care.
The Hyde Amendment and Its Progeny
Bearing the name of its author and chief promoter, the late Rep. Henry Hyde (R-Ill.), the Hyde Amendment bans abortion coverage for women insured by the Medicaid program, except in cases of rape, incest or where a woman’s life is threatened. The harmful impact of the Hyde Amendment is only mitigated for women who happen to live in the 17 states that use their own funds to provide abortion coverage for Medicaid recipients.
In addition to the Hyde Amendment itself, Congress has enacted a series of policies that similarly restrict abortion coverage or services for other groups of women who obtain their health insurance or health care from the federal government, including federal employees, military personnel, federal prison inmates, poor residents of the District of Columbia (since Congress can dictate policy to DC) and Native American women.
The Affordable Care Act (ACA), enacted in 2010, also incorporates the Hyde Amendment. Given the ACA’s significant Medicaid expansion, the law represents the largest expansion of abortion funding restrictions since the Hyde Amendment was first implemented. The ACA also invites states to prohibit abortion coverage in private plans—and many have done so: Twenty-five states have laws essentially banning abortion coverage in plans that will be offered through the health insurance exchanges, including 10 states that ban insurance coverage of abortion more broadly in all private insurance plans regulated by the state. And, just like the federal government, 21 states have banned abortion coverage in insurance plans for public employees.
Insurance Coverage Matters
Women who lack insurance coverage for abortion often struggle to pay for the procedure. Many women are forced to divert money meant for living expenses—such as rent, food or utilities and other bills—to pay for their procedure.
Because of the time and effort needed to scrape together the funds, many low-income women have to postpone their abortion—increasing both the cost and risk of the procedure. In 2010–2011, the median charge for an abortion was $495 at 10 weeks’ gestation, but jumped to $1,350 at 20 weeks. And the risk of complications from abortion—although exceedingly small at any point—increases exponentially with gestational age.
Thus, a low-income woman seeking an abortion is often caught in a vicious cycle: The longer it takes for her to obtain the procedure, the harder it is for her to afford it—even as the risk to her health increases.
It is especially perverse that many of the same lawmakers who most vigorously oppose the availability of later abortion also insist on policies like the Hyde Amendment that push women’s abortions later into pregnancy.
Although most low-income women who want an abortion manage to obtain one, many do not, and the result is an unplanned and often unwanted birth. One in four women with Medicaid coverage subject to the Hyde Amendment who seek an abortion are unable to obtain one due to the lack of coverage. And women who are denied abortion care and subsequently have a child (or another child) are statistically more likely than women who obtained an abortion to be unemployed, living below the poverty line and on public assistance.
EACH Woman Act
The issue of Medicaid funding for poor women goes to the heart of who has access to abortion in this country and under what circumstances. Restrictions on public and private insurance coverage of abortion fall hardest on poor women, who are already disadvantaged in a host of other ways, including in their access to the information and services necessary to prevent unplanned pregnancy in the first place.
As a first step in an accelerating, albeit undeniably uphill, campaign to repeal the Hyde Amendment, abortion rights lawmakers and advocates have united behind the EACH Woman Act. The bill offers a model for restoring abortion coverage for women enrolled in Medicaid, and serves to inform and activate grassroots activists, the public and legislators around the basic principle that poor women deserve the same reproductive rights as those who are more fortunate.
For too long, antiabortion politicians have been allowed to get away with denying a woman abortion coverage just because she is poor. It was wrong and unjust 40 years ago. It still is. And that is why reproductive rights supporters are now saying “Enough.”
Boonstra is the Guttmacher Institute’s director of Public Policy. She is responsible for promoting the institute’s sexual and reproductive health agenda in federal law and policy.
**For a list of clinics that perform abortions in Oregon: http://www.nroptions.org/resource-center/abortion-clinics