Interviews from the Supreme Court Steps: Late Term Abortion Cases

Ian

Rewire editor Scott Swenson and associate editor Tyler LePard went to the Supreme Court on November 8 and talked with demonstrators from both sides about the late term abortion cases before the Court.

For more on that day, read Scott's reflections and Tyler's reflections.

And think about adding your comments! What do you make of this video? The footage mostly shows comments from anti-choice protesters, including an extended interview with Patrick Mahoney of the Christian Defense Coalition. The ambiguity in these arguments is fascinating.

How would you respond?

Watch the footage below the fold.

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Rewire editor Scott Swenson and associate editor Tyler LePard went to the Supreme Court on November 8 and talked with demonstrators from both sides about the late term abortion cases before the Court.

For more on that day, read Scott's reflections and Tyler's reflections.

And think about adding your comments! What do you make of this video? The footage mostly shows comments from anti-choice protesters, including an extended interview with Patrick Mahoney of the Christian Defense Coalition. The ambiguity in these arguments is fascinating.

How would you respond?

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

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Watch the footage below.

Investigations Science

How Shoddy Evidence Finds Its Way From State Legislatures to the U.S. Supreme Court

Sharona Coutts & Sofia Resnick

Once a legislature accepts bogus facts, a larger problem can arise: Courts will frequently defer to the factual findings of state legislatures, which provides a gaping loophole for junk science to wend its way into judicial decisions all the way up to the Supreme Court.

To view the full False Witnesses gallery, click here.

If you were a South Dakota legislator looking for expert evidence on how abortion affects women, the obvious choice would be an electrical engineer based in Illinois.

Right?

It may sound absurd, but that is precisely who lawmakers cited in 2005, when they gathered testimony for a report by the South Dakota Task Force to Study Abortion.

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The legislators relied on evidence from David C. Reardon, one of the people who in the early 1980s helped concoct a faux mental illness that he calls “post-abortion syndrome.” But, as detailed in Rewire’s False Witnesses series, Reardon lacks any credentials as an authority on reproductive health care, and to call him such would be specious, to be polite.

Reardon has a degree in electrical engineering from the University of Illinois at Urbana-Champaign, and according to his public LinkedIn profile, he focuses on IT. Some of his patents have been used by a Texas-based firm called NovelPoint Security LLC, which claims that major tech companies have violated his patents, conduct also known as patent-trolling.

In addition to his electronics degree, Reardon used to claim that he had earned a Ph.D. in biomedical ethics from Pacific Western University-Hawaii, but that “school” was shuttered by the state in 2006 after an investigation concluded that it was a diploma mill. Reardon makes no mention of that credential on his current LinkedIn profile.

Yet, testify he did, along with Vincent M. Rue, Priscilla Coleman, and Joel Brind—all members of the False Witnesses group whose work has since been thoroughly discredited.

The South Dakota report concluded that abortion leads to serious mental illness, as well as risk of suicide and breast cancer—claims that have all been debunked by reputable professional research organizations. Those “findings” helped frame a 2005 South Dakota law that requires doctors to give women warnings about depression and suicidal ideation, despite the fact that medical evidence does not support any of those claims. This and other laws based on Reardon’s bogus notions have transformed South Dakota into a state where the constitutional right to choose whether to carry a pregnancy to term now hangs by a filament.

It’s a pattern that is all too familiar in state legislators around the United States, said Caitlin Borgmann, a law professor at the City University of New York who is an expert in the role of courts and legislatures in protecting constitutional rights.

“There’s a risk of this whenever you have a hot-button social issue because advocates know that social science matters,” Borgmann told Rewire. “You’re always at risk that they’re going to try to find evidence that support their position, even if it’s not based on sound methods or from someone who has the right example to give that opinion.”

Once a legislature accepts these bogus facts, a larger problem can arise: Courts will frequently defer to the factual findings of state legislatures, which provides a gaping loophole for junk science to wend its way into judicial decisions all the way up to the U.S. Supreme Court.

“Unfortunately it is true that the courts sometimes do look to the legislative record, and in fact they did that when they looked at the partial-birth abortion ban, in Gonzales v. Carhart,” Borgmann said. “The effect of that is that you can have decisions that affect people’s constitutional rights being made on very shoddy factual findings.”

Experts in One Area, Testifying in Another

Of the many uses for a law degree, Teresa Stanton Collett has developed a new one: She is frequently called upon to testify in favor of forced pregnancy laws, yet her evidence has trampled into the terrain normally left to sociologists, psychologists, and, well, people who understand data.

In 2012, Collett testified before the U.S. House Judiciary Committee Subcommittee on the Constitution and Civil Justice and suggested that pregnant minors are often pressured into having an abortion by their older boyfriends. Collett cited figures from a report by the Centers for Disease Control and Prevention, “suggesting that there is [sic] in fact differences in power and status between the sexual partners.”

Collett has also testified in Alaska, in two lawsuits challenging restrictions on minors’ ability to obtain abortions without the involvement of their parents. Since 2010, Collett has earned $176,000 from just two states—Alaska and Oklahoma—that hired her to support laws intended to strip away the right to choose whether to carry a pregnancy to term.

In her testimony in these cases, Collett assessed data from a wide range of sources, which she used to bolster claims that requiring minors to obtain parental consent in order to have an abortion affects the rates of teen pregnancy and teen abortions.

While there’s nothing wrong with lawyers citing statistics, Janet Crepps—senior counsel for the Center for Reproductive Rights, which represented the plaintiffs, Planned Parenthood of Alaska, in these cases—told Rewire that the problem was that Collett went beyond citing statistics, and used them to do her own analysis and draw her own conclusions.

“What she did was she went onto the website where there is publicly available information, like how many births there were to a certain age group, how many abortions there were, and she offered testimony that the parental involvement requirement in Texas had had a certain impact,” Crepps said. “Our objection was that she was not qualified to offer that kind of information, because she’s not a social scientist and she couldn’t take into account confounding variables, such as a reduction overall in the abortion rate throughout the country, whether there had been a change in sex education or access to birth control. And she was just offering raw numbers the way you or I could go to the website and say, ‘Oh, look, here’s how many abortions that were before the law, and here is how many that were after the law, so the law must be having X effect.’”

“We objected again because she’s not a social scientist, and the fact that she’s read a bunch of studies doesn’t in my opinion make her an expert,” Crepps concluded. “But the judge let that testimony in.”

When Ideological Bias Trumps Expertise

One member of the False Witnesses group who does have expertise in statistics is Michael J. New, an assistant professor of political science at the University of Michigan-Dearborn, who holds a master’s in statistics and a Ph.D. in political science, both from Stanford University, according to his official online biography.

New has also testified before Congress in favor of anti-choice laws. In March 2012, for example, he testified before the House Judiciary Committee in support of the Child Interstate Abortion Notification Act (CIANA), which would prohibit the act of transporting a minor across state lines in order to obtain an abortion. In his testimony, New told the committee, “I am confident the Child Interstate Abortion Notification Act would lead to both fewer abortions and better public health outcomes for teen girls.”

New claimed that “the knowledge that their parents will be involved with an abortion decision provides teen girls with a strong disincentive to engage in unprotected sexual activity,” based on a 2003 Journal of Health Economics study, which he says found that parental involvement laws reduced the pregnancy rate of 15- to 17-year-olds by 4 to 9 percent.

However, New’s true intention is not simply to provide objective evidence of how laws will affect women and girls. As he has publicly admitted, his real goal is to effectively ban abortion.

In 2012, New spoke on a panel at the socially conservative Values Voter Summit, an annual conference in Washington, D.C., sponsored by the Family Research Council. During his PowerPoint presentation, New explicitly stated that laws often cloaked in the pretense of protecting women are in fact intended to make abortion impossible to access.

“The best thing you can do when you get home is support a variety of state pro-life bills, and essentially, if your state has them, they can be strengthened,” New said. “Require the woman to see an ultrasound, or require two trips to the clinic. That raises the costs; that stops the abortion from happening.”

Borgmann, of the City University of New York, said that ideology is highly relevant, as it can affect an expert’s credibility. And while legislative hearings are not bound by the same rules as courts, it’s still important for lawmakers to ask tough questions to discover if ideology is trumping the objective view of experts appearing at legislative hearings.

“You can’t compare legislatures to courts or expect them to have the same procedures because they serve a very different function,” she said. “The most you could hope for is that legislators would recognize the flaws in the process and take things with a grain of salt, and take a look at the background of the people testifying.”

Judges Wise Up to Some False Witnesses

Courts, said Borgmann, are a different forum: They should view factual “findings” by legislatures with a heavy dose of skepticism, especially given that anti-choice activists have clearly realized that state legislatures provide a gaping loophole in the otherwise strict rules about what judges will allow as expert evidence.

In certain cases, judges are already calling out these experts for their failure to disclose the fact that they are anti-choice zealots, or that their research has been discredited.

In September and October 2014, judges lambasted both Texas and Alabama for hiring a collection of so-called experts to testify in favor of repressive abortion laws. The experts in question were John M. Thorp and James C. Anderson—both members of the False Witnesses group. Their testimony was orchestrated by a third False Witness, Vincent M. Rue.

According to Molly Redden’s report about the Alabama case in Mother Jones, U.S. District Judge Myron H. Thompson obliterated Anderson’s claims about the risks of abortion:

“Either [Anderson] has extremely impaired judgment; he lied to the court as to his familiarity with Rue; or he is so biased against abortion that he would endorse any opinion that supports increased regulation on abortion providers. Any of these explanations severely undermines Anderson’s credibility as an expert witness.”

This type of scrutiny is not only welcome, but is in fact the way that courts are supposed to operate, said Borgmann. Recent studies have found that some appellate courts have broken their own rules about evidence, and have gone so far as to do their own online research—a step that opens the judicial process up to the influence of propaganda, especially in contentious areas such as reproductive rights.

A better approach, said Borgmann, would be for lower courts to cast a doubtful eye over any findings from state legislatures, and to aggressively test the qualifications and biases of any purported expert testimony.

“Courts should be very careful when they are looking at laws where the legislature has limited constitutional rights,” she said. “Testimony that happens in court has a much better chance of revealing problems like that someone doesn’t even have an education in the area they’re talking about, or that their theories are widely discredited. These things should come out in trial.”

Analysis Law and Policy

Six Supreme Court Cases Equality Advocates Should Watch This Term

Jessica Mason Pieklo

The Roberts Court begins its latest term with a docket full of cases that should make many of us nervous.

When the U.S. Supreme Court convenes Monday, it will be the beginning of Chief Justice John Roberts’ tenth year at the helm, and with an unfinished docket of cases already packed with hot-button issues, his influence on the Court is apparent.

The Supreme Court, like it did in its most recent term, will venture into issues of religious liberties and free speech, in addition to tackling racial gerrymandering and pregnancy discrimination in the workplace. It’s a daunting docket for equality advocates and could be one of the most radical years for the Roberts Court yet.

The Supreme Court denied review in all of the pending marriage equality cases, which makes marriage equality the law of the land in Utah, Wisconsin, Indiana, Oklahoma, and Virginia. It means those states with same-sex marriage bans within the Fourth, Tenth, and Seventh Circuit Court of Appeals will soon have those bans fall.

Roberts and his conservative colleagues are picking up right where they left off last term: by radically, albeit incrementally, rolling back the historic achievements of the New Deal and Civil Rights eras.

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Here’s our list of cases to watch, including those that haven’t yet made it on the Court’s calendar, but still could.

1. Holt v. Hobbs

The second day of the Roberts Court term brings the first big test for religious liberties in the wake of the Hobby Lobby decision. At issue in Holt v. Hobbs is whether an Arkansas Department of Correction’s grooming policy that bans all facial hair for inmates, arguably for security purposes, violates the Religious Land Use and Institutionalized Persons Act (RULPA) of 2000, a federal law that requires accommodations for prisoners’ religious practices in some settings.

Arkansas inmate Gregory H. Holt, who goes by the name Abdul Maalik Muhammed and identifies as a devout Muslim, is serving a life sentence for burglary and domestic battery. The prison in which Holt is incarcerated bans all facial hair for inmates, with an exception for inmates with skin conditions who wish to grow a quarter-inch beard.

Holt had requested an accommodation from that policy to allow him to grow a half-inch beard, in accordance with his faith. Correctional officers denied his request and Holt sued, arguing that RULPA grants him the right to grow the half-inch beard. The federal trial court denied his claims, and the U.S. Court of Appeals for the Eighth Circuit affirmed. Holt’s attorneys appealed to the Supreme Court, which, after granting a temporary injunction allowing Holt to wear his beard, agreed to review the case.

2. Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama

This is a pair of appeals that tests the constitutionality of a state legislative redistricting plan that challengers claim “packs” more Blacks into districts that already have Black majorities. This redistricting, according to the appeals,  results in too little influence for Blacks in the legislature.

The Alabama Black Caucus and other Democratic lawmakers in the state claim that the redistricted map created in 2012 illegally limits Black voting strength and makes it harder to elect Democrats outside the majority-Black districts.

A panel of three federal judges ruled 2-1 last year that the districts were not discriminatory and violated neither the Voting Rights Act nor the Constitution. In the lower court decision, U.S. Circuit Judge Bill Pryor wrote that “the overwhelming evidence in the record suggests that black voters will have an equal opportunity to participate in the political process the same as everyone else.”

He was joined by U.S. District Judge Keith Watkins. U.S. District Judge Myron Thompson, the only Black judge on the panel, dissented in a detailed and powerful opinion.

3. Elonis v. United States

This case involves Anthony Elonis, a Pennsylvania man convicted in 2010 under federal law for posting a series of threatening messages on his Facebook page. Elonis has challenged his conviction arguing that his messages about killing his ex-wife and shooting up an elementary school were not “true threats,” but rather protected free speech. (He claimed they were rap lyrics.)

The courts, in trying to find the balance between responding to legitimate threats and unconstitutionally stifling speech, have made a mess of First Amendment law. The Roberts Court is running headlong into this sticky legal issue.

Federal courts have split on whether that the speaker intended the statement to be a threat or whether a “reasonable person” would find the statement threatening. The Roberts Court, in granting a review, is set to look at both questions of whether the “subjective intent” of the speaker governs generally for purposes of the First Amendment, but also what standard applies to the statute under which Elonis was convicted.

This statutory question was added by the Supreme Court when it decided to grant review, and leaves open the possibility of a narrow ruling, which is good because a broad ruling from the Court could have far-reaching consequences that could affect the strategies of anti-choice activists who have used violence and intimidation as tools in the abortion rights battle.

Extreme anti-choice advocate Angel Dillard has claimed her letter promising explosives under the car of Kansas abortion provider Dr. Mila Means did not violate the Freedom of Access to Clinic Entrances (FACE) Act because it wasn’t a “true threat.” Dillard sent the letter to Means to dissuade her from performing abortions in Wichita after the murder of Dr. George Tiller.

Dillard also sought to exclude her jailhouse communications with Tiller’s confessed murder, Scott Roeder, as protected by a “ministerial exception,” claiming she was visiting Roeder to minister to him. In another case, Mark Holick, a pastor who created and distributed a “wanted”-style poster featuring the picture and home address of a Wichita abortion clinic operator, argues his posters were not threats but rather protected speech.

4. Young v. United Parcel Service 

The Roberts Court in December will hear arguments considering just how far employers must go in accommodating pregnant workers.

Peggy Young, a former UPS employee, became pregnant and was told by her doctor not to lift more than 20 pounds during the first 20 weeks of her pregnancy. Young approached UPS for a light-duty assignment as a temporary accommodation for the lifting restrictions related to her pregnancy. UPS refused her request, saying the company had a “pregnancy-blind” policy of giving light-duty job assignments to people who are injured on the job, those who are disabled under federal disability rights law, or those who have lost their federal driver certification.

Because UPS wouldn’t accommodate Young, she was forced to take unpaid leave for the rest of her pregnancy and, as a result, lost wages and her health insurance coverage just a few months prior to the birth of her child.

Young sued, claiming UPS’s refusal to offer her a light-duty assignment to accommodate her pregnancy violated the Pregnancy Discrimination Act, which requires employers to treat pregnant employees “similar in their ability or inability to work” as non-pregnant employees when deciding accommodations. Young and her attorneys argued that UPS’s “pregnancy-blind” policy violated the law, because by denying Young an accommodation available to others, it treated Young, a pregnant worker, differently than her non-pregnant coworkers who were similar in their inability to work.

While Young was litigating her claims, Congress amended another law, the Americans With Disabilities Act, to require employers to make reasonable accommodations for a broad range of temporary disabilities that would affect Young’s claims. However, those amendments were not in place when Young sued, leaving open the question of if, and how, the amendments to the Americans With Disabilities Act work with the Pregnancy Discrimination Act to require employers to accommodate workplace requests like Young’s.

That is the question the Roberts Court is set to answer.

5. Williams-Yulee v. Florida Bar 

The Roberts Court couldn’t resist taking another campaign-finance case, only this term we’ll see the ripple effect of the court’s 2010 Citizens United decision on judicial elections.

This case involves the question of whether states can prohibit judicial candidates from personally soliciting campaign donations. Initially brought by a Florida defense attorney running for county judge, the case comes at a time when more judges and judicial candidates have had to raise higher sums than ever before.

Since 2000, state supreme court candidates have raised $263 million, and 20 states have seen shattered records for judicial election spending. Not surprisingly, states with high-profile anti-abortion and anti-marriage equality campaigns like Iowa, Florida, North Carolina, and Tennessee have some of the highest amounts of political spending in judicial elections.

Thirty states have laws or rules of conduct prohibiting judicial candidates from personally soliciting campaign contributions in some fashion, including blanket bans on solicitations, to bans on seeking endorsements of political interest groups. Of those 30 personal solicitation bans, 22 have some kind of stand-alone, blanket prohibition like the one at issue in Williams-Yulee, which means this case provides the Roberts Court with a unique opportunity to strike down an entire infrastructure of campaign laws.

6. Texas Department of Housing and Community Affairs v. The Inclusive Communities Project

This is an important test of the Fair Housing Act (FHA), one of the cornerstones of legislation to come from the Civil Rights movement of the 1960s and ’70s. The Fair Housing Act prohibits racial discrimination by landlords, homeowners, state housing authorities, and others, and this case concerns the kind of proof plaintiffs need to show that the government and/or developers are discriminating in housing and redevelopment laws.

Under most civil rights statutes, one way plaintiffs can show unlawful discrimination is through statistical evidence that shows a policy or law has a disproportionately adverse effect for minorities. These claims, known as “disparate-impact” claims, essentially allow a plaintiff to show discrimination without meeting the extremely difficult bar of proving the law or policy intended to discriminate against minorities.

The Department of Justice has used disparate impact claims under the FHA to go after banks and lenders for their racially discriminatory lending practices during the sub-prime mortgage boom and bust. This case involves development policies for subsidized low-income housing in Dallas and claims that tax credits for such housing were approved only in low-income and minority-heavy neighborhoods, while denying similar tax credit applications in majority-white and majority-Hispanic neighborhoods.

Conservatives have tried for years to gut the FHA, and this case could give them just that opportunity. Community groups challenging the Dallas development policy won at both the lower and appeals courts. Instead of appealing to the Roberts Court on the merits of the case—that is, whether or not the Dallas policy had a disparate impact on minorities—attorneys defending the Dallas policy argue the statute shouldn’t recognize disparate-impact claims at all.

Those six cases alone make this term one to watch with the Roberts Court. But the term could, and likely will, get more interesting.

It is possible the Supreme Court will take up cases involving truth-in-advertising requirements for deceptive crisis pregnancy centers, as well as voter ID laws. Meanwhile legal challenges to federal subsidies for Obamacare, the accommodation available for religiously affiliated nonprofits to the birth control benefit, as well as the recent wave of anti-abortion hospital admitting privileges requirements are lurking in the shadows and could still find their way before the Roberts Court this term.