Tuesday, July 14, 2009

Cristina Page

Analysis Abortion

Legislators Have Introduced 445 Provisions to Restrict Abortion So Far This Year

Elizabeth Nash & Rachel Benson Gold

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. Of these, 35 percent (445 provisions) sought to restrict access to abortion services. By midyear, 17 states had passed 46 new abortion restrictions.

Including these new restrictions, states have adopted 334 abortion restrictions since 2010, constituting 30 percent of all abortion restrictions enacted by states since the U.S. Supreme Court decision in Roe v. Wade in 1973. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.

Mid year state restrictions

 

Signs of Progress

The first half of the year ended on a high note, with the U.S. Supreme Court handing down the most significant abortion decision in a generation. The Court’s ruling in Whole Woman’s Health v. Hellerstedt struck down abortion restrictions in Texas requiring abortion facilities in the state to convert to the equivalent of ambulatory surgical centers and mandating that abortion providers have admitting privileges at a local hospital; these two restrictions had greatly diminished access to services throughout the state (see Lessons from Texas: Widespread Consequences of Assaults on Abortion Access). Five other states (Michigan, Missouri, Pennsylvania, Tennessee, and Virginia) have similar facility requirements, and the Texas decision makes it less likely that these laws would be able to withstand judicial scrutiny (see Targeted Regulation of Abortion Providers). Nineteen other states have abortion facility requirements that are less onerous than the ones in Texas; the fate of these laws in the wake of the Court’s decision remains unclear. 

Ten states in addition to Texas had adopted hospital admitting privileges requirements. The day after handing down the Texas decision, the Court declined to review lower court decisions that have kept such requirements in Mississippi and Wisconsin from going into effect, and Alabama Gov. Robert Bentley (R) announced that he would not enforce the state’s law. As a result of separate litigation, enforcement of admitting privileges requirements in Kansas, Louisiana, and Oklahoma is currently blocked. That leaves admitting privileges in effect in Missouri, North Dakota, Tennessee and Utah; as with facility requirements, the Texas decision will clearly make it harder for these laws to survive if challenged.

More broadly, the Court’s decision clarified the legal standard for evaluating abortion restrictions. In its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had said that abortion restrictions could not impose an undue burden on a woman seeking to terminate her pregnancy. In Whole Woman’s Health, the Court stressed the importance of using evidence to evaluate the extent to which an abortion restriction imposes a burden on women, and made clear that a restriction’s burdens cannot outweigh its benefits, an analysis that will give the Texas decision a reach well beyond the specific restrictions at issue in the case.

As important as the Whole Woman’s Health decision is and will be going forward, it is far from the only good news so far this year. Legislators in 19 states introduced a bevy of measures aimed at expanding insurance coverage for contraceptive services. In 13 of these states, the proposed measures seek to bolster the existing federal contraceptive coverage requirement by, for example, requiring coverage of all U.S. Food and Drug Administration approved methods and banning the use of techniques such as medical management and prior authorization, through which insurers may limit coverage. But some proposals go further and plow new ground by mandating coverage of sterilization (generally for both men and women), allowing a woman to obtain an extended supply of her contraceptive method (generally up to 12 months), and/or requiring that insurance cover over-the-counter contraceptive methods. By July 1, both Maryland and Vermont had enacted comprehensive measures, and similar legislation was pending before Illinois Gov. Bruce Rauner (R). And, in early July, Hawaii Gov. David Ige (D) signed a measure into law allowing women to obtain a year’s supply of their contraceptive method.

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But the Assault Continues

Even as these positive developments unfolded, the long-standing assault on sexual and reproductive health and rights continued apace. Much of this attention focused on the release a year ago of a string of deceptively edited videos designed to discredit Planned Parenthood. The campaign these videos spawned initially focused on defunding Planned Parenthood and has grown into an effort to defund family planning providers more broadly, especially those who have any connection to abortion services. Since last July, 24 states have moved to restrict eligibility for funding in several ways:

  • Seventeen states have moved to limit family planning providers’ eligibility for reimbursement under Medicaid, the program that accounts for about three-fourths of all public dollars spent on family planning. In some cases, states have tried to exclude Planned Parenthood entirely from such funding. These attacks have come via both administrative and legislative means. For instance, the Florida legislature included a defunding provision in an omnibus abortion bill passed in March. As the controversy grew, the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, sent a letter to state officials reiterating that federal law prohibits them from discriminating against family planning providers because they either offer abortion services or are affiliated with an abortion provider (see CMS Provides New Clarity For Family Planning Under Medicaid). Most of these state attempts have been blocked through legal challenges. However, a funding ban went into effect in Mississippi on July 1, and similar measures are awaiting implementation in three other states.
  • Fourteen states have moved to restrict family planning funds controlled by the state, with laws enacted in four states. The law in Kansas limits funding to publicly run programs, while the law in Louisiana bars funding to providers who are associated with abortion services. A law enacted in Wisconsin directs the state to apply for federal Title X funding and specifies that if this funding is obtained, it may not be distributed to family planning providers affiliated with abortion services. (In 2015, New Hampshire moved to deny Title X funds to Planned Parenthood affiliates; the state reversed the decision in 2016.) Finally, the budget adopted in Michigan reenacts a provision that bars the allocation of family planning funds to organizations associated with abortion. Notably, however, Virginia Gov. Terry McAuliffe (D) vetoed a similar measure.
  • Ten states have attempted to bar family planning providers’ eligibility for related funding, including monies for sexually transmitted infection testing and treatment, prevention of interpersonal violence, and prevention of breast and cervical cancer. In three of these states, the bans are the result of legislative action; in Utah, the ban resulted from action by the governor. Such a ban is in effect in North Carolina; the Louisiana measure is set to go into effect in August. Implementation of bans in Ohio and Utah has been blocked as a result of legal action.

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The first half of 2016 was also noteworthy for a raft of attempts to ban some or all abortions. These measures fell into four distinct categories:

  • By the end of June, four states enacted legislation to ban the most common method used to perform abortions during the second trimester. The Mississippi and West Virginia laws are in effect; the other two have been challenged in court. (Similar provisions enacted last year in Kansas and Oklahoma are also blocked pending legal action.)
  • South Carolina and North Dakota both enacted measures banning abortion at or beyond 20 weeks post-fertilization, which is equivalent to 22 weeks after the woman’s last menstrual period. This brings to 16 the number of states with these laws in effect (see State Policies on Later Abortions).
  • Indiana and Louisiana adopted provisions banning abortions under specific circumstances. The Louisiana law banned abortions at or after 20 weeks post-fertilization in cases of diagnosed genetic anomaly; the law is slated to go into effect on August 1. Indiana adopted a groundbreaking measure to ban abortion for purposes of race or sex selection, in cases of a genetic anomaly, or because of the fetus’ “color, national origin, or ancestry”; enforcement of the measure is blocked pending the outcome of a legal challenge.
  • Oklahoma Gov. Mary Fallin (R) vetoed a sweeping measure that would have banned all abortions except those necessary to protect the woman’s life.

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In addition, 14 states (Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, South Carolina, South Dakota, Tennessee and Utah) enacted other types of abortion restrictions during the first half of the year, including measures to impose or extend waiting periods, restrict access to medication abortion, and establish regulations on abortion clinics.

Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.

Analysis LGBTQ

A Challenge to North Carolina’s HB 2 Could Mean Greater Protection for Trans People

Imani Gandy

Courts have historically been reluctant to designate transgender people as a discrete group that has suffered discrimination and therefore needs special legal treatment. But that may be changing.

A recent lawsuit filed by two transgender North Carolinians may offer an opportunity for the U.S. Supreme Court to expand the reach of the 14th Amendment’s Equal Protection Clause to include transgender people. In the lawsuit, Carcaño v. McCrory, Joaquín Carcaño and Payton McGarry have challenged the constitutionality of the bathroom provisions of HB 2, North Carolina’s newly passed law that, among other things, prohibits transgender people from using public restroom facilities that align with their gender identity.

The law singles out transgender people and denies them a benefit that cisgender people enjoy—the ability to use public restrooms consistent with their gender identity—and so it seems to be a fairly straightforward violation of the Equal Protection Clause, which prohibits singling out a specific group of people for mistreatment under the law. That said, the Court has not yet weighed in as to where gender identity discrimination fits into the Equal Protection Clause. The speed with which state legislatures are passing bathroom discrimination bills, however, suggests that it won’t be long before the Court is asked to do so. Without constitutional protection, more of these policies targeting transgender people will continue to be implemented throughout the country.

Despite a long history of unjust discrimination against transgender people, lower courts have time and again refused to deem them a protected class because, in their estimation, transgender people—or “transsexuals,” as much of the case law describes them—are not a “discrete and insular minority.”

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Since the Court first articulated the concept in the 1930s, it has developed hallmark characteristics to determine which “discrete and insular minorities”—otherwise known as “suspect classes”require special assistance from courts when it comes to laws that discriminate against them, and how much assistance courts should render. These are groups that have historically been subjected to discrimination, groups that are a small percentage of the population and therefore in danger of tyranny by the majority, and groups with “immutable characteristics,” a term coined by the Court to describe things like race and gender.

Black people, for example, are a suspect class according to Supreme Court jurisprudence. Laws that target them for discrimination will rarely pass constitutional muster because the strict scrutiny standard, which requires that the law be narrowly tailored to promote a “compelling government interest,” is a difficult hurdle to surpass. In other words, if a law singles out Black people for different treatment, the government must have a damn good reason why, and the Court is going to start from the presumption that the government’s reason still isn’t good enough.

Women, on the other hand, are a “quasi-suspect class”: The Court has determined that laws targeting women for unequal treatment may pass constitutional muster, if the laws are substantially related to an “important government interest.”

But when it comes to transgender people, most courts have refused to call them a suspect or quasi-suspect class.

Determining that trans people should be protected by the courts does not require an academic discussion about the immutability of gender identity, however. All it requires is common sense.

The suicide attempt rate for transgender or gender-nonconforming people in the United States is 41 percent, compared to 4.6 percent among the overall population. The unemployment rate in the trans community is double what it is for the country as a whole. Violence against trans people, trans women of color in particular, is staggering, as are poverty levels. Transgender people aren’t adequately represented in government bodies, and due in part to their small numbers, they lack the political power to prevent laws that discriminate against them from being passed.

Just look at the way HB 2 was rushed through the North Carolina legislature: On February 22, the Charlotte City Council approved an ordinance that would amend existing public accommodations policies to include protection from discrimination based on “gender identity,” “gender expression,” and “sexual orientation.” A month later, after a quasi-emergency legislative session, Gov. Pat McCrory (R) was already signing a law stripping away those protections and preventing any other cities from enacting similar ordinances at a cost of approximately $42,000 to North Carolina taxpayers. The law is so apparently unconstitutional that Roy Cooper, North Carolina’s attorney general and Democratic gubernatorial candidate, refuses to defend it, calling it a “national embarrassment.”

This rush to strip LGBTQ people of rights is a case study in the rule of a tyrannical majority over a “discrete and insular minority.” Indeed, it is difficult to think of a group of people more deserving of the “suspect class” label than transgender people.

But for reasons that no court has been able to articulate satisfactorily, laws that discriminate against transgender people—some of the most vulnerable members of our society—have generally not warranted a stricter examination than rational basis review, which rarely results in legislation being struck down.

In 1977, for example, in a case called Holloway v. Arthur Andersen & Co., the Ninth Circuit Court of Appeals reasoned that “transsexuality” did not meet the indicia of a suspect classification because transsexuals are not a “discrete and insular minority” and because the plaintiff in that case did not establish that “transsexuality is an immutable characteristic determined solely by the accident of birth, like race, or national origin.”

Occasionally, lower courts have lumped gender identity in with biological sex, although trans and cis women can face different kinds of oppression. In a 2011 case, Glenn v. Brumbythe 11th Circuit Court of Appeals found that “discriminating against someone on the basis of his or her gender non-conformity constitutes sex-based discrimination under the Equal Protection Clause.” The terms “protected class,” “suspect class,” or “quasi-suspect class” are not found anywhere in the opinion.

Because of all that uncertainty, transgender people have often turned to suing under claims of employment discrimination in violation of Title VII, or education-based discrimination in violation of Title IX. And they’ve found success, even as the courts sidestep the protected class issue.

This is because a 1989 Supreme Court case, Price Waterhouse v. Hopkins, recognized a Title VII cause of action for discrimination based on an employee’s failure to conform to stereotypical gender norms. (Title VII and Title IX cases are often analyzed using the same set of legal principles.)

In 2004, in a case called Smith v. City of Salem, the Sixth Circuit Court of Appeals applied the Price Waterhouse theory to “transsexuals”: “[d]iscrimination against a plaintiff who is a transsexual—and therefore fails to act and/or identify with his or her gender—is no different from the discrimination directed against Ann Hopkins in Price Waterhouse, who in sex-stereotypical terms, did not act like a woman.”

However, this tactic is not always successful. In Johnston v. University of Pittsburgh, a transgender man was repeatedly sanctioned for using the men’s bathroom and locker room after being told that he was no longer permitted to use those facilities. He sued the university claiming discrimination under Title IX. The district court rejected his claim in March of last year, stating that the university’s policy refusing a transgender man access to the men’s locker room was based on the need to ensure the privacy of its students to disrobe and shower outside of the presence of members of the opposite sex. The court went on to note “[t]his justification has been repeatedly upheld by courts.”

As Harper Jean Tobin of the National Center for Transgender Equality and Professor Jennifer L. Levi of Western New England University School of Law pointed out in a 2013 law review article, however, “No court has ever held that there is any legal right to privacy that would be violated simply by permitting a transgender person to access a gender-specific facility that corresponds to his or her gender identity.”

For the past decade, there has been a movement toward recognizing transgender people as a protected class without any court having to actually say the words. This string of successes is partially due to the Obama administration’s federal agencies, which have implemented forward-thinking policies that apply to Title VII and Title IX claims. Without explicit constitutional protection, trans rights are relegated to the whims of the legislative and executive branches. It’s as if courts recognize that transgender people are getting the short end of the equal protection stick, but have yet to follow that recognition to the next logical step.

Until recently.

In November of last year, a judge in New York became the first federal judge to rule that transgender people are a protected class. In Adkins v. City of New York, plaintiff Justin Adkins alleged that he had been treated differently than other Occupy Wall Street protesters who were arrested during a protest on the Brooklyn Bridge in 2011 because he is transgender. Adkins filed suit alleging equal protection violations.
The City of New York moved to dismiss the lawsuit: The City argued that transgender people are not a protected class under a 2009 case, Lopez v. City of New York, which held exactly that. Adkins’ equal protection claims, therefore, should be subject only to rational basis review, making it more likely that the lawsuit would be dismissed.

Adkins countered that the appropriate standard of review is intermediate scrutiny because discrimination against transgender people is a form of gender discrimination or, alternatively, because transgender people are a quasi-suspect class and his claims are subject to intermediate review on that basis.

The court sided with Adkins, but not on the basis—as with previous court rulings—that transgender discrimination is a form of gender discrimination. Instead, the court ruled that transgender people are a quasi-suspect class in light of the Second Circuit Court of Appeals’ decision in Windsor v. United States, the precursor to the national case eventually leading to the downfall of the Defense of Marriage Act (DOMA). In Windsor, the Second Circuit ruled that “homosexual people” were a quasi-suspect class on the basis of four factors: (1) gay people have suffered a history of persecution; (2) sexual orientation has no relation to ability to contribute to society; (3) gay people are a discernible group; and (4) gay people remain politically weakened.

In November of last year, the Department of Education issued a landmark decision for transgender rights in education, holding that an Illinois school district violated anti-discrimination laws when it did not allow a transgender girl student who participated on a girls’ sports team to change and shower in the girls’ locker room, as reported by my colleague Jessica Mason Pieklo.

And just last week, the Fourth Circuit Court of Appeals held that the lawsuit of a transgender high school student named Gavin Grimm challenging his school’s bathroom policy should move forward. The court did so after the Department of Education, under the Obama administration, released guidelines warning that school rules forcing transgender students into segregated bathrooms or bathrooms inconsistent with their gender identity would be considered a violation of Title IX. Because the federal appeals court depended on the agency guidance to make that ruling, Gavin Grimm’s lawsuit is an important step in firmly establishing statutory legal protections for transgender people while waiting for the Supreme Court to determine where they stand under the Equal Protection Clause.

Plenty of school districts across the country have followed the administration’s lead and created guidelines to ensure that transgender students can safely and peacefully use their preferred bathrooms. The federal government has adopted a policy that extends the Department of Education guidance and permits federal workers to access workplace facilities that align with their gender identity as a matter of “dignity and respect,” and to “provide a workplace that is free from discrimination whether that discrimination is based on race, color, religion, sex (including gender identity or pregnancy), national origin, disability, political affiliation, marital status, membership in an employee organization, age, sexual orientation, or other non-merit factors.”

Which brings us back to Carcaño and McGarry’s lawsuit challenging the bathroom provisions in North Carolina’s HB 2. When Windsor made its way to the Supreme Court, the Court, in an opinion authored by Anthony Kennedy, invalidated DOMA without saying whether gay people are a suspect class, and ignored the Second Circuit’s ruling that theyare a quasi-suspect class. Kennedy, as he is wont to do, framed the issue as one of “human dignity.”

It is no surprise, then, that the term “dignity” is peppered throughout Joaquin Carcaño and Payton McGarry’s complaint challenging HB 2 on equal protection grounds. Carcaño and McGarry are asking a district court in North Carolina to declare them members of a protected class entitled to heightened scrutiny. If the district court refuses, they will presumably ask the Fourth Circuit Court of Appeals. If that court also refuses, it will be up to the Supreme Court to explain how discrimination against transgender people as transgender people is no big deal and warrants only rational basis review, but discrimination against transgender people as a form of gender discrimination warrants heightened scrutiny.

In this case, there is another option for protecting LGBTQ people’s rights, though not one that may be useful for future assaults. If the Supreme Court continues to punt on whether LGBTQ people are a protected class or finds that permitting transgender people to use the appropriate restroom and locker room facilities somehow implicates a heretofore undiscovered legal right to privacy, then it is in this context that Anthony Kennedy’s dignity jurisprudence, which was also the linchpin of his majority opinion in Obergefell v. Hodges, will do quite nicely: Where is the dignity in forcing transgender people to use a bathroom that doesn’t align with their gender identity?

There is none.