Commentary Law and Policy

Wal-Mart Gets a Free Pass For Bias From the Supreme Court

Rinku Sen

The Supreme Court issued its decision in the Dukes v. Wal-Mart sex discrimination case yesterday, a frustrating ruling that doesn’t challenge the existence of bias, but that exempts the company from accountability.

This article was originally published at Colorlines and is reprinted here with permission.

The Supreme Court issued its decision in the Dukes v. Wal-Mart sex discrimination case yesterday, a frustrating ruling that doesn’t challenge the existence of bias, but that exempts the company from accountability. The case highlights the difficulty of addressing discrimination at a time when intentional bias is both illegal and socially unacceptable, and yet obvious gender and racial gaps remain. If much, perhaps even most, discrimination is unintentional on a personal level, what responsibility do employers (or our government, or each of us as individuals) have for addressing its institutional consequences?

The court decided 5-4 that up to 1.5 million female employees cannot file suit together as a class. The court’s conservative majority raised questions not just about whether the women were discriminated against through the same mechanisms, but also about the validity of the plaintiffs’ central argument—that the combination of a highly centralized corporate culture and excessive discretion among managers systematically disadvantaged women.

Wal-Mart’s numbers are not in question. Women comprise more than 65 percent of hourly employees, but only 34.5 percent of managers. This is significantly different from similar retail chains, in which women hold 56.5 percent of management jobs. It takes women on average 4.38 years to rise to a management post at Wal-Mart, but takes men only 2.86 years. Of 41 Wal-Mart regional vice presidents, only five are women, and only 9.8 percent of Wal-Mart’s district managers are women. Wal-Mart’s internal documents acknowledge that they are far behind the rest of their field.

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The plaintiffs in the case argued that Wal-Mart’s corporate culture invited managers to act on their own worst instincts. They cited the research of William Bielby, a sociologist who posits that people naturally hold stereotypes and biases, often unconsciously, and we act on them when we have the power to do so and nothing stops us.

At Wal-Mart, male managers acted on their bias against equitable promotions and pay because the company’s centralized practices and policies give them huge amounts of discretion in personnel decisions. The discretion itself is the policy, and it stands out in a company whose corporate headquarters micromanages nearly everything, down to choosing the temperature and music in every store. Sophisticated computer systems and dozens of daily reports let headquarters know exactly what is happening on an hourly basis. But Wal-Mart’s top management chose to let store-level managers keep on discriminating.

The gateway to promotion at Wal-Mart is its management training program; one has to go through this to become an assistant manager. Wal-Mart offered employees no information about how to get into the program until three months before this case was filed, and there was no system by which an employee could even express interest in it. (If there had been, there would be records of how many male and female employees had tried to become managers and been turned down.) Instead, managers identified potential future colleagues with a tap on the shoulder. Wal-Mart will argue that either coincidence or just a few sexist managers among many account for the glaring gap in the numbers of male and female management recruits, rather than a known set of central policies.

Certainly, there has been some blatantly sexist behavior among Wal-Mart managers, such as management meetings in which men called their female colleagues “little Janie Qs.” But mostly, Wal-Mart’s system runs on silence. Silence about what exactly are the criteria for management positions; silence about the additional subjective criteria that individual managers apply for promotion; silence about the actual availability of management positions; silence about how you decide whether to give an employee a raise of 10 or 25 cents per hour. Male managers fill all that silence, the plaintiffs’ lawyers and expert witnesses said, with subjective decisions that are often influenced by stereotypes.

Our laws do not require discrimination to be deliberate or even conscious before they require a remedy. So-called “disparate impact” is supposed to be enough for the law to step in. In this case, not only was there obvious disparate impact, but Wal-Mart’s knowledge of the gap supports the charge of knowing disparate treatment as well. Unfortunately, conservative members of the court ruled against the notion that the company is responsible, saying that different plaintiffs were discriminated against in too many different ways for the company to be systematically responsible. In the majority opinion, Justice Antonin Scalia writes that common elements tying all these employment decisions together were “entirely absent” in this case.

Understanding Implicit Bias

The numbers don’t mean that all male managers at Wal-Mart are intentionally sexist. Their biases are implicit rather than overt, and most of these managers are probably unaware of having them. In 1995, researchers at Harvard and Stanford universities developed the Implicit Association Test (IAT), which measures reaction time to examine subconscious bias. The researchers assert that human beings place information about the world into personal “schemas,” or world views. Schemas allow for implicit stereotyping and perceptions about in-groups (the group you belong to) and out-groups (groups you aren’t a member of), which can translate into behaviors that are discriminatory, or that produce inequitable outcomes.

In the project’s online test, 75 percent to 80 percent of self-identified whites and Asians show an implicit racial preference for white relative to black. Everyday people, including the researchers who direct this project, are found to harbor negative associations in relation to various social groups (i.e., implicit biases) even while honestly reporting that they regard themselves as lacking these biases.

When implicit bias is combined with the human reliance on first impressions, the result can be devastating. As Malcolm Gladwell noted in the New Yorker, the impression from the handshake that precedes a job interview colors impressions of the interview itself. “The first impression becomes a self-fulfilling prophecy: we hear what we expect to hear,” Gladwell writes.

These patterns apply to other forms of discrimination as well. The Restaurant Opportunities Center of N.Y. (ROC-N.Y.) has conducted multiple studies of employment patterns in the nation’s fastest growing private sector industry. Restaurants, especially in the high-end market, are marked by a rigid racial hierarchy, and generally shut out women altogether.

In ROC-N.Y.’s first study, interviews with employers revealed their rationale for raced and gendered decisions. They wanted “tall, beautiful” people in the front of the house jobs—these are the workers who make more money and actually speak to diners. For the more dangerous, low-wage jobs at the back of the house, they prefer “hard workers” who are immune to the poor wages and conditions. Simply counting the workers through observation makes it quite obvious that only white men, and the very occasional white woman, meet the beauty criteria in most such workplaces. Immigrants have accents too thick to explain the menu, employers say, while women can’t take the fast pace and informality (i.e. sexual harassment) of restaurant work.

In a later study, ROC-N.Y. ran a matched-pair test, sending applicants with the exact same qualifications but of different races and genders to inquire about jobs. Without fail, white men got interviews at double the rate of others. This hierarchy is so ubiquitous as to become invisible unless you pay attention. Again, the bias is unconscious, but the result is the same. That’s why the remedies have to be intentional. Discrimination doesn’t just check itself.

In my own reporting, I’ve met one after another immigrant busser who was repeatedly passed up for promotion—or didn’t even know about an opening—only to end up training a white actor or student who was hired instead. The front of the house jobs are never posted, and men of color never got tapped on the shoulder, no matter how well they understood the menu. A manager doesn’t have to hold conscious bias to replicate a workplace’s hierarchies in his own decision making.

“If you want to succeed, you pick up what the company wants just by seeing it,” says Saru Jayaraman, the cofounder of ROC-N.Y. “A savvy manager doesn’t require the company to tell him to discriminate, although there’s plenty of that too. He understands its visual codes that are embedded in a segregated workplace.”

Americans will be tempted to take this decision as proof that Wal-Mart is not guilty of gender discrimination, and employers will take heart from the Supreme Court turning a blind eye. If some bad managers make sexist decisions, companies will say, that can’t be helped; gender stereotyping is an intractable problem.

But the real lesson is that Americans can’t rely on the courts alone to check all forms of bias, especially the kinds that don’t require explicit direction. Wal-Mart and other corporations need to hear from everyone—consumers, workers, and other employers who are building equitable workplaces. The message we send has to go beyond following the letter of the law to challenge the social norms that keep qualified people from getting the jobs they deserve.

Analysis Law and Policy

Everything You Need to Know for the Supreme Court Birth Control Case

Jessica Mason Pieklo

The Supreme Court is set to hear the second direct challenge to the Affordable Care Act's birth control benefit Wednesday. Here's what to look out for during oral arguments.

The U.S. Supreme Court is set to hear arguments on March 23 in Zubik v. Burwell, the second direct challenge to the birth control benefit in the Affordable Care Act (ACA). This time, the plaintiffs are religiously affiliated businesses like universities, hospitals, and nursing homes: nonprofits that serve the general population, but have a corporate affiliation to a faith group. Those organizations argue that, like churches, synagogues, and other houses of worship, they should be fully exempt from the law’s requirement that employer-provided health insurance plans cover contraception as preventive care. The cases are part of conservatives’ longstanding attacks on the Affordable Care Act generally, and the birth control benefit specifically—objections to which began as soon as President Obama signed the ACA into law. 

There’s a lot on the line with these cases. Here are the key points law attorneys will be battling over during this week’s arguments, and why they matter.

First, Some Background 

A nonprofit claiming a religious objection to the birth control benefit has two ways to participate in the “accommodation process” and opt out of complying with the law. It can mail a short self-certification form to its health insurance company or third-party administrator, depending on the type of insurance it carries, declaring that the organization is a religiously affiliated nonprofit that “opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered.” The nonprofit can also provide similar notice, along with the name and contact information of its insurer or third-party administrator, directly to the U.S. Department of Health and Human Services (HHS).

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Once either of those two things happens, the federal government will step in and direct insurance coverage for contraception as needed. The employer has nothing more to do with the process at all.

The plaintiffs in Zubik v. Burwell argue that taking either action “triggers” or “facilitates” the ability of their employees to get contraceptive coverage elsewhere. That, the organizations argue, makes them complicit in what they believe to be a sinful act: supporting contraception. They say such an act violates their rights under the Religious Freedom Restoration Act (RFRA).

Unlike in Burwell v. Hobby Lobby, the 2014 case that asked whether secular, for-profit businesses should also have the right to pursue a religious exemption from the birth control benefit, the Roberts Court in Zubik v. Burwell will try to answer the question of whether completing the paperwork required to obtain that religious exemption is itself a substantial burden on religious liberty. If the plaintiffs win in Zubik, it could not only spell the end of the ACA’s birth control benefit; it could further open the door to launching wide-scale religiously based objections to civil rights protections.

So, let’s get into it.

How Badly Does the Government Want to Keep This Fight Up?

The conservative majority ruled in Hobby Lobby that secular, for-profit companies could have access to the accommodation process now being challenged by conservatives in Zubik. In that decision, the Court “presumed without deciding” that the contraception benefit advances compelling government interests, a necessary requirement for laws being challenged in RFRA cases.

A presumption is not the same thing as a ruling, however, and has no value as precedent for future cases, including Zubik.

In Hobby Lobby, Kennedy stated in his controlling concurrence the benefit furthers “a compelling [government] interest in the health of female employees”; the four liberals agreed with the sentiment, though Justice Ruth Bader Ginsburg, in her dissent, took a much stronger stance in its favor. If Kennedy changes his mind in Zubik, he’s going to have to explain why.

Compelling government interest is only one part of the equation, however. To successfully defend the benefit, the Obama administration is also going to have to show that it is narrowly tailored to further that compelling government interest. In Hobby Lobby, Kennedy presumed that the very fact that the benefit has an accommodation process and religious exemptions shows that it is narrowly tailored.

Again, this is a presumption on Kennedy’s part. The Court did not rule that the benefit is narrowly tailored in Hobby Lobby, so it is not bound by that finding in Zubik. In terms of presumptions, though, it was a pretty big one, on which Kennedy hung much of the rest of his concurrence.

But if there is a prong of the analysis conservatives feel they stand a chance of winning, it is clearly this “narrowly tailored” one. They argue that if providing contraception coverage is so important to the federal government, it should just provide that coverage directly and not involve employers at all. Because the Court never definitively ruled in Hobby Lobby that the benefit is narrowly tailored, presenting a specific alternative in the form of direct coverage for contraception is a smart tactical move by the challengers.

Kennedy’s opinion in Hobby Lobby suggests he won’t bite. But considering, too, the earlier interim orders by the Roberts Court preventing the administration from enforcing penalties against nonprofits for not complying with the accommodation process, any open question presents a way for conservatives to take a whack at the benefit. And if they do so successfully, the Obama administration is going to have to decide if it wants to amend the benefit yet again to try and appease their objections, provide the contraception itself directly through some as-yet-undescribed accommodation-to-the-accommodation, or give up on the coverage all together.

Which option do you think conservatives are gunning for?

It’s Not Just Any Burden

In addition to answering the “compelling government interest” and “narrowly tailored” questions, the Court in Zubik will have to address the matter of “substantial burdens.”

RFRA’s provisions don’t apply to simply any burden on religious rights. They apply only to substantial burdens on religious rights. The nonprofits claiming a RFRA violation here insist that the question of whether or not a law places a substantial burden on religious rights is a subjective one for the religious objector to answer, not an objective one for the courts. As soon as an objector says a law-created burden counts as substantial, they argue, it is substantial—as long as the objector is sincere in that religious belief.

The federal courts largely have rejected this line of argument, and for good reason. If accepted, it would provide an enormous loophole for businesses to seek accommodations to other civil rights requirements, like not discriminating in pay on the basis of gender, or not refusing to work as a photographer at same-sex weddings. But before Hobby Lobby, federal courts largely had rejected claims that secular, for-profit businesses could even raise religious objections to the birth control benefit—and look how that turned out. In addition, at least one federal court is willing to consider organizations’ moral objections to the benefit as well as religious ones, threatening to render RFRA entirely meaningless except as a weapon for conservatives to use to try and thwart civil rights advancements.

The Women Justices Going in Hard for the Benefit

Like we saw earlier this month in Whole Woman’s Health v. Hellerstedthaving women on the bench makes a difference in the tone and tenor of the questions when reproductive rights are before the Court. The birth control cases have been no different.

In Hobby Lobby, Justice Ginsburg made it clear that if the conservative male justices were going to “presume without deciding” the government’s compelling interest in advancing contraception coverage, she was ready for whenever the question arose again with proof of the public good contraceptive access advances.

Writing for the dissenters, Ginsburg emphasized that “the Government has shown that the [benefit] furthers compelling interests in public health and women’s well-being. Those interests are concrete, specific, and demonstrated by a wealth of empirical evidence.” Ginsburg then provided a list of the myriad of benefits women derive from contraception access.

Just days after the Court issued its decision in Hobby Lobby, it ruled Wheaton College did not have to comply with the very accommodation process it had just extended to for-profits, in one of the first religious objector cases to land before the Court. It was a temporary ruling while the underlying litigation progressed, but produced a blistering dissent.

“Those who are bound by our decisions usually believe they can take us at our word,” Justice Sonia Sotomayor wrote for the dissent, joined by all three female justices. “Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, retreats from that position,” wrote Sotomayor. “This action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.”

Sotomayor’s dissent reveals a lot about the split among the justices in Hobby Lobby. Much of Kennedy’s controlling opinion in Hobby Lobby was about bridging the gap between the conservative wing of the Court—willing to open the floodgates for nearly all types of corporations to pose religious objections to regulatory actions—and the dissenting liberal justices—who, rightly, saw the arguments in Hobby Lobby as a ruse for conservatives to expand their attacks on all forms of civil rights protections. Kennedy tried to assure the liberal justices it was a narrow decision. His decision to side with the conservatives a few days later in Wheaton College betrayed that assurance, as Sotomayor’s dissent makes clear.

With the Court now split 4 to 4, the tension along the fault line between the ruling in Hobby Lobby and the Court’s retreat in Wheaton College will likely be palpable in Zubik. The women on the Court, along with Justice Stephen Breyer, will keep the pressure on Kennedy to stand by his analysis in Hobby Lobby; the conservative justices will no doubt pressure him as well, leaning hard on his discomfort with government intrusions into religious belief, actual or perceived.

Will Kennedy listen to those directly affected by the challenges to the birth control benefit? Or will he buy the specious arguments made by conservative employers: that their religious rights include the right to block their students and employees from accessing contraception coverage under the law?

The Court likely won’t rule until this summer. With the battle to replace the late Justice Scalia only heating up, the possibility of a 4-4 split in Zubik is real. If the Court deadlocks, there will be no definitive ruling on the birth control benefit. Nor will there be any answers at all to the broader questions of whether contraceptive coverage furthers government interest, and the limit, if any, to how far conservatives are willing to stretch RFRA to try and stymie civil rights progress. Such a split would leave in place the appellate court rulings, which have almost unanimously supported the Obama administration and the accommodation process. Practically speaking, it would mean that, eventually, these cases would find their way before the Court again, when it has a full bench of nine members and can issue a definitive ruling.

There is also the possibility that the Court rules 5 to 3 in favor of the Obama administration and the accommodation process. As Kennedy’s opinion in Hobby Lobby demonstrates, he is quite capable of distinguishing real government intrusions into religious beliefs from imaginary ones.

Will the oral arguments offer any insight here? Maybe. But only if Kennedy tips his hand.

Analysis Law and Policy

Here’s Why 2016 Could Be the Biggest Year for Reproductive Rights and the Courts in Decades

Jessica Mason Pieklo & Imani Gandy

The next year promises to be an eventful one on the legal front—though we feel like we say that every December.

The next year promises to be an eventful one on the legal front—though we feel like we say that every December. After all, 2015 brought challenges to the Pregnancy Discrimination Act; a case on whether not hiring an employee because she wears a hijab is employment discrimination; the historic and successful challenge to same-sex marriage bans; the failed challenge to federal subsidies in the Affordable Care Act; and a failed attempt to gut the Fair Housing Act. Meanwhile, 2014 was the year the Roberts Court gave the green light to governments embracing prayer at civic functions; it also struck most abortion clinic buffer zones as unconstitutional in McCullen v. Coakley. And who could forget Hobby Lobby v. Burwell, the case in which the Roberts Court created a constitutional corporate right to object to contraception coverage?

Even so, 2016 is still shaping up to be an important year for reproductive rights and justice. Some cases on the list to watch—like yet another challenge to the birth control benefit in the Affordable Care Act—we anticipated. Other cases, like the trial in Colorado of Robert Lewis Dear Jr., who is accused of launching a siege at a Planned Parenthood health-care center in Colorado Springs that killed three, injured nine, and terrorized many others, we wish were not here at all. But given the violent rhetoric targeting abortion doctors, providers, and patients that increased over the course of 2015, we can’t say we were surprised to put it there.

The Roberts Court

Whole Woman’s Health v. Cole

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Whole Woman’s Health v. Cole is the Roberts Court’s first substantive dive back into abortion-rights law since Gonzales v. Carhart, which banned so-called partial-birth abortions in 2006. But unlike Gonzales, which focused on the constitutionality of a procedure-specific abortion ban, Whole Woman’s Health v. Cole takes on the porous “undue burden” standard of 1992’s Planned Parenthood v. Casey decision by tackling just how rigorously courts should apply that standard when reviewing abortion restrictions that purport to advance patient health and safety. That makes Whole Woman’s Health v. Cole the Court case with the most potential to affect abortion rights in nearly 25 years.

Little Sisters and the Rest of the Nonprofit Contraception Cases

Another Roberts Court term brings another challenge to some portion of the Affordable Care Act. This time, the Court returns to the ACA’s birth control benefit and the question of whether the government’s process for allowing religiously affiliated nonprofits to opt out from providing health insurance plans that offer contraception is too burdensome under the federal Religious Freedom Restoration Act (RFRA). The Court consolidated seven cases filed by hospitals, nursing homes, and other kinds of businesses that are religiously run and affiliated; all object to filling out the opt-out form. The cases represent not just a test to the administration’s opt-out provision for the birth control benefit, but the strength of the majority decision in Hobby Lobby v. Burwell, which relied on the accommodation process now before the Court to rule that for-profit businesses should have a similar opt-out option available. A ruling that would allow these nonprofits to be exempted from the coverage would have enormous implications, as 10 percent of larger nonprofits have asked the Obama administration for an accommodation to the rule already.

Friedrichs v. California Teachers Association 

The Roberts Court has not been kind to workers’ rights generally, making it harder for employees harassed by supervisors to sue and drastically reducing employees’ abilities to raise class-action lawsuits. This term is no exception with Friedrichs v. California Teachers Association, a case that takes on the way public employee unions are funded. Currently, if a union represents a group of workers, that company’s entire workforce, or at least a defined portion of it, pays a fee designed to compensate the union for its bargaining activities. The argument supporting these fees is that the union’s actions benefit the entire workforce—not just union members—and the fee is nominal in the face of the influence of management and corporate owners. But anti-union interests argue those fees violate the First Amendment. Should the Roberts Court agree, the result would severely limit unions’ abilities to raise money for their operations and to effectively bargain on behalf of their members. Women and people of color, who make up the majority of public employee union membership, would feel the most severe effects in this scenario.

Evenwel v. Abbott

Evenwel is the latest in a series of “representation” cases dreamed up by Edward Blum, director of the Project on Fair Representation—which was behind Shelby County v. Holder, the 2013 case that gutted the Voting Rights Act. Blum is also responsible for Fisher v. University of Texasthe case challenging the admissions policy at the University of Texas on the grounds that it discriminates against white studentsEvenwel challenges “one person, one vote”; though it concerns the drawing of state senate districts in Texas, the case has potential national implications. Under the 14th Amendment, states are allocated seats in the House of Representatives by “counting the whole number of persons in each state.” States follow this process when determining their own statewide districts, carving up districts based on U.S. Census Bureau population data and irrespective of the total number of registered voters in each. The plaintiffs in Evenwel argue that by counting children, documented and undocumented immigrants, many prisoners, and other non-voters, Texas denies “eligible voters their fundamental right to an equal vote.” If they win, legislative districts would become older, whiter, more rural, and more conservative. Political power would shift from urban areas to rural areas. Our elected officials would be even older and whiter than they already are. In other words, the gains made by the civil rights era in diversifying our elected bodies would be rolled back, the same way Shelby County v. Holder rolled back the voting participation gains made by the the Voting Rights Act.

Fisher v. University of Texas 

Race-based affirmative actions are again before the Roberts Court in Fisher v. University of Texas. Abigail Fisher applied to UT for admission into the undergraduate class of 2012. When UT rejected her application, she sued the university, alleging that it discriminated against her because she is white, even though of the 47 equally or “less” qualified students who were admitted over Fisher, 42 were white—only five were Black or Latino. Her case has made it up to the Roberts Court once before. The justices punted on the ultimate question of whether or not the University of Texas’ plan violated the Constitution, instead sending the case back to the conservative Fifth Circuit. After the Fifth Circuit ruled in favor of the University’s admission plan, again, conservatives ran the case back up to the Roberts Court.

During oral arguments, it became apparent that the conservative wing of the court is prepared to decimate affirmative action. Justice Scalia wondered whether admitting Black students into schools that might be too hard for them was doing them a disservice. Justice Roberts appeared frustrated that affirmative action still exists at all, and wondered what unique perspective a student of color brings to a physics class and whether diversity serves any purpose in that context. Given the Roberts Court’s palpable hostility toward any acknowledgement that race continues to be a decisive factor in the oppression of people of color in the United States, proponents of affirmative action are right to be concerned about the fate of race-conscious admissions policies at colleges and universities.

Courts of Appeals

Purvi Patel Conviction for Feticide 

Purvi Patel is an Indian-American woman who in July 2013 entered an emergency room in South Bend, Indiana, while suffering heavy vaginal bleeding. She initially denied to doctors that she had been pregnant, but eventually acknowledged she had miscarried. Patel told hospital staff the fetus was stillborn and that she had placed it in a bag in a dumpster. Doctors then alerted the police, who questioned her and searched her cell phone—all while she was in the hospital and under the influence of pain medication. During the search of her cell phone, police saw a series of text messages, which prosecutors later claimed made the case Patel had attempted an illegal abortion by ordering abortion-inducting medications and taking them. Police charged Patel with felony feticide and neglect of a dependent. The feticide charge presumed the fetus was stillborn, while the neglect of a dependent charge presumed a live birth. Despite this apparent conflict, a jury convicted Patel on both counts. Patel, who has no criminal record, was ordered to serve 20 years in prison. Attorneys have appealed her case, arguing there was no evidence she took any abortion-inducing medication. Attorneys for the State of Indiana have doubled down on Patel’s prosecution and defended their case, arguing as if it is good public health policy to radically restrict contraception and abortion access in the state and then criminally prosecute women whose pregnancies end in anything other than a successful live birth. 

Second-Trimester Abortions in Kansas

In 2015, Kansas became the first state to pass a ban on the most commonly used method of ending pregnancy in the second trimester, setting the stage for the next big legal showdown over specific abortion procedures. SB 95 bans dilation and evacuation (D and E) abortions—what anti-choicers like to call “dismemberment abortions”—and is based on legislation drafted by the radically anti-choice National Right to Life Committee. Oklahoma passed a similar version just one day after Kansas did, and copycat legislation has been introduced in both Missouri and South Carolina. Shortly before it was set to take effect in Kansas, reproductive rights advocates sued to block it. But instead of challenging the measure in federal court like most abortion-related challenges, advocates sued in state court, arguing the law violates Sections 1 and 2 of the Kansas Bill of Rights, which they say provide due process guaranteeing the government cannot infringe on personal liberties.

Because due process rights have been used at the federal level to protect the right to an abortion, pro-choice advocates argue the same should be the case under the Kansas Constitution. In December, the entire panel of judges on the Kansas Court of Appeals heard arguments as to whether a temporary order currently blocking the ban should be affirmed as the legal challenge proceeds. Regardless of how the court ultimately rules on the temporary order, the Kansas case is an important one to watch because it is in state court. Almost all of our abortion rights law comes from federal court challenges, but those have become increasingly hostile thanks to decades of conservative judicial appointments. State courts could, therefore, prove to be those rights’ final protectors.

Catholic Hospitals’ Refusal of Services

In 2010, a then-18 weeks pregnant Tamesha Means showed up at Mercy Health Partners in Muskegon, Michigan, in the middle of having a miscarriage. Mercy Health, a Catholic-sponsored facility, sent Means home twice, saying there was nothing it could do for her. It wasn’t until Means, a mother of three, returned to Mercy Health a third time—this time suffering from a significant infection as her miscarriage persisted untreated—that the hospital decided to treat her by offering her some aspirin for her fever. As Mercy Hospital was preparing to discharge Means once more, she started to deliver. The hospital decided at that point to admit Means and to treat her condition. Means eventually delivered a baby, who died within hours of birth.

Means sued Mercy Health, arguing that its adherence to the “Ethical and Religious Directives“—which, among other regulations, prohibit a pre-viability pregnancy termination—resulted in medical malpractice in her case. The lower court dismissed Means’ claims, ruling it did not have the power to interpret Catholic doctrine directly. Means appealed, and her case is currently before the Sixth Circuit Court of Appeals. Meanwhile, hospitals in California and Michigan face allegations similar to those in the Means case: that adherence to the directives has resulted in malpractice when treating reproductive health-care conditions. So far, courts have not taken this question of whether or not Catholic doctrine can override the medical community’s standard of care. But it is a fight they won’t be able to stay out of long, since one in nine hospital beds in this country are at a Catholic or Catholic-sponsored facility, and they appear to be turning away women in need at a pretty rapid pace.

Trial Courts

The Legal Battle Over the Planned Parenthood Tapes

Perhaps the biggest controversy to emerge from 2015 is the video smear campaign waged against Planned Parenthood by David Daleiden and his anti-choice front group, the Center for Medical Progress (CMP). Daleiden’s months-long sting operation, which saw him infiltrate under false pretenses private meetings held by the National Abortion Federation (NAF), resulted in the release of video footage purporting to show that Planned Parenthood is in the grisly business of harvesting fetal “body parts” and profiting from their sale. This, despite the fact that there’s nothing illegal about fetal tissue donation programs and Planned Parenthood has been repeatedly cleared of wrongdoing by several state and federal investigations. Within weeks of the release of the first video, the NAF sued Daleiden and CMP in federal court. The court granted NAF’s request for an order blocking the further release of any video footage recorded at NAF’s private events. It also ordered CMP and Daleiden to turn over to NAF the names of Daleiden’s associates, accomplices, and funders. The information they gave is under protective order, but should the court decide to make that list public, we’ll find out which Republican operatives and politicians, if any, Daleiden worked with to perpetrate this deception.

Anti-Abortion Terrorism in Colorado Springs 

Robert Lewis Dear Jr. is accused of opening fire at a Planned Parenthood reproductive health-care facility in late November, killing three people and injuring nine, in Colorado Springs, Colorado. He has been charged in state court with 179 felony counts, including first-degree murder. If convicted, Dear could face the death penalty. Federal prosecutors are also investigating Dear for possible violations of federal law, including the Federal Access to Clinic Entrances (FACE) Act, the federal statute that makes it a felony to target for harassment abortion clinics, doctors, patients, and staff. Dear’s charges came after a summer of escalating violent anti-choice rhetoric following the CMP’s release of its deceptively edited footage. Conservatives insist their claims about “Planned Parenthood selling baby parts” had nothing to do with the Colorado Springs shooting, despite Dear reportedly telling officers “no more baby parts” when he was arrested and calling himself a “warrior for the babies” in court. Just how much influence did conservative anti-choice rhetoric and politicking influence Dear? We’ll find out during his trial in 2016.

Anna Yocca’s Trial for Attempted Self-Induced Abortion

Police arrested Anna Yocca, a 31-year-old woman from Murfreesboro, Tennessee, in December after she allegedly tried to end her pregnancy using a coat hanger at home in her bathtub. During the attempt, Yocca began bleeding heavily and her boyfriend rushed her to the hospital, where doctors delivered a 1.5-pound baby boy. Yocca, who was approximately 24 weeks pregnant when she attempted to terminate her pregnancy, allegedly made “disturbing” statements to hospital staff, including admitting that she tried to self-abort. Her statements led a Rutherford County grand jury to indict her for attempted murder and imprison her in the Rutherford County Adult Detention Center. Should she be convicted, she faces life in prison.

The return of coat-hanger abortions is an alarming indicator of the repressive reproductive rights environment in Tennessee and around the country. Although prominent abortion opponents have claimed they are not interested in prosecuting women who try to self-induce an abortion, the increasing number of women—who include Jennie Lynn McCormackJennifer Ann Whalen, and the aforementioned Purvi Patel—who have been thrown in jail for allegedly doing so tells a different story. Prosecutors charged Yocca under the state’s general homicide statute, which opens the constitutional question of whether or not general homicide laws in Tennessee can be used to prosecute women who self-induce an abortion or who otherwise have a failed pregnancy outcome.

In other words, Anna Yocca is a test case for anti-choice prosecutors who want to find a legal hook to charge women who abort with murder.

Anything Else?

There’s always something else on the horizon when it comes to reproductive autonomy. We didn’t even include the many other legal challenges to the wave of anti-choice laws passed in 2015, or the explosion of “religious liberties” claims in response to marriage equality and the expanding protection of rights for transgender people. But don’t worry, folks. It may be shaping up to be one helluva year for reproductive rights and justice in the courts, but we’ve got you covered.