News Abortion

District Court Permanently Blocks Oklahoma Ultrasound Law, Expect A Supreme Court Battle

Robin Marty

With two conflicting lower court rulings, we are very likely to see our first new challenge to Roe V. Wade approach the Supreme Court.

The 10th Circuit Federal Court has just issued a permanent injunction on a 2010 Oklahoma law that would require all women terminating their pregnancies to first undergo a mandatory ultrasound. The news, which is no doubt welcome to the women in and around Oklahoma who will no longer have to endure the added financial stress and emotional pressure of an unwanted, medically-unnecessary ultrasound, also sets up what is likely to be the next big battle — this time, before the Supreme Court.

With the 10th Circuit ruling that it “is an unconstitutional special law because it addresses only patients, physicians and sonographers dealing with abortions and does not address them concerning other medical care,” while the 5th Circuit rules that mandatory ultrasounds are constitutional in Texas, the only way to resolve the conflicting rulings is an appeal to the highest court.

Lawyer and reproductive rights author Jessica Mason Pieklo states:

“Today’s decision in Nova Health Systems v. Edmonson represents an important win for women and health care practitioners across the state of Oklahoma and affirms the right of women to make critical health care decisions without unnecessary and demeaning intrusion and oversight by the state.”

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“However,” she warned, “it also represents yet another avenue for anti-abortion advocates to further chip away at the protections guaranteed by Roe v. Wade by pressing an appeal through the 10th Circuit Court of Appeals.”

The Oklahoma case, which was argued by Center for Reproductive Rights on behalf of Nova Health Systems, has been in court since the bill was first passed by overriding a veto by Oklahoma Governor Brad Henry, who worried the bill was unconstitutional and would cost the state too much money to defend.

Commentary Law and Policy

Republicans Make History in Obstructing Merrick Garland for Supreme Court

Jessica Mason Pieklo

Merrick Garland is now officially the longest Supreme Court nominee to go without confirmation hearings or a vote in U.S. history.

Merrick Garland, President Obama’s selection to replace Justice Antonin Scalia, now has the dubious distinction of being the longest U.S. Supreme Court nominee ever to go without a vote to confirm or reject his appointment, thanks to Senate Republicans’ refusal to do their jobs.

I can’t say it any differently. This has been an utter, total failure by grown men, and a few women, in the Senate to do the kind of thing they’re supposed to in exchange for getting paid by the rest of us. And after nearly a decade of unprecedented—and I mean unprecedentedobstruction of President Obama’s judicial nominees writ large, there’s no flowery language that can capture how our federal courts’ slow burn on the the Republicans’ watch has now caught full fire with the fight over Garland’s nomination.

Instead what we have are dry, hard facts. A century ago, Justice Louis Brandeis was forced to wait 125 days before his confirmation to become the first Jewish justice on the Court. Justice Scalia died on February 13 of this year. President Obama nominated Garland on March 16. Wednesday marked 126 days of zero Senate action on that nomination.

And since Congress is now on recess, that won’t be changing anytime soon.

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It’s not just that the Senate hasn’t held a vote. They have held no hearings. Several senators have refused to meet with Garland. They have taken. No. Action. Not a bit. And here’s the kicker: None of us should be surprised.

President Obama had no sooner walked off the Rose Garden lawn after announcing Garland’s nomination in March than Senate Republicans announced their plan to sit on it until after the presidential election. Eight months away. In November.

Senate Republicans’ objection isn’t to Garland himself. He’s a moderate who has generally received bipartisan praise and support throughout his career and should, on any other day, sail through the confirmation process. As compared with both of President Obama’s other appointments, Justices Sonia Sotomayor and Elena Kagan, Garland is practically a gift to Senate Republicans in all his moderate-aging-white-guy-ness. I mean, who would have thought that of all the nominees Republicans were going to double-down their obstruction efforts on, it would be Justice Dad?

Instead, their objection is to the fact that the democratic process should guarantee they lose control of the Supreme Court. Unless, of course, they can stop that process.

Conservatives have spent decades investing in the federal courts as a partisan tool. They did so by building an infrastructure of sympathetic conservative federal judges through appointments when in executive power, and by blocking liberal attempts to do the same when in the political minority. It’s an investment that has largely paid off. Federal circuit appeals courts like the Fifth, Sixth, Eighth, and Tenth issue reliably conservative opinions regularly, thanks to aggressive appointments by conservatives during the Reagan and Bush years.

Meanwhile, thanks to conservative obstruction under Democratic administrations—most egregiously under President Obama—71 district court seats currently sit vacant. Twenty-four of those seats are in jurisdictions considered by the courts themselves to be judicial emergencies: places where the caseload is so great or the seat has remained vacant for so long the court is at risk of no longer functioning.

It’s easy to see why conservatives would want to keep their grip on the federal judiciary given the kinds of issues before it: These are the courts that hear immigration and detention cases, challenges to abortion restrictions, employment discrimination cases, as well as challenges to voting rights restrictions. Just to name a few. But as long as there are no judges, the people being directly affected are left in limbo as their cases drag on and on and on.

Our federal courts of appeals are no better. Nine federal appellate seats sit vacant, five in jurisdictions deemed judicial emergencies.

These vacancies have nominees. Senate Republicans just refuse to confirm them.

And no, the other side doesn’t do this. Federal judgeships have always been political. But never have the Democrats used the judiciary as a blatantly partisan extension of their elected members.

The refusal to vote on Garland’s nomination is the most visible example of the conservatives’ drive to maintain control over the federal courts, but it’s hardly their most blatant display of sheer partisanship. I’m guessing that is yet to come when, should they lose the presidential election, Senate Republicans face the choice of quickly confirming Garland or continuing their stand-off indefinitely. And given what we’ve seen of the election cycle so far, do we really think Senate Republicans are going to suddenly grow up and do their jobs? I hate to say it, folks, but Merrick Garland isn’t getting confirmed anytime soon.

News Law and Policy

Virginia School Board Wants Supreme Court in Fight Over Transgender Student Bathroom Access

Jessica Mason Pieklo

The Gloucester County School Board wants the Supreme Court to decide whether federal law requires schools to let transgender students access facilities such as bathrooms that conform to their gender identity.

A Virginia school board will ask the U.S. Supreme Court to step into the fight over bathroom access for transgender students in the first real legal test of the Obama administration’s agency actions on the issue.

The case involves Gavin Grimm, a Gloucester County student who, in 2015, challenged his school’s policy of separating transgender students from their peers in restrooms and mandating that students use bathrooms consistent with their “biological sex” rather than their gender identity.

As previously reported by Rewire:

Grimm’s attorneys at the American Civil Liberties Union argued that the restroom policy, which effectively expels transgender students from communal restrooms and requires them to use “alternative … private” restroom facilities, is unconstitutional under the 14th Amendment and violates Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex discrimination at schools that receive federal funding.

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The school board defended its policy, arguing that it was consistent with federal law and that it protected the privacy rights of other students at Grimm’s school.

Grimm’s attorneys had asked a federal court for an injunction blocking the policy. A lower court initially sided with the school board; Grimm’s attorneys appealed to the U.S. Court of Appeals for the Fourth Circuit, which reversed the lower court and ruled that Grimm’s lawsuit against his school could proceed.

On Tuesday the Fourth Circuit agreed to put its decision on hold while the school board filed a petition asking the Supreme Court to step in. The board is arguing that the Obama administration has gone too far on transgender rights, beginning in 2012, when it issued an initial agency opinion that refusing transgender students access to the bathrooms consistent with their gender identity violated Title IX.

In October 2015 the administration took that opinion one step further and filed a friend of the court brief on Grimm’s behalf with the Fourth Circuit, arguing it was the administration’s position that the school board’s policy specifically violated federal law. Then, in May this year, the administration expanded that opinion into a directive. Though it still didn’t have the force of law, the directive put all schools receiving federal funding on notice: Should they deny transgender students access to facilities that conform to students’ gender identity, they would be in violation of federal law and subject to lawsuits. The Fourth Circuit relied heavily on this guidance in siding with Grimm earlier this year.

It is not clear whether the Roberts Court will step into the issue of transgender students’ rights at this time. So far, no other federal appeals court has weighed in on the issue.

Meanwhile, 22 states have filed a lawsuit challenging the Obama administration’s 2016 directive, arguing that the administration overstepped its authority. That lawsuit is also in its early stages.

Both Grimm’s lawsuit and the states’ lawsuit in response suggest the issue of transgender rights and sex discrimination will end up before the Roberts Court at some point.