Commentary Religion

De-fund “Immoral Institutions?” Let’s Start with the Archdiocese

Lon Newman

Let us call upon Cardinal Dolan, the USCCB, and their political allies to practice what they preach. Eliminating public funds and taxpayer support for organizations criminally convicted of protecting child predators will prove they are standing on principle.

Cardinal Timothy Dolan, who has problems of his own in Milwaukee, is leading a procession of lawsuits opposing a national requirement of health insurance companies to cover contraceptives.  The cardinal called it a “totalitarian incursion against religious liberty.” His principle argument, is that religious institutions should not “… be forced by the government to provide coverage for contraception or sterilization,” because it “…  violates their religious beliefs.”

On that principle, legislators across the country are working to deny state and federal funding to organizations that provide contraceptive services. These lawmakers and their political allies echo the United State Conference of Catholic Bishops’ (USCCB) reasoning that it is unjust to force taxpayers, employers, or members of the Church to support institutions or their affiliates which are committing acts they decry as “intrinsically evil.”

The morality of contraception has been debated for generations, but what if we apply Cardinal Dolan’s reasoning where the question of morality and legality is indisputable?

Recent polling shows that 80 percent of American Catholics find contraception morally acceptable and almost all Catholic women who have had sex have used a method forbidden by the Church.

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On the other hand, protecting sexual predators is neither moral nor legal. At the same time the anti-contraception lawsuits were filed, a Wisconsin court ruled that the Green Bay Archdiocese illegally concealed sexual assaults of children and put other children at risk. If it is the bishops’ principle to stop federal and state funding for institutions and affiliates that have acted immorally, we can begin where there is no question of legality or morality. Let us deny funding to institutions, like the Green Bay Archdiocese, that have been convicted of conspiring to protect child sexual predators.

The bishops have tried and failed to make a credible cost or health argument against contraception even among their parishioners. Family planning saves taxpayer dollars and insurance premium increases for contraceptive coverage would be nominal.  Failing at persuasion, they turn to federal courts. They demand a series of exemptions for employers and institutions in the name of religious freedom:

The bishops invoke the legacy of Martin Luther King Jr. in their insistence on being awarded federal grant funds without anti-discrimination protections for women, sexual assault victims, and homosexuals. The demands reveal that Dolan’s defense of civil rights begins and ends with imposition of his narrow institutional authoritarianism even on employees or students or women who disagree. This profoundly contradicts the individual liberty protections guaranteed by our Bill of Rights.

The bishops’ central argument is that we must enforce a standard of de-funding institutions engaged in actions they disapprove. Let us call upon Cardinal Dolan, the USCCB, and their political allies to practice what they preach. Eliminating public funds and taxpayer support for organizations criminally convicted of protecting child predators will prove they are standing on principle.

Commentary Politics

Trial Balloons and Hot Air: Don’t Let Biden and Schumer Fool You on ‘Mainstream’ SCOTUS Nominees

Jodi Jacobson

Both Schumer and Biden seem to agree that what we need to replace deceased Supreme Court Justice Antonin Scalia is a "mainstream" nominee for the Court. I call foul.

Read more of our articles on Justice Antonin Scalia’s potential successor here.

Over the last two days, both Sen. Chuck Schumer (D-NY) and Vice President Joe Biden have weighed in on the kind of nominee they think President Obama should recommend to replace deceased Supreme Court Justice Antonin Scalia.

And as things go, it is no accident that these two men, leaders in the Democratic Party with direct access to the president, said basically the same thing within a couple of days of each other. They are either floating trial balloons—testing public reaction—for the White House or trying to influence the president’s decision. Either way, they are using their positions and their access to the media as a way of sending a message.

And either way, I call foul.

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Both Schumer and Biden seem to agree that what we need now is a “mainstream” nominee for the Court.

In an interview on ABC News’ This Week with George Stephanopoulos last Sunday, Schumer, who sits on the Senate Judiciary Committee, said he expects President Obama to nominate a “mainstream” justice, citing the potential to win support of “mainstream Republicans.”

“I think the president, past is prologue, will nominate someone who is mainstream,” Schumer stated. As the New York Times reported:

“When you go right off the bat and say, I don’t care who he nominates, I am going to oppose him — that’s not going to fly,” he said, criticizing the majority leader Mitch McConnell for pledging to block any nominee. “A lot of the mainstream Republicans are going to say, I may not follow this.”

According to the Washington Post, Biden echoed Schumer’s statement in an interview aboard Air Force Two:

“This is a potential gigantic game changer” for the philosophical makeup of the court, Biden said in an interview with The Washington Post and Politico. “And my advice is, the only way we get someone on the court, now or even later, is to do what we’ve done in the past…we have to pick somebody, as the president will, who is intellectually competent, is a person of high moral character, is a person who is demonstrated to have an open mind, and is a person who doesn’t come with a specific agenda.

These comments are so full of potentially meaningless and yet potentially profound code and buzzwords, I don’t know where to start.

First of all, what exactly these days is a “mainstream Republican” and where do they live? Is Biden referring to the senators who joined a party-line vote to overturn the Affordable Care Act? Is he talking about the “moderate” GOP party-line vote to impose a 20-week abortion ban? Which of the Republicans that voted against Obama’s nominees to the Consumer Financial Protection Bureau are the moderate ones? Which of the ones that have held up judicial nominees for over two years are “mainstream”? How is opposing all attempts by the White House and Democrats to pass paid family leave a “mainstream” position, especially in light of the fact that this policy is supported by a wide majority of Americans? Are the mainstream the ones that continue to block the Paycheck Fairness Act?

Second, does Vice President Biden mean to suggest that a justice who perhaps believes that women have rights to their own bodies cannot be “intellectually competent … a person of high moral character … a person who is demonstrated to have an open mind … a person who doesn’t come with a specific agenda”? Is promoting public health an agenda? Are basic human rights a specific political agenda?

Is Biden suggesting, no matter how subtly and in meaningless Beltway-speak, that a jurist who pays heed to overwhelming medical and public health evidence on the role that both contraception and abortion play in improving public health, women’s health, and infant and child health is not “mainstream” and otherwise has an agenda?

Does a jurist with roots in a specific community and with an understanding of the law’s differential impact on people of different races, classes, and privileges come with an agenda?

Given that the white population will soon be the minority, who is “mainstream,” the white guy or the person of color?

Let’s face facts: What is considered “mainstream” for both of these men is not necessarily based on the needs and priorities of the average American. Schumer is only “mainstream” in that he is a white male senator in a legislative body that is dominated by white male senators (the Senate is 80 percent male and 94 percent white) and in that he takes huge amounts of funding from Wall Street. “Mainstream” for Schumer might well be translated to mean someone who won’t seek to curb the influence of big money in politics.

Likewise, Joe Biden is only “mainstream” on many issues insofar as they can be comfortably navigated within the Old Boys Clubs of which he is a longstanding member, one of which is the Senate and the other of which is the group of Catholic Democrats that remain beholden at some level to the most-conservative U.S. Conference of Catholic Bishops. It was Biden, who as a Catholic is highly ambivalent about reproductive health care, played leading roles in the Obama administration’s decisions on the Stupak Amendment in the ACA, and in the “contraceptive accommodations” made to religious groups, among many other things.

The carve-outs never satisfied the rabidly right-wing bishops and led to continuing lawsuits and ever greater demands of exemptions. This is not a “mainstream” position, especially if you consider that 98 percent of Catholic women (and 99 percent of all women) who have ever had sex have used modern forms of birth control. The only mainstream position on birth control and abortion is the one that recognizes both the public health and social science evidence, the rights of women as people, and the fact that an overwhelming majority of women use birth control and one third of women in the United States have abortions. There is nothing mainstream about white, religious men ignoring that fact or pretending that they know better.

The only reason they suggest that someone who does not have any record of supporting evidence or rights might (and it’s a highly questionable assumption) get approved by the GOP-led Senate is because the Republicans themselves are not mainstream by any stretch of the imagination, and are only interested in someone with an agenda to protect their interests.

In my definition, someone who, as Biden suggests, “is intellectually competent, is a person of high moral character, is a person who is demonstrated to have an open mind, and is a person who doesn’t come with a specific agenda,” is a person who recognizes that human rights, evidence, and justice should be of central concern to the Supreme Court. When I hear Biden use these words, I hear echoes of his 2007 statement that Barack Obama was the first “mainstream African-American who is articulate and bright and clean and a nice-looking guy.” It sounds to me that “mainstream” is someone comfortable to the white men in power.

The word “mainstream” is now meaningless. The media won’t challenge it because most of the reporters are stuck in a white male corporate bubble and spend their time at parties at the vice president’s residence. You can’t depend on them to challenge the very notion of what it means.

When you hear a white male senator or a white male vice president—both of whom have vested interests in agendas that do not represent either the interests of the greater number of people in this country, and/or also ignore solid scientific evidence—use terms like “mainstream,” know one thing: They are not swimming in the same stream as the rest of us.

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.

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