News Law and Policy

Ohio Women’s Health Groups File For Review of Sixth Circuit Mifepristone Ban

Jessica Mason Pieklo

A group of women's health advocates are asking the entire Sixth Circuit Court of Appeals to weigh in on an Ohio law that bans the off-label use of mifepristone.

Earlier this month a divided panel of three judges on the Sixth Circuit Court of Appeals upheld an Ohio law that bans the off-label use of mifepristone. Now women’s health advocates are asking the entire Sixth Circuit bench to weigh in.

Planned Parenthood of Greater Ohio filed a petition asking the court to revisit the decision that restricting RU-486 does not unduly burden a woman’s right to chose abortion. The Sixth Circuit decision reached all but one of the legal challenges to the bill. A lower court must still decide whether the law is constitutional without an exception that would loosen restrictions on off-label use of the pill for health and safety reasons.

The move is not unusual and a sign women’s health advocates have not given up the fight on medical abortion in the state.

The matter has not yet been set for argument.

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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.

News Abortion

FDA’s Update to Medication Abortion Regulations a Boon for Access

Teddy Wilson

There have been dozens of bills introduced in the past few years to restrict medication abortion access. This year lawmakers have introduced similar bills in Iowa and New Hampshire.

The U.S. Food and Drug Administration (FDA) approved a label change Wednesday for mifepristone, a drug known as RU-486 used during medication abortions. The change brings federal regulations in line with scientific research and evidence-based medicine.

Anti-choice legislators have for years restricted access to medication abortion by charging that off-label use of abortion-inducing medication posed a danger to pregnant people.

When the FDA approved medication abortion for use in the United States in 2000, the agency adopted the regimen that had been developed by French researchers in 1988. However, medical consensus is that this protocol is outdated.

The FDA updated the agency’s supplemental application for Mifeprex, the brand name of the drug distributed by Danco Laboratories, based on data and information submitted by the drug manufacturer. After reviewing the supplemental application, the agency determined that Mifeprex is safe and effective when used to terminate a pregnancy in accordance with the revised labeling.

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The FDA label change announced Wednesday will increase the time a pregnant person has to receive a medication abortion, from 49 days to 70 days of gestation.

Vicki Saporta, president and CEO of the National Abortion Federation (NAF), said in a statement that since mifepristone was initially approved by the FDA in 2000, NAF members have used an evidence-based regimen that has allowed for a lower dose of mifepristone.

“Because providers in the United States have already been providing evidence-based care, which the new label now recognizes, actual practice will not change,” Saporta said. “What will change is that politicians can no longer deny women access to this safe and effective method of early abortion care by insisting on an out-dated regimen.”

A medication abortion is a non-surgical procedure by which pregnancy is terminated through the use of two drugs. The first drug, mifepristone, works by blocking the hormone progesterone, which causes the lining of the uterus to break down so that the pregnancy cannot continue. The second drug, misoprostol, which causes cramps and heavy bleeding that usually lasts for a few hours, induces contractions and ends the pregnancy.

Anti-choice lawmakers in recent years have targeted medication abortion with legislation designed to restrict access to abortion care. Republican state lawmakers have been aided by anti-choice organizations such as Americans United for Life, which has drafted copycat bills designed to make medication abortion inaccessible.

These anti-choice bills force doctors to administer medication abortion in a manner that contravenes research-driven guidelines published by the most trusted public health organizations, including the World Health Organization, the American College of Obstetricians and Gynecologists, and the American Medical Association.

A five-year study of 13,000 women published last year in the journal Contraception found that evidence-based alternatives to the FDA-approved regimen for medication abortion are safe and effective. The study found that the evidence-based protocols were more than 98 percent effective for pregnancies of up to 42 days’ gestation, and more than 95 percent effective up to 63 days.

There have been dozens of bills introduced in the past few years to restrict medication abortion. This year lawmakers have introduced similar bills in Iowa and New Hampshire.

Lawmakers in Ohio and Texas passed laws that required mifepristone be provided in accordance with the outdated FDA protocol. North Dakota and Oklahoma have enacted laws requiring the use of the FDA protocol, but those GOP-backed laws have been blocked by courts and are not in effect.

An Arizona state court judge last year permanently blocked a state law that mandated physicians to follow the outdated protocol established by the FDA when administering “any medication, drug, or substance” to induce an abortion.

Last week Arizona’s Republican-majority house once again approved a bill requiring doctors to follow the same outdated standards on medication abortion.

“We hope the new label changes will soon allow women to access medical abortion care in states where anti-choice restrictions have made this evidence-based care unavailable,” Saporta said.

Dr. Nancy Stanwood, board chair of Physicians for Reproductive Health, praised the FDA for approval of the label change.

“We applaud the FDA for recognizing the safety of medication abortion and the voluminous research that shows evidence-based regimens are beneficial to patients,” Stanwood said in a statement. “As physicians, we work every day to provide the highest quality care to our patients. An updated label means that providers in states that require adherence to the FDA-approved Mifeprex label will not have to practice outdated medicine.”