Roundups Law and Policy

Legal Wrap: When Will the Obama Administration Stop Playing Politics With EC?

Jessica Mason Pieklo

This week, a federal judge blasted the Obama administration on emergency contraception, and the battle over Arkansas' 12-week abortion ban heated up.

Legal Wrap is a round-up of key legal and reproductive justice news

Last week, a federal judge blasted the Obama administration’s decision to file a last-minute appeal of a ruling making emergency contraception widely available while also approving Plan B for over-the-counter sales to individuals age 15 and older with ID. Rewire’s Sharona Coutts attended a hearing related to the appeal and reports here how Judge Korman, a Reagan appointee, sharply criticized the administration’s handling of the emergency contraception issue as blatantly political and compared the administration’s efforts to evade the ruling to voter suppression efforts. The hearing was in connection with a request by the Obama administration to hold off enforcing the ruling that gave the administration until May to lift age and point-of-sale restrictions on emergency contraception while an appeals court hears the case. On Friday, Judge Korman denied the administration’s request, a decision that was all but given after his comments at the hearing.

Attorneys for the state of Arkansas argued the state’s 12-week abortion ban is constitutional and therefore a lawsuit challenging the statute should be dismissed, because it was passed to protect women. While the court considered the state’s request, attorneys for an anti-abortion counseling group asked if they could join the lawsuit and help defend against it. The main reason the group offered for why it should be allowed to defend the law: Denying patients access to abortion care is good for their business. Thankfully the court was not persuaded that was a good enough reason and denied the request.

An anti-abortion protester has sued the town of Jackson, Wyoming, arguing his 2011 arrest in connection with an Operation Save America protest violated his civil rights. Mark Holick, a Kansas pastor, was arrested while preaching in the Jackson town square shortly after the town secured a state court order barring any anti-abortion protesters from appearing on the town square. Operation Save America had descended on Jackson after a doctor in the town acknowledged performing abortions, and town officials sought the court order in response. But last year a Wyoming Supreme Court ruled that the order barring the protesters violated the rights of the protesters who were not alerted in advance that the town had requested. As a result of that Wyoming Supreme Court ruling Holick is now suing the town and its police officers, arguing that his arrest was unlawful and therefore he’s entitled to money damages. Officials for the town have not yet responded to the lawsuit.

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The Sixth Circuit Court of Appeals heard arguments in Eden Foods Inc. v. Sebelius, one of the now 30 cases filed by secular, for-profit companies trying to evade health-care reform and radically re-define religious freedom. The federal appeals court also granted a request by the Obama administration to dismiss its appeal of a preliminary injunction granted to bible publisher Tyndale House, meaning the business does not have to provide insurance coverage for contraception to its employees. All in all there are now 62 cases challenging the birth control benefit in federal court, and the administration is in the last stages of finalizing a rule that would lay out the scope of exempting from the coverage requirement based on religious objections.

In case it wasn’t clear before, it should be now: One strategy employed by the anti-abortion movement is to litigate abortion rights and access out of existence. It’s not just litigation related to abortion restrictions or contraception coverage either. There’s a national campaign to drown providers in civil lawsuits for allegations they failed to report statutory rape cases.

Supreme Court Justice Ruth Bader Ginsburg spoke at the University of Chicago Law School over the weekend and said that while she wholeheartedly supports a woman’s right to choose abortion, the landmark Roe v. Wade decision was too sweeping and a disappointment because it was not argued in the crucial terms of advancing women’s rights but rather on the right to privacy. It’s a sobering assessment and one that couldn’t be more relevant.

Conservatives are already making the case that the Gosnell trial should spark federal action on abortion providers. Here, two prominent legal scholars take that call one step further and begin to lay out their claim that the Constitution demands it. The basis of this claim is, of course, fetal “personhood” and the argument that the equal protection clause of the 14th Amendment demands Congress act to protect the civil rights of the “unborn children” at every stage of pregnancy.

Finally, over two years ago the National Women’s Law Center filed complaints against many of the nation’s largest public school districts, arguing they were failing to meet their obligations under Title IX, the federal civil rights law that protects the right to equal opportunity in eduction regardless of gender. The school districts targeted each had double-digit disparities between the number of girl students attending high school and the number of girl students participating in athletics. Thanks to those complaints, Nevada’s largest public school district is now taking steps to make athletic opportunities available to all its students.

News Politics

Anti-Choice Democrats: ‘Open the Big Tent’ for Us

Christine Grimaldi & Ally Boguhn

“Make room for pro-life Democrats and invite pro-life, progressive independents back to the party to focus on the right to parent and ways to help women in crisis or unplanned pregnancies have more choices than abortion,” the group said in a report unveiled to allies at the event, including Democratic National Convention (DNC) delegates and the press.

Read more of our coverage of the Democratic National Convention here.

Democrats for Life of America gathered Wednesday in Philadelphia during the party’s convention to honor Louisiana Gov. John Bel Edwards (D) for his anti-choice viewpoints, and to strategize ways to incorporate their policies into the party.

The group attributed Democratic losses at the state and federal level to the party’s increasing embrace of pro-choice politics. The best way for Democrats to reclaim seats in state houses, governors’ offices, and the U.S. Congress, they charged, is to “open the big tent” to candidates who oppose legal abortion care.

“Make room for pro-life Democrats and invite pro-life, progressive independents back to the party to focus on the right to parent and ways to help women in crisis or unplanned pregnancies have more choices than abortion,” the group said in a report unveiled to allies at the event, including Democratic National Convention (DNC) delegates and the press.

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Democrats for Life of America members repeatedly attempted to distance themselves from Republicans, reiterating their support for policies such as Medicaid expansion and paid maternity leave, which they believe could convince people to carry their pregnancies to term.

Their strategy, however, could have been lifted directly from conservatives’ anti-choice playbook.

The group relies, in part, on data from Marist, a group associated with anti-choice polling, to suggest that many in the party side with them on abortion rights. Executive Director Kristen Day could not explain to Rewire why the group supports a 20-week abortion ban, while Janet Robert, president of the group’s board of directors, trotted out scientifically false claims about fetal pain

Day told Rewire that she is working with pro-choice Democrats, including Sen. Kirsten Gillibrand and Rep. Rosa DeLauro, both from New York, on paid maternity leave. Day said she met with DeLauro the day before the group’s event.

Day identifies with Democrats despite a platform that for the first time embraces the repeal of restrictions for federal funding of abortion care. 

“Those are my people,” she said.

Day claimed to have been “kicked out of the pro-life movement” for supporting the Affordable Care Act. She said Democrats for Life of America is “not opposed to contraception,” though the group filed an amicus brief in U.S. Supreme Court cases on contraception. 

Democrats for Life of America says it has important allies in the U.S. House of Representatives and the U.S. Senate. Sens. Joe Donnelly (IN), Joe Manchin (WV), and Rep. Dan Lipinski (IL), along with former Rep. Bart Stupak (MI), serve on the group’s board of advisors, according to literature distributed at the convention.

Another alleged ally, Sen. Bob Casey (D-PA), came up during Edwards’ speech. Edwards said he had discussed the award, named for Casey’s father, former Pennsylvania Gov. Robert P. Casey, the defendant in the landmark Supreme Court decision, Planned Parenthood v. Casey, which opened up a flood of state-level abortions restrictions as long as those anti-choice policies did not represent an “undue burden.”

“Last night I happened to have the opportunity to speak to Sen. Bob Casey, and I told him … I was in Philadelphia, receiving this award today named after his father,” Edwards said.

The Louisiana governor added that though it may not seem it, there are many more anti-choice Democrats like the two of them who aren’t comfortable coming forward about their views.

“I’m telling you there are many more people out there like us than you might imagine,” Edwards said. “But sometimes it’s easier for those folks who feel like we do on these issues to remain silent because they’re not going to  be questioned, and they’re not going to be receiving any criticism.”

During his speech, Edwards touted the way he has put his views as an anti-choice Democrat into practice in his home state. “I am a proud Democrat, and I am also very proudly pro-life,” Edwards told the small gathering.

Citing his support for Medicaid expansion in Louisiana—which went into effect July 1—Edwards claimed he had run on an otherwise “progressive” platform except for when it came to abortion rights, adding that his policies demonstrate that “there is a difference between being anti-abortion and being pro-life.”

Edwards later made clear that he was disappointed with news that Emily’s List President Stephanie Schriock, whose organization works to elect pro-choice women to office, was being considered to fill the position of party chair in light of Rep. Debbie Wasserman Schultz’s resignation.

“It wouldn’t” help elect anti-choice politicians to office, said Edwards when asked about it by a reporter. “I don’t want to be overly critical, I don’t know the person, I just know that the signal that would send to the country—and to Democrats such as myself—would just be another step in the opposite direction of being a big tent party [on abortion].” 

Edwards made no secret of his anti-choice viewpoints during his run for governor in 2015. While on the campaign trail, he released a 30-second ad highlighting his wife’s decision not to terminate her pregnancy after a doctor told the couple their daughter would have spina bifida.

He received a 100 percent rating from anti-choice organization Louisiana Right to Life while running for governor, based off a scorecard asking him questions such as, “Do you support the reversal of Roe v. Wade?”

Though the Democratic Party platform and nominee have voiced the party’s support for abortion rights, Edwards has forged ahead with signing numerous pieces of anti-choice legislation into law, including a ban on the commonly used dilation and evacuation (D and E) procedure, and an extension of the state’s abortion care waiting period from 24 hours to 72 hours.

News Law and Policy

No Need to Block Bathroom Access for Transgender Student, Attorneys Tell Supreme Court

Jessica Mason Pieklo

A transgender student in Virginia sued the local school board, arguing that its policy of mandating that students use bathrooms consistent with their “biological sex” rather than their gender identity was unconstitutional.

Attorneys representing transgender student Gavin Grimm told the U.S. Supreme Court this week that there was no reason to block a lower court order guaranteeing Grimm access to school restrooms that align with his gender identity while Grimm’s lawsuit against the Gloucester County School Board proceeds.

Grimm in 2015 sued the school board, arguing that its policy of mandating that students use bathrooms consistent with their “biological sex” rather than their gender identity—thus separating transgender students from their peers—was unconstitutional. Attorneys representing Grimm argued that the policy violates the 14th Amendment and Title IX of the U.S. Education Amendments of 1972, a federal law prohibiting sex-based discrimination at schools that receive federal funding.

A lower district court ruled the school board’s policy did not violate Grimm’s rights. But the Fourth Circuit Court of Appeals disagreed, reversing that decision and sending the case back to the lower court, which then blocked the school district from enforcing its policy while Grimm’s case proceeds.

In response, the school board notified the Fourth Circuit of its intent to appeal that decision to the Supreme Court and requested the appellate court stay its order granting Grimm access to bathrooms aligned with his gender identity—a decision the Fourth Circuit granted in June.

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The school board then asked the Roberts Court to issue an emergency stay of the lower court decision blocking its bathroom policy while the Court considers taking Grimm’s case.

Grimm’s attorneys argue there is no basis for the Roberts Court to grant the emergency stay requested by the school board. The board has “utterly failed to demonstrate that it will suffer irreparable harm” if Grimm is allowed to use the boys’ restroom at Gloucester High School while the Roberts Court considers stepping into the case at all, according to Grimm’s attorneys.

Attorneys for the school board filed their request with Chief Justice John Roberts, who handles petitions from the Fourth Circuit. Roberts can rule on the school board’s request to block the lower court decision, or he can refer the request to the entire Court to consider.

It is not known when Roberts or the Court will make that choice.

The Gloucester County School Board has argued that the Obama administration overstepped its authority in protecting transgender student rights. Attorneys for the school board said that overreach began in 2012, when an administration agency issued an opinion that said refusing transgender students access to the bathrooms consistent with their gender identity violated Title IX.

The administration expanded that opinion in October 2015 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 violated federal law.

The administration again expanded that opinion in May this year into a directive stating that should publicly funded schools deny transgender students access to facilities that conform to students’ gender identity, they would be in violation of federal law, subject to lawsuits, and risking their federal funding.

The Fourth Circuit relied heavily on these actions in initially siding with Grimm earlier this year.