Analysis Law and Policy

Attorneys Tell Roberts Court There’s No Reproductive Health-Care Crisis in Texas

Jessica Mason Pieklo

In their response to a request for emergency Supreme Court intervention, attorneys for the State of Texas told the Roberts Court there was no need to block a law designed to cut off abortion access for tens of thousands of people in the state.

Attorneys for the State of Texas filed their response to abortion providers’ request that the Supreme Court step into the legal battle over HB 2. In their response, the attorneys told the Roberts Court that despite the fact clinics across the state will close and tens of thousands of patients will be forced to travel hundreds of miles for care, there’s no need to act.

The response was filed a little over a week after reproductive rights advocates filed their emergency request with the Supreme Court. The emergency filing by reproductive rights advocates came after the Fifth Circuit Court of Appeals took the extreme step in staying enforcement of a lower court injunction that blocked the hospital admitting privileges portion of HB 2 and part of the law’s regulations on medication abortions. The emergency petition to the Supreme Court simply asks the Roberts Court to put back in place the district court stay while the appeal process moves forward. That would prevent Texas from enforcing the hospital admitting privileges provision of the law, and assure that clinics across the state can remain open while the courts sort out the constitutionality of HB 2.

The question before the Supreme Court is a narrow one: Was the Fifth Circuit wrong when it lifted the lower court’s stay on HB 2? But you wouldn’t know the request was so narrow based on the state’s response. Attorneys for the state took the opportunity to fully defend the law and attack the district court’s ruling and reasoning, casting as much doubt as they can on the claim that tens of thousands of Texans will lose access to care, almost previewing for the Court future arguments over the merits of HB 2.

“The applicants focus almost exclusively on their claim that ‘approximately 20,000 Texas women’ will be unable to obtain abortions each year on account of HB 2’s hospital-admitting privileges requirement,” they state. “But a litigant does not establish a factual proposition by asserting it to be so.” This is a cynical strategy to color the merits of a case the court may hear long before the merits are actually before it. And it may have the added impact of giving the Supreme Court reason to reject the case and let the Fifth Circuit’s decision to let Texas enforce the admitting privileges requirement despite the fact it’s been held unconstitutional.

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The talking point attorneys for the state use is one the Fifth Circuit also found persuasive: that “over 90% of abortion patients in Texas will live within 100 miles of an abortion clinic even after HB 2 takes effect.” And like the Fifth Circuit, attorneys for Texas sneer at plaintiffs’ claims that the clinics that remain open will lack the capacity to accommodate the demand from the requirements. They frame their clear disdain for the reproductive health crisis sweeping the state as a “factual dispute,” one in which plaintiffs did not meet their burden to prove the claim that abortion access will be unduly burdened by HB 2 and for support of the Fifth’s Circuit’s conclusion that, on appeal, the district court ruling blocking the admitting privileges law will likely be reversed.

Another important component emerging in the battle over restrictive abortion laws is the difference between challenging the law on its face versus challenging it as applied. A facial challenge to a law’s constitutionality means, essentially, that there’s no way the law could be constitutional in any application. An as-applied challenge is an individual challenge to the constitutionality of a law in which the plaintiff argues that (in this case) HB 2 is unconstitutional because it prevented her from accessing an abortion. Most challenges are facial. And in 2006, the Roberts Court made it clear in Gonzales v. Carhart, the case that upheld the federal “partial birth” abortion ban, that such challenges “impose a heavy burden upon the parties in maintaining the suit.”

The distinction between a facial challenge and an as-applied challenge is an important one, and one attorneys for the State of Texas emphasize in their response papers. Most notably, it’s important because it shows a new iteration of the anti-choice strategy of making abortion as difficult to obtain and as expensive as possible. Add the cost of forcing tens of thousands of patients to litigate the impact of a particular abortion restriction on them personally, and the strategy becomes unmistakeable. It is also a line of reasoning put forward recently in Horne v. Isaacson, in which the district court ruled Arizona’s 20-week abortion ban was constitutional, in part because if a pregnant person in the state could hypothetically access abortion services, the law could not be a pre-viability “ban,” but rather just a very rigorous restriction. That decision was reversed by the Ninth Circuit Court of Appeals, but attorneys for Arizona have asked the Roberts Court to take their appeal, as early as this term.

Attorneys for Texas close their response by saying it is “hard to imagine” the Court ever stepping into this particular “undue burden” claim, no matter what happens with this petition or later in January when the Fifth Circuit hears the merits appeal. And perhaps here Texas has a point. In the last two weeks, the Supreme Court turned down two separate abortion rights cases it had an earlier indicated an interest in. One was a challenge to an Oklahoma Supreme Court decision blocking a state medication abortion ban, and another was a challenge to a decision that blocked Oklahoma’s forced ultrasound law. Both those cases involved challenges to laws based in part on the fact that they unduly burdened abortion rights. If the Court had wanted to radically alter the abortion rights landscape and signal to anti-choice activists that no restriction could go too far, it could have in those two cases. Instead, the Roberts Court appears to be endorsing the legal-in-name-only approach to abortion rights, which may not bode well for the plaintiffs in getting the district court’s stay reinstated and keeping those clinics open while the appeal moves forward. And it certainly does not bode well for the future of abortion access in the United States.

News Law and Policy

Pastors Fight Illinois’ Ban on ‘Gay Conversion Therapy’

Imani Gandy

Illinois is one of a handful of states that ban so-called gay conversion therapy. Lawmakers in four states—California, Oregon, Vermont, and New Jersey—along with Washington, D.C. have passed such bans.

A group of pastors filed a lawsuit last week arguing an Illinois law that bans mental health providers from engaging in so-called gay conversion therapy unconstitutionally infringes on rights to free speech and freedom of religion.

The Illinois legislature passed the Youth Mental Health Protection Act, which went into effect on January 1. The measure bans mental health providers from engaging in sexual orientation change efforts or so-called conversion therapy with a minor.

The pastors in their lawsuit argue the enactment of the law means they are “deprived of the right to further minister to those who seek their help.”

While the pastors do not qualify as mental health providers since they are neither licensed counselors nor social workers, the pastors allege that they may be liable for consumer fraud under Section 25 of the law, which states that “no person or entity” may advertise or otherwise offer “conversion therapy” services “in a manner that represents homosexuality as a mental disease, disorder, or illness.”

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The pastors’ lawsuit seeks an order from a federal court in Illinois exempting pastoral counseling from the law. The pastors believe that “the law should not apply to pastoral counseling which informs counselees that homosexuality conduct is a sin and disorder from God’s plan for humanity,” according to a press release issued by the pastors’ attorneys.

Illinois is one of a handful of states that ban gay “conversion therapy.” Lawmakers in four states—California, Oregon, Vermont, and New Jersey—along with Washington, D.C. have passed such bans. None have been struck down as unconstitutional. The Supreme Court this year declined to take up a case challenging New Jersey’s “gay conversion therapy” ban on First Amendment grounds.

The pastors say the Illinois law is different. The complaint alleges that the Illinois statute is broader than those like it in other states because the prohibitions in the law is not limited to licensed counselors, but also apply to “any person or entity in the conduct of any trade or commerce,” which they claim affects clergy.

The pastors allege that the law is not limited to counseling minors but “prohibits offering such counseling services to any person, regardless of age.”

Aside from demanding protection for their own rights, the group of pastors asked the court for an order “protecting the rights of counselees in their congregations and others to receive pastoral counseling and teaching on the matters of homosexuality.”

“We are most concerned about young people who are seeking the right to choose their own identity,” the pastors’ attorney, John W. Mauck, said in a statement.

“This is an essential human right. However, this law undermines the dignity and integrity of those who choose a different path for their lives than politicians and activists prefer,” he continued.

“Gay conversion therapy” bans have gained traction after Leelah Alcorn, a transgender teenager, committed suicide following her experience with so-called conversion therapy.

Before taking her own life, Alcorn posted on Reddit that her parents had refused her request to transition to a woman.

“The[y] would only let me see biased Christian therapists, who instead of listening to my feelings would try to change me into a straight male who loved God, and I would cry after every session because I felt like it was hopeless and there was no way I would ever become a girl,” she wrote of her experience with conversion therapy.

The American Psychological Association, along with a coalition of health advocacy groups including the American Academy of Pediatrics, the American Counseling Association, and the National Association of Social Workers, have condemned “gay conversion therapy” as potentially harmful to young people “because they present the view that the sexual orientation of lesbian, gay and bisexual youth is a mental illness or disorder, and they often frame the inability to change one’s sexual orientation as a personal and moral failure.”

The White House in 2015 took a stance against so-called conversion therapy for LGBTQ youth.

Attorneys for the State of Illinois have not yet responded to the pastors’ lawsuit.

News Law and Policy

Wisconsin GOP’s Voter Restriction Law Suffers Another Legal Blow

Imani Gandy

In blocking many of Wisconsin's elections restrictions, the lower court ruled that the state must reform how it deals with voters who have difficulty obtaining the required photo ID to vote.

A federal appeals court yesterday refused to stay a lower court order blocking several Wisconsin voting restrictions, allowing election officials to move forward with early voting in the state next month.

Attorneys on behalf of the state of Wisconsin filed the request for a stay with the Seventh Circuit Court of Appeals after a lower court judge last month issued an injunction that blocked parts of Wisconsin’s sweepings elections laws.

The lower court ruled that the justification for the laws did not justify the burden on voting rights that they impose. And this week a three-judge panel of the Seventh Circuit declined to stay that ruling, without explaining.

The ruling comes days after elections officials in Madison and Milwaukee announced their intention to kick off early voting in late September, a month earlier than would have been allowed had the lower court not struck down the restrictions on early voting, according to the Milwaukee-Wisconsin Journal Sentinel.

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The Republican-backed elections law created state-imposed limitations on the time and location for in-person absentee voting, a provision requiring absentee ballots be sent by mail instead of fax or email, the requirement that dorm lists—a certified list provided by the university of the students living in college housing, which student voters may use as proof of residence—must include citizenship information, a ban on using expired but otherwise qualifying student IDs to establish proof of residency, and a 28-day durational residency requirement.

In blocking many of Wisconsin’s elections restrictions, the lower court ruled that the state must reform how it deals with voters who have difficulty obtaining the required photo ID to vote. Gov. Scott Walker (R) and the GOP-controlled Wisconsin legislature had implemented a system under which people who don’t have birth certificates or who have problems with gathering documentation needed to obtain the proper identification would still be able to vote.

The lower court noted that the Walker administration’s system did not provide a viable long-term solution for those voters who could not obtain their birth certificates because they were destroyed in fires or misplaced by bureaucrats.

The court later stayed that portion of the ruling, stating that the system created by Walker’s administration—which provides people with temporary voting credentials while they await a decision about whether they qualify for an ID—was sufficient to allow people to vote during the upcoming November election and therefore does not need to be immediately reformed.

The ruling comes on the heels of a ruling in another voting rights case in Wisconsin, Frank v. Walker, about the state’s voter ID law. In that case, a three-judge panel of the Seventh Circuit stayed a ruling that would have permitted anyone eligible to vote in Wisconsin to an accommodation that would permit that voter to cast a ballot after signing an affidavit stating that they could not easily obtain an ID.


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