Analysis Law and Policy

More Contraception Challenges Wait in the Wings as SCOTUS Considers ‘Hobby Lobby’

Jessica Mason Pieklo

The Roberts Court will issue an opinion in the Hobby Lobby and Conestoga Wood Specialties cases in June, but that decision will likely not be the last one from the Supreme Court on the challenges to the Affordable Care Act's birth control benefit.

Read more of our coverage on the Hobby Lobby and Conestoga Wood cases here.

While the Supreme Court considers the question of whether or not for-profit, secular companies can use the Religious Freedom Restoration Act and the First Amendment to avoid complying with the contraception coverage requirement in the Affordable Care Act, dozens of other legal challenges to the birth control benefit march on in the federal courts.

Those challenges have been filed primarily by religiously affiliated nonprofit organizations that claim the process for opting-out of contraception coverage under the law’s exemption for some religiously affiliated entities unduly burdens their religious rights. The rule allows a nonprofit that holds itself out as religious and has religious objections to birth control to refuse to cover it, by self-certifying under a form filed with the federal government. That self-certification acts as a trigger for independent insurance providers to provide contraception coverage for the nonprofit’s employees or anyone else covered by the nonprofit’s benefits’ package. So far, 34 nonprofits have sued, arguing that exemption process is not sufficient, and of those cases 20 are pending in some way in federal appeals courts across the country.

A couple of things stand out when looking at the full list of legal challenges to the birth control benefit filed by nonprofits. First, it is clear that the Tenth Circuit Court of Appeals is increasingly becoming an important jurisdiction for conservatives. The Tenth Circuit includes the federal courts located in Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. While it has a reputation as a conservative jurisdiction generally, the Tenth Circuit more recently has shifted from being merely a reflection of conservative influences in the Western Plains and mountain states to being clearly ideologically opposed to reproductive rights and equality, as recent decisions upholding Kansas’ Planned Parenthood funding ban and Hobby Lobby demonstrate. Currently three nonprofit challenges are pending before the Tenth Circuit, including Little Sisters of the Poor, a case that has already made one brief appearance before the Roberts Court.

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To the west of the Tenth Circuit is the more reliably liberal U.S. Court of Appeals for the Ninth Circuit. That federal appeals court jurisdiction covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. Notably, there are no pending cases challenging the contraceptive coverage requirement in either the Ninth Circuit or any of the lower federal district courts in the states making up that jurisdiction.

Meanwhile, to the east sits the conservative U.S. Court of Appeals for the Fifth Circuit, which covers Louisiana, Mississippi, and Texas; and the U.S. Court of Appeals for the Eighth Circuit, which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. Between these two federal circuits there are at least eight pending challenges in either the lower district court or the courts of appeals. That means that over half of the legal challenges filed by religiously affiliated nonprofits have been filed in jurisdictions west of Chicago, Illinois.

Second, the geographical distribution of legal case filings is a pretty accurate reflection of our current political landscape when it comes to issues of reproductive rights and justice. On the one hand, this is not surprising. Conservative states will likely have conservative-minded federal judges appointed to the bench, which means that when national advocacy groups craft a litigation strategy they will look to conservative-leaning jurisdictions as one place to file their lawsuits. On the other hand, for anyone who still believes these legal challenges exist independently of any political campaign to undermine health-care reform, these numbers should do away with that belief. Consider the fact that other than the liberal Ninth Circuit, only one other federal jurisdiction, the First Circuit, currently has no pending nonprofit legal challenges. The First Circuit, also considered a more liberal-leaning appellate circuit, is home to Massachusetts (as well Maine, New Hampshire, and Rhode Island), where health-care reform first took off in the United States. Meanwhile, the more conservative courts of appeals for the Sixth Circuit and the Third Circuit—with the important political swing states of Michigan, Ohio, and Pennsylvania, which are all locked in battles over voting rights, Medicaid expansion, and abortion access—have nearly ten pending legal challenges to the birth control benefit between them.

It will likely be late June before the Supreme Court issues its decision in the Hobby Lobby and Conestoga Wood Specialties cases, and by that time we could have several more appellate decisions in the religious nonprofit challenges like Little Sisters of the Poor. And with so many more cases in the federal courts pipeline, it’s a question of when, not if, these challenges also reach the Roberts Court. That’s why where these cases are being filed matters; it is the circuit court justices who will frame the issue for the Supreme Court to consider. And if we’ve learned any lessons from the for-profit legal challenges to the birth control benefit, it is the danger of letting conservative judges control the framing of reproductive health-care issues.

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.

Roundups Law and Policy

Gavel Drop: Ruth Bader Ginsburg Hints at More Supreme Court Retirements

Imani Gandy & Jessica Mason Pieklo

In a recent interview, Supreme Court Justice Ruth Bader Ginsburg dishes on the last Supreme Court term and hints the next president may have more than one justice to appoint.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.

Ruth Bader Ginsburg suggests the next president is going to have a couple of U.S. Supreme Court nominations to make, which means the Court could be effectively up for grabs depending on this election’s outcome.

This summer, the Supreme Court ordered the Obama administration and religiously affiliated nonprofits who object to providing contraception to try and find some kind of compromise. While they hammer one out, a University of Notre Dame student has asked a federal appeals court to let her join in the litigation, to fight the university’s stance of trying to deny access to contraception coverage.

Anti-choice protesters will be descending on Wichita, Kansas, this week to commemorate the 25th anniversary of the Summer of Mercy clinic sieges.

A state judge dismissed a lawsuit filed by Kentucky Gov. Matt Bevin (R) against Planned Parenthood of Indiana and Kentucky for purportedly performing abortions without license.

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Florida officials have not yet appealed a federal district court ruling blocking a law that would have prevented Medicaid funds from going to Planned Parenthood reproductive health care centers. The law would also mandate a state regulator review of patient records from half of the approximately 70,000 abortions in the state each year.

An Ohio appeals court ruled a Cleveland abortion clinic can move forward with its lawsuit challenging requirements that prohibit public hospitals from entering into transfer agreements with clinics, along with another requirement that mandates providers to check for a fetal heartbeat before performing an abortion.

Attorneys from the American Civil Liberties Union (ACLU) sued to block an Indiana law requiring that a patient getting an abortion must have an ultrasound 18 hours before the procedure.

Meanwhile, abortion rights supporters in Wisconsin are urging lawmakers to repeal the state’s admitting privileges requirement.

Anti-choice lawmakers in Texas plan to try to require aborted fetuses to be buried or cremated in an attempt to add additional emotional burden and administrative expense to the procedure.

Free speech for whom, exactly? The man who posted the video of the police killing of Alton Sterling has been reportedly arrested on charges of assault and battery.