Analysis Law and Policy

A Federal Court Finally Connects the Dots Between TRAP Laws and Stigma

Jessica Mason Pieklo

On Monday, U.S. District Court Judge Myron Thompson didn't just block an Alabama admitting privileges requirement. He also made a powerful case for how targeted regulations of abortion providers further stigmatize abortion providers and patients.

Unlike the Fifth Circuit Court of Appeals, which last week could barely bring itself to block a Mississippi law that specifically targeted the state’s only abortion clinic for closure, Judge Myron Thompson took 172 pages on Monday to prove the point that the anti-choice purported crusade, involving policy that requires abortion providers to gain hospital admitting privileges, for patient safety is nothing more than an effort to further stigmatize poor women.

HB 57, Alabama’s law that requires providers to have admitting privileges at a hospital near their clinics, never threatened to curtail access to abortion in the state entirely the way Mississippi’s admitting privileges law did. Instead, the Alabama law, if enacted, would have shut down clinics in three of the five largest cities in the state—Montgomery, Birmingham, and Mobile. That’s a dramatic reduction in access to be sure, and one Judge Thompson notes is part of a larger trend of decreasing availability of abortion care.

A severe scarcity of abortion doctors exists nationwide and particularly in the South. Sixty-nine percent of all counties nationwide have no abortion doctors at all. Between the years of 1982 and 2005, the number of abortion providers in the country decreased by 38%. Only 14% of OB/GYNs in the United States provide any abortion services, including abortions for fetal anomalies or to save the life of a mother, and only 8% percent of OB/GYNs in the South perform any abortions at all, compared to 26% in the Northeast. In Louisiana, Alabama, and Mississippi, no residency program offers abortion training to OB/GYN medical residents. Based on these numbers, it is perhaps unsurprising that no doctor in the entire State of Alabama performed an abortion in her private office from 2007 through 2012.

But it’s not just the shrinking of abortion access that concerns Judge Thompson. It’s about who is most affected by the loss of access to these services. “As a preliminary matter, it is essential to understand that the large majority of abortion patients, particularly in Alabama, survive on very low incomes,” Judge Thompson writes. “More than 70% of the patients at Planned Parenthood’s clinics in Mobile and Birmingham live at or below 150% of the poverty line. In particular, the administrator of the Mobile clinic testified that 90% of that clinic’s patients live in poverty. The demographics of the Montgomery clinic’s patients are similar; 60% of the patients qualify for financial assistance.”

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Judge Thompson continues:

Poor women are less likely to own their own cars and are instead dependent on public transportation, asking friends and relatives for rides, or borrowing cars; they are less likely to have internet access; many already have children, but are unlikely to have regular sources of child care; and they are more likely to work on an hourly basis with an inflexible schedule and without any paid time off or to receive public benefits which require regular attendance at meetings or classes. A woman who does not own her own car may need to buy two inter-city bus tickets (one for the woman procuring the abortion, and one for a companion) in order to travel to another city. Without regular internet access, it is more difficult to locate an abortion clinic in another city or find an affordable hotel room. The additional time to travel for the city requires her to find and pay for child care or to miss one or several days of work. Furthermore, at each juncture, a woman may have to tell relatives, romantic partners, or work supervisors why she is leaving town: to procure an abortion. And, in light of the pervasive anti-abortion sentiment among many in Alabama, such disclosures may present risks to women’s employment and safety. Finally, as Dr. Katz testified, many low-income women have never left the cities in which they live. The idea of going to a city where they know no one and have never visited, in order to undergo a procedure that can be frightening in itself, can present a significant psychological hurdle.

In a climate where anti-abortion politics increasingly masquerades as legal reasoning, to hear a federal judge speak so plainly and without judgement about the hurdles poor women must clear to access abortion care is astonishing. It’s even more astonishing when that judge then goes on to scold other judges for failing to do the same. ”Here, the court must note an error that some courts have made in their undue-burden analyses,” Thompson writes. “These courts have treated obstacles that arise from the interactions of regulation with women’s financial constraints, as well as other aspects of women’s circumstances, as ineligible to be ‘substantial obstacles’ under Casey.” But, according to Judge Thompson, “[t]here is a difference between declining to interfere with a person and refusing to assist her.”

It’s important that Judge Thompson grounds the reasoning blocking the Alabama law as a defense of the rights of the poor, because it helps underscore the deceitful campaign prompting admitting privileges. To believe admitting privileges requirements are about patient safety requires courts to ignore the fact that all major medical organizations oppose such mandates, that the impact of such mandates disproportionately affects populations whose access to reproductive health care is already at risk, that the evidence overwhelmingly shows that admitting privileges requirements are contrary to the standard of care, and to take the junk science anti-choice activists offer up as evidence of their need at face value. But the benefit of a ten-day trial is that junk science can rarely withstand such scrutiny.

Noting that abortion is an extremely safe procedure to begin with, Judge Thompson completely rejects the expert testimony offered by the state, calling it a “county-doctor” model of care that was “out of touch with contemporary medical practice.” More tellingly, Judge Thompson notes, even the state’s expert doesn’t comply with a practice he’d subject abortion providers to.

In fact, the behavior of the strongest proponent at trial of the country-doctor approach illustrates why that approach is out of touch with contemporary medical practice. Dr. Thorp testified that, at his own office, he removes tissue that remains after early-term miscarriages, presumably using the dilation and curettage method, which is identical to early-term surgical abortion. He also puts patients under conscious sedation, exposing them to significant risk from anesthesia, and performs other procedures which carry risks of serious complications. But Dr. Thorp does not maintain staff privileges at any hospitals. It is not clear whether Dr. Thorp, in practice, ascribes to Dr. Fine’s approach or to the Surgical Association’s covering-physician approach. But it is clear that Dr. Thorp has refused to adopt the State’s country-doctor approach in his own practice.

In Planned Parenthood v. Casey, the Supreme Court noted that when reviewing anti-abortion restrictions it must “give real substance to women’s liberty,” meaning that it was the Court’s obligation to ensure abortion rights do not remain legal in name only. Monday’s decision out of Alabama went a long way toward meeting that obligation.

Roundups Law and Policy

Gavel Drop: The Fight Over Voter ID Laws Heats Up in the Courts

Jessica Mason Pieklo & Imani Gandy

Texas and North Carolina both have cases that could bring the constitutionality of Voter ID laws back before the U.S. Supreme Court as soon as this term.

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

Texas Attorney General Ken Paxton intends to ask the U.S. Supreme Court to reinstate the state’s voter ID law.

Meanwhile, according to Politifact, North Carolina attorney general and gubernatorial challenger Roy Cooper is actually saving taxpayers money by refusing to appeal the Fourth Circuit’s ruling on the state’s voter ID law, so Gov. Pat McCrory (R) should stop complaining about it.

And in other North Carolina news, Ian Millhiser writes that the state has hired high-powered conservative attorney Paul Clement to defend its indefensible voter ID law.

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Alex Thompson writes in Vice that the Zika virus is about to hit states with the most restrictive abortion laws in the United States, including Alabama, Louisiana, Mississippi, and Texas. So if you’re pregnant, stay away. No one has yet offered advice for those pregnant people who can’t leave Zika-prone areas.

Robin Marty writes on Care2 about Americans United for Life’s (AUL) latest Mad Lib-style model bill, the “National Abortion Data Reporting Law.” Attacking abortion rights: It’s what AUL does.

The Washington Post profiled Cecile Richards, president of the Planned Parenthood Federation of America. Given this Congress, that will likely spur another round of hearings. (It did get a response from Richards herself.)

Kimberly Strawbridge Robinson writes in Bloomberg BNA that Stanford Law Professor Pamela Karlan thinks the Supreme Court’s clarification of the undue burden standard in Whole Woman’s Health v. Hellerstedt will have ramifications for voting rights cases.

This must-read New York Times piece reminds us that we still have a long way to go in accommodating breastfeeding parents on the job.

Analysis Law and Policy

Federal Court Says Trans Worker Can Be Fired Based on Owner’s Religious Beliefs

Jessica Mason Pieklo

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

When the U.S. Supreme Court ruled in 2014 in Burwell v. Hobby Lobby that the owners of secular for-profit businesses could challenge laws they believed infringed on their religious liberties, civil rights advocates warned that the decision was just the start of a new wave of litigation. On Thursday, those predictions came true: A federal district judge in Michigan ruled that a funeral home owner could fire a transgender worker simply for being transgender.

The language of the opinion is sweeping, even if the immediate effect of the decision is limited to the worker, Aimee Stephens, and her boss. And that has some court-watchers concerned.

“Plain and simple, this is just discrimination against a person because of who she is,” said John Knight, the director of the LGBT and HIV Project of the American Civil Liberties Union of Illinois, in an interview with Rewire.

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According to court documents, Stephens, an employee at Detroit’s R.G. & G.R. Funeral Homes, gave her boss—the business’ owner—a letter in 2013 explaining she was undergoing a gender transition. As part of her transition, she told her employer that she would soon start to present as a woman, including dressing in appropriate business attire at work that was consistent both with her identity and the company’s sex-segregated dress code policy.

Two weeks later, Stephens was fired after being told by her boss that what she was “proposing to do” was unacceptable and offensive to his religious beliefs.

In September 2014, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Stephens, arguing the funeral home had violated Title VII of the federal Civil Rights Act, which prohibits employment discrimination. According to the EEOC, Stephens was unlawfully fired in violation of Title VII “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”

Title VII of the Civil Rights Act allows those employees who have been discriminated against in the workplace to collect money, known as civil damages. Those damages usually come in the form of lost wages, back pay, and funds to make up for—to some degree—the abuse the employee faced on the job. They are also designed to make employers more vigilant about their workplace culture. Losing an employment discrimination case for an employer can be expensive.

But attorneys representing Stephens’ employer argued that the Religious Freedom Restoration Act (RFRA) protected their client from legal liability for firing Stephens. On Thursday, a federal court agreed. It said that paying such damages for unlawfully discriminating against an employee could amount to a substantial burden on an employer’s religious beliefs. 

According to the court, despite the fact that Stephens’ boss admitted he fired her for transitioning, and despite the fact that the court found this admission to be direct evidence of employment discrimination, RFRA can be a defense against that direct discrimination. To use that defense, the court concluded, all the funeral home owner had to do was assert that his religious beliefs embraced LGBTQ discrimination. The funeral home had “met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs,” the court wrote.

In other words, Hobby Lobby provides employers a defense to discriminating against LGBTQ people on the basis of religious beliefs.

“The RFRA analysis is extremely troubling, and the implications of it [are] as well,” said Knight. “I believe this is the first case applying RFRA to a Title VII claim with respect to nonministerial employees.”

If the scope of the opinion were broader, Knight continued, “this would allow [employers in general] to evade and refuse to comply with uniform nondiscrimination law because of their religious views.”

This, Knight said, is what advocates were afraid of in the wake of Hobby Lobby: “It is the concern raised by all of the liberal justices in the dissent in Hobby Lobby, and it is what the majority in Hobby Lobby said the decision did not mean. [That majority] said it did not mean the end of enforcement of nondiscrimination laws.”

And yet that is exactly what we are seeing in this decision, Knight said.

According to court documents, Stephens’ boss has been a Christian for more than 65 years and testified that he believes “the Bible teaches that God creates people male or female,” that “the Bible teaches that a person’s sex is an immutable God-given gift, and that people should not deny or attempt to change their sex.” For Stephens’ former boss, Stephens’ transition to a woman was “denying” her sex. Stephens had to be fired, her boss testified, so that he would not be directly complicit in supporting the idea that “sex is a changeable social construct rather than an immutable God-given gift.”

If the “complicit in denying God’s will” sounds familiar, it should. It has been the exact argument used by businesses challenging the birth control benefit of the Affordable Care Act. Those business owners believe contraception is contrary to God’s will and that complying with federal law, which says birth control should be treated in insurance policies as any other preventive service, makes them complicit in sin. Thursday’s decision cites Hobby Lobby directly to support the court’s conclusion that complying with federal nondiscrimination law can be avoided by asserting a religious objection.

Think of the implications, should other courts follow this lead. Conservatives have, in the past, launched religious objections to child labor laws, the minimum wage, interracial marriage, and renting housing to single parents—to name a few. Those early legal challenges were unsuccessful, in part because they were based on constitutional claims. Hobby Lobby changed all that, opening the door for religious conservatives to launch all kinds of protests against laws they disagree with.

And though the complaint may be framed as religious objections to birth control, to LGBTQ people generally, and whatever other social issue that rankles conservatives, these cases are so much more than that. They are about corporate interests trying to evade regulations that both advance social equity and punish financially those businesses that refuse to follow the law. Thursday’s opinion represents the next, troubling evolution of that litigation.

CORRECTION: This article has been updated to clarify John Knight’s position with the American Civil Liberties Union of Illinois.


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