RJ Court Watch Podcast: The Real Agenda Behind ‘Religious Liberty’ Bills

Related Links

Hey You! Vaccinate Your Kids

Christian Child-Care Center Settles Lawsuit Over Firing Single, Pregnant Employees

Professor Marci Hamilton’s Pulitzer-nominated God vs. the Gavel

Transcript

Welcome to RJ Court Watch, a legal podcast produced by Rewire and hosted by Senior Legal Analysts Imani Gandy and Jessica Mason Pieklo. This episode takes a look at the explosion of so-called religious freedom bills at the states and the push by conservatives to enshrine practically everything they can under the First Amendment. The result? Disasters like the Hobby Lobby decision, anti-LGBT legislation and even the measles outbreak.

JMP: Imani you and I went to law school around the same time. Is this the same First Amendment and religious liberties world you remember?

IG: Well I sort of remember this whole idea of separation of church and state. That seems to have fallen out of fashion apparently as of late. I find it really disturbing in particular in which the ways religion is being used as a cudgel against science, and I think that holds true when it comes to the whole vaccination kerfuffle with the measles outbreak. And it also holds true when we start talking about contraception and abortifacients and the ways in which a lot of religious folks seem to think that they can just deem something to be true and the courts have to accept that as true. And I find that really troubling.

JMP: Why is it that there has been, I think, a good pushback by the left in particular against the religious freedom arguments in the context of the anti-LGBT legislation and the idea that legislators in Oklahoma for example are suggesting that businesses have a right to refuse to serve someone based on their sexual orientation. And that’s an argument that people seem to be calling shenanigans on. But what we seem to be doing culturally and what the left has done a less good job, in my opinion, is pushing back against those same arguments in the public health sphere.

IG: It troubles me that courts are seemingly no longer in the business of questioning people’s religious beliefs, not whether or not they exist, but whether or not they are sincerely held or whether or not they are based in some religious precept. So for example, if we are going to talk about the Bible says homosexuality is bad, well where in the Bible does it say that homosexuality is bad? If we are going to talk about well the Bible says, or whatever particular religion I subscribe to says that I don’t have to vaccinate my kid. Well where does whatever religious precept that you adhere to say that? I actually wrote an article entitled, “Hey! Vaccinate Your Kids” and I actually looked at different religions and what their beliefs are with respect to vaccinations. And it turns out that not a single religion thinks that vaccinations are bad. There is not a single religion that advocates against vaccinating children. And so how is it the case that courts are, or state legislatures are allowing people to cite religion in their effort to deny vaccinations to their kids, to destroy herd immunity in our community?

JMP: Because it’s really a trojan horse right? It’s not a so much a religious objection to vaccination as much as it is a cultural objection to being told what to do by the government.

IG: So what’s really interesting is that, you know we live in a society and in a society we all subscribe to a social contract. And that social contract requires us to compromise in some respects. It requires us to let go of some of our religious beliefs if letting go of our religious beliefs is going to benefit our fellow men and our fellow women. So for example when Ruth Bader Ginsburg in her Hobby Lobby dissent said something to the effect of ‘the right to swing your arm ends just as the other man’s nose begins.’ That’s sort of what we are talking about here. So the right to have your unvaccinated kids running wildly ends when you are putting those unvaccinated children in schools and you are actually endangering the lives of other children, children who physically cannot get vaccinations because they are immunosuppressed in some way. And I find a lot of this strict adherence to religious beliefs to be somewhat selfish. I know that is kind of a funny thing to say, and I don’t mean to say that Christians are selfish or that Jewish people are selfish. But if you are willing to allow another person’s child to die because you believe something that is factually inaccurate because your religion tells you to believe that, then how is that not just selfishness at the end of the day?

JMP: I love your social contract point because this is what the law used to recognize when it would balance constitutional rights, right? I mean, we all have First Amendment free speech rights but that doesn’t mean we all get to say whatever we want whenever we want. There are limits. And that is sort of in my mind the law’s way of recognizing the reality of that social contract, and this explosion of religious liberties arguments flies directly in the face of that. Thankfully our guest for this episode, Marci Hamilton, is one of the leading experts on this and really I think does a phenomenal job putting together the pieces of the anti-civil rights agenda in these religious liberties arguments, and the public harm, particularly with regard to children, and it’s really important I think that we talk about this more and more.

IG: I think it is really interesting that this is happening during the 50th anniversary of Selma this year. It was this weekend as a matter of fact. So I think it is really interesting that 50 years ago Black people were taking to the streets fighting for their rights and now we have, 50 years later, lesbians, gay, bisexuals and transgender people are fighting for their rights and are asking for basic human rights, which other people have, like the right to get married. Like the right to not be discriminated against in an employment situation. The right to be able to go into a public accommodation, a public store or restaurant or club of some sort and be served. And what we are seeing is religious folks, religious zealots and extremists are using these RFRA’s, these state-level religious freedom acts in order to strip rights away from people and it seems really abhorrent that that is what they are trying to do. They are trying to use something that is as special and as personal to people as faith to strip rights from other people.

JMP: We are thrilled to welcome Professor Marci Hamilton, the Verkuli Chair in Public Law at Benjamin Cardozo Law School at Yeshiva University to talk about the explosion of so-called religious freedom restoration acts across the states and so much more.

JMP: Professor Hamilton thank you so much for joining us.

MH: Thank you for having me.

JMP: Imani and I have talked a lot on this show about the RFRA with regards to Hobby Lobby and the fight over the birth control benefit in the Affordable Care Act. But the reality is these birth control is only one small slice of the fight. Marriage equality is another. And it doesn’t end there, doesn’t it?

MH: No. These bills are really designed to apply to every law in the jurisdiction. So the federal RFRA was intended to apply to every single law in the country and the states are intended to apply to their own state law.

JMP: You recently profiled the religious exemption regime in Idaho, and I will provide a link to that post for our listeners because I think it did a really excellent job of tying these laws to broader anti-public health initiatives and I’m hoping you can talk about that a little more. Because in my opinion one of the most under-reported elements of this fight over these religious freedom restoration acts is how they can be used to undermine public health and really endanger children.

MH: Well that is really the enduring issue with respect to RFRA’s that keeps me at this daily because very few people pay attention to how children are treated, whether its medical neglect or with respect to child abuse. Children don’t vote and they really don’t have much of a say. We have an increasing set of voices in the United States that are behind children. But still when they get into the legislature they are up against powerful lobbying entities, and some of the most powerful are the religious lobbies. And so when I first got started with this, when I wrote the first edition of God v. The Gavel I really was shocked to learn that the reason faith healing parents can refuse medical treatment to their children in numerous states is because the Nixon Administration encourage, in fact coerced the states, to create faith healing exemptions to ordinary medical neglect laws. Those opened the door for children not to be treated, to die or to suffer, and they also opened the door to this idea in our culture that if you are doing it for religious purposes it’s fine. And as far as I’m concerned if you are doing anything and it is harming children it’s just not fine.

JMP: One of the issues that I think that the right has been very successful at in this fight is the naming fight. And in your introduction I called these so-called religious freedom restoration acts because in the name I think there is the implication that somehow religious freedom was under attack and is under attack, and I think we are seeing that now in the proliferation of these bills in response to the push for marriage equality and to have them come up as conscience refusals. And I was just wondering what your thoughts were on that in terms of the marketing battle that is being waged in the court of public opinion while we have these legal battles going on.

MH: Well I have to hand it to the lobbyists behind the RFRAs because they chose a brilliant title because it does sound like if you need restoration of religious freedom it must be under attack. And there’s nothing a legislator would more like to do than look like they are saving people and their constitutional rights. But from day one those behind this have misled the public and legislators about what the law really was under the First Amendment and what RFRA is. RFRA is an extraordinary standard to the benefit of religious entities that the Supreme Court, in its First Amendment cases, rejected again and again and again. The reason we have RFRA is because the religious groups realized all of a sudden that their campaign for 20 years to create extreme rights was at an end. The Supreme Court in the 1990’s which was basically when I was clerking for Justice O’Connor so I saw this on the ground, the Court in 1990 decided Employment Division v. Smith and they set out that that is just not the standard. And the response to Smith, which just reiterated the law that had been in place for decades, the response was irrational but politically brilliant. And it took many people unawares, and that includes the ACLU, People For the American Way, Americans United for Separation of Church and State, these very liberal groups that ordinarily wouldn’t give the time of day to a movement trying to undermine the fair housing laws, which is where RFRA started, they came on board. And they gave cover to the religious groups who were trying to get they never had before. Once RFRA was passed at the federal level and it was held unconstitutional in 1997 in a case I brought to the Court then the groups fanned out to the states. And in 1997 to today how do they sell a state RFRA? They say that it simply is restoration of the law to 1990 and it can’t hurt anybody. And politicians pick it up and it’s false, and it really just a matter of public education to fix the problem.

JMP: I really appreciate you bringing up the anti-civil rights origins of RFRA because I think that is another element of this that is wildly under-reported and I’m wondering if you can say more to that because I think it’s really relevant, particularly now that the Supreme Court has set April 28th as its date to hear the marriage equality arguments.

MH: Right. Well, I did not learn until after I litigated the Boerne case in 1997 and the Court held RFRA unconstitutional, it was only after that that I learned the primary motivation for those avidly backing the RFRA’s was the concept that the fair housing laws were burdening religious believers because the growing number of fair housing laws in the states would not permit an apartment owner to discriminate against an unmarried couple, a single mother, or a same-sex couple. And various conservative religious groups wanted to be able to exclude those categories from their rentals. And so that is where this all started. But nobody talked about that because if they had brought that up when it was first enacted in 1993 it would have died on the vine. When it was re-enacted in 2000 it went forward only with respect to the federal RFRA and federal law. Why? Because once again the groups that should be protecting rights blinked and they assumed a federal RFRA applied to federal law and couldn’t hurt any kind of civil rights laws and they assumed the RFRA’s wouldn’t be in the states and their anti-discrimination laws would stand. They were wrong both times.

JMP: And what we are seeing now in places like Mississippi and Oklahoma and Alabama these anti-public accommodation law coming up, correct?

MH: Right. And the money that is pouring into the pro-RFRA side is coming primarily from the anti-abortion, anti-contraception organizations, along with the anti same-sex marriage organizations. It’s interesting. Common Cause recently published a report showing that the far right religious groups, largely the anti-abortion and anti-LGBT groups, are really the most active in the state legislatures and this is the same story. So these are groups that are trying to do two things. They are trying to keep, as much as they can, contraception and abortion from women, and that was what Hobby Lobby was all about. And they are trying to ensure that none of their believers have to deal with the LGBT community regardless of whether there is same-sex marriage or not. It really comes down to anti-LGBT bias and that’s really what is sad about this current development and they’ve become so willing to be public about the need to discriminate against some of our public that for me I find is shocking that any legislator doesn’t see the parallels with what is going on now and Selma, Alabama. But that’s where we are.

JMP: One of the goals that I have as a journalist is to try and draw connections when we have these politicized public health debates to the phony or pseudo-science that is often propping up the opposition, and I’m wondering if you see a link between the forces uniting behind these RFRA provisions at the states and the quasi-science or pseudo-science that is used to back up anti-abortion legislation or even in gay-conversion therapy or things like that?

MH: Right and what I would add to those two is the vaccination issues. There is a willingness to embrace information that is antithetical to medical fact and to use it for their ends. One of the most remarkable parts of Hobby Lobby was that the Court protected a believe about a medical practice that would affect all its employees across the country that was actually contrary to medical fact. So the notion that an employer can say ‘that contraception is an abortifacient and therefore I don’t have to pay for it, when in fact that contraception is not not an abortifacient, is a huge expansion in the ability of a believer to argue how far their beliefs stretch. That is part of the thinking that is fueling these extreme religious freedom statutes across the country.

JMP: How do you see this fight evolving after the Supreme Court issues its decision, likely in June in the marriage equality cases?

MH: Well my assumption is that the Court took the cases because in all likelihood there are five votes to say the states may not discriminate on the basis of sexual orientation when it comes to marriage. I expect firery dissents, but on the other hand I expect there are five votes for it. Where that leaves us is that is unconstitutional to discriminate against these couples in the states. What it doesn’t do and what it can’t do because it’s beyond the scope of the case, is to decide whether or not public accommodations laws can be crafted so as to avoid serving these couples. And that is going to be the next wave of litigation. And I think even with same-sex marriage in place we are going to have this pushback by various conservative religious groups, and I think they’ll be more desperate, to have some way, and the real goal is to just don’t want to have the LGBT people in our universe. They can’t come into our stores, they can’t come into our restaurants, we don’t have to give them anything for their weddings. But of course the laws that are being crafted are not wedding or same-sex marriage specific. They are really just say this business owner can choose not to deal with that person in public if there’s something about that person that violates the business owner’s religious beliefs. So they are being sold as an ability to keep out homosexuals and same-sex couples, but they are by their language, and just like RFRA, they apply far beyond what anyone is trying to sell it as. And in fact they will open the door, if passed, to being able to say ‘I’m not going to serve you based on race, and I’m not going to serve you based on gender, and I’m certainly not going to serve you if you don’t have a head covering on your head and I’m not going to serve you because, frankly, I understand you had an abortion. So there are, this is Pandora’s Box that is being opened and it’s an evil Pandora’s Box. We’ve seen this before. We know how public accommodation laws were needed in the South and they are needed even more now. And so there’s no way the Supreme Court will rule on that aspect, but that will be the next wave of lawsuits.

JMP: Professor Hamilton thank you so much for taking time out of your very busy day to talk with us about this amazingly important topic and I hope to have you back on because as you said this is not a fight that is ending anytime soon and if anything will only get amplified and become more into focus after June. So thank you so much.

MH: Thank you for having me.

Thank you for listening to RJ Court Watch, a legal podcast produced by Rewire. For more of our coverage on reproductive rights and justice issues please go to www.rhrealitycheck.org.

RJ Court Watch: Indiana Convicts Its First Pregnant Person of ‘Feticide’

Related Links

Indiana Prosecutors Start Jury Selection in Feticide Trial on ‘Roe’ Anniversary

Purvi Patel Convicted of Feticide, Neglect of a Dependent

Transcript

Welcome to RJ Court Watch, a legal podcast produced by Rewire and senior legal analysts Imani Gandy and Jessica Mason Pieklo. This episode we discuss the criminal prosecution of Purvi Patel, an Indiana woman who was recently convicted of two contradictory felony charges of neglect of a dependent and feticide. Patel’s case is the second time Indiana prosecutors have gone after a woman in relation to a bad pregnancy outcome, and there are already reports of more cases lining up behind hers.

Jessica Mason Pieklo: Imani, it’s hard to think of a clearer case of why it is not just important, but fundamentally necessary, to approach reproductive rights issues from a reproductive justice framework than Patel’s case.

Imani Gandy: Yeah, and not even really just that. It’s important to approach these cases from a common sense standpoint. I mean, there is nothing about this case and this verdict that makes any sense to me whatsoever. I mean, how can you be charged with killing a fetus and then neglecting a live baby? It doesn’t make any sense. Can you explain it to me, Jessica?

JMP: Well, I can’t, but I will certainly try. So here’s what’s going on in Indiana. Purvi Patel is a 33-year-old woman who showed up at a hospital with heavy vaginal bleeding. At first she was reluctant to admit to doctors that she had a birth, but eventually she did. And then everything went bananas from there, basically. What Patel told doctors was that she had miscarried at home, that she placed the remains in a garbage bag and disposed of them, because, I mean, from a practical matter, if you have a miscarriage at home, I think that’s likewhat do you do, right? I mean there is just that issue out there. But doctors went bananas and police showed up and they were interrogating Patel at three o’clock in the morning in her hospital room and all this led to two different charges. One is feticide for what prosecutors claim is Patel’s self-induced abortion. They claim she ordered drugs online, abortifacients, and induced a miscarriage at home. Then they also charged her with neglect of a dependent, which requires a live birth. So, we have two charges: one says Patel induced a stillbirth, a dead fetus; and the other says she induced a live birth and then neglected the baby until it died. That discrepancy apparently didn’t matter to an Indiana jury who convicted her on both charges and now she faces up to 70 years in prison.

IG: It’s really just mind boggling to me. And what’s really more mind boggling to me is, as you said, looking at this from a reproductive justice standpoint, the other woman that was prosecuted for similar charges [in Indiana] was also a woman of color. So it makes me wonder what is going on in Indiana, what is going on in this country where we are seeing more and more laws enacted by state legislatures that have a disproportionate effect on women of color. And I don’t know what to do. I don’t know how we can make this issue, I don’t know, more appealing to society at large. I don’t know if there needs to be a couple of white women who end up being prosecuted and facing 70 years in jail before we can get people to start caring about this stuff. But just a quick Google search shows that there aren’t a lot of articles or news stories about this case, and one would think that this would be something that everyone is talking about. I guess the verdict means that more people will be talking about it, but the notion that this woman is facing 70 years in prison for a bad pregnancy outcome is really just outrageous.

JMP: It is, and you bring up a lot of good points that I think really deserve some unpacking. One of them is the fact that Patel’s prosecution is not the first time Indiana has tried to do this. They tried to do this a few years earlier with the prosecution of Bei Bei Shuai, a Chinese woman who attempted suicide in the eighth month of her pregnancy and ultimately lost the pregnancy as a result. She survived and prosecutors tried but ultimately dropped the feticide charge against her because they didn’t have the evidence that she was attempting to kill her baby. Not to mention the fact that the statute was never contemplated to be used against women, against pregnant women. But, ultimately, I think what we are seeing in both these prosecutions is not prosecutions based on evidence but prosecutions based on emotion and assumptions about what an appropriate mother looks like, how an appropriate mother behaves, and how a woman should or should not respond to news that she is pregnant. One of the things that really struck me about the Patel prosecution in particular was there was a lot of testimony from the state about Patel’s demeanor. They said that she didn’t cry enough, that she was having a difficult time looking doctors in the eye when she was talking to them, that she was very cold in her demeanor. They spun that so say she was a murderer. Those are also classic trauma symptoms too. So I think the fact that we have the state coming down in its criminal capacity against women of color for bad pregnancy outcomes is something that, I mean, we expect the anti-choice community to be silent about this kind of thing, but the reproductive rights community really needs to be coming together and up in arms about this.

IG: Right, and I think the fact that her parents were strict Hindus, it seems to me she was hiding this pregnancy from her parents who were strict Hindus so there was to be no sex before marriage let alone a baby out of wedlock. So it seems to me there is a lack of awareness or concern for cultural difference that could compel certain women to react differently to a pregnancy. Where is the understanding about various cultures here? I really am at a loss, because it really is profoundly depressing, because she is a 33-year-old woman who ostensibly had her entire life ahead of her. She was in a relationship with a married man and now she potentially imprisoned for 70 years for charges that literally do not jive well together. You cannot be at the same time guilty of killing a baby and also neglecting a baby. I know I seem to be stuttering and stammering its simply because I’m really that shocked and unable to figure out what we as a community can do to raise awareness about this sort of stuff. It’s not the first time this has happened in Indiana, but these sorts of cases are also happening around the country. There is the case of Amanda Kimbrough in Alabama who was charged with chemical endangerment because she was addicted to methamphetamines. I mean where is the concern for women who are addicted to drugs? Where is the concern for women who are having mental health issues? There has got to be a better way to help these women rather than just prosecute, convict them and throw them in jail.

JMP: I think when we peel back all of the layers in the Patel case we see so many of the societal failures across the board. There was a lot of evidence and testimony about text messages back and forth between Patel and her best friend about her menstrual cycle. Did she miss a period, or was she spotting? How far along in the pregnancy was she? So there is this issue and Indiana is a state with no sex education in its public schools and where it is practically impossible to get an abortion and where anything having to do with sex and female sexuality is completely taboo and then on the flip side of that anything having to do with motherhood and the biology of reproduction is mystified to the point where women and people don’t have access to the basic information to empower themselves to make good reproductive health choices and then face felony charges and potentially the rest of their life in prison for making decisions when in moments of crisis. And that is just an across-the-board failure.

IG: Speaking from the legal perspective, I’m really interested in this whole lung float test that the pathologist used to determine that the baby was born alive. I mean, this is a test that has been discredited since the 80s. So how is it that these sorts of anti-scientific methods are making it into the courtroom? And it’s not just the courtroom. Junk science is permeating legislatures to the point where you have legislatures for example including pages and pages of nonsense about fetuses feeling pain to further restrict access to safe abortion care. So there seems to be a problem withand we even see it in the current measles outbreak with people talking about whether or not herd immunity is something that is real, whether or not vaccinations is something that is real, or whether it is BigPharma that is trying to control us all. There is a real problem in this country with people disbelieving science and believing that their own quasi-science or their own emotion trump actual, logical, scientifically provable facts.

JMP: The float test is really fascinating, and our colleague Emily Crockett made a comment to me about how it sounds like something right out of the Salem Witch Trials, right, like if the fetus’ lungs float then she’s a witch! And I hate to make light of it, but it is so tragic that I think we have to in that sense, because that is the level of absurdity we are at. As you said, this is anti-science.

The pathologist determined, based on a test that if the lungs float in water then they had air in them. But having air in them is not necessarily the same thing as having taken a breath, for example. And, there is volumes and volumes of scientific evidence where during second-trimester miscarriages, for example, a baby takes a breath. That doesn’t mean that the baby was ever viable, that that baby would ever survive, which is an important test when we are talking about neglect of a dependent right because that statute, that charge right there, depends on a viable actual human being not a potential human being, which is when we are talking about pregnancy, something there. And I think you are right to connect it to junk science across the board. I mean, the pathologist in this case, this is one of my favorite absurd facts from the Patel case, moonlights as an instructor in the Bradley Method of birth coaching. The Bradley Method for those of you unfamiliar with is a husband-centered, male-focused process, where its like lamaze, except its all about the guy as the perfect coach through this process, and to me that says everything about the bias against Patel. These people decided that she was not the perfect mother, or that she was not an appropriate woman because of whatever reason. And they found a way to throw her in jail for it.

JMP: We have with us Rev. Marie Siroky, board member of the Indiana Religious Coalition for Reproductive Justice, an organization that is and has been closely monitoring the Purvi Patel prosecution.

Rev. Siroky, thank you for joining us.

Rev. Marie Siroky: Thank you for having me.

JMP: One way to describe the Patel case is that Ms. Patel is being prosecuted for “felony miscarriage” or “felony stillbirth.” Can you kind of quickly walk us through the case the State of Indiana is trying to make against Ms. Patel and whether or not you feel like that description is an accurate or a fair one.

MS: I think your description is very accurate and very fair. And, briefly, what happened: Ms. Patel went to the hospital in July 2013 for bleeding, profuse bleeding, and during the course of her examination they asked if she was pregnant and delivered, and she said no. They sent her to the OB ward, where at this time she had lost about a fifth of her blood, and they asked again and she said no, she had never been pregnant or delivered. They actually called in a third doctor, and then I believed they examined her and there was an umbilical. She then admitted she delivered at home, a stillbirth, said the baby was not breathing and that she had wrapped it in a bag and placed it in a dumpster.

JMP: One of the things that has struck me about the Patel prosecution that is similar to the Bei Bei Shuai case which came before Ms. Patel sadly in Indiana is the idea that there are a lot of officials in the chain that seem to be jumping to the conclusion that there was a bad act here. Does that fit with your assessment as someone who is actually in Indiana?

MS: Yes it definitely does. And there’s something, you know, I don’t like to use the term “pro-life,” “pro-choice,” because I think all of us are for life, but there seems to be this idea that whenever there is a less than optimal outcome, that the first thought the woman did something wrong and it is right away persecution. You had the Bei Bei Shuai case—which was so involved and very different from this one—which even though in her case the baby was born alive, was almost full-term, and then died afterwards. In the Bei Bei Shuai case, she wanted to commit suicide but the drug she took doesn’t cross the placenta and wouldn’t have affected the baby, none of that mattered from their point of view in pursuing that prosecution though that was eventually dropped to a different charge. Recently, in Indianapolis there was a dead infant found in a park which they estimate to be about a year old. Everything is going toward where is the mother, we have to find the mother, the safe haven laws. Nothing toward could she be a victim too. Even when I asked the police about that. Is it possible she is also a victim? That she’s dead somewhere? No. It’s always what did she do wrong.

JMP: Can you talk a little bit about the climate in Indiana for pregnant people and families and any services or lack of services that your state has and how that fits into the Patel prosecution?

MS: I think the overall atmosphere is, women, you know we have the fourth highest infant mortality rate. And that’s not just infants, it actually goes up to 2 years of age. So what is happening is two things. There is not enough access to services for prenatal care, and then also not enough access—you know once the child is born—as far as health, classes, coverage. All these are missing. Instead, there is so much legislation—so much legislation going toward criminalizing women when they are pregnant, which would not be a crime for anyone else. There is so much weight focusing on this, as I tend to call it, pro-fetus, because the woman is totally discounted in this. A new bill was just introduced that would make it a felony if a woman who is pregnant or reasonably knows she is pregnant takes a controlled substance. Reasonably knows she is pregnant? Who gets to decide when you reasonably know you are pregnant? So even though you could legally choose to have an abortion in between that time, say you ingest something—that could be a felony. Does that make any sense at all?


Thank you for listening to RJ Court Watch, a legal podcast produced by Rewire. For more of our coverage of reproductive rights and justice issues, please go to www.rhrealitycheck.org.

RJ Court Watch: Why Loretta Lynch Is the Right Nominee for Attorney General

Related Links

It’s Time for Progressives to Rally Behind Loretta Lynch

Obama Expected to Nominate Loretta Lynch as First Black Female Attorney General

Transcript

Welcome to RJ Court Watch, a legal podcast produced by Rewire and hosted by senior legal analysts Imani Gandy and Jessica Mason Pieklo. In this episode we discuss the nomination of Loretta Lynch as attorney general. Lynch, a Harvard Law grad and U.S. attorney out of New York, oversaw the prosecution of New York City police officers in the Abner Louima case, was involved in the prosecuting both Republicans and Democrats for abuse of power, and if confirmed would be the first Black woman to serve as U.S. attorney general.

Jessica Mason Pieklo: We are here with political analyst and Rewire contributor and contributor to Ebony.com Zerlina Maxwell to talk about the nomination of Loretta Lynch to replace Eric Holder as attorney general. Thank you so much for joining us, Zerlina.

Zerlina Maxwell: Thanks for having me.

JMP: So as Attorney General Eric Holder has been kind of a polarizing figure for both the right and the left and my initial read on the reaction to the Lynch nomination appears to be kind of similar in that the right and the left have taken some pretty strong positions already. And I was curious as we just start talking about this what your thoughts were as to why President Obama’s attorney general nominees seem to get such a vitriolic response from his detractors.

ZM: Well, I just think the office, the Department of Justice becoming politicized, I mean obviously in past generations the office was politicized, but in our modern era, under the Bush administration it really became a political arm of the administration and something that it shouldn’t be and it’s not supposed to be. And I think that continued on, at least the perception of what the attorney general was doing. So obviously throughout history we’ve had moments where there were very, very politically charged cases. But I think that with Eric Holder, one of the things that was interesting about him all along was that he was very polarizing, but not necessarily because he operated as a political arm of the administration. He was polarizing because he said truthful statements about race in America. And you know, calling the country a nation of cowards doesn’t really set you off on a path of harmony in a moment where the Republicans are anti-everything Obama and then you put a Black attorney general who is calling out American racism to head the Department of Justice, you’re already set up for him to be controversial. And I think, you know, he was way more controversial, like I said, in terms of his persona then in his actual job performance. And I think, unfortunately, it has colored a little bit of how Loretta Lynch’s nomination is being viewed. It’s being viewed from that same lens.

JMP: I think the reaction from the right and the issue of race is really important and one I hope we dig into really deeply in part because I also want to tie it if we can from some of the attacks on Lynch from the left. And I think you, Imani, had a great piece on this.

Imani Gandy: For my part, I find it disheartening that here we are five years after the total economic collapse that began in 2008 with the downfall of Lehman Brothers, it seemed like the Department of Justice made it clear that they were going to prosecute some things and they weren’t going to prosecute other things. They weren’t going to prosecute some of these “too big to fail” banks because of ramifications for the economy. And while I certainly would have liked to see more individual bankers held accountable for that, but I’m over it already. You know what I mean? It was five years ago, and I just think there are bigger fish to fry. So when I see someone like David Dayen who is one of those white, progressive, lefties who is sort of in the sort-of Glenn Greenwald camp of things. And I’ve met him on HuffPost Live and he was perfectly charming and perfectly gentlemanly and very, very nice. But I thought his article in Salon was really, really thin. I thought it drew some connections that just weren’t there. And I think that as someone who was a litigator for ten years I can understand maybe why some people who are not involved in the private practice of law might think that “oh a Wall Street lawyer, she’s going to be a Wall Street lackey.” But that’s just not the way corporate law works, you know. It’s not as if, it’s not like with Timothy Geitner who actually was on The Fed, and then had friends who were bankers and financiers and whatnot. This is just a lawyer who had bankers as a client. So I found those attacks to be really thin and just really old. I’m just sort of tired of hearing about how it’s so terrible that these bankers haven’t been perp-walked to jail when, you know, Black people are being murdered in the street, you know. We’re being disenfranchised. Children of color are being fed right from school into prison and I think those issues are more important.

ZM: Absolutely. And just to add on to that, that’s why I think her nomination is so important. Because all of the work that she has done and the issues that are hot right now that are coming up, they coalesce. We’re talking about a moment. Ferguson is happening and the Department of Justice is prosecuting them, the St. Louis police department on two fronts. And so you need somebody in that job who understands civil rights and who does in a real way, and not in some superficial way. Someone who fundamentally understands it and has the life work and career that shows that she does, right. She was on the team that prosecuted the police for Abner Louima, so she has, sort of, the record that demonstrates she’s ready to take on those challenges and I just think that like Imani says the critiques are yeah, they’re old. I’m like, really? You’re mad at her because she had some Wall Street clients? Everyone has Wall Street clients. If you’re a lawyer in New York you have Wall Street clients. If I run for office in ten years, not that I want to do that, but is somebody going to be like “she used to work in a corporate law firm and have corporate clients?” It’s ridiculous, in a way, that attack. And I think for the most part the left needs to have a come to Jesus moment when it comes to women of color being attacked. Or just people of color being attacked. Because in the Obama administration there has been a persistent trend that the people of color that are in positions of power: I’m talking about Valerie Jarrett. I’m talking about Lisa Jackson. I’m talking about Eric Holder and Shirley Sherrod.

IG: Susan Rice

ZM: And now this nominee Loretta Lynch. Why is it that all of these people are put out and attacked, and yet the left just adds on. Adds on. Instead of defending that person. One of the things I’ve always believed is that the “fast and the furious” attacks on Eric Holder were meant to distract attention while he was fighting to save our voting rights, and it really just undermined his reputation and authority on that issue by distracting us with this nonsense of “fast and furious,” which started under Bush and wasn’t his fault and it was proven so, and yet there’s still something to say as if there was some scandal that he was the mastermind of. So I just think that a lot of this is to undermine their authority and we can’t continue to let them do that.

JMP: As progressives, and especially as a white progressive, and I’m talking to my people here, we have to put our money where our mouth is here. We either support candidates of color, particularly women of color who the Obama administration has advanced and who frankly we’ve just thrown out to pasture for political purposesand so we either are for broad-scale diversity or we are not and I can’t think of a more qualified candidate than Lynch for progressives to get behind for that exact reason, which is why, Imani, I was equally upset with you when I saw those attacks. And they are still out there from the left. And now there’s news that Sen. Reid is planning on holding the nomination back, that’s it’s already tied up with D.C. politics in a way that makes me concerned as we’re headed into the holiday break and then the beginning of the new session—I almost said season—it might as well be a season—in January.

ZM: Yeah, I think part of the problem is that the Congress is so dysfunctional you can’t have faith that this is going to be anything but a horrific process, if it even begins as you said, Harry Reid might hold it back. But that is why the left needs to get behind her. They need to be resolute. We can’t continue to attack our own people, because they are already being attacked from the other side. Now we’re just adding to it. We’re aiming in the wrong direction. And we do this a lot. And I think we need to recognize that it’s not always appropriate, and not always appropriate to critique in public, always as well. Part of the problem is that if you feel you have quibbles with her nomination, I’m sure plenty of journalists have access to the White House to raise those concerns. They don’t have to write an article about it and then undermine the narrative overall. Some people on the left that are progressive writers, they don’t necessarily view their job that way. And that’s cool. But I do think that sometimes there is that responsibility there to be fair, because if you’re going to write an article about all the reasons why she’s not the right nominee, then you’re article should be three times that length and add on the reasons why she should be the nominee. I’m not saying that you can’t cover all of these things. I’m just saying that I think it is unfair to attack her and like Imani said, there is not a lot of there there. There’s a lot of reasons why she’s the right nominee at this time, and there’s these tangential reasons why she might not be a good candidate if you’re a lefty who wanted all of the bankers fraud-marched out of their offices. But she’s the right person, right now. And historic. I mean, if we can’t acknowledge that this is the first Black woman to hold that office, and what that means, particularly because Black women are so, and Imani talks about this all the time, how we’re struggling to be visible often and just how important it is to have the head law enforcement person in the country be a Black woman and so that we are extremely visible in that moment and certainly we are visible to her as she does her work. I think it’s really important.

IG: Yeah I couldn’t agree more. I think that, especially now that we’re seeing what’s going on in Ferguson, I think it is really crucial that a woman of color is going to be sort of leading the charge at the federal level the way there are a lot of women of color leading the charge on the ground. You know, you have people like @Nettaaaaaaa and people like @Awkward_Duck on Twitter and I cannot remember, you know I always know these people by their Twitter handles, I’m sure her name is not Awkward Duck in real life, but you know these are the people that really are leading the charge. So while we are talking about on the one hand police brutality, which tends to affect men of color more, and then at the same time we’re talking about Bill Cosby and these rape allegations from a lot of Black women and you’ve got these people who are saying “oh they’re just trying to take a Black man down” and distract from Ferguson. I mean, I think that we need someone who recognizes and is at the intersection of that identity of race and gender and can lead the country forward. Or at least, and from what I read about her, she’s not someone who is craving the spotlight, right? She lets other people talk, she lets her co-prosecutors do opening statements, like she let her, one of the prosecutors do the opening statement in the Abner Louima case. So she seems like she’s really good at delegating and at making a coalition of people, which I think is really, really important. And I also think it is sort of what Black women have to do. And I would be really interested to talk to her, not that I’m ever going to get the chance but, to talk to her about how it is that she thinks she’s had to navigate these very corporate, very white spaces, in order to come out being seen as very temperate and very fair. I’d imagine she has to be extra temperate and extra fair in order to be perceived that way. Because people don’t perceive me as temperate, you know what I mean? People perceive me as Angry Blah Blah Blah and so, I’m really actually not that crazy of a person, but because I am loud, I am opinionated and I do like to control things and be in charge of stuff it is really interesting to see a woman who has taken a seemingly opposite tact and having so much success. So I’m really looking forward to seeing what she’s about and what she’s gonna do.

JMP: I also think it is really important to have Lynch confirmed at a time when the Department of Justice is going to be pushing ahead on all of these voting rights issues, and when we’ve seen time and time again and particularly for the Democrats that it is women of color who are bringing home those elections and who are also impacted significantly by restrictive voter ID laws. And so, again, to have a woman of color at this intersection of voting rights and race as the country moves forward into 2016 I think that that is huge and those are the points I wish the progressive media were talking about more.

ZM: Right, right. I mean we miss a lot of the important points often. But I hope as feminists I think more of the people who are writing at places like Slate and Salon and The New Republic hopefully the conversation going forward can shift. I feel like the conversation always defaults to the status quo that we’re talking about where you have the left say one thing and the right confuse her with a white woman named Lynch and then attack her but we have to get out of that habit, and I think maybe this is a moment. Particularly because we have no other choice but to be unified in this moment because we are completely in the minority in Congress right now and we have to be focusing on how to not make that so next time they can vote. So the voting rights stuff. I mean I can’t think of two things that are more connected: progressive policies being able to actually succeed once we change the makeup of Congress and making sure that our base is able to vote. Those things are so intimately connected, and if I’m someone who is on the left that cares about progressive legislation then I’m going to support this attorney general because she is going to be in there fighting to make sure that women of color who are basically impacting and changing the outcomes of elections, that they can vote. Right?

I just saw the movie Selma this week and it could not have come at a better time. The movie is directed by Ava DuVernay, I can’t remember how to say her name, but she directed Scandal and is an amazing director, woman director. And it was so relevant to what is going on in Ferguson and just generally the mood in the country. We are recognizing these injustices, we now have cell phone video proof of the injustices, and we’re seeing how systems are working together. Academics have been talking about systemic racism forever but now we’re seeing the manifestations of that and people are starting to understand how a lot of things are working together. The school-to-prison pipeline leads to mass incarceration and how decriminalizing marijuana can help alleviate. So all of these things are popping up in a moment and consciousness is being raised in the country in a moment when we have to, we must, we have no choice but to be unified and support particularly a nominee like Loretta Lynch would make sure all of those concerns that we have are addressed and that she’s continuing the legacy that Eric Holder started. Because it’s not finished. He’s not finished because everything is not fixed. But it’s important to have someone who will continue that work.

JMP: Right. It’s really important to have somebody who is going to continue that work in a way that keeps race at the center when there is so much impetus, especially in white America to talk about post-racialness, whether it is in the Obama presidency or if its in these latest lawsuits that were filed attacking affirmative action policies at Harvard and the University of North Carolina looking at so-called “race neutral” ways of creating diversity in institutions without having a conversation about the historical and systemic impact of slavery. So I think the idea that you raise Zerlina that we are at a very critical moment in our history is exactly on the money because there is a lot of temptation to run away and leave those problems unsolved.

ZM: One of the things that is really interesting is that while 1964 feels like a really long time ago, one of the things that was so amazing in the movie Selma in particular is that she made a point that to make the movie about more than just Martin Luther King so there’s name dropping of all of these historic figures, many of whom are not dead. And so I think that for me, it has always been, this is not that long ago, and so we have to recognize that we’ve made a lot of progress, but we are not finished. We are not even close to being finished. Certainly because all of the activity in Selma was centered around voting we have to be able to recognize that something like a Ferguson can happen because the people who live in that community are not able to vote for their elected officials who are making all of the policies that are impacting their lives. And that’s not true for just Ferguson, it’s true for so many places. They are not being represented by the people in their own communities and too many people are being disenfranchised whether that’s because they have a criminal record, right? So all of these things are so connected and I think it is long past time we recognize that and then strategically operate or critique or whatever we want to do in order to continue a rich debate. But we have to be focused on the fact that we have so much more work to do, so bringing down Loretta Lynch over some bankers that she may have represented while a corporate lawyer doesn’t seem to me to be an important enough reason to not continue to fight for voting and for Black lives being able to walk around in the street without being shot in broad daylight. I just think for me, that is a bigger priority.

JMP: Thank you for listening to RJ Court Watch and be sure and catch all of our reporting on reproductive health and justice issues at www.rhrealitycheck.org.

RJ Court Watch: The Fight for Voting Rights and Abortion Access in Texas

Related Links

What’s Up With All These Voting Restrictions? A GIF-splanation

Well Actually, It’s Pretty Hard for Some People to Get a Photo ID So They Can Vote

Texas’ HB 2 Journey From the Capitol to SCOTUS: GIF-splained

Supreme Court: Texas Can Enforce Discriminatory Voter ID Requirements

Celebrate the HB 2 Win, But Beware the Coming Showdown Over Equal Rights

Transcript

Welcome to RJ Court Watch, a legal podcast produced by Rewire and hosted by senior legal analysts Imani Gandy and Jessica Mason Pieklo. This episode, we take a look at the simultaneous fight for abortion access and voting rights taking place in Texas with Rewire’s own Andrea Grimes. Andrea, thank you so much for joining us.

Andrea Grimes: It’s a pleasure, thank you so much.

Jessica Mason Pieklo: So Texas is basically putting on a reproductive justice clinic right now and Andrea as a Texan who has not only done some phenomenal reporting on these issues but also an activist I’m just going to kinda throw this out there and ask for your thoughts for the overlap right now in the fight for abortion access and voting rights in the wake of these two big Supreme Court we had.

AG: Yeah, so the State of Texas wants to make it as hard as possible to be anyone besides a cis white dude. To that end they have gutted abortion rights here in the state. We have some of the strictest TRAP (targeted restrictions on abortion providers) legislation in the country. At the same time we have what one federal judge straight up called racist and unconstitutional voter ID requirements that prevents people from being able to get out to the polls and cast their votes. And these two things together kind of ensure that power stays with the powerful. That’s what we’re seeing right now here.

JMP: I think it is is really important that we talk about, and I love that you framed it that way right out of the gates, both voting rights and abortion access involve fundamental rights. And in theory fundamental rights are fundamental. They are things that we all hold but really what we’re talking about is access to power. So when we place restrictions on those rights we make it harder to exercise them which makes it harder to effectively engage our civic power. Yet for some reason that has been a concept that has as a movement the reproductive rights folks have really still grappled with. So one of the things I’m excited about is to see Texans talk about that broader.

AG: Yeah, and lots of people are. In Texas, there is no such thing as being a one-issue activist here. The threats to our freedoms—that seems like a weird and hyperbolic thing to say, but that’s actually, our freedoms are actually under threat—they are coming from all over. So Texans can’t afford to only care about reproductive rights, or only care about voting rights. When you look at the kinds of issues social justice orgs are working on here, everybody has their finger in five different freedom pies.

Imani Gandy: Well I think what’s really great about what we are seeing in Texas is that it is exactly the opposite of what happened in Mississippi. I guess it was four years ago, back in 2011 when Mississippi voters defeated personhood legislation but because activists in Mississippi, and primarily reproductive rights groups in Mississippi, weren’t willing or weren’t able or just didn’t work with reproductive justice activists in order to defeat the voter ID law that was passed that year. So it’s really good to see that three or four years later Texas has ably merged the two fights so that as you said people understand that it is a fight for power.

JMP:  One of the things that I thought was great, Andrea, was you put together this video footage that really captured the time and distance that a Texas has to travel to access an abortion in the Rio Grande Valley. And what was interesting to me, when we think about this in compare and contrast, what are the things that a Texan now has to go through to vote, and in particular with the election going on kind of as we’re recording this. There seems to be some good parallels and Imani I know those were some thoughts that you had as well regarding distances and burdens, because I think as we flesh that out it brings to life the idea that abortion rights and voting rights are related beyond just the idea of abstract concepts of power and freedom.

AG: Yeah, I mean in Texas you’ve got to have a photo ID to vote and it is not for a lot of people as easy as popping down to the local DMV. Some places are really far from them. Some people live really far from places where you can get a photo ID. It can be costly to get there in the first place. Some folks can’t physically go. The parallels, which I bet Imani can talk about in a smarter way than I can, are pretty clear, I think, between the voter ID burden and the abortion access burden.

JMP: And Imani gave us that beautiful GIFsplanation too.

AG: Yes.

IG: Yeah, well I think. You know, as I was working on that, and it was a monster, and it was fantastic I read, you know, 400-500 pages worth of voter ID opinions, and it sort of coalesced in my mind that when we are talking about undue burden with respect to abortion restrictions and undue burden with respect to voter ID, they are very similar. So, for example, Judge Ramos says in her lower court opinion, which you know then the Fifth Circuit puts the kaibosh, which then the Supreme Court said no, Fifth Circuit, go and suck it. Judge Ramos says, “the cost of traveling to a DPS office to obtain ID is a particular burden in Texas because of its expansive terrain. Of the 254 counties in Texas, 78 do not have a permanent DPS office.” So I think it’s really interesting when we start talking about the number of mileage, she goes on to say, “for some communities along the Mexican border the nearest permanent DPS office is between 100 and 125 miles away.” Now as Andrea jokingingly said to me on Twitter a couple of weeks ago, “well, are those uncongested flat miles,” which is what the Fifth Circuit sort of said, or sort of poo-pooed the idea that it was an undue burden for women to travel 300, 400 miles to an abortion clinic because “oh well the highways are particularly flat and particularly uncongested.” I mean, that is just a ludicrous notion. And one thing I wanted to add, which I was really surprised to find out, is that it is very, very hard to get a birth certificate. I knew that it was very very hard to get a birth certificate, but I found out when reading these opinions just how hard it is. For example, did you guys know that in Puerto Rico, if you were born in Puerto Rico, your birth certificate automatically expired in 2010. Just automatically.

JMP: What?! So what does that mean?

IG: So that means that if you are a Puerto Rican living in Texas and you need to get your birth certificate, you need to figure out a way to go, and you have to call up the people in Puerto Rico, whatever office or government office that supplies birth certificates. Now, in order to get your birth certificate in Puerto Rico, you need to have photo ID. But how can you get photo ID if you don’t have your birth certificate? So it’s this circular problem you know, round and round we go, and it is very, very strange. It is just very, very strange.

JMP: Well I think too that shows just how politicized the federal courts have become because in both the voter ID and the ambulatory surgical center (ASC) provision cases, we had the Fifth Circuit coming in and you know, basically just in a sneeze overturning a lower court ruling that these laws were both blatantly unconstitutional with a boatload of evidence and findings of fact to back that up. And, when we talk about the impact of that, I’m kind of a romantic and so I know that that’s a little cheesy, but it creates a lack of faith in the justice system to the extent any was existing or remaining, but it also creates chaos. I mean there is a real sense of ‘what are our rights? We don’t know what they are. They are in this constant state of flux as the courts battle over them.

AG: A thing that comes to mind for me in all of this is the idea that we lose faith in the justice system and in the idea that thinking we have recourse. But because the wheels of justice turn slowly, we also acclimate to having fewer rights. We get used to having a photo ID to vote. We get used to having to drive 250 miles to get to an abortion clinic. We get used to having to have a mandatory transvaginal ultrasound, and so when these things become status quo, as time goes on it becomes more and more difficult to get riled up about things, to get people mad, because we are so good I think at accommodating and adapting because we are humans, that it can, you know, these things that are really draconian and really egregious can come to seem normal or can come to seem even acceptable, especially in light of the fact that there always seems to be something worse coming down the line.

JMP: And it shows too, I think, the meaningless of the undue burden standard. I mean, really at this point, when you’ve got layer upon layer of restriction, how is it not an undue burden? And if we have a judge in one case saying it’s an undue burden to drive 150 miles to vote but another judge in another case saying its not an undue burden to drive 300, 400 miles to access an abortion clinic, you know, I think you are exactly right then that those ideas become just not if not accepted then at least no longer fought against.

IG: Right. And I also think that it becomes an issue of state borderlines. I mean, for example, the Fifth Circuit ruled, what was it, Mississippi’s admitting privilege law to be unconstitutional because some of the people would have had to cross the border into another state. So now is that what we are going to focus on? Not the mileage per se, but whether or not you have to cross the border into another state to get relief. I mean, I just find the Fifth Circuit so problematic. Any ruling coming out of Texas, any positive ruling coming out of Texas, you sort of see this collective sigh of relief followed by this collective groan of dread because everybody knows where the next step is and that next step is the Fifth Circuit. And frankly, I don’t think that there is, especially when it comes to Texas, I am not convinced that the Fifth Circuit will rule in any way except to reduce rights, whether it is voting rights, abortion rights, whathaveyou. I just think the Fifth Circuit, I don’t know what’s going on there, but there is something going on with the Fifth Circuit because they are so rabidly conservative and so conservative to a point that some of the things they say don’t even make logical sense.

AG: Yeah, I mean y’all are the lawyers, but I when I read the most recent abortion related ruling the Fifth Circuit came out with, this business you know of “it’s not our job to basically evaluate the law.” I mean, the intellectual lengths you have to go to, to disengage with the matter at hand in order to hand down a conservative ruling is incredible to me.

IG: Right. Right. And that is exactly what it is. The right always likes to talk about activist judges, but what we’ve got in the Fifth Circuit are a group of extremely activist judges who are willing to twist and contort the law whatever way they have to in order to come down with a conservative ruling.

JMP: And the Texas legislature knows this. I mean we saw this in the push for passage of HB 2 which Imani you chronicled and which Andrea you did such great reporting on the fight on the capitol floor. But just the number of times and attempts to get that bill in because they knew that they could get the Fifth Circuit to support it.

AG: It’s like they’ve got their big brother, the senior in high school, who they know is going to take care of any pesky bullies in the federal courts in any kind of lower court and they know that they can get the Fifth Circuit to do whatever they want to do, and maybe the Supreme Court as well.

IG: One can only hope. I mean, at this point if the Supreme Court does not rule that HB 2 is an undue burden then the undue burden standard means nothing. Then Planned Parenthood v. Casey means nothing. And that is just. I mean, I know we are in a place where we are facing a court that has gutted voting rights in Shelby v. Holder, and I’m nervous about the Roberts Court. But I have to believe, I fundamentally have to believe that they are going to look at this and say “okay Fifth Circuit you’re being ridiculous.” Because they are, as Andrea said, they are completely disengaged from the matter at hand. They did not want to consider the law, and I just have to hope that the Supreme Court is going to look at that and smack them down. I hope. I hope against hope.

JMP: Well, and in the Fifth Circuit’s last opinion, too, on the ambulatory surgical center provisions they basically said “look we’re the Fifth Circuit and we’re going to do things how we want na na na na na na to the rest of you.” Which to me, is an opinion written specifically to get the Roberts Court to take them up.

IG: Well I think the Fifth Circuit knows, and it’s the Fifth and I think the Tenth Circuits that are the only circuits that seem to be capable of or seem to have the ability to cause circuit splits. So whether or not the individual justices believe the crap they are writing, but I think their entire purpose is to force circuit splits and to get the Supreme Court to take this up. And you have people like Edith Jones, the former chief justice, who was just absolved of any wrongdoing of any charges that she was racist or abelist based on those comments she made at the University of Pennsylvania where she said basically Black people and Mexican people are more prone to violence and that mentally handicapped people should be executed because, you know, who cares about mentally handicapped people. I mean these are the people that are sitting on that court. And she has explicitly said that she wants the Court to take another look at Roe v. Wade. She has explicitly said that she wants Roe v. Wade overturned. And she is a known bully on the court. I mean she bullies her fellow justices. That’s what we are dealing with when it comes to the Fifth Circuit, and they are going to force a split, and I hope the Supreme Court goes with the rest of the country, the other 12 circuits, who have said, “umm.. admitting privileges laws have no medical benefit whatsoever, maybe we should lay off this voter ID nonsense because it is disenfranchising Black and Latino people.”

JMP: Well Andrea I have a question for you. One of the theories I’ve heard, and I tend to agree with it in part, is that a big part of the explanation for the push at such an aggressive restriction on abortion rights and voting rights is that this is in effect a last gasp from conservatives in the area given changing demographics and voting shifts. So that in reality it is really bad right now but Texas will be its own version of California in ten years and then liberals, progressives, will really have the last laugh. How do you feel about that as an actual Texan?

AG: Right. Well, I hope that it is true. The issue, my concern with that. I mean, I 100% think that the Texas legislature passing these kinds of laws is a direct fear-based reaction of a Texas that looks different than it did 50 years ago. It is browner than it was 50 years ago. I absolutely think that our lawmakers and their constituents are afraid of that. Now, the fact on the ground is that yes, we are, Texas is becoming a purpler, bluer state. Our big cities are all blue. Even down in the Valley, which has problems with poverty and that kind of thing, it is a very blue area. So I think that is why you see our lawmakers trying so desperately to silence what they see as dissenting, un-American, un-Texan voices. It would be great if in eight or ten years Texas is a big blue dot at the bottom of the United States map. That would be great. My concern is what happens in that interim period. What happens in the next ten years. How many Texans will lose faith in their ability to vote, to elect officials who can represent them? How many Texans will die from self-induced illegal abortions? How many Texans will be forced to carry unwanted pregnancies to term because they don’t have any other recourse? I mean, it is a lovely thought to think that in 10 or 15 years it will be blue, but we have to think of the damage that is happening right now. So, as a Texan my interest in it is not intellectual. I am deeply concerned about my neighbors, and that is something that makes it difficult and frustrating to write about the politics of this state because I feel like there is a lot of collateral damage and it can be difficult and overwhelming to try and cover that.

JMP: I think you hit on something really important though which is the idea that these laws can create chaos, but also the idea that disenfranchising can be taking away, almost through attrition, too, the ability to access your rights where you are so beat down, you are so frustrated, or you are so angry that screw it who needs the headache to try, and the terrifying thing is as you mentioned in the meantime there are real actual Texans lives on the line.

IG: I was just going to say, yeah, the notion that people get discouraged was actually born out in the evidence that was introduced at trial on SB 14, which is Texas’ voter ID law. They had experts talking about how, with every additional barrier you put toward voting people are less inclined to do it, because you know there are a lot of people who feel voting doesn’t really matter or they have other things to do, they can’t take the time off of work, they have to pick up the kids. So if you force them to pay $80 to get a birth certificate, or if you force them to stand for two and a half hours at the DMV, and if they don’t have a car they have to get a relative to drive them. All of these barriers just make it easier for people to say “I’m just not going to bother.” And those are the people that need to be voting the most. Those are the people that, as Andrea said, lawmakers and the majority now are afraid of because, the brown menace is coming. And so what do you do? You gerrymander all the brown people out so that they can’t ever form a coalition and gather power and elect people that look like them, that will represent their interests into power. And then you just get white dudes who are just hanging out, lording over all these brown people, taking away their rights and reducing their reproductive freedom, and it is just a cluster…mess.

JMP: It is a clustermess. The Roberts Court probably won’t make it any better when it takes up the issue of racial gerrymandering this term either because this is a post-racial society after all, thank you Chief Justice John Roberts. So Andrea, for our listeners who want to help, what can they do?

AG: Well, they have a couple of pretty good options. So one of the great things that has come out of this really disturbing attack on reproductive rights here in Texas is that our reproductive justice organizations and our reproductive rights organizations are stronger than ever. The spotlight has helped them grow and become a little more prominent. Which, I mean it is not the greatest outcome in the world, but it is nice, I suppose. So, the best thing on a practical level is to donate to an abortion fund. An abortion fund is a nonprofit that literally gives people money so that they can have abortions, or they give people gas cards or bus tickets so that they can travel to places where they can get abortions. So, there’s the Lilith Fund, there is the Texas Equal Access Fund, there’s Fund Texas Choice, there’s Bridge Collective, there’s Cicada Collective, there’s West Fund. There’s lots and lots of really good abortion funds here, and so that is one really cool, practical thing. And it is so cool to make a donation and get an email that’s like “Thanks! You just funded a tenth of someone’s abortion.” So it is a really kind of visceral happy-making feeling, which is nice because we don’t get a lot of that in Texas these days. The other thing, we have some really good political outreach groups. We have a really strong up-and-coming progressive social justice network, groups like the Texas Civil Rights Project. Groups like CPPP that do a lot of really great research. Donating to those groups, volunteering with those groups, volunteering with groups like the Texas Freedom Network, which challenges some of the, well, the Texas educational system is a whole other conversation.

JMP: We’ll have you back to talk about that.

AG: But the Texas Freedom Network does great work around comprehensive sex ed in schools and stuff like that. So, you know, it sucks that we are in the situation that we are in, but our social justice orgs here are really great.

JMP: Andrea, thank you so much for taking time out of all your reporting to join us. I will tell you the thing that gives me the most hope for Texas is all of that great social justice work going on, and the fact that there are advocates on the ground doing the real work and not just folks pontificating about it from the sidelines.

AG: It is an exciting time, an interesting time, to be a Texan.

Thank you for listening to RJ Court Watch. Be sure to catch all of our reporting and analysis on reproductive health and justice issues at www.rhrealitycheck.org.

RJ Court Watch: Little Sisters of the Poor and the Politics of the Birth Control Lawsuits

Read our coverage on challenges to the Affordable Care Act’s birth control benefit here.

Related Links

A GIFs-planation of the Birth Control Benefit

Ted Cruz Deceives Conservative Crowd on Birth Control Benefit Lawsuits

Religious Nonprofits Will Continue Legal Battle Against Federal Contraception Benefit

Transcript

Welcome to RJ Court Watch, a legal podcast produced by Rewire and hosted by senior legal analysts Jessica Mason Pieklo and Imani Gandy. This episode, we talk about the Little Sisters of the Poor and their crusade against the birth control benefit.

JMP: It goes without saying, Imani, that the legal attacks against the birth control benefit are I think really very thinly veiled political attacks against health-care reform, as we’ve talked about a bunch on this show. But I really think that’s why it’s so important to talk through the Little Sisters case and one of the things that I wanted to start by talking about is just the plaintiffs: Little Sisters. These nuns who are taking on the big bad Obama administration, huh?

IG: Yeah, I mean they make great plaintiffs, right? They make really, really good plaintiffs, these nuns who are very religious, very pious and the big bad Obama administration is forcing them to cover contraception. Forcing nuns who don’t even have sex to cover contraception and how horrible it is that the Obama administration would do such a thing to these poor, little sweet nuns. And it’s just ridiculous as Brigitte will talk about. There’s nothing that could ever happen that could ever force the Little Sisters of the Poor to provide contraception coverage in their health insurance plans.

JMP: Right. So one of the reasons we decided to spotlight the Little Sisters case is because its one of the cases that still lives after this summers’ fights in Hobby Lobby and Wheaton College and very well could find its way up before the Roberts Court again. But also because it really is this great snapshot into just how political these attacks are. So like you said, the sweet little innocent nuns, it’s almost as if sounds like the Obama administration is forcing them to take birth control!

So they have this church plan that says they never ever have to provide birth control coverage under any circumstances. So really we have a pretty perfectly chosen plaintiff, a lot like the buffer zone cases to put forward this fight. And I don’t think that political posturing really gets enough light.

IG: Right and it’s something that just occurred to, but why hasn’t any court said, “Umm excuse me ladies but your case is moot because you are never going to have to provide contraceptive coverage?” I mean they are sort of a stand in for a lot of other religiously organizations challenging the birth control benefit. But these particular plaintiffs, why do they even have a case?

JMP: It’s an excellent question and I think one that hopefully the courts get to sooner rather than later. In the D.C. Circuit Court of Appeals, Priests for Life has sort of taken on this issue and is doing a little presto-chango with the courts that says, “well even if that’s the case and even if the law says that these church plans don’t have to comply with the birth control benefit anyhow, you should still give us these exemptions because it’s just the principle of it,” and I think there tilts the hand that this is not really about contraception. I mean it is. But it’s not. It’s about basically anybody who wants to be treated as a church, as far as the religious right is concerned, to have that ability to avoid certain parts of complying with laws that they don’t like.

IG: All of these cases have been so politicized, and I think Little Sisters of the Poor is the perfect example of the politicization of the birth control benefit. I never really thought two years ago when we started all of this we would still be here two years later and that we would be staring down the barrel of another two, three, four years of contraception mandate cases. Because the Obama administration created this accommodation, and then the Supreme Court said in the Wheaton College interim order “well maybe the accommodation is also a violation of the Religious Freedom Restoration Act.” So the Obama administration, basically being the pushovers that they are at this point. I mean I’m sorry to say it. I love me some President Obama but he needs to stop mucking around with the accommodation to the birth control benefit. Because what they’ve done is accommodated the accommodation, which therefore essentially renders the original accommodation a violation of the law because we have this whole ‘least restrictive means’ test where the government has to use the least restrictive means to advance its interest. Well by revising the accommodation before the Supreme Court has even had a chance to rule on it, the Obama administration has basically admitted that that accommodation is not the least restrictive means.

JMP: One of the things that I think is really great about the explanation that you give there is that not only has it become politicized from the right, but by bending over backwards it has inadvertently become politicized by the Obama administration too, and it’s ridiculous because what we are talking about is health care, right? Birth control is health care. Contraception is health care. I don’t know how many times we have to say that and people still are not getting it.

You know one of the things that occurred to me to is that in the context of these cases being largely political attacks against health-care reform, they really depend on making sure that people stay very confused not only about the birth control benefit, but about who is challenging them, what the Obama administration is doing, and thankfully you have been able to cut through some of that confusion in particularly brilliant style with your explanation via GIFs.

IGI actually had a lot of fun with that particular post. The both of us, we’ve been writing about this stuff for a couple of years now and every so often I find myself confused as to what we’re talking about, which particular religious organizations, whether they are nonprofit, for-profit, churches, universities. What’s the accommodation? What’s the accommodation to the accommodation? How does Hobby Lobby fit in? How does Wheaton College? I mean it is very confusing stuff. So I sat down and I decided I was going to try and break it down into really simple lay persons terms and use GIFs.

So if people want to check that post out google ‘GIFs-Planation of the Birth Control Benefit’ or go to RHRealityCheck.org\ABLC it is one of the few post that I’ve published so far on Angry Black Lady Chronicles, which has been launched at Rewire and is very exciting.

JMP: Hooray!

IG: But give it a read. I’ve heard from people, even from people in our field that the explanation, that GIFs-planation was actually very helpful to pare down exactly what is going on. So hopefully people will get something out of it and then will be a little more cognizant of what their rights are. The religious right is essentially using lawsuits, using religion as a weapon to basically strip women of rights to which they are entitled.

JMP: I am looking into a way that we can submit theGIFs-planation to the Roberts Court as an amicus brief in the next round of contraception benefit litigation because I think that there are five conservatives on the bench who would really benefit from the clear and concise explanation via hysterical animation that is provided in that post.

IG: I think that would be hilarious. I would love for myGIFs-planation to be cited in a Supreme Court opinion. I mean Irin Carmon was lucky enough to have one of her articles, I think on Eden Foods, cited in several opinions. So hey, let’s get aGIFs-planation cited in a court opinion that would be lovely.

JMP: So, the Supreme Court term starts in October and it feels like we’re picking up right where we left off at the end of June, and that’s talking about lawsuits challenging the birth control benefit in the Affordable Care Act. Only instead of Hobby Lobby and Eden Foods and Conestoga Wood Specialties for-profit challenges to the requirement, we have lawsuits from groups like Little Sisters of the Poor, Priests for Life, Wheaton College and the University of Notre Dame who claim the process developed by the Obama administration that allows these institutions to essentially become exempt from the rule and thus not cover contraception in their employee health plans is itself too burdensome. We are going to walk through those claims and where they stand now since it’s looking pretty likely at least one of those cases I just mentioned will end up before the Roberts Court.

Thankfully we have Brigitte Amiri, who is going to talk with us about the Little Sisters of the Poor and the contraception litigation that lives post-Hobby Lobby.

Welcome, Brigitte, and thank you so much for joining us.

BA: Thank you for having me.

JMP: So we recently learned that the religious nonprofits challenging the birth control benefit have rejected once again the Obama administration’s latest efforts to accommodate their religious concerns. Let’s walk through for the audience first of all, what’s in the Obama administration’s last revision?

BA: Sure. So for religiously affiliated nonprofit organizations under the contraception rule under the Affordable Care Act they have always been able to take advantage of this accommodation which is a form they send to their insurance company that says “I have an objection to providing contraception coverage” and end of story. And so that piece of paper goes to the insurance company. The insurance company is then responsible for communicating with the employers and employees and providing the benefit directly. So the employer pays nothing. They don’t communicate with the employees. All they do is fill out a form.

A number of nonprofit organizations sued over this requirement and said that just filling out that form is a violation of my rights under RFRA [the Religious Freedom Restoration Act]. But the Obama administration has gone a bit further in trying to accommodate the religious beliefs of these religiously affiliated nonprofits and said that instead of filling out the form, what you can do is send us the government a letter and we will communicate with your insurance company to tell them that they are not responsible for communicating with the employees. So it is an augmentation to the original accommodation.

JMP:  And these groups object to the augmentation now how?

BA: The groups are saying that there is basically no change and it doesn’t change their objection. They objected to filling out the form and sending it to their insurance company, they similarly object to sending a piece of paper or some kind of letter or however they want to communicate that they have an objection, to the government. They say there is really no difference in the process in terms of substantially burdening their religious beliefs.

JMP: The audience is pretty familiar at this point with the Hobby Lobby decision at the end of the term, and the Roberts Court and the drama closing out its term with that decision, but right after the court issued this interim order in the Wheaton College case that said effectively, for the moment, Wheaton College, you can avoid complying with this requirement. With the court’s decision in Hobby Lobby it seemed pretty clear, or at least the opinion seemed pretty clear that the one of the reasons groups like Hobby Lobby could avoid the contraception requirement was because this accommodation existed. And now the accommodation has been called into question. Is it really under threat in your opinion, or is this really much ado about nothing from the nonprofits perspective?

BA: Well, we think these lawsuits filed by the nonprofits have always been much ado about nothing. How possibly could filling out a form saying you have a religious objection ever substantially burden your religious beliefs? We have always thought that there has been nothing to these lawsuits. But particularly in light of the Hobby Lobby decision what is important is that Justice Kennedy provided the fifth vote for the majority decision, and very specifically he says that the reason there is an alternative mechanism for the government to further its goal of ensuring women have coverage, which is part of the test under the Religious Freedom Restoration Act, is whether there is another way for the government to achieve its goals. Justice Kennedy says there is another way to do this and it is the accommodation. And so hopefully that spells out the fact that the accommodation itself is integral to this entire program and that it is not at risk.

JMP: Let’s talk about Little Sisters and their “church plan” for a minute, because I think this is one of those details that is really important and gets lost in the shuffle and easily confused. So without getting into the boggy details of ERISA, another federal law that governs employee health plans, just generally what is a church plan, and how is it coming into play in these challenges?

BA: Right, so a church plan is a religiously affiliated funded plan. The Christian Brothers Trust, for example, runs the health plan for the Little Sisters of the Poor. They are considered a church plan under the federal benefits law, ERISA. And church plans are not subject to the contraception rule, so there is no way in which a church plan would ever have to comply with the contraception rule. That is why the Little Sisters of the Poor claim is even more weak than any of the other religiously affiliated nonprofits, because nobody is ever going to get contraception coverage if they work for Little Sisters of the Poor because the insurance company doesn’t have to comply with the contraception rule, because of this church plan issue.

JMP: It strikes me as a little bit cynical then to have the face of the nonprofit challenges be an organization called the Little Sisters of the Poor, you know those nuns, who would never be under any risk of actually engaging in behavior that violates their religious beliefs because their employees are never getting contraception anyway.

BA: That’s exactly right. So their cases should never be going forward in the court. They have suffered no harm, they have suffered no injury.

It’s pretty shocking in their brief that they talk about all the harm that will come to them if they have to comply with this law when the fact is this is a church plan and nobody is ever getting coverage. So, it’s pretty shocking and those cases should just be completely dismissed.

JMP: One of the arguments I’ve seen bubble up in the briefing and one of the arguments I think is really interesting, and as lawyers we like to make analogies all the time, is that we have precedent and this long legal history for granting exemptions from the law based on religious objections. And one of the examples that comes to mind are conscientious objectors—draft objectors. But I think that its really important to talk about how the claims by the religious nonprofits in these cases are NOT like draft objector claims since we do have this long history and from where I’m standing at least is it seems like one of the goals of the religious nonprofit challenges broadly is to really blow open this process for making religious objections.

BA: I think that is absolutely right, and obviously at the ACLU we are completely committed to someone’s opposition to the draft, for example, based on their religious opposition to war. And I do think you are absolutely right that it is important to distinguish this case from that situation, and I think Judge Posner who wrote the decision in the Notre Dame case for the Seventh Circuit explains this brilliantly.

He says basically that what the religiously affiliated nonprofits in these cases is trying to do is not just say I don’t want to participate in the draft because of my religious beliefs. They are basically saying I won’t even tell the draft that I have a religious objection to participating in the war because by doing so you will have to draft somebody else to fight in the war.

Another analogy that was used by the Sixth Circuit that also found that there are no religious beliefs that are substantially burdened here is when a judge has a religious objection to sitting on a death penalty case. That judge has to fill out a piece of paper basically that says I would like to recuse myself and allow another judge to take over. And what the analogy is there is that the religiously affiliated nonprofits are basically saying is that judge should be able to say “I don’t even have to fill out that piece of paper because what it will mean is another judge will sit and hear the capital punishment case.”

I think that those are really great analogies to show how far the religiously affiliated nonprofits in these cases are trying to go. They don’t have to cover contraception. All they have to do consistent with their religious beliefs is fill out a form that says they have an objection to doing so, and then their insurance company takes care of everything else.

JMP: What about the argument that they are starting to make that well, this is also forcing us to keep a contractual relationship with an organization, the insurance company, who will provide contraception and so therefore we are still facilitating sin. This sort of forced-coerced contract theory. What do you think about that?

BA: It just feels so attenuated. They contract with a major corporation in many instances. So many of these insurance companies are very big companies like Blue Cross Blue Shield and things like that. They are contracting with this very large organization, but none of their dollars, none of their money is going to pay for that contract. So it’s completely attenuated in the first place. Even if it were, I mean the whole purpose of insurance is that all of this money gets poled together and then paid out to settle a whole host of claims. So their arguments are just so many steps removed from doing anything that actually substantially burdens their religious beliefs.

JMP: One of the solutions I saw floated by the religious nonprofits is to just let the Obama administration provide the contraception coverage to those employees directly. The cynic in me doesn’t believe that is really a solution the challengers are really interested in. How would that work even? Do you have any idea?

BA: Right, well I think the other really interesting thing is for all these religiously affiliated nonprofits that are saying that the Obama administration should cover the cost of contraception, or that Title X, which is a federally funded program that provides contraception to low-income individuals could be another solution, they should put their money where their mouth is and they should be lobbying Congress to increase the budget for Title X, for example. But putting that aside, it’s not a workable solution. Women should have seamless coverage in their health care. They should not be forced, like second class citizens, to get their health care from some other entity because their employer has a religious objection to not even providing coverage in these circumstances, but to just filling out a form. We want women to have seamless coverage.

JMP: One of the things that I wanted to ask you before we wrap up is, with the Little Sisters of the Poor case pending in the Tenth Circuit and the Priests for Life case pending in the D.C. Circuit Court of Appeals, what do you think are the chances of the Roberts Court hearing a nonprofit case this term?

BA: There is a chance. So actually the Notre Dame case was actually one of the first cases decided at the court of appeals level by the Seventh Circuit and Notre Dame has I believe until early October to decide to file a petition for certioria to the U.S. Supreme Court to ask the Supreme Court to review that case. So depending upon on whether Notre Dame decides to do, that or Michigan Catholic Conference—which is a decision out of the Sixth Circuit relatively recently the entire Sixth Circuit decided not to rehear that case and to let the decision stand, saying that there was no RFRA violation there—could also be one of the first ones to get to the Supreme Court. There’s a couple in the pipelines depending on what the plaintiffs decide to do.

JMP: Brigitte, as always you can just walk us through this in a way that not many people can. Thank you so much for your time and your help explaining what on earth is going on after the Hobby Lobby decision with all these nonprofits. I’m sure we’ll be talking to you again because these cases are not going anywhere anytime soon.

BA: True, even though they should.

JMP: Agreed! Thank you so much for your time.

BA: Thank you.

JMP: Thank you for listening to RJ Court Watch and be sure to catch all of our reporting and analysis on the contraception benefit at www.RHRealityCheck.org.

RJ Court Watch: Searching for Justice in Ferguson

Read more of our coverage related to recent events in Ferguson here.

Related Links

The Price of Our Blood: Why Ferguson Is a Reproductive Justice Issue

Want Peace? Killing Black People Needs To Be Treated as a Crime

The Media’s Role in Attaining Justice For Black and Missing Persons

Transcript

Jessica Mason Pieklo: Welcome to RJ Court Watch, a legal podcast produced by Rewire and hosted by senior legal analysts Jessica Mason Pieklo and Imani Gandy. This episode we talk about Ferguson, Missouri, and how we might be able to find some justice for Michael Brown, his family, and the community. Importantly, also, what justice in this case looks like, which, in my opinion, Imani, is one of the most difficult questions we have to answer.

Imani Gandy: What justice would look like sort of involves dismantling white supremacy and structural racism. I don’t really see that happening anytime soon. Especially given the events in Ferguson it seems to me that white supremacy is just a thing in this country, and there are white people, people who are tasked with protecting and serving citizens of this country who are invested in maintaining white supremacy, maintaining that power, so I don’t know how we go about doing that. But in the meantime, it certainly would be nice to get some more regulations on the ways in which police departments interact with the citizens that they are supposed to be protecting.

JMP: Right as the initial details of the Michael Brown shooting emerged you were, rightly, one of the firsts to say “hey, folks, this is a reproductive justice issue, police violence in our communities is absolutely something that ties into the ability to parent and parent how and where a person chooses.” And I think that this is a conversation that as the press has pulled out of Ferguson a little bit, and as we move from sustaining the immediate protests to the police action to a longer movement these kinds of policies are going to be really important. Particularly if we are going to have the ability to have any faith in a legal and justice system in this country.

IG: Yes, I mean it’s really disheartening to see Black women, women of color on Twitter saying things like “I don’t have children now, and I don’t know if I want to raise children in this country.” And so we talk a lot about abortion rights and anti-choicers and their campaign to force everyone to uphold life above everything else but then we don’t see those people crying out when Black women’s children are being gunned down in the street. And so there’s a real disconnect there when we want to talk about “pro-life” and what it is that feminist organizations and mainstream reproductive rights organizations are doing to help communities of color combat this huge problem, and that is police brutality and the ways in which authority figures, police, don’t view Black bodies as human and view them as something other than normal. So you get comments like “Mike Brown, his big scary self was a weapon. So we can’t call him an unarmed teenager because he was 6’4’’ and he was Black.” That’s just, that’s unacceptable thinking, and we need to do more about combatting that thinking. And I personally need white people to do more about talking to other white people about racism and about fear of the Black body because the only way we are going to get past this is as a community and that requires more than white folks saying “wow that’s a real damn shame.” But it actually requires action and talking to one another and talking to people in your church, talking to your family members about what it means when you see a Black person and why it is all of a sudden you feel anxious or scared and what that stems from and how that stems from racism. And how it’s not a bad thing to talk about.

JMP: It is critical for white people to talk about this with other white people because, frankly, they’re the ones who need to change. And I think one of the points that can get lost in this is the ways to which the law takes those biases and takes those defaults, that idea that Mike Brown couldn’t possible be an unarmed victim because in our minds a big Black teenager is automatically a threat, the ways in which that gets ingrained in our laws, and in particular in this case our policing so that there is an actual, real result that is tied to it, even if white folks don’t think there is.

IG: It manifests in very strange ways. So you have two weeks of protests, two weeks of protests that were started by the police. I mean, I hate to sound like a kindergartner here, but really, they started it. You know they started it by shooting him like an animal in the street. They started it by sweeping the name of the officer who was involved in the shooting under the rug, let him escape town and scrub his social media presence so we don’t know whether or not he had any biases that maybe he expressed on Facebook or on Twitter. And then it manifested itself when after two weeks of police engaging citizens as if they were military, as if they were war combatants in some sort of war zone with dogs and riot gear and tanks and rubber bullets and tear gas, then to all of a sudden have a national response where the governor calls in the national guard not to protect the community, but to protect the cops.

JMP: And I think particularly for the reproductive rights community, it’s important for us to call Gov. Jay Nixon out on this. I mean, he has been an ally in the sense that he vetoed some really ridiculous anti-choice legislation passed in the state. But we have a Democratic governor here calling out the National Guard in the state of Missouri to protect law enforcement. That is positively tone deaf if you have even the most rudimentary understanding of civil rights history in this country. And to do so in such a way and then still dodge questions about law enforcement and executive accountability in terms of any investigation, any potential indictment, I mean there’s a lot of open questions about how allies in this situation are acting, and I think it’s really important, and I’m urging all of my people in the reproductive rights to community to do this, to pressure him, to say “Our community is better than this, Governor Nixon.”

IG: I absolutely agree, and I think that it’s incumbent on us to pressure one another. For example, about a week after the events started to unfold, I checked Planned Parenthood and NARAL’s Twitter feeds and say that they hadn’t said a word about it. So I started raising hell, like, you know, where are you guys? How is it possible that this is happening and you guys are still talking about Hobby Lobby on your Twitter feeds?

JMP: Hopefully this is the wake-up call for sustained action rather than just reaction within the community. I would love to see the reproductive rights organizations as co-sponsors of legislation to improve policing tactics in the community, to really call out the racial profiling that is going on in these instances and the disproportionate impact of policing generally on the Black community. We should be leading on these issues.

IG: We really should and I would encourage anyone listening to check out a petition that Shawn King has developed. And if you just Google “Shawn King S-H-A-W-N King and Ferguson petition” it will pop up. And I just want to read off the policy solutions that he is putting forth.

The first is that “the avoidable shooting or otherwise killing or murdering of an unarmed citizen who does not have an outstanding warrant for a violent crime should be a federal offense.” Number two, “choke holds and chest compressions by police, which is what was the coroner lists as the official cause of death for Eric Garner in New York, should be federally banned.” Number three, “all police officers must wear forward facing body cameras while on duty.” Number four, “a trusted third-party business should monitor and store all videos from those forward facing body cameras.” Number five, “suspensions for any violation of the above offenses should be unpaid.” Number six, “all murders by police must be investigated, immediately, by a trusted and un-biased third party.” And number seven, “convictions of the above offenses should have their own set of mandatory minimum penalties.” So I really, really like the fact that this man sat down and tried to come up with policy solutions, legislative solutions. So far the petition has almost a quarter-million signatures, and it’s something I think we can agitate for, because regulating the police and de-militarizing the police doesn’t just benefit people of color. It benefits all people. I mean there are poor, poor white communities that suffer from the same sort of over-policing. So I think it’s time to, as you say, engage in sustained action and not just let this be another flash in the pan and in two weeks some other Black man gets slain and we’re gonna do this all over again. I really hope this is a flashpoint for action that will result in something positive.

JMP: We are joined with Pam Merritt, communications director at Progress Missouri, blogger at AngryBlackBitch.com, and a Guardian contributor. Pam is a long-time progressive activist in the State of Missouri who is here to talk with us about the shooting death of Mike Brown, the Ferguson protests, and police violence as a reproductive justice issue. Pam, thanks so much for joining us.

Pamela Merritt: Thank you for having me!

JMP: As a progressive organizer in the state I’m hoping you can help put some context on the events in Ferguson for us. Give us an explanation of some of the political dynamics there and basically how we got to the point where we had the police response that we did and the community push-back.

PM: Wow

JMP: It’s a big question, I know!

PM: So, just some history. Historically Black neighborhoods have been moved around in St. Louis County for quite some time. We had, as most American cities did, redlining, and we also had some really clever codes that made it very hard for people of color to live in certain areas. For example, my family moved to St. Louis County in 1976 or 1977, I think, and my mother had to threaten to sue to be shown a house in the neighborhood that we ultimately moved into because it was predominantly white. So this is a long-standing issue of moving certain populations and basically restricting ease of movement. And married with that is the other long-standing problem, which is completely disproportionate representation in government based on the population that is living in these areas. So there’s a lot that goes into that but that’s basically the platform.

And then the overarching issue of Missouri is that Missouri might be in the middle of the country, but this state had some of the most violent and horrific moments of the Civil War take place within our border. The Kansas-Missouri border war was a precursor to the Civil War, and we have been fighting it ever since. So when folks think about racism, when they think about how that impacts communities they often think of iconic civil rights pictures from Birmingham or from Jackson, Mississippi, but right here in St. Louis we’ve had a series, I mean not recently, but one of the worst race riots in this country took place in East St. Louis. And the reason we didn’t have those ‘60s riots is because white flight had already happened in St. Louis by the time a lot of the unrest of the ‘60s kicked into gear.

So that’s a very long-winded way of saying this is a long time coming. And we have had profiling of people of color be an issue that a lot of people like to collect data on, that a lot of people like to talk about, but not a lot of people want to do a damn thing about. So under the Missouri state legislature they legally have to collect data for racial profiling when it comes to law enforcement pulling people over. I’ve seen the attorney general release that data year after year, and it shows that people are getting profiled and then it sits there and collects dust.

This is really a watershed moment for my community and for the greater St. Louis community because this is kind of where folks drew a line and took a stand and said “enough is enough”; we’re gonna speak up. And then at the moment at which people realized this young man was unarmed and we began to hear stories of how he was just walking down the street, I think immediately as a person of color I said “oh I know what happened.” Of course we don’t have all of the details, but what we do have is this remembrance, this almost genetic memory of what it is like to be singled out and pulled over by law enforcement just because you’re Black. Of that incredible feeling of distrust and panic that hits you.

I mean it’s happened to me. I’ve been pulled over for driving Black while in St. Louis County, and I’m like a short round Black woman with an afro, but I never get a ticket. I just get pulled over, which is a very telling thing. So I think for those of us who have experienced this, and particularly for those of us who have watched the hyper-targeting of young Black men we immediately had a notion of what was going down. The response of the community in St. Louis, and I can only speak for St. Louis because I’ve experienced it a lot here, but whenever there is the loss of a young person or the loss of life the community gathers around. So I’ve driven down streets in St. Louis and seen teddy bear memorials for children who have been struck by a car or who passed away from SIDS. So I think it was natural and completely understandable for the community in Ferguson to gather at the site where Michael Brown was shot and do what was natural and to culturally try and prop up this family. His mother was on the scene, his step-father was also on the scene and I think other friends and family were there. And we’re talking about a scene that stretched on and on. It was four hours before Michael Brown’s body was removed and given the dignity of being taken off the scene. So what developed in response to that was absolutely ridiculous. It’s almost as if at a certain point for Ferguson police department we reached the minimum number of 20 Black people that they could allow on the street at one time. When that 21st person showed up all of a sudden it was like watching a revival of Birmingham. To see people respond to understandable community grief with the kind of overwhelming police force that showed up that very first day. And I think that gets lost in a lot of the coverage. But his body had just been moved away. These people were driving over the flowers. I saw a report where they allowed a dog to urinate on the memorial. That’s the day he died. And even at that point the community was just voicing its agony. And for me watching the response I thought, you know, we’re not even allowed to be in agony about this.

JMP: One of the things that you brought up that I think it is really important to talk about is just how complicated it is going to be to try and find some justice for Mike Brown and his family. I know as the protests happening and the police response escalating there were a lot of calls, including myself at times, for Gov. Nixon to bring in the National Guard, which he ultimately did. But even that as a response is problematic for Missouri. And I was wondering if you could put some context on that because it gets to the larger point I want to talk about which is, there have been, and rightly so, cries for justice here. But what does that look like when the system has failed out of the gate?

PM: I’ve been giving this a lot of thought and I haven’t quite got all the answers, or even close. But one of the things I keep circling back to, is that for this community we’re going to have to walk together, and with the broader community too, and resist at every step of the way the school of tolerance. It’s not just midwestern, it’s Southern and I’m sure other communities have it too, but we want to look good, and we have a tendency to want to frame our region and our city really well and to not wanna have the difficult conversations. So the first quest for justice is the right to be human and the right to have emotion about this whole thing, which has been denied the people of Ferguson for two weeks [at the time of this recording]. The second quest for justice is that there is obviously a legal path that I will be quite honest I don’t have really high hopes for right now. You know, it’s a challenging path to begin with, and then the same kind of systemic issues that brought about the response that we say and even brought about based on my interpretation of the situation, could have brought about the shooting of Michael Brown are the same systemic problems we will face as we try and navigate the legal system as we try and bring justice for the killing of Mike Brown. So I think the community needs to be walked and held close because there is that pain. So one of the things I think people need to start focusing on is that life is precious and it will never be the same for this family. That young man is gone and the reason we need to work really hard and stay the course is to prevent this kind of loss of life because justice is an empty, empty box when you’ve lost a loved one.

And then as a reproductive justice advocate I, of course, think that if anything good can come of this it could be that we start organizing and working to right these wrongs and cure these ills and prevent this from happening to another family, you know prevent another mother from being denied her right to parent her child in a neighborhood that is safe and free from violence, and free from this kind of response.

IG: To what extent do you think that the uprising in Ferguson has spawned a new generation of young revolutionaries, of people who would otherwise not be engaged in the political process but having undergone the sort of police brutality that was lobbed at them. How much do you think that has affected young people and how much do you think that young people are going to carry on with them for the rest of their lives, which is going to cause them to get more engaged in their community and more engaged in their activism?

PM: That’s a great question. I think I have seen young people emerge as leaders in a way that I had not seen before. And I say that very deliberately because my Gen-X self might not have seen it because I’m not a young person anymore. I’m coming to grips with that. But I think there has been activism, there has been discussions, there have been pockets that haven’t necessarily moved into a larger group for a while now, and I think what is particularly inspiring to me is that they are using the tools of their generation to do the same kind of work we saw civil rights activists do in previous generations. So it’s not different to be posting to a blog, or to be having your own web channel and to be using Twitter. It reminds me of watching “Eyes on the Prize” and seeing people making sure that those pictures got out and that the pictures of Emmett Till got out and making sure there were cameras on the ground documenting what was happening in Birmingham or Selma. So to me, it also reminds me of that kind of generational divide that happened in the civil rights movement where you had these young activists like SNCC who were taking one path and then you had more caution and a different course and a different level of comfort from folks who were in a different generation. Somebody who is 41 and is approaching this from my comfort zone and my space and my area of expertise, I am disgustingly thrilled to see young people who are the targets of this kind of oppression organizing and raising themselves up—and the best part is demanding that they have a seat at that table.

And I also see older activists and some of our elders working within their place of comfort and what they are familiar with and I don’t see those as two bad things happening at the same time. It’s okay to have a church service and to loop in and organize people who are comfortable there. It is also important to acknowledge that everybody doesn’t go to church anymore, everybody didn’t go to church back then, so that area of organizing and focusing is not the same. The Black community is very broken up along some socio-economic lines, so it’s going to look different. What I’m seeing from young college students looks very different than what I’m seeing from folks who are workers on the street. But it’s all of the same and it all needs to happen and be supported. When I think of the amazing moments and images and testimony and movement work that I saw happening—I saw it happening with young people. I saw it happening online and offline. I saw offline and work going online, and I simply can’t get passed the fact that we wouldn’t be here with the eyes of the world watching us in this national discussion, in this local discussion happening if it weren’t for the young people on the ground.

JMP: Pam, you have been absolutely amazing to talk to about all of this.

PM: Thanks so much for the coverage and for shining a spotlight on the issue.

Thank you for listening to RJ Court Watch, a legal podcast produced by Rewire. For more coverage of Ferguson and related issues, please visit us at www.rhrealitycheck.org

RJ Court Watch: After ‘Hobby Lobby,’ What’s Next?

Related Links

The Right’s Plan to Kill the Birth Control Benefit 

Obama Administration Says It’s Revising Birth Control Benefit

‘Hobby Lobby’ Is Just the Beginning: A Flood of Corporate Religious Objections Is Coming

Transcript

Jessica Mason Pieklo: Welcome to RJ Court Watch, a legal podcast produced by Rewire, with your hosts, senior legal analysts Jessica Mason Pieklo and Imani Gandy. This episode we talk about, you guessed it, the contraception lawsuits.

But this episode is a little different. Instead of bringing on a guest to dive into one specific piece or part of the legal challenges to the coverage requirement, Imani and I are going to take the rulings on ourselves. We now have a decision from the Roberts Court in the Hobby Lobby case, another preliminary order in the religious nonprofit challenges in the Wheaton College case, as well as news the administration is once again tinkering with the accommodation to the coverage requirement. All of that is a long-winded way of saying the battles over the contraception coverage requirement in the Affordable Care Act are far from finished.

JMP: Imani, I gotta say, it feels kind of like we’re losing right now. Are we losing? Why are we losing? What’s going on?

Imani Gandy: That’s a good question. You know, I think we are losing in the short term, but I think the opposition, the birth control benefit naysayers, are inadvertently making a really strong argument for single-payer [health care]. I think what they have done is they have set up a strategy whereby they litigated, well particularly the Becket Fund for Religious Liberty, which as much as I begrudgingly hate to admit it, I have to give them props for handling this litigation as well as they have, and for handling it in a parallel manner. So, they represented Hobby Lobby, and a couple of years ago, I think we can all agree that it was thought to be a little outrageous that Hobby Lobby would be deemed a person for purposes of the Religious Freedom Restoration Act [RFRA] and would be able to get an exemption from the birth control benefit. Or at least I did. But, two years later, here we are. Hobby Lobby has won the right to exempt itself from the birth control benefit on the basis that there is a less restrictive means to advance the government’s interest. And the less restrictive means is there because the HHS [U.S. Department of Health and Human Services] crafted it, right? It’s the accommodation that they have allowed religious non-profits like Wheaton College, Notre Dame, Little Sisters of the Poor, to avail themselves of. And so this accommodation requires that they fill out a form, forward that form to their insurer, and their insurer will step in and provide the contraceptive coverage. So while they were litigating the Hobby Lobby case saying that “we don’t want to do the birth control benefit, there’s a least restrictive means, that least restrictive means is the accommodation.” At the same time, they’re litigating on behalf of Wheaton College, Little Sisters of the Poor, and about five others, and that’s not including the umpteenth hundred other nonprofits litigating this accommodation that are not being represented by this law firm. But they are arguing that the accommodation itself violates RFRA because by filling out this form they are basically triggering this process by which contraception will be available to their employees. So it’s a dual track litigation strategy that they have been advancing, and it’s actually pretty doggone smart if you ask me, even though I hate to admit it. But yeah, we’re losing, and it’s hard to not think we’re losing in part because the Obama administration screwed up in its effort to accommodate all of these religious complaints.

JMP: There’s a lot there, so let’s unpack that. And I agree, I think you’re read of the strategy is right on the money. So we have Hobby Lobby arguing that for profit corporations should have these exemption rights, and the Supreme Court, Justice Alito said “sure thing.” We’ll make it look narrow though, right, so that it’s only closely held for-profit corporations. And that sort of appearance of a narrow ruling was followed up by saying well, the Hobby Lobby folks only really object to four specific types of contraception, so see, it’s going to be even narrower. And then almost within the same breath turned around and granted the injunction to Wheaton College, this evangelical college out of Wheaton, Illinois, that as you said, objects to the accommodation. So there seems to be this wink-and-a-nod that the Supreme Court is saying this is a narrow approach, we’re going to be judicious and restrained in how we attack the issue of religious liberties and balancing those against employee rights. But, their rulings have done the exact opposite, made possible in large part thanks to that litigation strategy by the Becket Fund.

IG: And it’s also in part I think due to the sort of abysmal litigation strategy of the government. I mean, they’ve been arguing these birth control benefit cases for years now, and entirely absent from the argument is the women these cases are going to effect. I mean, it’s understandable that the client, that their client is the government, so they are supposed to advance government policy and government argument. But part of litigation strategy is making a case have a human aspect to it, of making a case seem like its important for actually humane reasons. And that is what the opposition has done. The opposition has made these claims that the Hahns, and the Greens, and the people who run Wheaton College, and the people who run Notre Dame are sort of infused with this religion, and Jesus, and how unfair it is that the government is coming in and saying that your religious viewpoints don’t matter and we’re going to force you to do these horrible things that violate your faith, and isn’t this terrible. And so it puts a human face on basically what is a technical, legal argument. And the government hasn’t really done that. They haven’t really talked about how this is going to affect the women. I mean, they’ve talked about it very grand, very broad terms about how it’s important for women to have contraception and they cite statistics. But they don’t actually go down to a granular level of you know, Jane Doe works at Hobby Lobby. Jane Doe has three daughters. Jane Doe wants to be able to have contraception, her daughters want to be able to have contraception. Or John Doe works at Hobby Lobby and his wife and his daughters want to be able to have contraception. I mean, there’s a way to argue these cases to make the impact on people, on employees more at the forefront than what they have.

JMP: Yeah I think our opposition has done this is these contraception cases, and I think we saw it specifically in the buffer zone cases, in McCullen, where we had the plump grandmas as the face of the anti-choice protest movement when we know that’s not the case. You know, you brought up a really interesting point and something that has me concerned moving forward in the future litigation on this too. And that is the extent to which the administration has failed to put a human face on those most affected by the contraceptive coverage requirement. In the Hobby Lobby decision, and even in Wheaton College the Supreme Court, the conservative majority said, well the government made a case that providing contraception coverage is a compelling interest and we’re really not going to get into that at the moment. We’re going to, sort of, take them at their word for it. And it got picked up as well the Supreme Court agreed that there is a compelling government interest in providing contraception. I don’t know if it’s that firm a statement, and with the administration not aggressively defending the coverage requirement, and with the opposition effectively putting a human face on it, that when we get to the Supreme Court again on these cases, which we will in some fashion I’m convinced on the nonprofit accommodation, that that’s going to give the conservative majority an opportunity to craft a ruling that says whether or not they believe it’s a compelling interest, and I don’t know if we’re going to get it.

IG: What’s interesting about the interest the government advanced as compelling is that they keep using these broad statements that it is public health and gender equality. And the Supreme Court actually said that the advanced interest was public health or gender equality, but providing cost-free access to the FDA approved contraceptives. So they assumed an interest as compelling, but that interest was never actually stated by the government. So it’s very odd in that respect. And secondly, they said specifically that we find it unnecessary to adjudicate this issue. So it very well may be that they follow the Tenth Circuit Court of Appeals route and say “meh, its not that compelling” or that the government hasn’t made its case that its compelling. And frankly, I’d be hard pressed to disagree because the government isn’t doing its job, in as you say, putting a human face on this issue. So I agree with you. I think we’re going to be seeing this next year. I would hope that the Supreme Court’s statements in Hobby Lobby and Wheaton College that the decisions in those two cases won’t have any effect on female employees’ ability to access contraceptives. But given the litigation strategy, it seems as if you know the Becket Fund and all their clients are backing HHS into a corner, and in so doing backing the Supreme Court into a corner, whereby they’re going to have to chose either contraceptive access or religious liberty. And I think we all know who is going to lose in that calculus.

JMP: So, Imani, let’s make you and I queens in charge of this litigation. So we now work at the Department of Justice. How should we deal with these cases, because I know you and I have gone back and forth on this about a hundred times. Why are they arguing this? What is going on? So, let’s file our amicus brief.

IG: Well for starters I think they need to stop, especially in the accommodation cases, they need to stop using language that makes it seem like they are mocking people’s religious faith.

JMP: Oh, agreed.

IG: So, in the briefs they keep saying, they say that it is ridiculous that Wheaton College objects to filing the form. And I think there is a very good legal argument as to why it is ridiculous that they object to filing out the form, and I think Justice Sotomayor made that argument in her dissent. But you’ll notice in her dissent she repeatedly stated that she had no doubt that Wheaton College’s faith was real, she had no doubt that they sincerely believed that signing this form was a violation of their belief. But what she said is sincerely believing signing a form is a violation of your religious faith doesn’t actually make it so. And so I think the government needs to focus more on the “sincerely” part of a sincerely held belief. I think it was a mistake for them not to go after both Wheaton College and Hobby Lobby on the sincerely held belief prong because as you and I know, and as hopefully most of our listeners know by now, both Hobby Lobby and Wheaton College offered contraception in their plans before they were told by the Obama administration that they had to. So how sincerely held can a belief be if you didn’t know you were violating your religious faith until somebody pointed it out to you.

JMP: So this is great lawyering here because, you’re right, attacking the plaintiffs, attacking the Greens effectively, you know, I can’t remember the exact analogy, that they were “fighting with dragons”—

IG: Fighting invisible dragons?

JMP: Fighting invisible dragons. So, Justice Sotomayor does this great thing in the dissent of Wheaton College where she basically, as you said, lays out the case against crafting an injunction for Wheaton College that says, respectfully, you can believe in the spaghetti monster but that doesn’t make the belief a reality and that it is up to the courts to decide where that line is. So the Obama administration could, as you said, stop making it look like they are making fun of people’s religious beliefs and, in fact, just shift that burden back to the courts. To say your honors, we’re not suggesting that these people don’t believe this, or that they don’t sincerely really think this. We’re asking you to do your job and decide whether or not filing out a form is too burdensome or not.

IG: And in addition I think there’s been a lot of talk about what substantial burden means. Is the substantial burden calculus addressed to what will happen if you are forced to violate your religious faith. Is it the fines you will incur? Is that the substantial burden? Or is it the activity that the government is asking you to engage in? Is that the substantial burden? So is the fact that Wheaton College is going to incur umpteen million dollars in fines, is that the substantial burden? Or do we have to look at filling out that form—it might be a burden, but is it a substantial burden? And I think there’s a real question as to what the substantial burden applies to—what category of activity it applies to, and I think we have a real problem with the courts allowing these plaintiffs to read “substantial” out of the substantial burden requirement so it becomes any burden whatsoever to my religious faith rises to some sort of constitutional or statutory crisis.

JMP: Maybe naively I thought that the Hobby Lobby decision would in some ways bring an end to some of this fight, that we would get a decision from the Roberts Court and in some ways while the fight over health reform wouldn’t be over writ large, that particular portion of it would be. How wrong I was. So knowing that this is going on and on and on and we have a likely Supreme Court case on the nonprofit accommodation and then the sort of big question that is out there that I know you have some thoughts on and that is, okay so Hobby Lobby gets this accommodation. What are the chances that it’s acceptable to them?

IG: I think the chances that it’s acceptable to them are zero to none. As my dad says, slim to none means slim just left town. It’s one of those things that if you read their briefs and their strategy carefully they never actually said “we want the accommodation you’ve made available to these other religious nonprofits like Wheaton College and Notre Dame and Little Sisters of the Poor.” They never said they that “we want that accommodation to be made available to us.” They simply said they were not happy being forced to comply with the birth control benefit and that the accommodation offered to these other groups was an example, or proved, that there was a less restrictive means. But that doesn’t mean that they are going to be happy with that accommodation. I’d be willing to bet you dollars to donuts that the next thing we’re going to see is Hobby Lobby filing a lawsuit joining in with all of the religious nonprofits and now they are going to be claiming that the accommodation is a violation of the Religious Freedom Restoration Act as applied to closely held corporations.

And so we have to remember that closely held corporations make up about 90 percent of the corporations in the United States. Ultimately I think the goal of these lawsuits is to make it so that no corporation, or no organization that is not publicly traded on Wall Street, no organization will have to be involved in any way, in any scheme that may eventually lead to some woman down the line taking contraception after they consult with their doctor and if they have this extra special insurance plan that they may or may not have to pay for out-of-pocket. I mean it’s this long line of attenuated circumstances between the corporation and the woman popping the pill. But I think that the Supreme Court, certainly by issuing this emergency injunction, has indicated that they are open to the idea that the accommodation itself violates RFRA. And if that’s the case, then what is HHS supposed to do? I mean, are they supposed to figure out who everyone’s insurer is, then contact that insurer?

Let me back-track a little bit. So the Supreme Court could just notify HHS in writing. But the Supreme Court didn’t say that in that written notice they have to tell HHS who their insurer is. So HHS knows who Wheaton College’s insurer is through the litigation, through discovery and written documents and whatnot. But there are umpteenth other religious nonprofits who haven’t yet sued the government that what, they are going to write HHS now and say we object, good luck figuring out who our insurer is, thumbs up?

JMP: We’ve got these two tracks you’ve outlined and the Obama administration is already tinkering with the accommodation in light of this emergency injunction with Wheaton College, and we know that won’t be acceptable, right? I mean we know no matter what the administration comes up with they will sue on that. We have the lawsuits challenging the subsidies under the federal exchanges and those will continue to go on, and I think you’re right, Hobby Lobby is going to challenge whatever it is that the Obama administration comes up with so that the options are nobody ever has to cover contraception or the administration gives up, that this becomes too political a battle for them to wage. That it is just too costly. That they have to sacrifice too much time and too much energy defending the lawsuits. I mean there are what over 100 lawsuits filed on the contraception coverage requirement alone, and now a new set of accommodations will be coming out this fall, which means a whole new host of lawsuits. At some point I think the plan is to make people give up. Whether it is people trying to access contraception or the administration itself, and that’s deeply cynical. That’s an abuse of process in my mind.

IG: Oh it’s absolutely an abuse of process. But I mean we’ve been very doom and gloom thus far, but I do think there’s a sliver lining, and it’s not a silver lining that is going to make itself apparent in the short term, but I think in the long term what these people have done is inadvertently pave the way for single-payer. Because if they are going to continue, whatever the Obama administration does the opposition is going to say “is this the least restrictive means?” and the fact that the Obama administration is tweaking the accommodation again before the Little Sister of the Poor and Wheaton College cases get resolved gives the other side ammunition in those cases to say well obviously this isn’t the least restrictive means because you went ahead and tweaked it even further. So I think it’s a mistake for the Obama administration to tweak it in advance. But all that said, if you read the briefs of a lot of these corporations, these organizations, they list a laundry list of things that might less restrictive. One of those things is the government providing contraceptives to women directly. And now the amusing part about this is, that conservatives have been ranting and raving ever since Sandra Fluke testified on Congress, they’ve been ranting and raving that “women are just sluts who cant keep their legs closed, and why should I have to pay for you to have sex?  Why are you looking to daddy Obama to pay for your birth control?” When in reality up until now that is not what we’ve been asking. We have been saying that we want our birth control covered as part of our wages because its covered in our health insurance plan and health insurance is wages, it is what we earn as part of our labor. Now if they want to say that the government is just going to directly provide contraception to women, then that really is asking taxpayers to fund birth control and that’s not what conservatives want, but that’s the corner they are backing themselves into.

So it’s going to be really interesting when they wake up and realize that what they’ve accidentally done is argued for a complete government take-over of health care, which I for one am entirely for, and I think most progressives and anyone listening to this podcast is entirely for. But, I don’t think the conservatives will be too happy with that option if and when that takes place.

JMP: Hear, hear. And to give a little bit of tough love to the administration here, your point earlier when we were talking about their failure to put a face on this battle, that might be changing too. You know another interesting wrinkle in all of this is of course after the Hobby Lobby and Wheaton College decisions came down, the Equal Employment Opportunity Commission [EEOC] issued a new set of regulations related to pregnancy discrimination and buried in a footnote in those EEOC regs was a note that says, oh by the way, it continues to be our position that those employers who fail to cover prescription contraceptives in their health insurance plans engage in gender discrimination and violate Title VII. The same day the Department of Labor announced that those employers who were planning on dropping contraceptive coverage as a result of the Hobby Lobby decision needed to notify their employees thus arguably giving them the ammunition necessary to file an EEOC complaint and start that process claiming gender discrimination, which is a different bar than what the government needs to prove under RFRA. That’s a way to say, the Obama administration may have screwed up initially in the defense and litigation in these cases, however some of the correction seems to be pointed in the right direction.

IG: Right, and I would love to see some women actually suing their employees, whether through the EEOC or whether through intervening in the lawsuits already filed like some students have from Notre Dame. I would really like to see women standing up for themselves, or at least someone standing up for women, because we’ve just been lost in this brouhaha over religion. It’s just a bunch of dudes, talking about what women need and talking about our health care as if a large portion of our health care just doesn’t matter. They need to be able to siphon off reproductive health care as something apart from health care, and that’s apparent in the Hobby Lobby decision. Alito attempted to be so narrow, and attempted to siphon off vaccines and blood transfusions because, oh, we’re not necessarily saying that this is going to apply to those types of medical procedures, it only applies to contraception, and that’s just ludicrous in my mind.

JMP: It’s ludicrous and deeply offensive because what Alito is saying is that it is discrimination except when it impacts women, and then it’s not really discrimination at all. Then it’s just freedom!

IG: Every time I start reading the Hobby Lobby decision I just start yelling out loud and snarling in disgust because it is just so frustrating, especially, and this is one thing I wanted to talk about, the fact that Catholic theological legal thinking has somehow made its way into a Supreme Court opinion. That. That’s. As you said to me via [Google] chat, that is terrifying.

JMP: Right. So if our listeners haven’t caught that in the Hobby Lobby decision was in a footnote I think footnote 34—and if I’m actually right about that off the top of my head—

IG: It is absolutely footnote 34, and it’s funny that we both know that.

JMP: Okay, time for a vacation. So, in the Hobby Lobby decision Justice Alito drops this footnote citing Catholic moral theology for the legal conclusion that the Greene’s legal beliefs were substantially burdened. So when people freak out about Sharia Law, all I’m going to do is point them to Hobby Lobby v. Burwell and say what, we’re okay with this because this isn’t case law that Justice Alito cited, this is Catholic theology.

IG: Right. And it has no place in a Supreme Court opinion. It really doesn’t. I mean, the fact that they are citing Catholic theology but ignoring science in the very same opinion is really alarming to me. I mean the fact of the matter is is that the Hahns and the Greens and umpteenth other plaintiffs challenging the requirement believe life begins at conception. They believe the morning after pill is an abortifacient. Well, frankly, what you believe doesn’t matter because it is absolutely not true. You can sincerely believe that gummy bears will cause abortions but the fact of the matter is it is not true. And it is the court’s job to force a plaintiff to back up its allegations in a complaint with facts. And the fact that no court, not the district court, not the Tenth Circuit, or the Supreme Court required Hobby Lobby to put forth some evidence demonstrating that the contraceptive devices to which they oppose were abortifacients when they are not. The overwhelming medical consensus is that they are not. They’re not. And I find it really, really disturbing that they just glossed over that and said well lets just go with it. When those religious beliefs are based on false statements of scientific fact I believe it is incumbent on the Court to say, look, you can believe in what you want, but what you believe is not true, and so we are not going to base case law on some belief that is just patently not true.

JMP: Right. There is a difference between belief and fact, and the court very willingly substitutes one for the other, in the cases of reproductive health care, particularly in Hobby Lobby, and they do it in the abortion cases all the time. Which again I think is just further support for the idea that from the Court’s perspective reproductive health care isn’t really health care because it impacts women, and therefore it doesn’t matter or it doesn’t have to be science and evidence driven but can be ideological and religiously, faith-based driven. It’s not real. It’s other. It’s for something other than us.

IG: If science has no place in the courtroom, then we are just slipping down a slide toward a Catholic theocracy, and I don’t want to live in a Catholic theocracy because I’m not Catholic.

JMP: Right. I was raised Catholic and still don’t want to live in a Catholic theocracy. No thank you!

So, looking ahead, we don’t have anything right now before the Supreme Court, but we know its coming. We’ve got a bunch of cases in the Tenth Circuit, we’ve got Notre Dame in the Seventh Circuit. What should we be on the look out for strategically from our friends at the Becket Fund as these cases advance?

IG: I think we should be looking for them to file suit on behalf of Hobby Lobby claiming that the accommodation that HHS crafted for the religious nonprofits violates RFRA as applied to closely held corporations. I think that we should be looking for the Becket Fund to wait for these new accommodations that the Obama administration is crafting and say “we’re entitled to preliminary injunctions in all of these cases” because the Obama administration has gone and mucked about in the existing accommodation. Those are the two things off the top of my head.

JMP: I hope we see some employees who have received notice from their employers that they’ve dropped contraceptive coverage file some equal employment complaints with their local equal employment chapters and absolutely pursue these as gender discrimination claims, because they are.

IG: What I really think we need to do is pass the damn ERA [Equal Rights Amendment].

JMP: Hooray!

IG: I forget who it is, Benjamin Cardin, I think is a Senator out of Maryland who keeps introducing a bill that would make it so that states don’t have to go back to the beginning process and get that, what is it, two-thirds?

JMP: Yeah, we only need more three states!

IG: We only need three more states! Why can’t we find three more states?

JMP: One of them is Illinois. We should be able to get Illinois. And Arkansas. And Mississippi, and there’s a handful, but yes, I am on the ERA bandwagon with you, Imani. Pass the ERA.

IG: I mean we’ve got a lot of women, a lot of men too, a lot of activists who are down for this cause, so maybe we need to figure out a way to organize, to use this abomination of a decision to our advantage, because if the ERA were passed, I don’t think they would have been able to pass this decision. I know in previous years abortion rights has been sort of the death knell for the ERA, and there are a lot of Democrats and I think people on our side who are afraid to bring up the ERA because they don’t want to have the fight about abortion. But it’s time to have the fight about abortion.

JMP: At the very least, the Equal Rights Amendment would force justices like Alito and Scalia to recognize and put women in their decisions. I mean I think the word “woman” appeared in the Hobby Lobby decision a mere 13 times. completely and totally absent from their calculus is an affirmative statement that women have equal constitutional rights as men would make that impossible.

IG: Right. And it would also make it impossible, for example, for the Tenth Circuit Court of Appeals to reject gender equality as a compelling interest as it did in their decision in the Hobby Lobby case.

JMP: Okay, so this is perfect, because in about 30 minutes Imani and I have drafted out the amicus brief we are going to file to help kickstart the administration’s defense of this very important contraceptive coverage requirement. We wouldn’t be so critical of it if we didn’t believe so strongly in it, so this is tough love from friends, and also move forward on passing the ERA as a way to put an end to all of this nonsense once and for all from the right.

IG: Yup. Yup. And I’m not exactly one of those “ready for Hillary” people, but maybe if we get a female president next that will help jumpstart the ERA, because frankly it’s 2014 and it’s ludicrous that it hasn’t been passed yet.

JMP: Hear, hear. Put it on the ballot. Get as many women on the ballot. Heck. Hillary. Put Elizabeth Warren in the mix and have an embarrassment of riches of qualified female candidates on the ballot just to prove the point of what is going on with the right.

Thank you for listening to RJ Court Watch, and be sure and catch all of the reporting and analysis on the contraception benefit at www.rhrealitycheck.org.

RJ Court Watch: The State of Marriage Equality One Year After ‘United States v. Windsor’

Related Links

What’s Next in the Marriage Equality Fight? The States, Then SCOTUS Once More

We May See Marriage Equality Nationwide, Ushered in by Red State Courts

Discriminating on the Basis of Gender Norms, and the Possible Reach of Hobby Lobby

Transcript

Welcome to RJ Court Watch, a legal podcast produced by Rewire and hosted by senior legal analysts Jessica Mason Pieklo and Imani Gandy. This episode, we take a look at marriage equality and what seems to be a snowballing success in the courts. Is it possible that by this time next year marriage equality will be a matter of law across the country?

Jessica Mason Pieklo: Wouldn’t that be amazing, Imani?

Imani Gandy: It really would. And I have to say, I’m a bit astonished at how quickly it’s happened. It’s like this domino effect since the Supreme Court ruling last year. It’s just been state after state after state and there have been some people, some hangers-on that are still trying to protest it. But I’m pretty sure that any state that brings, any plaintiff that brings a claim in any state is going to win. And that’s fantastic.

JMP: And the idea that this is really truly about the tip of the iceberg in getting to broader gender equality I think is an important point, and the idea that the fight for equality doesn’t end though when we get marriage equality and that fight needs to continue on. And I think we’re starting to get that conversation bubble up a bit. But I think that’s also a really important point as we’re celebrating this big win and what feels to be a cultural sea change on the issue of same-sex marriage and marriage equality.

IG: I’m also interested as an adopted person if the next big issue that the advocates for LGBT people are gonna tackle is their ability to adopt children, because there are still some states that don’t allow that. I would just be interested to see if that’s going to be the next issue they try and tackle. Or if they try and tackle ENDA, the Employment Non-Discrimination Act. There’s been a movement to try and get that passed but it’s stalled out, but I think partially it’s stalled out because some people are confused about transgender rights and what that means, and whether or not they should be included.

JMP: I’m really glad you brought up the broader family rights context about this because we’re talking about adoption rights, and there are some lawsuits going on in places like Nebraska and Utah to challenge parenting and foster parenting bans that are in place. And this idea that what is really at stake here is this fight against a very rigid and narrow definition of what is an acceptable family, and what that looks like. And that’s an important issue to talk about in the broader context of reproductive rights and justice because that is an element of the conversation for those who are similarly trying to restrict abortion rights, abortion access, contraception—that is all a part of a larger conversation of what is and is not appropriate in terms of family structure.

IG: And then you get people like Paul Ryan who made some claim about single moms—I can’t remember the exact quote—but essentially he was denigrating single moms. And there are politicians, Mitt Romney for example, who have this idea that single moms should be forced to work a certain amount of time because it strengthens their character or some such nonsense. And so I think we’re going to see some changes about what a family looks like, whether or not women can have children, raise children in a safe and unhostile birthing environment. And I think LGBT rights is going to meld with this larger conversation about reproductive rights, reproductive justice as you said, and I’m really looking forward to it.

JMP: It’s been almost a year since the Supreme Court handed down its decisions in US v. Windsor and Hollingsworth v. Perry and set the stage for the marriage equality to take hold in the states. We are here with Prof. David Cohen, an Associate Professor of Law at Drexel University School of Law to talk about marriage equality in the states one year after the Windsor and Prop 8 decisions. So, thank you so much for joining us, Professor Cohen.

David Cohen: Thanks so much. Happy to talk with you.

JMP: So it’s kind of amazing to think not even a year ago the Defense of Marriage Act was still the law of the land, and now I believe we have, what, at least 19 states where same-sex marriage is recognized.

DC: Right. Plus the District of Columbia.

JMP: Plus the District of Columbia. Yeah, so can you help us explain how the Roberts Court’s decisions last summer got us here, because it seems like we got here quickly.

DC: We did, although there was a lot going on before the decision in Windsor, because a lot of states had decided either based in their own courts that their own Constitution required marriage equality or through their own legislative or ballot initiative process decided that they were going to recognize or allow same-sex marriage. So it’s not all about the Roberts Court because this movement has been going on for a long time before the Roberts Court got involved and had a lot of successes. So I think there were 12 or 13 states that had marriage equality before the Supreme Court stepped in.

But what the Supreme Court did was to say for the states that have marriage equality the federal government is going to recognize those marriages, because it would be a violation of basic principles of equality for the federal government not to recognize same-sex marriages. The Court did not address the issue of whether a state has to recognize or allow same-sex marriage. But since the Supreme Court’s decision that issue has been taken to federal courts all over the country in states that do not recognize same-sex marriage, and every single federal judge who has addressed the issue has said, since the Supreme Court decision in June, that the Constitution requires marriage equality. There has not been a single judge in the country who has ruled contrary to that, who has said that there is not a constitutional guarantee. So, this has been a hugely successful movement and it was spurred to even more success by what the Supreme Court did.

JMP: You mentioned a couple of really fine, important legal points I’d like to suss out for our audience here. First is that the Roberts Court didn’t rule on the ultimate issue of whether or not states must recognize marriage equality—we hear it talked about as whether there is a fundamental right to same-sex marriage. Do you see that question getting before the Roberts Court soon?

DC: Probably. I mean, the Court had that question before it. There were two cases before the Supreme Court in June. One involving the federal law which said the federal government was not going to recognize same-sex marriages, and that’s the case the Supreme Court decided, the Windsor case, and said the federal government has to. But there was a second case out of California, involving California’s ban on same-sex marriage, and the Supreme Court sidestepped the issue because the plaintiffs, the two couples that wanted to get married, won in the trial court. The problem was the state of California didn’t want to appeal because the governor of California at the time, Arnold Schwarzenegger, supported marriage equality and said I don’t want to appeal. So it was left to this advocacy group to appeal the case. And what the Supreme Court said was that an advocacy group like that cannot step in and appeal a case. They do not have enough of an interest in the case to do that. So the Supreme Court even though it had the issue of a state ban on marriage before it punted essentially saying this isn’t the right case. But now we’ve got all these cases around the country that are being defended and appealed by governors who are opposed to marriage equality, and one of those cases may get to the Supreme Court. Right now we have at least four circuit courts, which are the intermediate appellate courts in the country, that are considering marriage equality cases and one of those cases could go up before the Supreme Court and presumably none of those cases would have any of the procedural irregularities of the California case in which case it would be squarely presented to the Supreme Court whether there is a constitutional right to marry and whether it is discriminatory to deny gay and lesbian people the right to marry.

JMP: So one of the things that’s been fascinating to me as a court watcher in all of this is the role that Justice Kennedy played because he is, as you know, thought to be a very key vote on marriage equality but I wonder if the Court does take up this question as a fundamental right what your thoughts are on Kennedy’s position since you mentioned the procedural irregularities of the Prop 8 case and also the fact that the DOMA case, the Windsor case, was situated really much more as an issue of an abuse of federal power, of a federalism question which Kennedy likes a little bit more. Perhaps. I don’t know—what are your thoughts on that?

DC: Justice Kennedy has an interesting track record when it comes to gay rights because he has issued some of the most important decisions based in principles of equality and dignity with respect to gay rights. He’s written the opinions and he writes in very flowery language that is inspiring. But at the same time he’s also very confusing in what he writes as a matter of legal doctrine. A lot of people, I mean I don’t anyone who thinks he is clear in what he writes, which puts us in the position of having to figure out what exactly he means for future cases. But I think what is more important than figuring out the finer points of the doctrine is just the trend and that I think he is very clearly in favor of gay rights. He might have some jurisprudential reasons to be unclear—I’m not sure what those might be—but for whatever reason he’s not very clear in what he writes but the outcome is clear, and I don’t think he would change that when it came to marriage equality. If the right case gets to him, and the right case being a case that is clean procedurally gets to the Supreme Court I think he would do the right thing and find a marriage equality requirement in the Constitution. He might do it in a way that is frustrating because it is not clear or because he confuses it with some other issues, but I think he wouldn’t want to blemish his record right now. And he’s not stupid, he sees the way this is going in this country, he sees the what the lower courts are doing, and he’s not going to be the one who stops this.

IG: When you say that he is unclear in his decisions, can you explain a little bit about what you mean by that?

DC: Sure. Almost every law ever written discriminates in one way or another. The law that says you can’t drive faster than 55 miles per hour discriminates between people who drive under 55 and people who drive over 55. But that’s perfectly okay. It’s perfectly okay in almost every circumstance for the law to discriminate and treat some people differently. That’s what it does. It’s just not allowed to do it based on certain categories or certain characteristics. And one of the claims in the world of gay rights is that laws that classify based on sexual orientation, or laws that discriminate based on people’s sexual orientation should be treated the same way as laws that discriminate based on sex or based on race, meaning courts should look at them more closely. And this has been an effort by advocates for a long time to try and get courts to recognize that discrimination based on sexual orientation should be treated similarly. And these claims have been put to the Supreme Court and Justice Kennedy’s opinion in these cases has not clearly answered the question. He has not clearly answered it no, he has not clearly answered it yes. He’s just confused everyone. And so if you read Justice Kennedy’s opinions and try to ask yourself afterwards “well is discrimination based on sexual orientation now like your run-of-the-mill discrimination between people who drive too slow and people who drive too fast or is it like race and sex?” It’s hard to answer that question after you read his opinions because he’s not clear. So we would love it if he were clearer, and I don’t know why he’s not. He’s not a stupid person, that’s for sure. But for whatever reason he can’t bring himself to write with the clarity we would hope on this basic issue. And he gets called out about it. The dissenting opinions, Justice Scalia and Justice Alito are furious with him in their dissents saying “you’re not being clear, you’re basically confusing lots of areas of law.” But he does it anyway.

JMP: One of the things that’s been really interesting to me as the campaign for marriage equality has taken a stronger hold in the states is the pushback we’ve seen with the expansion of state-level Religious Freedom Restoration Acts and these sort of broad, blanket “freedom to discriminate” laws under the guise of religious liberties and I’m wondering if you can just speak to that a little bit.

DC: Sure. Some states have tried to say that if there is marriage equality it is going to be too burdensome on the religious business owner who is now going to have to take pictures at a gay wedding or make a cake for a gay wedding or treat gay couples the same when they come into their business. And some states have tried to get an exemption in their basic law that says that businesses can discriminate on the basis of sexual orientation. And these are interesting issues because there aren’t protections in a lot of states—most states don’t have protections that say right now that businesses are prohibited from discriminating on the basis of sexual orientation. So in most states right now a business owner can discriminate on the basis of sexual orientation already. In most states businesses can refuse to hire someone based on sexual orientation. So these laws about protecting religious freedom are one, unnecessary because the states for the most part allow this kind of discrimination in the first place and, two, because they are really just writing bigotry into the law because it’s saying that we’re going to allow people to treat people differently based on sexual orientation. So the big backdrop issue with the marriage equality cases is that they are not going to solve all the problems in this country with respect to sexual orientation. Far from it. Without protections from employment discrimination, without protections from housing discrimination, without protections for public accommodations discrimination there’s still serious gaps in our laws in this country with respect to gay rights even if every state allowed gay people to marry.

JMP: I’d like to pose one final question to you before we wrap up. At the end of the Roberts Court’s marriage equality decisions Justice Scalia caught a lot of heat from the media saying he was concern-trolling about how the DOMA decision would usher in a new wave of marriage equality litigation. Was Justice Scalia right?

DC: That’s the funny thing about Justice Scalia is that as vile and repulsive as his dissents have been in these gay rights cases, he does get a couple of things right. One, he is absolutely right when he calls Justice Kennedy out for being unclear. When I teach these cases, when a lawyer reads these cases, it’s just impossible to make sense of the legal doctrine if you read a Justice Kennedy opinion. And Justice Scalia says that in his dissent, and even if you disagree with absolutely everything Justice Scalia writes on the substantive issue you have to nod your head and say “yeah you’re right Justice Scalia, Justice Kennedy is not being clear.” But the other thing Justice Scalia does in his dissents is to say “well, based on what Justice Kennedy has written, all of these other things are going to happen.” And so in 2003, there was a case Lawrence v. Texas that held that Texas’ ban on sodomy, which only applied to same-sex sex and did not apply to opposite-sex couples, in that case Justice Kennedy struck the law down and said that it was unconstitutional. And in dissent Justice Scalia said “well the sky is going to fall. One of the things that’s going to happen is that this decision is going to usher in same-sex marriage.” And you know, I had to look at him and read that part of the opinion and say ‘yeah you’re right Justice Scalia.’ I think you’re right. I think the principle that Justice Kennedy rightly announced should lead to same-sex marriage. And he did the same thing in the Windsor case, because after Justice Kennedy’s opinion in Windsor Justice Scalia dissented and said the same thing. A—you’re not being clear. Yeah, you’re right. And B—this decision although it’s only about the federal law, this decision is going to lead to state laws being challenged. And he went so far as to almost provide like a Mad-Lib version of an opinion from a district court judge saying look at how easy it is going to be to replace just a few words in Justice Kennedy’s opinion and find that a state ban on same sex marriage is unconstitutional. I will do it for you. And he struck the words from Justice Kennedy’s opinion and inserted different words and showed how you can take Justice Kennedy’s opinion and find for marriage equality in the states. And you know, I had to look at that part of the opinion and say ‘you’re right Justice Scalia,’ and the lower courts have done the exact same thing. They have said “look, the Constitution requires marriage equality, even Justice Scalia agrees with me.” And so they’re sort of sticking it to him, saying okay you were being sarcastic, witty, clever, whatever he thought he was doing with that section of the opinion and we’re going to take you’re word for it and say you’re right. And so Justice Scalia in his own way has done a lot to help the cause of gay rights in his dissents.

JMP: Who would have thought that it would be Justice Scalia who would provide the form order to usher in marriage equality at the state level. That’s fantastic. I love that image.

DC: Yeah, I wonder who wrote that part of the opinion. Was it a clerk? Was it him? If it was him, is he kicking himself? If it’s a clerk, is he talking to him? Will he ever talk to him, or her, again? Whatever it is, Justice Scalia is by all accounts a smart man. If he didn’t see this coming, that his dissent was going to be used this way it was a huge blindspot. And that’s possibly true. He seems to be completely blinded by his homophobia and bigotry in these dissents and it seems that that’s what’s happening. He is providing a framework for the lower courts and he doesn’t realize that’s what he’s doing because he’s just so outraged that anyone could think gay people are equal. So, you know, he can finish his career and whatever he does with his anger about it while the rest of the country moves forward.

JMP: Well, maybe he and Bryan Garner can write a new book on how not to create form orders for the lower courts.

DC: Yeah, it’s certainly not good legal writing or judicial writing to do what he does, but he can’t help himself. I really do think he’s blinded by his rage and what he thinks is just a crazy thing the court is doing. And you know what? Let him be angry in his corner while the rest of us move on.

JMP: Absolutely. David thank you so much for your time and for helping us walk through what is a fast and furiously changing legal landscape. I anticipate that we’ll have a lot more to talk with you about on the topic of marriage equality, you have a forthcoming book that we are very excited about on anti-choice clinic violence that will be a very important read so hopefully we can have you back to talk about that as well.

DC: I would love that. And thank you so much for talking about this. Like you said, who knows what this will be in a week, but it’s exciting because everything is going in the right direction right now.

Thanks for listening to RJ Court Watch, a legal podcast produced by Rewire. Join us for future episodes where we take a look at the close of the Supreme Court term and break down the pending contraception and clinic buffer zone cases. For more coverage of these issues be sure to visit us at www.rhrealitycheck.org.

RJ Court Watch: Can a Reproductive Justice Framework Help Turn North Carolina Blue?

Related Links

Rewire Data: North Carolina

“Forward Together, Not One Step Back” Moral Mondays March Brings Tens of Thousands of Progressives 

Federal Court Permanently Blocks North Carolina Ultrasound Law

Transcript

Welcome to RJ Court Watch, a legal podcast by Rewire and hosted by senior legal analysts Jessica Mason Pieklo and Imani Gandy.

This episode is a little different in that we’re not focusing in on a specific legal issue like whether or not corporations can practice religion. Instead we’re taking a peek into what’s going on in North Carolina. It’s an important state for reproductive rights and justice with a lot of fights going on whose outcomes will have some long-lasting effects. So I guess to that end it’s also a good example of how the law and politics can be two sides of the same coin.

JMP: This is kind of fun, in the sense that not that you and I don’t really enjoy digging into the legal issues, but we get to take a step back from some of the case law analysis and talk a little more politics, which, I know you and I like to talk politics a little bit.

IG: Love politics. Especially love politics that is geared toward opening up a reproductive justice lens in the reproductive rights movement.

JMP: We were really excited to be joined with Suzanne Buckley, who is the executive director of NARAL Pro-Choice North Carolina, and as I mentioned we sort of focused in on North Carolina because it’s a battleground state in a lot of ways. There are obviously some reproductive rights issues that have bubbled up to the surface, but voting rights, public education, clean drinking water, environmental justice, right now North Carolina is on the forefront of all of these issues. And it’s a state that has some good strong progressive roots and also has the opportunity to help lead this part of the region out from the Tea Party madness that has taken hold since 2010.

IG: Yes and one of the great things about North Carolina is the diversity of perspective that is being brought to bear. I mean you’re seeing Black people, white people, Asian people, Latina people all coming together to fight for the same things. And I think particularly when looking at Black social conservative movements it’s a great way to sort of join Black church-going folk and to get them to understand what abortion rights are and to sort of push back against this idea that, you know, Black genocide, abortion is slavery, and this effort by a lot of conservatives to sort of tap into that church-going mentality and to convince Black people to become anti-choice. So I’m really happy to see things like Moral Mondays and to see people like Rev. Barber really taking a stand for reproductive rights and reproductive justice.

JMP: Oh absolutely. One of the reasons I was eager to focus on North Carolina is because for that reason. I think it’s a state with a lot of lessons for progressives, and one of them being the importance of communities of faith, and in particular in the South, the role of the Black churches in the social justice movement. And the Moral Monday protests, I’m not at all surprised to see they’ve caught on elsewhere and they’ve brought this issue to the forefront. And when I think of the idea of re-framing these issues as matters of reproductive justice, that just makes a lot of sense because they impact all of these communities. And they may not impact all of these communities equally, but at these various points we can come together and build coalition that uplifts everyone. And that I think is really inspiring coming out of North Carolina.

IG: It’s a way to use a social justice lens in order to draw parallels and comparisons between voting rights and reproductive rights and all of these other issues so that we can bring North Carolina back to blue, so that we can bring North Carolina, make it a sort of breeding ground for justice issues.

JMP: Exactly. And I think when we start to bring those issues together, when we talk about the connection between reproductive rights and attacks on voting rights as one thread of a larger attack on people’s civic engagement, and their ability to participate in our social, cultural, and governmental institutions that it reminds us that we all have kind of a common enemy in this fight. That while our communities may not always be the same and that we may have different and sometimes diverging interests, there is a pretty common force of folks who we can rally against.

IG: Absolutely. And I just think it is really heartening to see so many people willing to take to the streets to fight for their rights. I mean it sort of harkens back to the civil rights era you know where you have these massive protests, and what’s really disappointing I find is that the media tends to ignore these protests. So you have these Moral Mondays protests for going on for months and months before the media even started covering them. But that didn’t stop the people from taking to the streets. And one of the things that Suzanne will talk about in this interview is the ways in which North Carolina tried to ram through the “motorcycle abortion bill,” which was a motorcycle bill that they then attached all of these anti-choice provisions to and then tried to pass it at the last minute toward the end of the legislative session right before the Fourth of July holiday. And despite their efforts in doing so a lot of people were able to mobilize at the last minute and show up at the last minute and say no this is not acceptable.

JMP: And by contrast we have you know 50-60 Tea Party activists show up and its all over the national media. So I think there’s a real bias. And you know I try not to get into the whole “liberal media bias” “conservative media bias” but North Carolina is an excellent example of many media outlets being asleep at the switch.

IG: Absolutely. I absolutely agree and I’m really excited for people to listen to this interview and I’m also really excited for people to hear about what NARAL is doing in terms of partnering with people and groups like SisterSong in order to, to do a reproductive justice summit. I’m really, really heartened by the fact that reproductive justice seems to be sweeping the nation for lack of a better term and I hope we see that more going forward.

JMP: Absolutely. The reproductive justice summit that NARAL is one step in the right direction. And I love too the idea that there’s a lot of youth involvement and momentum in this movement. I think that’s really important too because we’re seeing that issues like immigration reform and voting rights and reproductive rights and access issues. There are young folks who absolutely understand what its like to live at the intersections and margins of these points and are informing policy moving forward in a way that, again I think is hopeful. And when you work in reproductive rights and justice we don’t always get a lot, a lot of opportunity to shine a light on hope, right? We’re more accustomed to talking about defense, or the attacks on rights and access and equality and so its good to see some folks in a really entrenched state taking a proactive, forward looking, hopeful approach too.

IG:  Absolutely. I love the fact that we are at a place where we can be more proactive instead of being reactive all of the time, because anti-choicers are nothing if not persistent, and they are constantly proactive and thinking outside the box looking at ways they can strip women of their rights and strip people of justice and the fact that we’re starting take that tact and to push back is very heartening.

JMP:  We are thrilled to introduce Suzanne Buckley, the executive director of NARAL Pro-Choice North Carolina. Suzanne is here to help us talk about North Carolina as a kind of reproductive justice case study. So Suzanne, thank you so much for joining us.

SB: Sure thanks for having me.

JMP: I would like to start by taking just a little bit of time to talk about the political climate in North Carolina, in part because as a state it’s not necessarily a traditionally conservative state and I think there’s a lot of interesting political dynamics going on that, particularly recently, help explain some of the really extreme attacks on individual rights that we’re seeing go on in the state, so can you talk with us a little bit about that.

SB: Sure. Well North Carolina has historically been a purple state and we remain statewide a very purple state. If you look at Obama winning North Carolina in 2008 and then narrowly losing in 2012, North Carolina has traditionally been one of the more progressive states in the South. Because of redistricting that has happened in the last couple of years we’ve seen really extreme districts either that are extreme Republican districts and a few that are extreme Democratic districts so for most of us working in the field, the folks on the ground are not, their values and their views are not necessarily being represented by the body and the General Assembly. So there’s a lot of disconnect between what are “North Carolina values” and what is going on in our General Assembly. So for the first time, certainly in my lifetime  and I’m from here we have an anti-choice governor, an anti-choice majority on our state Supreme Court and an anti-choice supermajority in our General Assembly. So this is an unprecedented time for folks working in reproductive rights and health and for anyone who is just socially justice minded this is the first time we’ve been in such an extreme legislative minority. And I think that is why we are seeing, from the work that I’ve done, when I started working in this field about ten years ago the bills that were introduced–the mandatory ultrasound bill, the bias counseling bill all those bills had been introduced every single year for the last ten years and they had just never gone anywhere. So we are seeing you know a wishlist from the folks who have been in the minority and have been working on these issues finally able to push legislation. And that’s what we’re seeing. We’re seeing an outpouring of voter suppression, attacks on Medicaid, and every sort of neo-conservative dream is coming to fruition right now in North Carolina.

IG: So one of the more shocking efforts to ram anti-choice legislation through in North Carolina was the sort-of Hail Mary passage of SB 353 which was a motorcycle safety bill but then was amended to add multiple anti-choice an insurance coverage for abortion ban, a sex-selective abortion ban, and a ban on telemedicine among other things. And listeners can review the restrictions included in that bill by checking out our new interactive search tool Rewire Data and the url for that is data.rhrealitycheck.org. But I’m wondering if you can explain a little bit about how a bill about motorcycle safety turned into one of the more stringent anti-choice laws that were passed last year and how motorcycle safety has anything to do with pregnancy or abortion or reproductive rights, maybe explain what the North Carolina anti-choice folks were thinking.

SB: If I knew that my life would be a lot easier. We saw versions of this legislation throughout our legislative session. There had been hearings on pieces of it that had either been defeated or gone through one of the two chambers. But what we saw in about a 15-20 day period was the gutting of two-bills. The first was an anti-Sharia law bill which is similarly perplexing as to how those things are related. And then a slightly less-bad version that ended up in this motorcycle safety bill and in politics in general and in policy making there are a lot of procedural things that happen and ways that folks try to use parliamentary procedure and other types of civil procedure to allow bills to pass quickly and to try and pass them without a lot of public attention. And so one of the things that folks tried to do, and it was wrapped up in the larger debates that were going around between the majority on tax reform and a lot of other issues was to take a bill that to this day has nothing to do with reproductive health and safety and gut it and insert a bunch of different provisions, some of which hadn’t had any hearing at all and most of which hadn’t been thoroughly discussed or there hadn’t been a lot of opportunity for amendment and because of the way they did this on a holiday weekend, I think the thought was we’ll just sort of slip this in really quickly, everyone will go home for the break and nobody will notice until it is all over. And one of the things we were able to do working with our partners is to get 600 folks to show up overnight on July 3, I believe, at the General Assembly and to stand up and say we’re watching. We’re here. Nice try. But we’re going to notice this and we’re going to remember it. And I think it was interesting because they have the votes. So just in terms of if you’re a political junkie and thinking of “why do it this way,” it was very interesting to see why not have full hearings and full disclosure if you have the votes anyway, right? Why go through all this process and procedure to try and push this thing through. And I think they’re still trying to answer that question. But I think the more discussion and more disclosure that goes on around this legislation and this new law the more extreme it sounds and the harder it is for them to say this is about women’s health and safety.

IG: Right. And so are there challenges that you are expecting to that law?

SB: At this point, the biggest piece of it that is sort of new for North Carolina, the bans on abortion care coverage in the health [insurance] exchange and a lot of the so-called conscience clause refusals those are already playing out in the courts and in other areas. And the biggest piece is that they’ve given the authority to our health department, the Department of Health and Human Services, to create new TRAP [targeted regulation of abortion providers] laws that apply to clinics, and that process is going on right now. Those rules haven’t come out yet. So we’re sort of in the process of waiting to see what those rules are before we are able to really mount any kind of challenge.

IG: Is there a sense that this law is going to hurt certain groups of women more so than others, for example low-income women, minority women, rural… or is it just that this law is bad for everyone and we’re just doing what we can to try and pare it back?

SB: Sort of both. Right now, 90 percent of counties have no local women’s health care center that provides abortion care. So the landscape currently is not great. So we’re looking at restricting access even further. It’s likely that the clinics, there’s one clinic in a rural part of our state and then there’s another clinic in the mountains that announced recently they were going to be closing, so we’re already operating in a landscape that is while not as egregious as Texas, is getting toward that where folks are traveling, if they are able to at all, hours to get to a clinic, then you layer mandatory waiting periods on top of that every TRAP regulation that we’ve seen or that has been discussed would have a disparate impact on rural women, low-income women, women of color. That group of folks and the people that lay at the margins are continuing to get hit by all of these laws.

JMP: I want to pick up on this point because Suzanne you mentioned it and Imani you really drew it out as well that the reproductive rights restrictions and particularly the impact of them falling heaviest on low-income women, rural women, women of color in the state and then when you add on top of that efforts by conservatives to push back against expanding Medicaid and attacks on North Carolina’s really historically great public education system it becomes clear why its a battleground state. But thankfully you folks at NARAL Pro-Choice North Carolina have a program that you’re working on to help push back against some of this and I’m hoping you can talk a little bit about that Suzanne and fill us with a little bit of hope.

SB: Sure. Well first I will say that NARAL has historically and continues to be very much a reproductive rights organization and what a lot of folks and what I particularly noticed coming out of the amazing momentum around the Moral Mondays movement and working with ally organizations is how intersectional these laws really are and how intersectional the impact is and really trying to think about how do we create a space to have some of those conversations both among social justice organizations and with young people who are so entrenched in the movement and doing amazing work and trying to create a space for conversations around that and a space where we can look at how can we apply a reproductive justice lens to immigration rights in our state, to voting rights in our state, to reproductive rights in our state. So we have partnered with SisterSong, El Pueblo, which is a local organization based in Raleigh, and Youth Empowered Solutions, which is also a local organization based in Raleigh that works with teens, to host a reproductive justice summit this summer in June that really starts to have these conversations and do some both relationship building and skills building to help frame some of these issues in a way that our organization hasn’t been historically but that some of the partner organizations that we’re working with and brainstorming and bringing to the table have done wonderfully and really starting to build intentionally a space for that to happen.

JMP: This summit is great. If you can talk about the lack of transparency you mentioned and how maybe that helped spur some of this coalition building around these issues because I think the Moral Mondays movement is really inspirational and a great way for us to remember that a lot of advances in reproductive rights came through this broader social justice framework originally and maybe what’s going on in North Carolina is a little bit of a return to that.

SB: One of the things that was really inspiring about the space created by the North Carolina NAACP and the Moral Mondays movement was not just what was going on on the stage with the featured speakers, but what was going on in the crowds with folks who were coming to the General Assembly who were motivated by lots of different things going on and it wasn’t today is going to be women’s reproductive health day. It was a time and a space for folks to talk about how all kinds of issues were impacting them and I think that it was, really, for me it was really inspiring to see young people engage in that conversation and to realize that for a lot of them there really isn’t a space, especially for folks who are in rural areas of the state or who are doing a lot of their organizing online a space where they can come and learn from each other more than learning from us. But also, what can we add to help them understand some of the impacts around this legislation and to let them know what’s going on from a rights perspective but also nurture that exploration of how does this affect me in my community and what are other issues that nobody is talking about because they’ve gotten sublimated with everything that has been going on last summer and in the last year its just impossible for some things not to get lost or the overwhelming impact of it all to seem like well there is nothing I can do because it is all so big to break it down at a local level to see what is it that we can build in our communities to help us take back our state.

JMP: If folks are interested in getting involved in North Carolina what’s the best and easiest way to do so?

SB: Sure our website is prochoicenc.org and they can sign up for updates and contact us for volunteer information and we would love to have anyone from North Carolina or otherwise who is interested in engaging in the work we’re doing.

JMP: Suzanne thank you so much for taking time away from your busy schedule to talk about all the things going on in North Carolina and about your upcoming reproductive justice summit. We’re really looking forward to hearing more about it. There’s a lot of important battles going on in your state and we’re glad that you guys are there pushing back and hopefully pushing forward too soon. Thank you so much for your time.

SB: Thank you.

Thank you for listening to RJ Court Watch, a legal podcast produced by Rewire. Tune in for future episodes where we discuss buffer zones, clinic access and the First Amendment, the close of the Supreme Court term, and what the undue burden standard means in an age of clinic closures. For even more coverage, be sure and visit us at www.rhrealitycheck.org

RJ Court Watch: What’s at Stake in the Contraception Cases Before SCOTUS?

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Transcript

Welcome to RJ Court Watch, a legal podcast produced by Rewire and with your hosts, senior legal analysts Imani Gandy (IG) and Jessica Mason Pieklo (JMP). In this episode we discuss the Hobby Lobby and Conestoga Wood Specialty cases challenging the contraception mandate in the Affordable Care Act and unpack the legal and political arguments before the Supreme Court.

JMP: So, big day at the Supreme Court. Oral arguments for Hobby Lobby and the Conestoga Wood Specialty cases, and apparently there’s confusion out there about what are the issues before the court and what’s at stake. So this seems like a perfect opportunity for you and I to break this down for folks.

IG: I agree, and it’s such a crucial issue. I have to admit, I’ve been very, very excited about these oral arguments for a very long time, mostly because I’m a bit of a law nerd in that way. But it really is striking to me how many people, whether it be just your average lay person or people in the media or people who are supposed to know these things still seem to be confused about what’s at stake.

JMP: You know, I think some of the confusion too comes from a lot of the willful misinformation that the folks opposed to the contraception mandate have put out there. We’ve talked about how there’s two tracks really to the challenges, right. We’ve got the political track and we’ve got the legal track. And among the areas of confusion, I think, is this really broad statement that corporation owners have religious rights that they get to exercise through their businesses. And that’s just fundamentally a misstatement of the law.

IG: Yeah, it really is. And to adhere to that notion would be a fundamental rewriting of corporate law. And so, what these corporations are trying to do, is they are trying to avail themselves of the bits or corporate law that they like, but then ignore the stuff that they don’t want to adhere to. So, for example, when you form a corporation you get to avail yourself of limited liability, so if your company gets sued then you personally, as an owner or as a shareholder, by in large are not responsible for whatever liability you incur. And that’s why people form corporations. But what these corporations and these corporate owners want to do is to sort of pass through their own religious liberty through to the corporation. And that just not a) how it works and b) the point is that Hobby Lobby or Conestoga Wood or any of these corporations that are seeking religious liberty. It’s the corporation that will have to pay the fine, not the actual individual owners. So there’s this attempt to conflate the owners with the corporation and that violates literally hundreds of years of corporate law.

JMP: And when we talk about conflating the corporation with the owner and violating hundreds of years of corporate law we have to think of why would they want to do it.

IG: There have been some amicus briefs that have been filed by states, especially by states with Republican governors that are making the argument that well, we have state laws that govern corporate law and its improper for the Supreme Court or for Congress or for any federal level entity to try and state what the law should be in the states. But at a certain point there has to be rules and there has to be regulations. And while it is true there is no federal body of corporate law, there are laws that underpin all of the state corporate laws. So what they are trying to do really seems to me to be is to dismantle corporate law as we know it.

JMP: Absolutely. And so a good example of some of those federal laws that underpin state corporate law would be Title VII of the Civil Rights Act, for example. Any of our fair employment-type laws, overtime, wage compensation, anything that we’ve seen historically for-profit corporations raise objections to under the guise of religious liberty. This is nothing new and for some reason we’ve found a new way to package it and to sell it.

IG: Yeah I think it’s gotten, you mentioned earlier the two tracks, there’s the legal track and the political track. I think if we were to look at it from purely a political standpoint I would have to admit that Hobby Lobby is winning. But when you look at the actual legal arguments and there are so many legal arguments whether or not you want to talk about the elements of RFRA, the Religious Freedom Restoration Act, or whether you want to talk about the Free Exercise clause, or the Establishment Clause, I really do think in terms of legal arguments that the birth control enthusiasts such as we are, have the winning argument. So the question really becomes whether or not the Supreme Court is so politicized at this point in time that it will sway toward the politicization of these cases rather than following what the law says. Because in my opinion, and I think in a lot of peoples’ opinions if you are going to look at the number of amicus briefs filed as any indication, it’s that we win. You know, Hobby Lobby loses, Conestoga Woods loses, they can’t burden third-parties, they can’t make us pay for their religion by denying us birth control or forcing us to pay out of pocket for birth control.

JMP: That’s an excellent point. And so because the politics has driven much of the conversation around the legal claims, what hopefully we will see, or hear, in oral arguments is the legal claims rising to the top. So you mentioned the Religious Freedom Restoration Act. That’s the primary statute under which these claims have arisen. And that’s a federal statute that is designed to reinforce certain individual religious liberty rights from government regulation. And that’s important because what’s really at issue here out of the gates is the definition of person under the Religious Freedom Restoration Act and whether or not that definition of person includes a corporate person, as in a for-profit corporation. So there is an opportunity for the court to give what some might consider a technical or a procedural type of ruling and avoid the larger issue of whether your boss can object to contraception based on religious grounds and say they don’t fit the profile or definition under the statute. So that’s one possibility. But if they don’t then I guess we’ll have a much better understanding of just how politicized the Roberts Court has become, and in particular on issues of the culture wars like contraception and health care, abortion, gay rights, we’ve seen it.

IG: Right. And I think it’s really important to recognize that what we’re talking about here isn’t women who want free birth control so they can go out and be promiscuous. And it’s not that women want employers to give them birth control, or to pay them for birth control or to give them free birth control. What we’re talking about here is including birth control as a part of reproductive health care, and because employees of businesses pay for their health care through insurance premiums, birth control should be a part of the health care to which they are entitled. Essentially we are saying that there shouldn’t be a health-care gap that the employers can create because they think that their religious liberty prevents them from providing a certain type of health care to which they are opposed.

JMP: That’s exactly it. We talk about a gendered wage gap and what we are talking about with the contraception mandate is a gendered health care gap. Hopefully the Roberts Court agrees with us.

IG: I have to say this is one of the biggest cases of the year, and it has a lot, and it’s going to have a lot of influence on future court cases and also in the states. I mean you have this push right now to pass what I like to call baby RFRAs, these tiny little Religious Freedom Restoration Acts laws that are intended to discriminate against people. So in this case we’re discriminating against women because we’re saying an entire category of their health care isn’t really health care. In Arizona, as we saw, they are trying to discriminate against lesbian, gay, and transgender people. And what it boils down to is are we going to allow religious tyranny to allow religious discrimination against oppressed groups or minority groups.

JMP: I think the movement at the state level, I’m glad you brought it up it’s really important because I also think maybe it speaks to some concerns that the opposition has about the merits of their case at the Supreme Court. You know civics and federalism sounds really dry and dull and boring and for some folks it might be but its really important when we talk about these kinds of challenges here because when the states pass those baby RFRAs, or their mini RFRAs, what they are basically trying to do is to create extra protections at the state level that the federal law doesn’t recognize. So Arizona doing that is basically, you know, trying to pad itself in the event that well it doesn’t go well at the federal level here in Arizona or Mississippi or some of the other states that had pushed these through or are trying to expand their RFRAs already on the books, we’re going to at least create these little pockets of discrete state protection for this kind of discriminatory conduct. Thankfully there’s been a pushback against it, but I think that’s an important point that doesn’t really get drawn out in this conversation.

IG: Yeah and I also think that the pushback at the state level might influence the pushback at the federal level because people will start to see how these laws are being used. Because for some reason, as Professor Elizabeth Sepper mentioned to me in an interview that I did with her for an article that I wrote that there just seems to be this overwhelming feeling that birth control and reproductive health care isn’t really health care. And so I don’t think people, people seem to not care about it as much as they do about protecting the rights of lesbian, gay, bisexual, and transgender people to frequent businesses, or if you really want to go to the extreme, protecting the rights of minorities, Blacks and Latinas and what have you to frequent businesses. I mean, that’s what we’re really talking about. That’s the slippery slope. And so I think the slippery slope might actually change some minds and force people to think about what it is that these states are trying to do with these mini Religious Freedom Restoration Act laws.

JMP: So that’s some cold comfort. I mean it’s good news in the sense that the overreach may have done exactly what overreach does, which causes people to recoil against it. But unfortunately respecting women’s autonomy and their own health care and reproductive health-care needs, let alone their benefits and contributions to the workplace, that somehow hasn’t been sufficient enough yet to get people riled up against this. The good news is they just announced that they have extended oral arguments from an hour to an hour and a half, so we have more time to sort this out. The bad news is we’ll likely be waiting until the end of June for a decision. So for folks like you and me Imani that means a lot of, I don’t know, yelling on the Internet and teeth gnashing over the politicization and rhetoric around the contraception mandate and the legal challenges, particularly in the media.

IG: Yeah, it’s going to be an interesting spring. And I think this is going to be as huge of a June as we saw last year with DOMA and the year before with Obamacare. I mean, the Supreme Court is taking some juicy cases and this is one of the juicier ones.

JMP: Agreed one thousand percent and thankfully we have Emily Martin from the National Women’s Law Center to help further explain exactly what the issues are before the court and the range of possible outcomes that we could see come this summer, so stay tuned.

JMP: We are joined with Emily Martin, vice president and general counsel of the National Women’s Law Center. Emily, thank you so much for your time and we’re looking forward to you giving us a good overview of the issues before the court and some of the possible outcomes.

EM: Great! Thank you for having me.

JMP: So there’s been pages and pages and pages of briefing, hundreds and hundreds of pages of briefing that I know you, Imani and I have all sort of poured over in various points and times but I’m curious as to what you see as some of the most important issues before the Roberts Court in the Hobby Lobby and Conestoga cases.

EM: Well one of the most important issues, and is sort of a key threshold issue, is whether a for-profit corporation like Hobby Lobby or Conestoga Wood has the right to exercise religion. And that is sort of the question the court will have to answer before it gets to any of the other questions in the case and it’s a question with really big implications since what Hobby Lobby and Conestoga Wood are arguing is that they as for-profit corporations not only have religious rights, basically the right to pray as corporations, but they have the right to exercise their religion in a way that harms third parties and that’s a fairly radical assertion with potentially large implications if they were to succeed in those arguments.

JMP: Can you lay out some of the implications for what those would be?

EM: So if Hobby Lobby and Conestoga Wood were to succeed in this case, then presumably for-profit employers would have the right to object to providing all sorts of other kinds of health-care coverage based on their religion, everything from vaccines to blood transfusions to HIV treatments, that those are all kinds of health care that a for-profit employer could potentially say, “[Y]ou know, I have a religious problem with this coverage of your insurance. We’re not going to cover that regardless of what we would be legally required to cover otherwise.”

But it’s also the case that it goes even beyond the health-care context since if an employer has a religious right to say, “[Y]ou know what, we’re not going to follow this law and we’re not going to provide the birth control that we are legally required to provide and that you have a right to,” an employer could also assert, “[Y]ou know, we as a for-profit corporation have a religious objection, for example to paying women as much as we pay men. And even though the law requires us to do that, because it substantially burdens our religion we don’t think we have to.” And those are the sorts of cases that you could see. You could also see cases where for-profit employers assert that they have the right to, for example, to deny service to somebody based on their sexual orientation or their race, the same sorts of issues we heard being debated in Arizona recently when Arizona was trying to broaden its religious rights bill to include corporations. Those are all possible outcomes should Hobby Lobby succeed in its arguments before the court.

JMP: Why do you think that the opposition so far has succeed in largely framing this as an issue of religious liberty when in reality there’s so much more going on here.

EM: Frankly I think that the conversation in Arizona was helpful in its timing in making clear where religious liberty arguments can lead if you give for-profit corporations really broad religious rights and making clear that what we are really talking about here is the assertion that religion gives you the right to discriminate against others and to harm others, to violate others’ rights. And that is not something that we have a history of allowing people to do in the name of religion, let alone corporations.

JMP: Your organization has been really involved in tracking and participating in the challenges to the contraception mandate and defending the mandate. What have been some of the most surprising arguments you’ve heard against the contraception mandate?

EM: Well, I don’t know if its surprising, but it’s certainly always notable when arguments are made against the contraception mandate based on the notion that somehow birth control is some kind of optional luxury that women should have to pay for on their own. So for example one of the briefs against the mandate in one of the many cases out there said that, “[Y]ou know, women can use their own money to buy contraception, cocaine, or cotton candy, whatever they want, and so denying coverage for birth control shouldn’t have a real impact, because women can always just use the money out of their paycheck to buy contraception.” Which really shows first of all a ridiculous trivialization I think of the importance of birth control as fundamental preventative health care for women. And it also ignores that cost barriers have a real impact on women’s ability to access the most effective and appropriate forms of contraception for them. So, for example, one of the particular forms of contraception that Hobby Lobby and Conestoga Wood are objecting to is the IUD. The IUD happens to be an extremely effective form of contraception but a form of contraception that has a pretty big cost barrier to entry. It can cost about $800 to get an IUD right at the front end, which means its too expensive for lots of people if they don’t have insurance coverage for it. And what the contraceptive coverage requirement does, is allow, it takes away that obstacle and makes sure that if the IUD is the most appropriate form of birth control for this particular woman based on her judgments about her situation and her advice of her health-care provider that the cost isn’t going to force her to use something that is less appropriate and less effective. And I think it’s a little shocking how arguments against the contraception coverage requirement ignore those real world impacts.

IG: Are you surprised by the number of amicus briefs that have been filed and do you have any particular favorites that you think make the argument, well besides your own, your organization’s, but do you think there have been any amicus briefs that have been filed that really cut to the heart of these issues in this case?

EM: Well I think there have been a lot of great briefs that really tell the story from a lot of different perspectives. So, including some unusual perspectives. So, for example, there’s a brief by corporate law professors that talk about how the idea of allowing a corporation to exercise the religion of its shareholders is really contrary to basic tenents of corporate law, which really creates an important distinction between the corporation and the people who own the corporation. So that’s been an interesting and important angle. There is another brief filed by the Women’s Chamber of Commerce and the LGBT Chamber of Commerce that really talks about the corporate governance issues that could arise if you recognize a corporate right to exercise religion and how this could really be a pain in the neck for a corporation who was not interested in exercising religion but who may face shareholder lawsuits saying, “[W]e as your shareholders think you should exercise religion xyz,” and would be faced with having to navigate these competing claims from stakeholders.

There are also some great briefs that go into the public health interests that are forwarded by this requirement, including ours, but others as well, that talk a lot about how important birth control is to women’s health, and to the health of the children they bear since spacing a pregnancy is important to children’s health as well as to women’s health. And there are some briefs that come from religious groups talking about how if you were to grant Hobby Lobby and Conestoga Wood the rights they are seeking, that that really harms religious pluralism in this country, given that it would allow those corporations to impose their religious beliefs on their employees who come from many different faiths. So I think that those are some of the most important parts of the story that the Supreme Court should be paying attention to.

JMP: I know it’s impossible to really extrapolate conclusions from oral arguments, but it’s also really fun to do so, and I was wondering if you had any thoughts on what we should be looking or listening for at the oral arguments?

EM: Well, obviously sometimes you get some sense of whether the court or whether a particular justice is inclined to accept the arguments of one side or another. Some of the things I’ll be looking for is how seriously the justices take the fact that contraception is a key element of health care for women and is really important to women’s equality. Obviously accepting those principles goes a long way to accepting the importance and validity of the requirement. But frankly I hope the conversation never gets that far because really the legal questions, the legal inquiry should stop at, when you ask whether Hobby Lobby and Conestoga Wood have the right to exercise religion or whether their shareholders have the right to exercise religion in this way as for-profit companies. And my hope is that where the entire argument focuses, because those should really the questions that resolve the whole case, and you never have to get to the questions of well, does this requirement forward a compelling interest and is it narrowly tailored to do so, or does this requirement actually substantially burden religion. Because it should just go away because for-profit corporations have no business exercising religion, literally.

JMP: So that’s one possible outcome, and I agree with you, I really hope that the court gets there and it’s a short inquiry. But what are a couple of the other outcomes should they provide a little more, I don’t know, curious or eager to strike at the mandate in more detail?

EM: Well, of course, the Supreme Court can in some ways do whatever the court wants and it’s possible I suppose that were Hobby Lobby and Conestoga Wood were to succeed in their claims that the court could try to write some very narrow opinion that really was in some ways limited to the contraceptive coverage requirement and didn’t open the door to all these other potential religious objections to a host of laws protecting employees’ rights and protecting the rights of consumers. Frankly I think, though, that opinion would be really hard to write. So, if the court finds that a corporation can exercise religion, and then the court has to answer the question of whether the coverage requirement actually substantially burdens the religion of the company or the shareholders. And again, there are lots of good reasons why the court should find that it doesn’t. It’s the decisions of women and their health-care providers whether insurance will be used for contraception, there are a lot of links in the chain before the package of benefits that the employer offers would actually result in this particular form of contraception being provided. And in some ways it’s just like when a company gives a woman a paycheck and she decides what she wants to buy with her money. The fact that she buys contraception with her money doesn’t substantially burden the religion of anybody and neither does this requirement. So that’s another place where the court could say to Hobby Lobby and Conestoga Wood “you lose.”

Or if the court found that it actually does substantially burden this religious exercise, then the court will look at whether the requirement is a narrowly tailored way of forwarding a compelling interest. And again, we think they should lose there too because of the compelling interests that are being forwarded by this requirement, the compelling interests in public health and in gender equality and that this requirement is narrowly written to forward. So there are lots of different ways that they could lose.

If they win, though, I really am worried about the breadth of any decision the court would write because again the court can always do what the court does, and in Bush v. Gore the court says “this decision isn’t precedent, it really just goes for this matter only, don’t take this seriously going forward, we’re just deciding this case.” And maybe they would try to say this is just about birth control which is somehow unique in burdening religion. But I think what is more likely is that if Hobby Lobby and Conestoga were to win it would really open a lot of troubling doors for other religious objections to laws that we all depend on and rely on.

JMP: I could not agree with you more. Emily thank you so much for giving us an the listeners this overview. We’ll have a lot to talk about no doubt later this summer when the Supreme Court comes down with its decision. I have a feeling this is going to be one of those that is tacked on at the very end of the June decision push, but maybe I’m wrong. Maybe they’ll come to something swifter.

EM: Again, they can always do what they do.

JMP: This is true. Emily Martin from the National Women’s Law Center thank you so much for joining us and please, we will have you back to help us understand what decision the Roberts Court eventually comes to on all of this.

EM: Thank you so much.

Thanks for listening to RJ Court Watch and join us for future episodes where we discuss reproductive justice of the march in North Carolina, clinic protests, buffer zones, and efforts by the anti-choice movement to weaponize the First Amendment, as well the meaning of the undue burden standard in an age of targeted restrictions on abortion providers.

Music courtesy of Moby Gratis.

Special thanks to Kelly Pieklo for audio edit and services.