1Center or American Progress | Why Courts Matter: Reproductive Rights
Why Courts Matter
Reproductive Rights
April Carson and Liz Chen October 5, 2012
As advocaes, our batles are no limied o he legislaive process. Tey also exis in he cours.For years, conservaives have pu a srong emphasis on who dons he robes on he ederal bench,undersanding ha a lieime appoinmen can have jus as imporan an impac as legislaion, i no more so. Bu progressives have no made he cours as much o a prioriy. While conservaives have been sacking he deck agains women, appoining judges who willchoose ideology over he law, we progressives have ocused largely on legislaive eors, which arenow in danger o being overurned by he same increasingly conservaive judiciary. I is inegral ohe overall success o a progressive agenda ha he presiden appoin and he Senae conrm menand women who will respec he law and proec women’s undamenal reproducive righs. And iis our responsibiliy as advocaes o hold our eleced ocials o ha sandard.Below is a discussion o he ederal judiciary’s role in several signican batles over women’s healh andrighs being waged righ now in jurisdicions wih openings on he ederal bench.
Family planning cases
ile X provides ederal unds o saes o adminiser amily planning services. Bu some saes haveargeed Planned Parenhood and any oher providers ha oer aborion services, even hough hey provide hose aborion services wih nongovernmen unds. By excluding hese providers, saes cuo heir low-income ciizens rom vial healh services, including conracepion, cancer screenings,and reamen or sexually ransmited inecions. wo cases wih opposie oucomes are insrucivein he role he ederal cours have in deermining wheher hese resricions can sand.
North Carolina
In 2011 he Norh Carolina Sae Legislaure passed a law argeing Planned Parenhood. Te law prohibied he Norh Carolina Deparmen o Healh and Human Services rom allocaing any o is unds, including ile X unds, o Planned Parenhood and is aliaes.
2Center or American Progress | Why Courts Matter: Reproductive Rights
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Judge James A. Beay, Jr., appoined by Presiden Bill Clinon o he Middle Disric o NorhCarolina, sruck down he law.
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As a resul, Planned Parenhood in Norh Carolina coninues oreceive public unds or amily planning services.
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Norh Carolina currenly has one vacancy a he Disric Cour level.
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Texas
A similar sory had a dieren ending in exas, where he ederal circui cour is overwhelmingly dominaed by conservaives. In 2011 he exas Legislaure reauhorized he exas Women’s HealhProgram, prohibiing “organizaions ha conrac or aliae wih eniies ha perorm or promoeelecive aborions” rom receiving ile X unding. Because some local Planned Parenhood ali-aes oer aborion care and because all have a relaionship wih he naional Planned Parenhood,exas Gov. Rick Perry and oher Republican legislaors have said hey would raher orgo he $35million in ile X ederal unding han permi Planned Parenhood o receive any money. PlannedParenhood has been he Women’s Healh Program’s larges provider in exas, serving abou 40percen o paiens.
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Judge Lee Yeakel, o he Wesern Disric o exas, suspended enorcemen o he law, allowingPlanned Parenhood o receive unding.
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Bu he Fih Circui reversed ha ruling and allowedhe resricions o remain in place.
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Since he law wen ino eec, more han 60 amily planning clinics have been orced o close.
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Tere are wo vacancies on he Fih Circui and our Disric Cour vacancies in exas
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ha could be lled wih judges who will ollow he law insead o ideology. exans or a Fair Judiciary, in par-nership wih Legal Progress, is working o promoe and suppor progressive judicial nominees.
Biased counseling cases
weny years ago he Supreme Cour esablished ha saes could resric aborion, as long ashose consrains did no pose an “undue burden” upon women.
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As a resul, sae legislaures haveconsisenly made i harder o obain an aborion by requiring measures such as waiing periodsha involve muliple clinic visis, counseling ha includes decepive inormaion, and ulrasounds wihou regard o medical necessiy.
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Because “undue burden” is a bes a nebulous sandard, imaters who is on he bench dening he pracical parameers o an undue burden.
South Dakota
For he pas seven years, Souh Dakoa has ried o enorce a law ha, among oher hings, requiresphysicians o provide alse and misleading inormaion
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abou he risks o suicide and suicidalideaion o women considering aborion.
3Center or American Progress | Why Courts Matter: Reproductive Rights
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Judge Karen Schreier, a Clinon appoinee, iniially sruck down he law.
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Te ull Eighh Circui Cour o Appeals, packed wih conservaives (only 2 o he 11 memberso he cour were appoined by a Democraic presiden),
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ound he law o be consiuional. Tecour ben o ideology insead o ollowing preceden, which saes ha only “ruhul and non-mis-leading”
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inormaion can be required as par o inormed consen. Te daa on suicide and suicidalideaion refecs he exac opposie o wha he cour permited Souh Dakoa o use o jusiy is law.
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In early 2013, here will be a vacancy on he Eighh Circui.
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Texas
By requiring women o endure unwaned invasive ulrasounds regardless o medical need prior oreceiving an aborion, he exas legislaure has ignored women’s consiuional righs.
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Te Fih Circui Cour o Appeals, hrough a hree-judge panel (all Reagan appoinees), upheldhe law,
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orcing physicians o perorm invasive procedures wihou regard or medical need orhe paien’s consen.
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Tere are currenly wo vacancies on he Fih Circui Cour o Appeals.
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Contraceptive coverage cases
Te Aordable Care Ac guaranees ha employers cover women’s prevenive services, includingconracepives, wih no cos sharing by employees. While houses o worship are exemped rom herule and religiously aliaed nonpros are allowed o seek an accommodaion and have he insur-ance company provide he coverage direcly o employees, a number o objecors have neverhelesschallenged he regulaion, claiming ha he required coverage inringes on heir religious libery.
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Colorado
Hercules Indusries is a or-pro, secular corporaion in Colorado ha manuacures and disrib-ues heaing, venilaion, and air condiioning producs and equipmen. One day beore ling a law-sui in he Disric Cour o Colorado challenging he conracepion requiremen, he owners addedwo provisions o he aricles o incorporaion: (1) ha he primary purpose o he corporaion waso ollow “appropriae religious, ehical or moral sandards,” and (2) ha is board o direcors wasallowed o prioriize “religious, ehical or moral sandards” a he expense o proabiliy.
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Judge John Kane emporarily suspended enorcemen o he law on he basis ha Hercules willlikely be successul in enjoining he law permanenly.
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A nal decision in he plaini’s avor couldse a sweeping preceden allowing privae employers o claim proecion under he ReligiousFreedom Resoraion Ac, enabling hem o use religion as a basis or discriminaing againsemale employees.
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Why Courts Matter: Reproductive Rights
When it comes to issues of women’s rights and health, the federal judiciary will continue to play an instrumental role, and we must actively engage in shaping its composition.
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