Monday Reads: The Supremes Speak

Good Afternoon!

I’m in an absolute haze from a summer cold that popped up yesterday and sent me directly to bed. I’m trying to write and work right now but it’s not easy at all.  I want to try to discuss a lot of upcoming things that will be important including the SCOTUS decision on the Texas Trap laws regarding abortion and abortion clinics.  These law certainly create an undue burden and they reflect specific religious view rather than medical or biological science.  Here’s a few reads to prepare us all because it’s important for all of us to understand this basic constitutional right.

Abortion opponents regularly talk as though no restriction is off the table when it comes to stripping away reproductive rights. And supporters of abortion rights don’t always set them straight. If we don’t know what our established rights are, we can’t defend them. Pro-choicers need to know why abortion is a constitutional right and what boundaries the U.S. Supreme Court has set out to protect it.

1. Abortion is protected by the rights to bodily integrity and to make decisions about family. The Court explained that decades ago.

The 14th Amendment prohibits states from depriving a person of liberty without due process of law. A person has the right to end a pregnancy without undue interference from the government because that right to liberty includes (1) the right to make decisions about family and (2) the right to bodily integrity.

However, in order to portray abortion rights as illegitimate, conservatives like to argue—inaccurately—that the Court legalized abortion in Roe v. Wade by inventing a right to privacy that is not grounded in the Constitution’s actual text.

In the pre-Roe contraception case Griswold v. Connecticut (1965), the Court did hold that “penumbras, formed by emanations” or various interpretations of the First, Third, Fourth, Fifth, and Ninth Amendments protect a right to privacy. But in deciding Roe, the Warren court located the right to privacy in the 14th Amendment’s explicit protection of the right to liberty. Regardless, the Court’s understanding of the rights that protect reproductive freedom expanded beyond just privacy decades ago.

Privacy is barely mentioned in Planned Parenthood v. Casey, which established the current law governing abortion rights more than 20 years ago. “The controlling word in the cases before us is ‘liberty,’” the decision explained. It was settled law prior to Roe that liberty includes “the right to make family decisions and the right to physical autonomy.”

Privacy is also a constitutional right, and it was indeed violated by the laws at issue in Roe and its companion case,Doe v. Bolton. Those laws required a woman seeking an abortion to share her reasons for wanting the procedure with legal or medical authorities to have any hope of receiving legal abortion care. However, the law and discourse around privacy at the time of Roe implied a woman should be permitted to use contraception or end a pregnancy because the state should not interfere in decisions made in secret with the permission of her doctor, husband, father, pastor, or others. Casey instead properly recognized that the 14th Amendment protects a person’s right to control her body and destiny.

So why has the idea persisted that all we’ve got is a privacy right made up out of thin air? A counterintuitive and less textually based right serves abortion opponents, but abortion rights advocates also have a history of telling us abortion restrictions are primarily a threat to privacy. As William Saletan documented in Bearing Right: How Conservatives Won the War on Abortion, in the run-up to Casey, pro-choice leaders emphasized privacy on the advice of pollsters and political consultants to appeal to anti-government, anti-welfare, anti-tax, and anti-integration sentiments. While reproductive rights lawyers argued to the Supreme Court that the Constitution’s protection of autonomy, bodily integrity, and equality protected abortion access, outside of court pro-choice leaders told the public the right at stake was privacy. But, ultimately, the Casey decision provided a much fuller discussion of why abortion is constitutionally protected by rights beyond privacy.

Abortion is protected by the due process clauses of the Fifth Amendment (which restricts the federal government) and the 14th Amendment (which was added to the Constitution to restrict the states). As Casey explained, “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Using the force of law to compel a person to use her body against her will to bring a pregnancy to term is a violation of her physical autonomy and decisional freedom—which the Constitution does not allow.

Follow the link to read about the other two basic rights that include:” 2. Any pre-viability ban is unconstitutional. Period.” and “3. Casey‘s “undue burden” standard is a meaningful protection of abortion rights when courts apply it properly.”

There’s no doubt that the Texas Trap Law creates an “undue” burden.  Clinic closures have left the few remaining clinics overwhelmed.

The war on abortion access in Texas has already fundamentally shifted the landscape of women’s lives in the state. Now, the fallout continues: The closure of Planned Parenthood (PP) clinics in the state—which once served as primary sources of reproductive health care for women there—has left the few clinics remaining in west Texas underfunded, understaffed, and overwhelmed by demand.

According to new research, 60 percent of women receiving a low salary who were of reproductive age accessed health care through PP before the cuts and defunding which took place in 2013. The majority of those patients have since been directed to Texas Tech University and Midland County Health Services (MCHS) after PP’s clinics in west Texas closed—increasing demand at an overwhelming rate for their capacity to provide services.

“There are women [who] need these services but can’t afford them and we see as many as we can,” Michael Austin, director of MCHS, told Women’s Health Policy Report. “But the state program to help these folks along has basically evaporated. So I’m afraid there are probably a lot of folks flying under the radar who need care and aren’t getting it.” Austin pointed to the challenges of seeking funding in a state that has “eliminated or severely messed up” many of their programs which provide reproductive health care to women.

In 2011, the Texas State Assembly passed legislation which blocked funding to women’s health clinics, including Planned Parenthood, and cut the state’s family planning budget by two-thirds. Two years later, the draconian anti-abortion bill known as HB2 was signed into law by Governor Rick Perry, putting in place numerous obstacles meant to shutter clinics and restrict women’s access to safe and legal abortion. HB2 requires that abortion providers have admitting privileges at a local hospital and clinics are licensed ambulatory centers. It also bans surgical abortion after 20 weeks and medication abortion after seven. (Medication abortion is the most cost- and time-effective abortion procedure.)

HB2’s impact was immediate and drastic. 82 percent of family planning clinics closed. The number of abortion practitioners decreased by over 75 percent. Over half of the clinics performing abortion closed, which in turn drastically increased the time it would take for women to make an appointment to 28 days— essentially rendering the option of medication abortion moot. When it comes to clinics, Texas is in crisis.

The Supreme Court has declined to hear the Connecticut law banning assault weapon as well as the challenge to other state laws.  This leaves the bans in place.

SCOTUS will look at certain key rights of jailed inmates that have illegal immigration status.

The Supreme Court announced Monday that it will take up a case exploring when immigrants detained solely for immigration violations have the right to be released from jail.

The justices agreed to consider a federal appeals court decision that essentially found detained immigrants were entitled to a bond hearing after six months in custody and every six months thereafter.

The high court’s announcement comes as immigrant rights advocates are awaiting a Supreme Court decision on the legality of President Barack Obama’s executive actions granting quasi-legal status and work permits to millions of immigrants who entered or stayed in the U.S. illegally.

In that case, the Obama administration is aligned with most immigrants rights groups. However, in the case the court said Monday that it would take up, the Obama administration is pressing for fewer rights for detained immigrants. In fact, the administration is asking the justices to overturn the 9th Circuit Court of Appeals ruling that found immigrants have the right to regular review of their detention.

The newly-accepted case, Jennings v. Rodriguez, could also explore when immigrants accused of ties to terrorism have to be released if authorities are having difficulty deporting them.

SCOTUS blog has some basic information on the remaining cases in the docket.  Here’s a few of the remaining 13.

Between tomorrow morning, when the Justices will take the bench at ten o’clock, and the end of June, the Court is expected to issue thirteen rulings in cases involving everything from tribal-court jurisdiction to abortion, immigration, and the scope of federal laws prohibiting political corruption.  Here are summaries of each pending case:

Dollar General Stores v. Mississippi Band of Choctaw Indians (argued December 7, 2015).  This case stems from accusations by a thirteen-year-old member of the tribe that a manager at a Dollar General store within the tribe’s reservation had sexually molested him while the boy was interning at the store.  The child and his parents filed a lawsuit against the manager and the store in tribal court, arguing that the store was liable for the manager’s conduct.  The issue before the Court is whether the tribal court has jurisdiction over tort claims against defendants, like Dollar General, who are not members of the tribe.

Fisher v. University of Texas at Austin (argued December 9, 2015).  This case, a challenge to the university’s consideration of race in its undergraduate admissions process, is on its second trip to the Court.  In 2013, the Court sent the case back to the lower courts for a more critical look at whether the university really needed to consider race to achieve a diverse student body.  After the Fifth Circuit once again upheld the policy, the Court agreed to weigh in.  Unlike some of the Court’s other high-profile cases this Term, no one expects the Court to deadlock:  Justice Elena Kagan is not participating, which in the wake of Justice Antonin Scalia’s death leaves the Court with just seven Justices to decide the case.

Utah v. Strieff (argued February 22, 2016).  When a police officer stops a pedestrian in violation of the law, asks him for identification, discovers that there is a traffic warrant for his arrest, arrests him, and in the process of searching him discovers drug paraphernalia and methamphetamines, can the evidence found in the search of the pedestrian be used against him?  Edward Strieff argues that it cannot:  because the police officer’s stop was illegal, then anything obtained as a result of the stop is also tainted.  The state, on the other hand, contends that the evidence should be admitted because it resulted from the lawful warrant for his arrest, rather than the illegal stop.

Taylor v. United States (argued February 23, 2016).  The petitioner in this case, David Taylor, was part of a Virginia gang that robbed drug dealers.  The two robberies that led to this case, however, did not yield any drugs – only cellphones, jewelry, and a small amount of money.  Taylor was indicted on federal charges that he had violated the Hobbs Act, which punishes robberies and extortion but applies only when the defendant “obstructs, delays, or affects commerce or the movement of any article or commodity in commerce.”  The question before the Court is whether the federal government is required to prove facts to show that the defendant’s conduct actually affects commerce.

Voisine v. United States (argued February 29, 2016).  Stephen Voisine and William Armstrong, the other petitioner in this case, both pleaded guilty in state court to misdemeanor assaults on their respective domestic partners. Several years later, each man was charged with violating a federal law that prohibits the possession of firearms and ammunition by individuals who have previously been convicted of a misdemeanor crime of domestic violence.  Voisine and Armstrong contend their state convictions do not automatically qualify as misdemeanor crimes of domestic violence because the state-law provisions can be violated by conduct that is merely reckless, rather than intentional.

Whole Woman’s Health v. Hellerstedt (argued March 2, 2016).  This is a challenge to the constitutionality of two provisions of a Texas law regulating abortion in that state.  One provision requires doctors who perform abortions to have privileges to admit patients to a local hospital; the other requires abortion clinics to have facilities that are comparable to outpatient surgical centers.  Texas contends that these new laws are constitutional because they were intended to protect women’s health, while the challengers argue that the law was actually intended to close most clinics and therefore limit women’s access to abortions.

RJR Nabisco v. The European Community (argued March 21, 2016).  The issue in this case is whether and to what extent the Racketeer Influenced and Corrupt Organizations Act (RICO), a 1970 law that was originally enacted to target organized crime, applies outside the United States.  The European Community filed a lawsuit in the United States, seeking to hold RJR liable for what it says is the company’s role in an international money-laundering plot that harmed European countries.  RJR counters that nothing in the law suggests that Congress intended it to apply to a situation like this.  Justice Samuel Alito is almost certainly writing the Court’s opinion in this case, because he is the only Justice who has not yet written for the Court’s March sitting; based on the oral argument, that could bode well for RJR.

United States v. Texas (argued April 18, 2016).  This case is a challenge to an Obama administration policy, announced in November 2014, that would allow some undocumented immigrants to apply to stay in the country and work legally for three years.  Before the policy could go into effect, Texas and a large group of other states went to court to block its implementation, arguing that the administration lacks the authority to issue a policy like this.  But before the Supreme Court can weigh in on that question, it will also have to agree that the states have the legal right, known as “standing,” to challenge the policy at all; the lower courts ruled that they did, because at least Texas would incur additional costs from the undocumented immigrants who would become eligible for driver’s licenses if the policy goes into effect.

Birchfield v. North Dakota (argued April 20, 2016).  Twelve states and the National Park Service impose criminal penalties on suspected drunk drivers who refuse to submit to testing to measure their blood-alcohol levels.  The question before the Court is whether those penalties violate the Fourth Amendment, which only allows police to “search” someone if they have a warrant or one of a handful of exceptions to the warrant requirement applies.  Three drivers from North Dakota and Minnesota argue that neither of those conditions is met, and so the laws must fall.

Encino Motorcars v. Navarro (argued April 20, 2016).  This case requires the Court to weigh in on the interpretation of the Fair Labor Standards Act, which generally requires employers to pay overtime to employees who work for more than forty hours in a week but also contains a variety of exceptions – including for a salesman whose primary job is selling or servicing cars.  The respondents in this case are service advisors at a car dealership, who argue that they are not included in the exemption and are therefore entitled to overtime.

You can check out the rest on the link to SCOTUS blog. So, there’s a lot of interesting things coming down the pipe.  We’ll definitely be  following a lot of them.

There’s one piece of SCOTUS gossip that you might be interested in today. Check out this lede by David Badash:  “DC Insider Report SCOTUS Justice Clarence Thomas Thinking of Retiring Throws Twitter Into Frenzy.”

The Washington Examiner Sunday afternoon posted a piece by DC insider columnist Paul Bedard that claims uber-conservative Supreme Court Justice Clarence Thomas “is mulling retirement after the presidential election, according to court watchers.” Those “court watchers” of course are unnamed, so the actual source of the claim is unknown.

It could be true, it could be false, but the implications of course are tremendous. Assuming Republicans in the Senate successfully keeps their vow to not confirm any SCOTUS justice nominated by President Obama, and wait until the next president takes office, this would mean the next president would automatically nominate not one but two justices to the nation’s top court, controlling its destiny for decades.

So naturally, Clarence Thomas began trending on Twitter.

Follow the link for the Twitter Frenzy.

What’s on your reading and blogging list today?

h/t to Delphyne