hunter of justice

Judge invites challenge to HHS decision that blocked access to emergency contraception

The Center for Reproductive Rights announced Tuesday that it will reopen a lawsuit filed in 2005 in order to challenge unnecessary age restrictions on emergency contraceptives imposed last week by the Obama administration. The lawsuit - Tummino v. von Hamburg -  was originally filed against the FDA. At a hearing on Tuesday, U.S. District Judge Edward Korman invited the Center to refile and expand the case in order to contest the action by U.S. Department of Health and Human Services (HHS) Secretary Kathleen Sebelius overruling the FDA’s recent approval of "Plan B" contraceptives. 

According to AP:

...[Judge] Korman was highly critical of the government's handling of the issue when he ordered the FDA two years ago to let 17-year-olds obtain the medication. At the time, he accused the government of letting "political considerations, delays and implausible justifications for decision-making" cloud the approval process. On Tuesday, he said "it seems to me like we're going through a re-run."

In deciding to limit the over-the-counter availability of the drug, Sebelius said she had concluded that the data submitted for the pill did not establish that prescription dispensing requirements should be eliminated for all ages. She said the studies submitted to the government did not include data on all ages...

Korman repeatedly questioned the lawyer for the government on whether the study data included information on girls older than the youngest girls of reproductive age but younger than the 17-year-olds currently able to get the pill, and whether they would be able to understand the pill instructions and use it properly. Assistant U.S. Attorney Scott Landau said he couldn't answer that question, both because it was proprietary information and because the issue hadn't actually been raised for the court to rule on.

In his 2009 decision ordering the FDA to reconsider the position it had taken in 2003 that access must be available by prescription only to girls 17 and older, Judge Korman found that the agency under the Bush Administration had "acted in bad faith and in response to political pressure," "departed in significant ways from the agency's normal procedures," and engaged in "repeated and unreasonable delays." In addition, the court found that the FDA's justification for denying over-the-counter access to 17 year olds "lacks all credibility," and was based on "fanciful and wholly unsubstantiated ‘enforcement' concerns."  

The abortion wars 2011: Opposing sides trade trenches

From Salon:

This was the year politicians and women’s groups started using “war on women” to refer to the Republican obsession with regulating uteruses. So if it’s a war, who’s winning?

The answer, frustratingly, is no one. This year saw the cementing of a consensus that neither side particularly likes: Abortion is still legal, but Republicans are doing an ever-better and more innovative job of making it as odious, expensive and shaming as possible to obtain. Although every side needs a sense of urgency to rally the troops, the good-ish news is that the federal court system helped hold back the tide on the worst laws. And for better or worse, anti-choicers got more honest than they’ve ever been about their hostility to birth control, which is used and supported by the vast majority of Americans.

Broadly speaking, the first half of the year saw Republicans in statehouses passing ever more outrageous laws — 80 in all this year, more than double the previous record — followed by a series of judges rolling their eyes and sending them home mostly empty-handed, for now at least...

“Judges know the score,” says Linda Greenhouse, who since retiring from the New York Times has co-edited a book and several legal articles focusing on reproductive rights. “They know that there’s a movement out there that’s going to push and push and push, which the political system in some of these states seem powerless to stop. These enactments have certainly gone beyond anything the Supreme Court has permitted.”

What the Supreme Court has permitted is not, in fact, what’s laid down in Roe. Instead, women are living under the “undue burden” standard of Planned Parenthood v. Casey, which turns 20 next year.  To put it bluntly, you’re allowed to burden a woman seeking an abortion, but only so much. Nancy Northrup, president of the Center for Reproductive Rights, says of Casey, “I think 20 years have shown that  is unworkable. What does it mean that you have a fundamental right to access abortion services but the government can make it really hard to do so?”

But given the court’s current composition, that’s the best pro-choicers have implicitly decided they can hope for... 

And if anti-choicers are paying attention, they aren’t going to push outright bans anyway, especially not after 58 percent of the electorate in deep-red Mississippi rejected a Personhood amendment that had the support of the state’s political establishment. Personhood, with its no-exceptions abortion ban and at least the intent to ban popular forms of birth control and reproductive technology, proved to be the suicide death cult of the movement, validating the incremental anti-choice strategy of just chipping away at access...  

In all of this, pro-choicers are still putting out fires. According to Guttmacher, that’s never been more true: “Legislators are proposing little in the way of proactive initiatives aimed at expanding access to reproductive health-related services; this stands in sharp contrast to recent years,” adding, “For the moment, at least, supporters of reproductive health and rights are almost uniformly playing defense at the state level.” (There was one major victory nationally, when copay-free contraception was adopted as part of the Affordable Care Act provisions, which also happened to be another moment where “pro-lifers” in office showed their disgust for birth control.)

So 2011 was a year when the consensus held: You can get an abortion, but depending on which state you live in, anti-choicers are still going to make you suffer as much as possible for it and make it as hard as possible to pay for with even private insurance. (And plenty of Democrats in Congress continue to tout the Hyde Amendment, which prevents federal funding for abortion in almost every case, as a form of ass-covering in the culture wars). That consensus combined with the state of the economy has meant terrible things for the most vulnerable women.

According to recent data, unintended pregnancies continue to drop among wealthier women, but in recent years they’ve skyrocketed among poorer ones, along with, unsurprisingly, the abortion rate, which is declining generally but rising among poor women since 2000. The courts may be the most visible battle, but those disparities make up the war.

The week ahead: December 5, 2011

Monday, December 5 - Trial begins in Orozco v. Attorney General of Belize, the challenge to the law criminalizing homosexual conduct in Belize.

Tuesday, December 6 - UPDATE: The Fourth Circuit announced that oral argument would be delayed in this case; no new date was set. Oral argument before the Fourth Circuit in Greater Baltimore Center for Pregnancy Concerns v. Mayor and City Council of Baltimore, in which the District Court ruled that a city ordinance violated the First Amendment rights of anti-abortion counseling centers by requiring them to post a sign in the reception area informing patients that they did not refer for abortion services. 768 F. Supp.2d 804 (D.Md. 2011). 

Also December 6 - Deadline for proposals for the Law and Society Conference to be held June 5-8, 2012 in Honolulu.

Thursday, December 8 -Two oral arguments before Ninth Circuit, first on whether the videotapes of the trial in the Perry case, challenging the constitutionality of Prop 8, should be released; and immediately following, on whether Judge Vaughn Walker should have recused himself from trying the case because he has a same-sex partner and therefore would have the option to marry if Prop 8 were found to be unconstitutional.

Also December 8 - Oral argument in Choice Inc. of Texas v. Greenstein. Despite the Texas name of the plaintiff, the case involves a Louisiana law allowing state officials to cite abortion clinics for regulatory violations and then immediately close them, without granting the opportunity to correct any deficiencies, unlike the process for other medical facilities. The District Court dismissed the complaint on grounds of ripeness. 781 F. Supp.2d 313 (M.D.La. 2011). Judges James Dennis, Edith Brown Clement and Priscilla Owen comprise the  panel who will hear the argument.

Also December 8 - Deadline for paper proposals for Feminist Legal Theory Workshop on Privatization and Social Responsibility to be held February 17-18, 2012 at Emory Law School.

Arizona federal judge considers preliminary injunction against law targeting abortion service providers

The parties in Arizona Coalition Against Domestic Violence v. Greene are waiting to see if U.S. District Court Roslyn Silver will enjoin a statute scheduled to take effect January 1 that would block charitable donations to organizations that provide or refer for abortions. Judge Silver heard arguments last week. (from the Arizona Republic:)

House Bill 2384 excludes from the state's Working Poor Tax Credit Program any organizations that "provide, pay for, promote, provide coverage of or provide referrals for abortions" or that financially support any organizations that do those things.

The Working Poor Tax Credit Program offers Arizona taxpayers a dollar-for-dollar tax credit to donate to organizations that serve low-income residents. Individuals can claim up to $200, and a couple filing jointly can claim up to $400. Arizona is the first state to address abortion through tax code in this way...

The Arizona Coalition Against Domestic Violence, with the help of the American Civil Liberties Union of Arizona, filed a lawsuit alleging that the law violates freedom of speech and could be dangerous to abused women. ACLU attorney Alexa Kolbi-Molinas argued [that] "This law excludes members from participating in the tax-credit program based solely on the opinion they express. Viewpoint discrimination should not be permitted."

She said if the law goes into effect, domestic-violence victims will be impacted..."Women in abusive relationships often experience a range of sexually violent behaviors that can lead to unintended pregnancy," Kolbi-Molinas said. "Maybe they don't want to be forced to bear an abuser's child ... maybe they don't want a child to be subject to child abuse ... there are many reasons."

Arizona Solicitor General Dave Cole defended the law. "The choice the Legislature made here is both reasonable and within the spirit of its authority," Cole said. He said the law does not restrict speech, but only a group's activities -- such as promoting or referring.

While Silver did not issue a ruling from the bench, she did indicate that the law may be a restriction of viewpoint speech.

Catholic Bishops ratchet up fight against gay rights, birth control, abortion

True to their word, the National Conference of Catholic Bishops has launched a new in-house advocacy group devoted to defending that faith's position on a trio of sexuality-related issues: gay rights, birth control and abortion. In a related move, several Catholic dioceses in Illinois announced that they would stop providing adoption services rather than serve same-sex couples on an equal basis.

From today's N Y Times:

The nation’s Roman Catholic bishops opened a new front in their fight against abortion and same-sex marriage on Monday, recasting their opposition as a struggle for “religious liberty” against a government and a culture that are infringing on the church’s rights.

The bishops have expressed increasing exasperation as more states have legalized same-sex marriage, and the Justice Department has refused to go to bat for the Defense of Marriage Act, legislation that established the definition of marriage as between a man and a woman.

“We see in our culture a drive to neuter religion,” Archbishop Timothy M. Dolan of New York, president of the bishops conference, said in a news conference Monday at the bishops’ annual meeting in Baltimore. He added that “well-financed, well-oiled sectors” were trying “to push religion back into the sacristy.”...

... The bishops issue guidelines for Catholic voters every election season, a document known as “Forming Consciences for Faithful Citizenship,” which is distributed in many parishes. But the bishops were informed at their meeting on Monday that a recent study commissioned by Fordham University in New York found that only 16 percent of Catholics had heard of the document, and only 3 percent had read it.

Nevertheless, the bishops remain a forceful political lobby, powerful enough to nearly derail the president’s health care overhaul two years ago over their concerns about financing for abortion. Last week, the White House, cognizant of the bishops’ increasing ire, invited Archbishop Dolan to a private meeting with President Obama, their second. Archbishop Dolan said they talked about the religious liberty issue, among others.

“I found the president of the United States to be very open to the sensitivities of the Catholic community,” Archbishop Dolan said in the news conference. “I left there feeling a bit more at peace about this issue than when I entered.”

The weeks ahead: November 14 through 27, 2011

Monday, November 14 - A memorial service for Paula Ettelbrick, a longtime and much loved leader in the LGBT community who died of cancer on October 7, will be held at the Fourth Unitarian Universalist Society at 160 Central Park West at 76th Street, beginning at 6:30 pm.

Also November 14 - Washington DC - A reception honoring Frank Mugisha and other leaders in the fight to protect lgbt human rights in Uganda, co-sponsored by the Council for Global Equality and the Open Society Foundations, 1730 Pennsylvania Ave., 6 to 8 pm. Mugisha is the 2011 recipient of the Robert F. Kennedy Human Rights Award.

Wednesday, November 16 - Hearing on motion for preliminary injunction in Arizona Coalition Against Domestic Violence v. Greene, pending in U.S. District Court in Phoenix before Judge Roslyn Silver. In this case, the ACLU is challenging a requirement that organizations must certify that they do not perform, promote, or provide referrals for abortion in order to be eligible for the charitable tax credit. The law is scheduled to take effect on January 1, 2012. 

 

When public employees seek religious exemption from job duties

The ever astute Linda Greenhouse has provided an excellent quick history for contextualizing legal conflicts between civil rights and claims for religious exemptions:

The refusal by an upstate New York town clerk to sign marriage licenses for same-sex couples... can be seen simply as a discordant footnote to the march of marriage equality in New York State. But seen in a broader context, it is also more than that...

A few years ago, a county official in Pennsylvania refused to issue a marriage license because the would-be groom, while providing proof of identity in the form of a Mexican passport, could not prove that he was in the United States legally. The couple sued (the would-be bride was an American citizen, as was their young child) and won a judgment from a federal district judge, A. Richard Caputo, who found that the “fundamental character of the right to marry” was not dependent on citizenship. ... 

What are we to make of public health workers who use the power of their state-issued licenses to impose their own version of morality on those they are licensed to serve? While nearly all states permit medical providers to refuse to perform abortions, no such consensus has emerged with respect to birth control. The issue comes up repeatedly, and the states are all over the lot. Five states require pharmacists or pharmacies to fill all valid prescriptions for contraception (California, Illinois, New Jersey, Washington and Wisconsin.) Six others allow pharmacists to refuse to dispense emergency contraception (Arizona, Arkansas, Georgia, Idaho, Mississippi and South Dakota.) Several other states exclude emergency contraception from their Medicaid plans or from required coverage for contraception in state-regulated insurance plans.

While contraception has been a back-burner issue compared with the much more visible debate over insurance coverage for abortion, that may soon end. A fierce debate, although largely still under the radar, surrounds the Obama administration’s proposal to require private insurance plans to cover “women’s preventive services” without requiring a co-payment.

According to the proposed rule, which was issued Aug. 1 and which adopts a recommendation by the Institution of Medicine, these services include “access to all Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling.” As the Department of Health and Human Services describes the purpose of the requirement: “Family planning services are an essential preventive service for women and critical to appropriately spacing and ensuring intended pregnancies, which results in improved maternal health and better birth outcomes.”

Neither the fact that the rule does not apply to abortion or “abortifacient drugs,” nor that 28 states already require employer-provided insurance plans to cover contraception, has kept opponents from describing the proposal as “attacking the consciences of our nation’s healthcare providers,” as a recent publication by the “Task Force on Conscience Protection” of the Witherspoon Institute put it.

The Witherspoon Institute [is] a conservative research organization that has assumed a leading role on the intellectual religious right from its base in Princeton, N.J...[T]he final paragraph of the Witherspoon task force’s four-page statement [condemns] “an irrational commitment to unrestrained sexual expression,” a “new federal orthodoxy concerning human sexuality.” In other words, [Witherspoon is] re-fighting not only the birth control wars but the sexual revolution itself. The social revolution that brought same-sex marriage to New York seems a brushfire by comparison.

Seventeen years ago, a Chicago police officer named Angelo Rodriguez sought an exemption from an assignment to guard an abortion clinic in his precinct. He argued that his Catholic faith prohibited him from any acts that might facilitate abortion, including protecting doctors and patients. His commander offered to accommodate him with a transfer to a district without any abortion clinics. Finding the offer inadequate and insisting on his right to an exemption, the police officer sued.

He lost in both federal district court and in the United States Court of Appeals for the Seventh Circuit. The appeals court held that the city had done all that was required under Title VII of the Civil Rights Act of 1964, which obliges employers to make “reasonable accommodation” to an employee’s religious needs. Judge Richard A. Posner wrote a separate concurring opinion to make a larger point. Beyond deciding whether a particular offer was an adequate accommodation, Judge Posner said, the court should make clear that police officers and firefighters simply have no right “to recuse themselves from having to protect persons of whose activities they disapprove for religious (or any other) reasons.” The real objection to such exemptions, he explained, was not to administrative inconvenience, “though that might be considerable in some instances.” Rather, “the objection is to the loss of public confidence in governmental protective services if the public knows that its protectors are at liberty to pick and choose whom to protect.”

Or, I would add — as I’d like to think Judge Posner might — whom to grant marriage licenses to or whom to fill birth-control prescriptions for. Ordinarily, I don’t think that Judge Posner can be topped in reasoning or rhetoric, but in this instance, I will give the last word to Gov. Andrew M. Cuomo, in his succinct response to the marriage-license refusal issue: “When you enforce the laws of the state, you don’t get to pick and choose.”

Court of Appeals will address Indiana's effort to defund Planned Parenthood

In oral arguments before the Seventh Circuit last Thursday, the Solicitor General of Indiana suggested that Planned Parenthood split itself into two entities to avoid the impact of a law cutting off Medicaid funds to the group because it provides abortions. Planned Parenthood accused the state of violating the federal Medicaid statute by singling it out based on the nature of services it offers with private funding. The Indiana law was enjoined last June, and the state appealed.

From Bloomberg:

Solicitor General Thomas Fisher said during oral arguments before the 7th Circuit Court of Appeals in Chicago that Indiana's new law is aimed at keeping taxpayer dollars "from indirectly subsidizing abortions." He told the appeals court that Planned Parenthood of Indiana could ensure that wouldn't happen by separating its operations into two entities. "Only by separating the two can we be sure that there's no cross-subsidy," Fisher said.

Planned Parenthood's attorney, Ken Falk of the American Civil Liberties Union, told the appeals court during the 45-minute hearing that Indiana's own Medicaid agency warned state lawmakers while they were weighing the legislation that it would violate Medicaid recipients' "freedom of choice" by targeting the abortion provider.

"The state Medicaid agency said, and I'm quoting, `Federal law permits states to define a qualified provider but requires that this definition is related to a provider's ability to perform a service -- and not what services are provided,'" Falk said...

The law, which was signed into law in May by Republican Gov. Mitch Daniels, made Indiana the first state to deny the organization Medicaid funds for general health services, including cancer screenings.

Planned Parenthood said the law would affect about 9,300 women who rely on Planned Parenthood for their health care. State officials have said that scores of health centers across the state would readily accept Medicaid patients and offer reproductive and sexual health services...

The week ahead: October 17, 2011

 Thursday, October 20 -  Oral argument before the Seventh Circuit Court of Appeals in Planned Parenthood of Indiana v. Commissioner of the State Department of Health. The state is appealing a preliminary injunction issued against enforcement of a new law to defund Planned Parenthood that would end its ability to accept Medicaid (low income) patients.

Also October 20 - New York City - The Association of the Bar of the City of New York will present a CLE program on "Defense of Marriage Act Litigation: Strategy, Tactics and Theory" from 6 to 8 pm at the City Bar building on 44th Street.

Friday, October 21 - Oral argument before Judge White of the Northern District of California in Golinski v OPM. This is another one of those cases in which counsel for House Republicans is defending the constitutionality of DoMA, since the Justice Department has declined to do so. UPDATE - This hearing has been rescheduled for December 16.

Also October 21 - Los Angeles - Loyola Law School is hosting a day long conference on LGBT Identity and the Law; open to the public.

Conference of Catholic Bishops launches new organization to fight equality, preserve special treatment for religious entities

The U.S. Conference of Catholic Bishops has created a new DC-based lobbying group to fight what it calls an "unprecedented assault" on the right "to proclaim the truth of religious freedom." Archbishop Timothy Dolan of New York, president of the USCCB, announced the new campaign in a letter identifying the perceived threats to religious liberty that justified "a new moment in the history of our Conference."

Most of the declared threats were policies dealing with either lgbt rights or access to abortion and contraception. In addition to the new New York marriage equality law, the letter cites the Justice Department's decision to stop defending the constitutionality of DoMA. Even worse, the letter says,

the Department started filing briefs actively attacking DOMA’s constitutionality, claiming that supporters of the law could only have been motivated by bias and prejudice.  If the label of "bigot" sticks to us—especially in court—because of our teaching on marriage, we’ll have church-state conflicts for years to come as a result.

The Dolan letter also criticizes the HHS announcement that health insurance policies offered through new health reform systems would be required to cover birth control, federal rules that could require a Catholic charitable organization to provide abortion and contraception services to trafficking victims and condom distribution in HIV-prevention programs abroad, as well as the Justice Department argument in EEOC v. Hosanna-Tabor that churches should be required to follow anti-discrimination in employment laws.

"We're not hiring your K Street lobbyists," Archbishop Dolan told Roll Call. "We'll hire a constitutional lawyer who can really look carefully at these issues, and hire a policy advocacy person who can advocate the church's position."  

The lgbt blogosphere is full of news about right-wing religious nuts, some of them currently seeking the Republican nomination for President, spouting various now out-of-touch slogans about gay people being sick or evil.  It's easy to laugh and dismiss them. The USCCB's action, however, should not be dismissed or ridiculed. These people may be wrong, but - especially in Congress - they are credible, widely respected, and powerful. Not to mention financially capable of mounting a more sophisticated effort than the Family Research Councils of the world can dream of.

This creation of a permanent satellite advocacy organization, a commitment that marks another more reactionary step by the USCCB, an organization that has led advocacy efforts for poor people even as it has fought against reproductive rights for women and equality for lgbt people. Until last year, for example, the Conference was neutral on ENDA. It is now officially in opposition, and terminated its membership in the Leadership Conference on Civil Rights over these issues.

With public opinion running in the opposite direction on their doctrines related to sexuality, religious conservatives are seeking to reframe the debate about lgbt equality - whether in the workplace or in marriage - in less invidious, more intellectually respectable terms. They want the public to see these disputes as being about lofty concepts of religious freedom rather than about using the power of the state to enforce their claims of moral superiority.  If only.

[Correction: This new entity is not the first permanent satellite advocacy group created by the USCCB; the Committee for a Human Life Amendment was created earlier.]

Wave of states pass laws eviscerating abortion right

According to the Guttmacher Institute, there
is a massive, little noticed campaign in state legislatures to enact new restrictions on access to abortion services. So far in 2011, states have enacted more than 80 new laws designed to restrict access to abortion services. That number represents more than a doubling of the previous record of 34 abortion restrictions enacted in 2005—and more than triple the 23 enacted in 2010. 

From the report:

Counseling and waiting periods. Five states (IN, KS, ND, SD and TX) adopted laws related to abortion counseling and waiting periods in 2011, but a measure adopted by South Dakota at the end of March went significantly farther than those approved in other states. The law expands the pre-abortion waiting period to 72 hours, requires the woman to visit a crisis pregnancy center in the interim and mandates that abortion counseling be provided in-person by the physician who will perform the procedure. The counseling must include information on all known risk factors related to abortion, even when the information is not supported by mainstream medical opinion and is methodologically unsound...

[Judges have blocked enforcement of the laws in North and South Dakota.]  

Gestational bans. Legislators in 15 states introduced measures based on a law adopted in Nebraska last year. The provision bans abortions at and after 20 weeks’ gestation, based on the spurious assumption that a fetus can feel pain at that point. Under the measure, abortions may be performed after 20 weeks only if the woman’s life is endangered or if there is a risk of “substantial and irreversible physical impairment of a major bodily function.” Similar measures have been adopted in [six] states (AL, ID, IN, KS, OH and OK; see State Policies on Later Term Abortion). These laws appear to conflict with Supreme Court rulings barring states from placing an undue burden on women seeking an abortion prior to viability, a point that occurs well past 20 weeks...

Banning abortion coverage in new insurance exchanges. With plans for the implementation of health care reform underway in most states, the issue of insurance coverage for abortion was considered in 24 states, and restrictions were enacted in eight. In four states (KS, NE, OK and UT), the new laws restrict abortion coverage under all private health insurance plans. These restrictions will apply to coverage that will be available through the health exchanges being set up, as will new measures enacted in four other states (FL, ID, IN and VA). Including these new laws, eight states now restrict abortion coverage that is offered in any private health plan (including coverage through an exchange), and six others have restrictions that apply only to coverage through health exchanges (see Restricting Insurance Coverage of Abortion).

Split decision on Irish abortion law: Court finds human rights violation only if woman's life is endangered

The European Court of Human Rights issued its decision this morning in A, B, and C v. Ireland (background here), finding that the third plaintiff C's rights under the European Convention on Human Rights were violated because she was forced to travel to the UK to secure an abortion even though the pregnancy, combined with her ongoing cancer, endangered her life. However, the Court denied the plaintiffs B's and C's arguments that a risk to their health - as distinct from a risk to life - required allowance of an abortion.

Ireland prohibits abortion under an 1861 law that carries life imprisonment as the maximum penalty. A 1983 referendum amended the national constitution to recognize the unborn child as an Irish citizen with full rights. A 1992 Irish Supreme Court decision held that abortion is legal if there is a real and substantial risk to the woman's health from the pregnancy. The national Parliament, however, has never enacted laws to effectuate that decision, and the Grand Chamber Human Rights Court decision noted that for procedural reasons, Irish courts do not offer a venue in which women can seek orders granting a legal abortion. About 5,500 Irish women travel to England and Wales every year to obtain an abortion.

The rulings of the European Court of Human Rights are binding on nations. According to The Guardian, "It is understood that the judgment is being considered by the [Irish] Republic's department of health and the Irish attorney general."

In today's decision, the court said that it "considered that the establishment of a risk to [C's] life clearly concerned fundamental values and essential aspects of her right to respect for her private life," a right protected by Article 8 of the European Convention on Human Rights. The court found that it had been violated by the Irish government's failure to implement the decision of its supreme court.

Congratulations to lead counsel (and my former student) Julie Kay -

European Court of Human Rights abortion decision to be announced tomorrow

According to the European Court of Human Rights press office, a long-awaited abortion decision will be issued Thursday at 5 am EST:

The European Court of Human Rights will be delivering a Grand Chamber judgment in the case of A. B. and C. v. Ireland (application no. 25579/05) at a public hearing on Thursday 16 December 2010 at 11 a.m. – local time – in the Human Rights Building, Strasbourg.

The case concerns the restrictions on obtaining an abortion in Ireland. Press releases and texts of the judgments will be available after the hearing on the Court’s Internet site. 

The applicants are three women who live in Ireland: two are Irish nationals and one is a Lithuanian national. All three applicants travelled to the UK to have an abortion after becoming pregnant unintentionally.

The first applicant, a former alcoholic whose four children had been placed in foster care, decided to have an abortion to avoid jeopardising her chances of reuniting her family. She paid for the abortion in a private clinic in the UK by borrowing money from a money lender.

The second applicant was not prepared to become a single parent. While initially she feared an ectopic pregnancy, she was aware that it was not [the case] prior to travelling to the UK for an abortion.

The third applicant, in remission from cancer and unaware that she was pregnant, underwent a series of check ups contraindicated during pregnancy. She also understood that there was a risk that her pregnancy would cause a relapse of the cancer. She was unclear and concerned about the risks to her health and life and to the foetus if she continued to term and claimed she could not obtain clear advice. She therefore decided to have an abortion in the UK... 

...They rely on Articles 2 (right to life) and 3 (prohibition of inhuman and or degrading treatment) of the European Convention on Human Rights. They all also complain, under Article 8 (right to respect for family and private life) of the Convention, that the national law on abortion was not sufficiently clear and precise, since the Constitutional term "unborn" was vague and the criminal prohibition on abortion was open to different interpretations... Furthermore, the restriction placed an excessive burden on the applicants as women, in breach of Article 14 (prohibition of discrimination), and particularly on the first applicant, whose financial means were extremely limited.

The application was lodged with the European Court of Human Rights on 15 July 2005... Numerous third parties have submitted written observations: the Lithuanian Governement (one of the applicants being Lithuanian); the European Centre for Law and Justice in association with Kathy Sinnott (Member of the European Parliament); the Family Research Council (Washington D.C.) and the Society for the Protection of Unborn Children (London); the Pro-Life Campaign; Doctors for Choice (Ireland) and the British Pregnancy Advisory Service; and, the Center for Reproductive Rights and the International Reproductive and Sexual Health Law Programme.

Increase likely in anti-gay, anti-abortion state laws

The overwhelming bulk of law that regulates family formation and recognition, criminal law, health care provision, and parenting is enacted at the state level. As a result, the shift to Republican control of state legislatures is likely to generate a big uptick in conservative lawmaking in those fields. 

Unlike left-right polarization within Congress, which produces gridlock, polarization between the states leads to bigger majorities in each state for one direction or the other. It is the state level where a sharply divided political geography produces the greatest schizophrenia in American law.

After this election, the map for state-level lawmaking has a lot more red and the red is a lot darker, as the following article from the Washington Post describes:

...[The National Organization for Marriage] poured $2.5 million into state races this year, investing in more than 100 state legislative candidates. The group focused particularly on Maine, New Hampshire, Minnesota and Iowa, four states grappling with the same-sex marriage issue. The efforts paid off, with Republicans gaining at least one chamber in each of those states...

Before the midterm elections, Democrats controlled 27 state legislatures outright. Republicans were in charge in 14 states, and eight states were split. (Nebraska, which has a single legislative chamber, is officially nonpartisan). Today, Republicans control 26 state legislatures, Democrats 17, and five have split control. In New York, officials are still determining who is in charge in the state Senate. Republicans control more legislatures than they have since 1952...

"We ran on a strict fiscal message," said state Sen. Amy Koch (R), the Minnesota state Senate majority leader...Even so, though same-sex marriage advocates had until recently thought Minnesota would become one of the next states to allow such unions, Koch said the legislature is now unlikely to take up the issue. "I can't imagine we would look at that," she said. "I just think most people are focused on jobs, economy, the budget and that's what we will focus on."

And in New Hampshire, one of five states and the District that allow same-sex couples to legally wed, social conservatives cheered the results of an election that could pave the way for a repeal of that law. Republicans wrested control of both chambers and now outnumber Democrats 3 to 1 in the 400-member House. Democratic Gov. John Lynch was reelected, but Republicans have a veto-proof majority. Social conservatives plan to push for the gay-marriage ban as well as the reinstatement of a law requiring parental notification for minors seeking abortions - but not until lawmakers cut taxes and create jobs as they have promised, said Kevin Smith, executive director of Cornerstone Action, a Christian activist group.

"The social issues were for the most part silent in the election, in that it was really a fiscal message of less spending and less taxes that propelled most Republicans into office," he said. "I expect that to be the focus. That being said, I do think [these] will be two very key social issues that will come up this session."

His group joined with several others to raise about $1.2 million for state-level candidates. Since same-sex marriage was legalized there in January, about 1,000 same-sex couples have wed.

In North Carolina, Christian groups have promised to push for greater restrictions on abortions and a constitutional amendment banning gay marriage. And liberal groups are lining up to protect the Healthy Youth Act, which requires most students in grades 7 through 9 to learn about contraception in addition to abstinence - a requirement conservative groups oppose.

In Wisconsin, Governor-elect Scott Walker (R) has said he opposes the state's expansion earlier this year of a program that provides free birth control to low-income people and youth as young as 15. His agenda will be helped along by the legislature, which will now be controlled by Republicans.

Abortion foes say they expect several states where Republicans made significant gains to consider barring, under the new federal health-care overhaul, some private insurance companies from covering abortions as part of their routine plans. So far, Arizona, Missouri, Mississippi, Tennessee and Louisiana have passed such legislation.

"Ninety percent of pro-life legislation happens at the state level, so the landscape change that we have now is huge," said Daniel McConchie, vice president of governmental affairs at Americans United for Life, an antiabortion group.

Impact of the 2010 election on abortion rights law

From an analysis by Nancy Northrup of the Center for Reproductive Rights:

...[Tuesday’s] election was not a referendum on reproductive rights, but a reflection of voters’ deeply felt economic worries.  But reproductive rights will be collateral damage... 

Here are the results through a reproductive rights lens and what they mean for our work going forward. As you know, the political landscape of the country shifted significantly overnight with anti-choice forces increasing their strength in the U.S. House of Representatives, Senate, governorships and statehouses. The House of Representatives likely gained forty-nine anti-choice members with several races still being decided. The Senate retained a slim but diminished pro-choice majority with two races still being counted. There are already members of Congress who would use any means to block access to abortion, and they now have new allies. We anticipate that the anti-choice leadership in the House will aggressively attempt to push through measures designed to stop all health insurance policies from covering abortion services, even for those who work in the private sector and pay for premiums out of their own paychecks... 

While considerable focus is on Washington today, the states are likely to move more expeditiously to endanger women’s health and rights. They were already the primary battleground before this election, although the extremity of our opponents largely flew under the public’s radar screen.  In 2010, the Center tracked more than 600 anti-choice state bills. The sheer relentlessness of our opponents was on full display this year in Oklahoma, where the legislature enacted eight new anti-choice laws, four of which were vetoed by now-retiring Governor Brad Henry (the legislature then overrode three of them). In January, Governor Henry will be replaced by an anti-choice governor.  Governors in Kansas and Florida also vetoed extreme bills this year. Unfortunately they too were not standing for re-election and will be succeeded by anti-choice replacements.

Not all the results are in from the governors races, but here’s what we know. Twelve states will switch from pro-choice to anti-choice governors. In addition to those mentioned above, they are Iowa, Maine, Michigan, New Mexico, Ohio, Pennsylvania, Tennessee, Wisconsin, and Wyoming. Three states will change from anti-choice to pro-choice or mixed-choice governors: Colorado, Nevada, and Rhode Island. Clearly, the overall landscape has become more challenging...