hunter of justice

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.

Anti-gay lobbyist tries to hide moralism with "pro-business" arguments

Earlier this year, the Tennessee state legislature passed a bill prohibiting local governments from requiring businesses which had contracts with them to agree not to discriminate based on sexual orientation or gender identity. Its purpose was to torpedo a Nashville city ordinance adopted in April, which it did. The Tennessean has now published the fascinating back story behind the conservatives' campaign to kill anti-discrimination protections. The article is based on documents obtained in discovery in a lawsuit filed by proponents of the anti-discrimination law, represented by Abby Rubenfeld (photo).

It is surely a sign of the times that the successful lobbyist for the Tennessee Family Action Council used a strategy of not highlighting religious or moral objections to homosexuality when doing outreach to members of the state legislature. Instead, he painted the blockage of equal employment rights as pro-business, a gambit that paid off even though a number of businesses supported the Nashville ordinance and opposed the state law invalidating it.

Increasingly, an open and supportive environment for lgbt people is seen as going hand in glove with economic development. Not exactly a noble path to equal treatment under law, but it drives a wedge into conservative states when cities like Nashville, the Research Triangle in North Carolina, and Birmingham, Alabama start attracting knowledge industries in significant numbers.

From The Tennessean: 

The chief lobbyist for a state law that invalidated Metro protections for gay and transgendered individuals feared his moral thoughts on the measure would become public and distract from the economic argument he used to sell the bill, documents reveal.

Emails written by David Fowler, president of the Family Action Council of Tennessee and a former state senator, are included in thousands of pages of correspondence lawmakers submitted as part of a court battle over the constitutionality of the state law. The pending lawsuit alleges the law was motivated by prejudice rather than the economic concerns that were publicly argued.

The law dubbed the Equal Access to Intrastate Commerce Act nullified an ordinance the Metro Council passed in April requiring city contractors to pledge not to discriminate based on sexual orientation or gender identity. The ordinance extended protections already given to employees based on age, race, sex, color, national origin and disability, and it required contractors to follow a nondiscrimination policy Metro adopted for its own employees in 2009...

“Metro Council here in Nashville is considering requiring private businesses that do business with the city and those who lease property from the city have an employment policy to protect homosexual conduct and cross-dressing, etc.,” Fowler wrote in a Jan. 26 email to individuals including state Sen. Jack Johnson, R-Franklin. Fowler described how he hoped to persuade the Nashville Area Chamber of Commerce to oppose Metro’s planned ordinance. “Metro passed its homosexual ordinance for Metro employees by 24 to 15 in 2009 so the Council is clearly liberal.

“Please do NOT pass this on to anyone who you think might in the slightest pass it to anyone else,” Fowler continued later in the email. “We’ve learned that some folks we thought were friends cannot be trusted and we don’t need the Chamber backing off because it starts to appear to be too much of a Christian, right wing, homosexual issue rather than a business/economic issue.”

Massachusetts adds gender identity protection to state civil rights law

The Massachusetts state legislature has amended its state anti-discrimination code to prohibit discrimination based on gender identity in employment, housing, credit and education. The legislation also expands the state hate crimes law to cover gender identity. Protection from discrimination in public accommodations was dropped from the bill to ensure its passage. The amendment, which will take effect July 1, 2012, defines gender identity as 

a person's gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth. Gender-related identity may be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, as part of a person's core identity; provided however, gender-related identity shall not be asserted for any improper purpose. 

At the municipal level, but in a quite conservative locality, Oklahoma City has amended its employment policy for city employees to ban discrimination based on sexual orientation. This article in The Oklahoman gives a flavor of the debate that preceded the vote of the City Council, which adopted the new policy by a 7 to 2 majority.

Floridians divided on 19th century sex law

The South Florida Sun-Sentinel reports that agitation is afoot in that state about the law criminalizing cohabitation between unmarried men and women, plus a criminal ban on adultery. (Doubtless the adultery law, too, has been historically limited to different-sex couples. But if a gay couple marries in New York, moves to Florida and hanky-panky begins...) 

According to the paper:

Now, Rep. Ritch Workman, R-Melbourne, is on a mission to repeal the statutes penalizing adultery and cohabitation, as well as other laws he finds outdated, like a requirement that all bicycle riders keep one hand on the handle bars. He filed adultery the bill last week — it's HB 4021 — though he hasn't returned phone calls about it for the past two days.

Nobody else much wants to talk about it either. Asked how Gov. Rick Scott felt about the measure, spokeswoman Amy Graham replied simply, "This isn't an issue the governor is focused on."

The bill has no Senate counterpart. And given the almost-certain opposition of social conservatives who lobby hard on "family values" issues, it'll face tough sledding in an election year.

Consider the response of State Rep. Dennis Baxley, R-Ocala, who previously headed the Florida chapter of the Christian Coalition: "I'm not ready to give up on monogamy and a cultural statement that marriage still matters," he said.

But here's what I really love about this story.  Along with the above report, the Sun-Sentinel ran one of those pointless "polls" in which readers are invited to vote their opinion, in this case on whether the cohabitation law should be repealed.  Of 5,487 total responses:

• Heck yeah, we live in 2011. Who doesn't co-habitate? (4582 responses)

  84%

• No way, there's a reason this is the law. (795 responses)

  14%

("I'm not sure" drew 110 responses.)

That's right - 14% of those voting want to keep a criminal law banning cohabitation. Res ipsa.

Rich libertarian Republicans + Gays in the family = Marriage equality in New York

To be published in tomorrow's N Y Times, and already up on its web page, there is a fascinating tale of the political dynamics that gelled to get the equal marriage bill through the Republican state senate in New York. The highlights: wealthy Republican donors who support gay marriage lobbied fence-sitting members and promised enough campaign donations to insulate them from challenges by social conservatives; members who had voted against gay marriage two years ago were pressured from within their own families to change their votes; and Governor Cuomo's stellar performance must mean that he aced the course in political leadership that he has presumably gotten since birth.

It all came together to create what I think is the only genuine first from New York's experience, but it's a big one: the first state legislative chamber with a Republican majority to approve same-sex marriage.

My view: The split in the Republican Party between economic and social conservatives is going to be the big political story of 2012.  You read it here first.

Full N Y Times story after the jump -->

Text of religious exemption in New York marriage law

The key language in the New York state marriage equality bill governing religious exemptions is as follows:

…[A] religious entity  … shall not be required to provide services, accommodations, advantages, facilities, goods or privileges for the solemnization or celebration of a marriage.  Any such refusal to provide services, accommodations, advantages, facilities, goods or privileges shall not create any civil claim or cause of action or result in any state or local government action to penalize, withhold benefits or discriminate against any such religious corporation, benevolent order or not-for-profit corporation.

Full text of the amendment is here. The language is similar to religious exemptions included in the marriage laws of Vermont and New Hampshire. Whatever the week-long fights and deals were about, it couldn't have been this language.

UPDATED - Some of the backstory on the language, from Gay City News:

The bill the Assembly passed in 2007 merely made clear that a member of the clergy was under no obligation to officiate at any marriage to which they objected. The wording contained in the governor’s bill on June 14, drawing on language already in state human rights law, also spelled out that religious bodies and benevolent associations can deny same-sex wedding celebrations access to facilities they operate without running afoul of public accommodations nondiscrimination requirements.

The language finally agreed to by the Senate and the Assembly went a couple of steps further. First, it added non-profit organizations run by religious organizations from the public accommodations requirements regarding marriage ceremonies and celebrations. It also immunized such organizations –– and now their employees as well –– and clergy not only from civil claims but also from adverse actions by state and local governments. For example, the non-profit day care center run by a church that refuses to marry same-sex couples cannot be barred from competing for public funding for which it would otherwise be eligible.

The new language also made clear that no other laws, including those enacted by local or municipal governments, could supercede the protections afforded religious groups in the marriage equality statute.

And it made the new law’s provisions non-severable –– that is, if one portion of the law is declared unconstitutional, it is thrown out entirely. Saland explained that provision was critical for him, and it clearly provides insurance for those who might worry that the religious protections built into the law could later be challenged in court.

Drive begins to enact gay marriage law in Maryland

The 2011 session of the Maryland legislature starts Wednesday, and it may well lead to another state's legalization of same-sex marriage before adjournment three months later, on April 11. The game changer, according to the Washington Post, is that a majority of members of the Senate's Judicial Proceedings Committee have publicly committed to voting for a same-sex marriage bill.

The Republican minority in the State Senate is likely to filibuster a marriage bill, but the Senate president (a conservative Dem who opposes it) has said he would bring the bill to a floor vote. Advocates believe that they have enough votes in the House of Delegates to pass a marriage equality bill, and Governor Martin O'Malley has said he will sign it.

But - and this is a big but - Maryland law allows residents to petition for a ballot question as to recently passed laws. A successful signature drive would put a new marriage law on hold, pending the results of a statewide referendum in November 2012.

Civil unions likely to begin in Illinois in June

The Illinois state senate passed the civil unions bill yesterday that had been adopted by the House on Tuesday. It now goes to Governor Pat Quinn, who is a strong supporter and likely will sign it this month. The governor has said he will sign it early in 2011. The law will take effect June 1.

Illinois will join six other states that offer civil union recognition systems: California, DC (which allows both marriage and civil unions), Nevada, New Jersey, Oregon and Washington.

Illinois civil unions bill passes crucial test; enactment likely

Late this afternoon, the Illinois House of Representatives passed SB 1716, a bill that would establish a system of civil unions offering the legal rights and responsibilities of marriage. The bill passed by a 62-51 vote. It now heads to the Senate, where essentially the same bill was voted out of committee today and where passage is expected to be by a bigger margin than existed in the House.

Governor Pat Quinn went to the House floor to demonstrate his support for the bill.  

One distinctive aspect of the Illinois civil unions bill is that it establishes a status open to both same-sex and different-sex couples. Only Nevada and DC have a relationship recognition law that applies equally to straight and gay couples. Four states in addition to Nevada and DC (which also allows same-sex  marriage) have civil union systems in place: California, New Jersey, Oregon and Washington.

The Illinois bill provides that "A party to a civil union is entitled to the same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses, whether they derive from statute, administrative rule, policy, common law, or any other source of civil or criminal law."

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...

The day after: How bad was it?

Pretty bad, especially in DC where progressives will go back to playing defense in Congress. Bills that seemed like viable prospects a few months ago - ENDA, the Domestic Partners Benefits and Obligations Act - are seriously dead, perhaps for years. Will DADT repeal make it through the Senate in the lame duck session? Anybody's guess. On the positive side, there is a fourth openly gay member of the House: David Cicilline from Rhode Island (photo below); and Barney Frank was re-elected, although by a smaller margin than he is used to.

 There will be a major increase in pressure on the White House to do more positive things by administrative action, since Congress has gone over to the dark side. Unfortunately, however, an administration that was timid and gunshy on lgbt issues to begin with will now face the prospect of Republicans using their new House majority to initiate many, many oversight hearings and investigations. Most of these will probably center on financial issues and health reform, but the GOP base may want some action on social issues as well.

The only silver lining I see to the Tuesday bloodbath is that there are now more strongly pro-gay governors than ever, including Brown in CA, Cuomo in NY, Dayton in MN, Hickenlooper in CO, possibly Quinn in IL (race is still undecided), and Patrick (re-elected) in MA. In addition, NH Governor John Lynch, who signed a marriage bill, was re-elected. So far as I can tell, no gubernatorial candidate who endorsed marriage equality lost his race (unless the very close MN race eventually goes to the Republican; some news sites still list it as undecided). 

Other follow-up from my pre-election post:

A Republican won the Attorney General race in Florida, a Dem was elected in New York, and the California race is still too close to call, although the Dem holds a tiny lead.

In other House races, DADT repeal leader Patrick Murphy lost his job, and Palm Springs Mayor Steve Pougnet fell short in the effort to turn out Mary Bono Mack. Hometown update: McIntyre won.

State legislatures:

Marcus Brandon (photo right) was elected to the state legislature in North Carolina, another openly gay African-American officeholder, and a rare bright spot from the election. Other openly gay public officials are listed here.

In several states, both chambers of the legislature now have Republican majorities. In New Hampshire, that may lead to an effort to repeal the equal marriage law there, although presumably Gov. Lynch would veto such legislation. (However, a reader points out that the Republicans have a veto-proof majority.) In NC, it may allow Republicans to get a state constitutional amendment banning same-sex marriage through the legislature, which a Dem majority had been able to kill year after year. Same is true in Pennsylvania. And it's pretty safe bet that there won't be much equality legislation getting enacted in Maine for awhile.

In general, adoption of state civil rights laws will almost certainly slow down.  In 7 out of the 10 most populous states in the nation, there is no state-wide anti-discrimination protection for lgbt people: Florida, Texas, Pennsylvania, Ohio, Michigan, Georgia and North Carolina. As of today, both chambers of the state legislature have Republican majorities in every one of those states; all but North Carolina also have Republican governors. That's a pretty serious brick wall.

As for judgeships, the most important race produced a huge defeat when a 54% majority of Iowa voters dumped three Iowa Supreme Court justices who joined that court's marriage equality opinion.

Still, I can end on a bright note: in California state court, Victoria Kolakowski became the nation's first openly transgender judge. 

Legality of second parent adoptions before NC Supreme Court

A case that has drawn considerable interest because the non-bio mom is a state senator will decide whether second parent adoptions can be done in North Carolina. Julia Boseman, the only openly gay member of the state legislature, is defending the adoption she secured with the consent of the bio mom (Melissa Jarrell) before the two of them split up. Now the bio mom is arguing that the courts should not allow a same-sex partner to adopt. A number of public interest, professional and religious groups have filed amicus briefs. It's an old story, but a question of first impression in North Carolina.

Here's the Raleigh News & Observer on the oral argument held yesterday:

...[A trial court] judge granted Boseman's request to adopt Jarrell's son in 2005. The Durham County judge also waived a requirement that Jarrell relinquish her parental rights to Jacob, who will turn 8 years old next month.

The couple broke up the next year and in the custody fight both women received joint custody. But Jarrell argued the adoption should be voided because "second parent" adoptions don't exist in North Carolina law.

A trial court and the Court of Appeals panel upheld Boseman's adoption, but Jarrell attorney Leslie Fritscher told the justices an "activist adoption court pushed along by activist attorneys" exceeded the reach of state law by granting the adoption and allowing Jarrell to keep her parental rights. State law lays out four ways adoption can occur, but not this method, according to Fritscher.

"Courts may not substitute their own preferences for those of elected legislative representatives," Fritscher said. "Here the adoption court created its own adoption procedure, cobbling together various statutes to make a new kind of adoption that's not provided for in the adoption statutes."

Justice Patricia Timmons-Goodson pointed out that Jarrell consented to Boseman's adoption and now wants it voided: "Should we be concerned about her then coming and complaining about this?" Fritscher said it doesn't change that the lower court judge skirted adoption rules.

Boseman attorney Jim Lea called the adoption a "direct placement" adoption identified in the law in which Jacob was placed with a prospective adoptive parent. The Legislature hasn't expressly barred such cases where the adoptive parents are unmarried partners and one is a biological parent, he said.

Jarrell missed all deadlines to challenge the adoption and expressly sought it in 2005. Now she's changed her mind, and voiding it now would harm the well being of their son and his two-parent family, Lea told the court.

"Anything that's in dispute in the adoption process is supposed to be construed in favor of the child," Lea said. "That's what we can't miss here, that it's all about Jacob."

Associate Justice Paul Newby postulated that under Lea's reasoning three parents could adopt a child. Lea disagreed, but Newby said the adoption raised questions whether alternative adoptions are allowed. "Isn't that just evidence this is a policy argument best for the Legislature?" he asked Lea....

At least 27 states permit second-parent adoptions through state law or based on evidence in local courts, according to the Human Rights Campaign. Judges in Orange and Durham counties have regularly decreed such adoptions in recent years, so family law lawyers are looking for clarity.

"This really is going to be the next wave of family law focus," said Michelle Connell, a Winston-Salem family law specialist who isn't involved in the case. "These situations are not going away because there are (local courts) that are doing this."

Groups representing law professors, female attorneys and the American Civil Liberties Union filed briefs urging the court to uphold the adoption. Several Christian groups wrote asking the court to reverse the lower court decision because Boseman is neither an adoptive parent nor a third party who has a right to custody.

Jarrell and Boseman were living together when the child was born in 2002. Jarrell conceived through artificial insemination, and Boseman has been actively involved in Jacob's life ever since, according to court documents.

Boseman, a Democrat, became the state's first openly gay legislator when she was elected to the Legislature in 2004. She didn't run for re-election in November and will complete her term at year's end.

Oklahoma abortion wars continue with third veto

Oklahoma Governor Brad Henry vetoed a restrictive abortion bill for the third time this legislative session, at least temporarily stopping a new law that would require women obtaining an abortion to furnish lengthy information, including their reasons for wanting to end the pregnancy. Under HB 3284, the survey responses (without the women's names or addresses) must be posted on the state's website. The bill passed the legislature overwhelmingly, suggesting that an attempt to override the veto may be successful. If it is, a lawsuit is likely.

Lawmakers approved a similar measure last year, but an Oklahoma state court judge first granted a TRO against its enforcement and then found it unconstitutional because it violated the state’s single-subject rule. Another TRO obtained less than a month ago blocked a second Oklahoma anti-abortion law requiring that women be shown an ultra-sound image of the fetus. Both of those bills had also been vetoed by Governor Henry, but the vetoes were overridden.

From local news:

House Bill 3284, which is similar to an earlier measure that was ruled unconstitutional by the courts,...would have forced women, including rape and incest victims, to participate in an intimate and detailed questionnaire about their pregnancy and personal life in order to obtain an abortion, the governor said. The legislation also would have mandated that the questionnaire answers be posted on the Health Department’s website.

In his veto message, Henry said again he supported reasonable restrictions on abortion, but that HB 3284 had several flaws, including the lack of an exemption for rape and incest victims.

“By forcing rape and incest victims to submit to a personally invasive questionnaire and posting the answers on a state website, this legislation will only increase the trauma of an already traumatic event. Victims of such horrific acts should be treated with dignity and respect in such situations, as should all people,” Henry said....

The House of Representatives passed the measure 88-8. The Senate passed it 32-11. It will require a two-thirds vote of members in each chamber to override the governor’s veto. A veto override will require 68 votes in the House and 32 votes in the Senate.

States add more anti-abortion laws

When I worked at the Reproductive Freedom Project at the ACLU, the end of spring each year was a special time.  It meant that the legislatures in many of the smaller states were ending their annual legislative session, which meant no more crazy restrictive new laws, at least for another year. That moment can't come fast enough this spring, since 2010 has seen a big jump in the number and the restrictive intensity of state laws limiting the rights of women to reproductive choice.

Nebraska has just enacted two new statutes in this vein; a new Arizona law prohibits coverage of abortions in that state's insurance exchange, and Tennessee has a similar bill awaiting the governor's signature; and now Oklahoma has raised the stakes with a law mandating that women must see a fetal ultrasound and listen to a detailed description of the fetus before going forward, as well as a law granting immunity to doctors who do not inform pregnant women of fetal birth defects. [The Center for Reproductive Rights filed suit in Oklahoma yesterday seeking a TRO to stop enforcement.] Are these laws a sign of new power for the anti-choice movement or is 2010 an outlier year, perhaps fueled by a conservative energy spike coming off health reform in general and the Stupak amendment in particular?

Interesting analysis from Politico:

...“On the one hand, [the new laws are] part of an onslaught of restrictions that we see constantly,” says Nancy Northrup, President of the Center for Reproductive Rights... “But, that being said, these are both going farther that what we’ve seen before.” This year alone, the Center has filed lawsuits against six abortion-related laws—two in Oklahoma, two in Alaska, and others in North Dakota and Arizona—a caseload that Northrup describes as “higher than we’ve seen since the late 1990s. It’s a total uptick.” They’re currently tracking about 500 state-level bills that would curtail abortion rights...

Fourteen states [other than Oklahoma] do require the provision of an ultrasound prior to abortion, but Oklahoma goes further by requiring both the description of the fetus and that the ultrasound monitor be in sight. Oklahoma’s more restrictive law passed despite objections from Gov. Brad Henry (D), who had previously vetoed the bill.

The Nebraska law bans abortion after 20 weeks gestation on the basis that the fetus could feel pain. When it takes effect in October, the new regulation will likely be challenged as unconstitutional, largely because it bans pre-viability abortions. Numerous Supreme Court cases, including Roe v. Wade, identify viability as the point at which states can ban abortion, with exceptions for the life or health of the mother. Prior to viability, however, states can regulate, but not ban, the procedure....

These anti-abortion victories are a marked shift from just two years ago, when all three of the 2008 abortion-related voter initiatives failed. One in Colorado—arguably the most far-reaching of the three, as it would have declared personhood as beginning at conception—lost by a 46-point margin. Moreover, Nebraska and Oklahoma’s new laws are significantly more restrictive than the abortion restrictions that usually pass through state legislatures, measures that require parental notification for minors or a daylong waiting period prior to abortion.