SCOTUS – Page 6 – Feministe

Earth v. Bush

I would just like to take a minute and thank the President for the fact that I wore a summer dress to school today, and had a pleasant walk home, as it was 60 degrees despite the fact that the sun had gone down hours before. I know this isn’t exactly his doing, but he is certainly putting forth an effort to make sure that those of us who are used to having snow during the winter will be able to enjoy more 70-degree December days. Let’s hope that activist judges don’t blow it for him.

I’m just going to steal the whole thing.

Scott has a classic post up of the “there’s nothing you can’t blame on a woman” variety, which I am just going to reproduce here in its entirety:

“Yes, and that woman’s name was Earl Warren.”

Don Surber: “[Mitch McConnell] was the guy who not only opposed McCain-Feingold, but took it to court. Unfortunately, the first woman Supreme Court justice ignored the First Amendment and upheld that campaign deform.” Those damed women–they screw up everything! Whether John Paul Stevens, David Souter, Stephen Breyer, and William Rehnquist–who wrote and/or joined important parts of the court’s opinion(s)–have vaginas remained unclear at press time.

I think “damed” is a typo, but it works quite well in context, no?

Remember, kids: if you can’t blame it on the dog, blame it on a woman.

Doctor, there’s a lawyer in my womb

I do love Dahlia Lithwick so. She’s got her usual good commentary upon today’s oral arguments on the so-called federal partial birth abortion ban. Apparently, it was interesting, although not for all of the reasons one might expect: In more dramatic moments in the court today, a spectator had to be forcibly removed after screaming from the gallery.

There was considerably less drama from Anthony Kennedy, who will be the swing vote in the case. The justices, Kennedy included, seemed far more focused on medical minutiae than on sweeping constitutional issues.

Kennedy does suggest, in his questions, that the government’s notion of women in emergency situations seeking to file individual “as applied” challenges to the statute is unworkable; the abortion must take place within a matter of hours, and judges would require days to get up to speed. He seems to be consistently worried about removing something from a physician’s arsenal that may put either the woman at medical risk or the doctor in peril of liability.

This begs an important question: if Congress is correct and the procedure it describes as a partial birth abortion is never medically necessary, how exactly can an as applied challenge proceed? What would you have to demonstrate to prove that an intact D&X is actually medically indicated in your own case on just a few hour’s notice? It seems as though the government is conceding the possibility that some set of circumstances, somewhere, might be enough to make a constitutional challenge. And that’s a real problem for them as they try and defend Congress’s dubious findings of fact.

Abortion and the Roberts Court

Linda Greenhouse has a very good article in the Times about the pending “partial-birth abortion” case and the U.S. Supreme Court. The question, as she makes clear, is whether Anthony Kennedy will vote to uphold precedent — in evaluating a nearly identical case, the court ruled that an abortion ban without a health exception is unconstitutional — or vote along the same lines that he did in the previous case. Complicating matters is the fact that Congress passed the abortion ban in the face of judicial precedent. That is, the court had already ruled that any abortion ban has to have a health exception to be Constitutional — so Congress responded by passing this ban anyway, and simply stating that the procedure is never necessary to preserve the health of the pregnant woman.

Which is certainly true. Are most medical procedures and treatments entirely and unquestionably necessary to preserve one’s health? That is, aren’t there almost always alternate treatments which could be used, but which just aren’t as effective or as safe?

Such is the case with the PBA ban. Yes, there are other types of later-term abortion procedures, but they may not be as safe for that particular woman’s condition. And as Greenhouse details in her article, many times doctors don’t know if the fetus will come out fully intact or not during a later-term procedure; removing it intact is generally less risky, but the PBA ban is so broad that it’s unclear whether standard second-trimester procedures would be criminalized as well.

The PBA ban won’t get rid of later-term abortion; in fact, I’m not sure that it’ll stop even one single abortion from occurring. But it will scare doctors out of choosing the safest procedures for their patients. It will threaten women’s health. And it will inevitably only succeed in punishing healthcare providers and their patients.

Anti-choicers, naturally, aren’t above blatantly lying in order to get their political goals met:

Abortion opponents are now the ones who describe the procedure as rare, seeking to offer reassurance that banning it would not deprive women of access to safe second-trimester abortions.

In fact, in their eagerness to portray the procedure as aberrant, the statute’s sponsors declared in the preamble that “no medical schools” teach it. In fact, it is taught at leading medical schools including Columbia, Cornell, Yale and New York University.

The administration describes the law as taking “only the limited step of proscribing a rarely used and inhumane abortion procedure resembling infanticide.”

“Infanticide” is a potent label, frequently used by abortion opponents. One brief describes the procedure as “killing a child in the birth process.” While this description is true in the sense that uninterrupted gestation leads to birth — “He not busy being born is busy dying,” in the words of the Bob Dylan song — it is well off the mark as a description of what actually occurs.

Can I just say that I love her even more for quoting Bob Dylan to prove her point? I think Dawn Eden should take note (fyi: What follows is… wrong. And bad. And I’m really, really sorry. You know when you smell something really, truly awful, and you just have to make someone else smell it so that they know what you’re talking about? It’s like that.)

What Roe Should Have Said

Professor Lemieux is working on a series of posts discussing Jack Balkin’s book, What Roe Should Have Said. This is Scott’s area of expertise, so he really knows his stuff.

Part I, in which he discusses Canada’s landmark abortion case, R v. Morgentaler, in which, Scott argues, the Supreme Court of Canada did a better job using American precedent than Justice Blackmun did in Roe.

Part II, in which he argues that a woman’s right to make reproductive decisions does not change during the course of her pregnancy (or in regard to whether she is pregnant or not); what changes is the state’s interest in those decisions.

Go. Read.

Surprise!

John Yoo — former Bush Administration official, author of the infamous “torture memo” and pusher of the “unitary executive” idea that would essentially grant the president unlimited and extraconstitutional powers — doesn’t much care for the Supreme Court’s recent Hamdan decision, which declared that the prisoners at Gitmo cannot be tried by military tribunals.

I mean, knock me over with a feather.

You know things are not going to go well when, within the first few paragraphs, Yoo compares Bush to Lincoln and FDR, and torturing prisoners to freeing the slaves:

I Give Up.

I know I said I’d post about Hamdan when I got a chance to read it, but I haven’t, and anyway Glenn Greenwald has it covered. As does Scott.

Supreme Court News

Just a quick post, since the big boss has finally taken note of my existence and has given me direct assignments for the first time in two years: The Supreme Court released its decision in Hamdan v. Rumsfeld, the big Guantanamo Bay case, ruling that military tribunals for at least 10 suspects at Gitmo are improper. The opinion appears to be 5-3, with various concurrences in part; the Unholy Trinity of Alito, Scalia and Thomas dissented. Roberts took no part.

It’s a 92-page document, so I’ll try to at least glance through it during lunch and report back.

UPDATE: CNN has more.

Awright!

The Supreme Court unanimously upholds a worker’s right to sue for retaliation when the worker complains about bias, even when that retaliation does not take an ultimate form such as firing or denial of promotion.

Reassignment to a less attractive job or a temporary suspension without pay can constitute retaliation, the Court said in deciding Burlington Northern v. White (05-259). (The Court’s decision is available here; Justice Samuel Alito’s concurring opinion is here.)

The disagreement within the Court — between eight Justices and Alito — centered on the scope of the anti-retaliation provision in Title VII. The Court concluded that workers claiming retaliation could sue not only over action taken against them in the workplace, on their wages, hours and working conditions, but also acts by the employer “outside the workplace.” The Court cited as examples of this broader kind of retaliation a failure to investigate threats against an FBI agent who had complained and filing false criminal charges against an employee who had complained. Alito argued that the concept should be confined to workplace action. Alito, who joined only the result, also objected to the majority’s test of how severe retaliatory action must be; the majority said it would embrace acts that might dissuade a “reasonable worker” from complaining about workplace bias, even if the action did not go so far as firing or denial of a promotion.

Plaintiff Sheila White was made to feel very unwelcome as the only woman working in a railroad maintenance yard in Memphis. The New York Times describes what she went through thus:

Nine years ago this month, she was hired as a “track laborer,” a down-and-dirty job that involves removing and replacing track, cutting brush, clearing litter and other drudgery. Soon there was an opening for a forklift operator, and since she had operated forklifts before she was a logical choice.

But some of the men complained that a forklift was no place for a woman and made insulting remarks to that effect. The offenders included her supervisor, who was suspended by the railroad for 10 days and ordered to undergo training to correct his sexually harassing ways.

But Ms. White’s troubles were not over. Soon afterward, she was removed from the forklift job and given standard laboring tasks. The man who had hired her explained that other workers thought a “more senior man” should be able to run the forklift, according to court papers.

So Ms. White filed two complaints with the Equal Employment Opportunity Commission, one alleging that her reassignment amounted to unlawful gender-based discrimination in retaliation for her complaining about sexual harassment, the other alleging that she had been placed under surveillance by the man who had hired her.

By this point, it was December. Ms. White had a run-in with another supervisor and was suspended without pay for insubordination. She filed an internal grievance, after which Burlington agreed that she had not been insubordinate after all. So she was put back on the payroll and awarded back pay for the 37 days she had been suspended. (Ms. White had filed still another complaint with the E.E.O.C. over the suspension.)

So, a terrific result, and a great victory for workers undergoing discrimination, harassment and bias on the job. And kudos for SCOTUS for the unanimous result.

Body Politics

Jill beat me to the punch on Scott’s American Prospect article (damn that time difference and Jill’s reserves of youthful energy!), but I wanted to point out that Scott’s is not the only article in the issue of 7/5/06 on the subject of abortion politics.

Helena Silverstein and Wayne Fishman take a look at Justice Kennedy, who’s now the swing vote on the Supreme Court, and likely to both keep Roe standing and hollow it out at the same time.

(Scott’s got some links to some of Silverstein’s work on the on-the-ground impact of parental notification statutes as well as his previous discussion about her research.)

And Allison Stevens examines the state of abortion rights across the country, why in many places the picture hasn’t changed much since 1973, and what the pro-choice movement has (or hasn’t) done about it.

I plan on doing some posting about these articles, and a little more on Scott’s piece, but I encourage you to pick up a copy of the American Prospect at the newsstand or subscribe through the website to read the issue. Apparently, the powers that be had to be “gently” persuaded to put together a reproductive freedoms package (proving Scott’s point?) and it would be helpful to be able to show that this is an issue that will sell magazines.