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Tag: SCOTUS

Alito, Abortion, and the Future of Roe

Lots and lots going on this week in the reproductive rights arena. Ayotte v. Planned Parenthood is being argued right now, and is virtually guaranteed to have a major impact on the future of reproductive rights — if only to tell us how closely the Roberts court is willing to honor precedent. I wrote a little bit about this case yesterday, but there are still a few points that I think need clarification. At issue is a New Hampshire abortion statute that has not yet been instituted. The statute requires parental notification and a 48-hour waiting period after that. It has an exception for life-threatening conditions, but not for health conditions, despite the fact that a 2000 Supreme Court ruling requires that abortion restrictions have an out for the pregnant woman’s health. The Bush administration supports the law, but their reasoning seems a bit flawed:

Solicitor General Paul Clement, arguing for the Bush administration on behalf of the New Hampshire law, said critics of the New Hampshire statute had focused on “a one in a thousand” circumstance in which a teen-ager might need an abortion quickly, and that the entire statute should not be undone.

All sides agree that circumstances in which a minor needs an abortion for emergent health reasons are rare. But does rarity justify the upholding of a law that could potentially cause serious harm, even if that harm only affects a handful of people? What’s the threshold at which we decide “enough” women will be affected — 100? 1,000?

The statute includes a judicial bypass option, in which a minor with an emergent health-threatening condition can get permission from a judge to get around the parental consent and waiting period. But, as the attorney for Planned Parenthood argued, ” “Once a minor arrives in the emergency room, it is too late for her to go to court.”

That point was met by a fairly creative proposal from Justice Scalia:

Justice Antonin Scalia wondered what would happen if the state created “a special office, open 24 hours a day” to field just such emergencies: ” ‘This is the abortion judge.’ It takes 30 seconds to place a phone call.”

Or, we can just let doctors do their jobs. If a teenage girl comes into the emergency room with a condition that will leave her sterile unless she has an abortion right away, let her doctor perform the procedure. How will telephoning a judge, who probably has no medical background and little ability in a 30-second phone call to determine the exact circumstances, be at all helpful or even practical?

This seems fairly simple to me. If New Hampshire wants to keep their statute, fine — just toss in a health exception. I don’t like parental notification laws, but the Court has ruled them constitutional and not unduly burdensome if they include a judicial bypass and a health/life exception. It’s not asking so much that New Hampshire stick to that standard, and that the Bush administration and conservative state governments not use the physical health of minor women to gain political capitol or make a point about their anti-choice beliefs.

In other news, let there be no doubt about how Supreme Court nominee Samuel Alito feels about Roe: He wants it overturned. From a 1985 document:

Alito wrote in the memo, released by the National Archives on Wednesday, that ”no one seriously believes that the court is about to overrule Roe v. Wade.”

But, he said, ”By taking these cases, the court may be signaling an inclination to cut back. What can be made of this opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects?”

Well that clears that up.

I found this article via Amanda, and it’s another must- must- MUST-read. It’s a woman’s story of her D&E abortion, the procedure that the “partial-birth” abortion ban would have made illegal. These procedures, as the article details, are already incredibly difficult to access. This is another one of those abortion-related things (like the New Hampshire law) that affects a very tiny minority of women; yet its impact on those women can be tremendous. Read the article, and consider the women who find themselves in similar situations, but whose fetuses aren’t dead — those women whose fetuses have birth defects that are incompatible with life, like anencephaly. Should the “partial-birth” abortion ban be upheld, these women will no longer have access to what they and their doctors may deem the safest procedure for them.

And finally, a TimesSelect article about the waning power of Roe v. Wade. It is fantastic, and an absolute must-read. Because it’s TimesSelect, I’ll paste it below:

Read More…Read More…

“The Constitution Does Not Protect the Right to Abortion”

–Guess who.

In his own words, written during the Reagan administration:

-“I am particularly proud of my contributions in recent cases in which the government argued that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion.”

-“I am and always have been a conservative and an adherent to the same philosophical views that I believe are central to this administration.”

-He believed “very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement and the legitimacy of a government role in protecting traditional values.”

-Alito said he drew inspiration from the “writings of William F. Buckley, Jr., The National Review and Barry Goldwater’s 1964 campaign.”

-“In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause and reapportionment.”

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Scalito = Bad News

Really, really, really (pdf) bad news. The run-down:

The Bad
-Alito joined the Third Circuit majority opinion in Planned Parenthood v. Casey, which severely limited the right to abortion. But Alito went a step further than the rest of the court, asserting that it would be proper to require women to notify their husbands before they were allowed to have abortions. The Supreme Court, thankfully, ruled that “Women do not lose their constitutionally protected liberty when they marry.”

-Alito distanced himself from previous Supreme Court views on undue burden, writing that “an undue burden may not be established simply by showing that a law will have a heavy impact on a few women but that instead a broader inhibiting effect must be shown.” So if a particular requirement which infringes on the right to privacy — husband notification for abortion, for example — only has a detrimental effect on some women, that isn’t a good enough reason to disallow it.

-In 2000, Alito wrote an opinion which held that the Family Medical Leave Act was an instance of unconstitutional Congressional over-reach. Why? Because, he says, women are not disadvanted in the workplace by not being allowed to take family medical leave. Even Rehnquist disagreed with him on that point. (More at Angry Bear; thanks to Thomas for the link)

-Held that the Establishment Clause was not violated by a city holiday display which featured a menorah, a creche, Santa Claus, and other religious and secular holiday symbols.

-Opined that it’s a-ok for police officers to strip search 10-year-old girls.

-Alito helped write a Justice Department report supporting the “right” of employers to fire HIV-positive employees.

The Good
-Alito was in the majority in striking down the so-called “partial-birth” abortion ban in New Jersey, because the ban didn’t allow an exemption for the pregnant woman’s health. It should be noted here, though, that the Third Circuit was required by Supreme Court precedent to strike down any abortion ban that doesn’t allow a life/health exception.

-Alito wrote the unamimous opinion that the New Jersey police force had acted innappropriately in firing two Muslim officers for refusing to shave their beards.

-“A majority opinion in Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), holding that an Iranian woman seeking asylum could establish that she had a well founded fear of persecution in Iran if she could show that compliance with that country’s “gender specific laws and repressive social norms,” such as the requirement that women wear a veil in public, would be deeply abhorrent to her. Judge Alito also held that she could establish eligibility for asylum by showing that she would be persecuted because of gender, belief in feminism, or membership in a feminist group.” (via SCOTUSblog, by way of Protein Wisdom).

-Struck down a public school anti-harassment policy which included non-vulgar speech which didn’t interrupt school work (Some readers will likely have an issue with me putting this in the “good” section; while I think anti-harassment policies are appropriate, I do have a problem with them when they fully cross First Amendment lines, as this one did).

What it comes down to is this: Alito isn’t an “originalist.” He’s a conservative activist, willing to bend the law to favor his viewpoint. Of course, as much as the right-wing bitches and moans about “activist judges,” it’s kinda fun to see who actually legislates from the bench, isn’t it?

As more information about Alito comes to light, I’m sure this post will be updated.

For more on Alito (this list will be updated):
SCOTUSblog
Culture Kitchen
Pandagon (so many posts on him, I can’t decide which to link to — just scroll!)
Rox Populi
Lawyers, Guns and Money. Twice.
Shakespeare’s Sister
Agitprop
TBogg
The Rude Pundit
Think Progress

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Women in Law

Ruth Bader Ginsburg reminds all of us how far women in the law have come. It’s good to take a look back and see how much things have improved in just a few decades; it also serves as inspiration to keep pushing forward, and to refuse to accept the status quo as “good enough.”

Ginsburg chose to give her audience a history lesson, recalling the struggles that women have endured to practice law and work as judges in the United States.

Men, she said, often argued against allowing women into law schools or state bar associations, for such nonsensical reasons as they didn’t have a bathroom for them.

Ginsburg noted, however, that women’s role in law can be traced back to ancient times when the Greeks worshipped a goddess of justice named Athena and the Book of Judges in the Bible tells of Deborah, a prophet, judge and military leader.

Yet, the first woman was not admitted into a U.S. law school until 1869. And after graduation, women found states unwilling to admit women to the bar. Even when this battle was won, the number of women going into law remained small.

Ginsburg noted the president of Harvard Law School answered a question on declining enrollment during World War II by saying, “Not as bad as we thought, we still have 75 students and we haven’t had to admit any women.”

In the 1960s, 3 percent of law students were women. My class at NYU is 45 percent, and overall women’s enrollment numbers in all schools average at or above 50 percent. Women are 23 percent of tenured law professors, and 35 percent of teaching staff. Nine women head state bar associations.

These numbers are good, and the represent huge improvements. I don’t want to rain on the parade, but it’s worth pointing out that while women are now studying law in equal numbers to men, they haven’t yet broken into the profession in nearly the same numbers — nine female heads of state bar associations is pretty good, but last time I checked there were 50 states. Likewise, 23 percent of tenured law professors is good, but when you consider that women are 50 percent of the population it doesn’t look quite so sunny. Of course, this is in large part a product of the fact that 30 years ago, women weren’t attending law schools in large numbers, and so obviously there’s a smaller pool of established female lawyers and legal academics to draw from. I’m crossing my fingers that 10 years from now, we’ll be caught up.

Via How Appealing. Thanks to Dad for the link.

Right-Wing Elitism

As Atrios and Kos both pointed out today, many on the right — most notably Republican poster-skeleton Ann Coulter — are acting a wee bit elitist when it comes to Harriet Miers’ nomination. Coulter rips on her for not going to an Ivy League law school, insinuating that it speaks to her personal intelligence (it should be noted, of course, that “Ivy League” doesn’t always equal “best;” six of the 10 highest-ranked law schools are non-Ivies). Coulter seems to believe that all the smart kids go to top 10 schools, and going to the 52nd-ranked school means you’re a real dummy.

I suspect she’s never applied to law school.

Both Atrios and Kos went to “humble state schools” for undergrad; Atrios went onto an Ivy League law school and Kos went on to the highly-ranked law school at Boston University (20th, to be precise). I’m coming from a similar place; I went to NYU undergrad and I’m there now for law, and though NYU is private the undergraduate school is ranked somewhere in the 30s (I think) and the law school is much higher. Is there a difference in the general intelligence of the people I have class with now as opposed to last year? Honestly, yes, there is. People work harder. They’re more on top of their shit. But I think a large part of that has to do with the fact that it’s law school. I’m working harder, and I’m more on top of things now than I was a year ago — in a law school environment, you have to be. To get into any top-tier law school is a major challenge. The smartest kids I knew as an undergrad who went onto law school are all over the place — NYU, University of Washington, Fordham, Emory, Brooklyn Law, etc. Law school classes are generally small, and the applicant pools are usually large. It’s incredibly difficult to get accepted at the top schools, even if you are a nerd who spent all your undergraduate years studying. And the admissions process isn’t an exact science; there were definitely people far more intelligent and hard-working than I am who ended up at lower-ranked law schools. That’s just how it works.

So to criticize Miers because her law degree doesn’t have the right kind of pedigreed name on it is ridiculous. Certainly, there are plenty of reasons to question her qualifications as a Supreme Court justice — like, say, the fact that she’s never been a judge and doesn’t seem to have been a particularly distinguished attorney.

But perhaps most disturbing is this point from Coulter:

Third and finally, some jobs are so dirty, you can only send in someone who has the finely honed hatred of liberals acquired at elite universities to do them. The devil is an abstraction for normal, decent Americans living in the red states. By contrast, at the top universities, you come face to face with the devil every day, and you learn all his little tropes and tricks.

So… we don’t need an Ivy League-educated Supreme Court justice because she’ll be more intelligent, we need one because she’ll be bound to hate liberals more. Got it.

Perhaps Ann is just upset that Miers supports radical feminazis— you know, the type who selfishly advocated for things like property and divorce rights for women. via DKos.

Assisted Suicide Evaluated by SCOTUS

The Supreme Court is now hearing arguments about Oregon’s assisted suicide laws, and it looks as if Justice Roberts isn’t a fan of allowing people to choose assisted suicide. We’ll see how the court goes — whether they’ll allow states to make their own rules on this one, or if the federal government has the right to control right-to-die laws.

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