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FAN 20.3 (First Amendment News) — The Roberts Court & Unanimous First Amendment Judgments

  • Who would have guessed the 9-0 vote in McCullen v. Coakley? Back in January there was this assessment from a veteran Court reporter:

Equally Divided: “Inside the Supreme Court, the questioning was fast and furious, with the justices apparently divided equally, and for the first time in memory, Chief Justice John Roberts asking no questions. The Chief Justice’s silence seemed to indicate that he likely will be the deciding vote in the case.” – Nina Totenberg, Jan. 15, 2014

That Catholic University Law Professor Mark L. Rienzi would have prevailed in his case in defense of the Petitioners seemed likely enough. But unanimous? The vote surely surprised many seasoned Court watchers.

Professor Mark Rienzi

Professor Mark Rienzi

Take note: It was the third time in one Term that the Roberts Court was unanimous in a free speech case, and also the first time that the Court was unanimous in sustaining a First Amendment free expression claim in two cases:

  1. Lane v. Franks (2014) [vote-9-0 on FA issue only, not on qualified immunity]
  2. McCullen v. Coakley (2014)

This is significant because in every other free speech case where there was a unanimous judgment the Court denied the First Amendment claim.  The 9 cases are:

  1. Rumsfeld v. Forum for Academic & Institutional Rights (2006) [vote: 8-0]
  2. Davenport v. Washington Educ. Association (2007) [vote: 9-0]
  3. New York State Bd. of Elections v. Lopez Torres (2008) [vote: 9-0]
  4. Pleasant Grove City, UT, et al v. Summum (2009) [vote: 9-0]
  5. Locke v. Karass (2009) [vote: 9-0]
  6. Milavetz, Gallop, & Milavetz v. United States (2010) [vote: 9-0]
  7. Nevada Commission on Ethics v. Carrigan (2011) [vote: 9-0]
  8. Reichle v. Howards (2012) [vote: 8-0]
  9. Wood v.Moss (2014) [vote: 9-0] [FA and qualified immunity]

A Princely Move?  

So what gives in McCullen? Not even a whisper of a separate opinion from any of the liberal Justices, especially the female ones. Could it be that the Chief Justice wanted unanimity enough that he stayed his hand in reversing Hill v. Coloradothis to secure four votes from the liberal bloc? Maybe Nina Totenberg was right; they were divided until, that is, the Chief Justice made his “Machiavellian” move. The result: the law is struck down, which pleases the conservatives, though on narrow grounds, which pleases the liberals. No one is really happy, but the judgment is unanimous . . . in an abortion case! 

Meanwhile, Justice Scalia (joined by Justices Kennedy, and Thomas) would have none of it:

Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion. . . . This is an opinion that has Something for Everyone, and the more significant portion continues the onward march of abortion-speech-only jurisprudence. . . .  Just a few months past, the Court found it unnecessary to “parse the differences between . . . two [available] standards” where a statute challenged on First Amend­ment grounds “fail[s] even under the [less demanding] test.” McCutcheon v. Federal Election Comm’n . . . (plurality opinion) What has changed since then? Quite simple: This is an abortion case, and McCutcheon was not. . . . In concluding that the statute is con­ tent based and therefore subject to strict scrutiny, neces­sarily conclude that Hill should be overruled. 

  One more thing: this is another First Amendment majority/plurality opinion by the Chief Justice (that makes 12). In that regard, he leads all other Justices by a wide margin.

NOTE: My next scheduled FAN column will provide detailed information re the Roberts Court’s overall record in First Amendment freedom of expression cases. It will also include facts and figure re the Court’s 1-A work this Term.

Last FAN Columns

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FAN 20.2 (First Amendment News) — 28 Briefs Filed in McCullen, Only 1 Cited by Court

The Court in McCullen v. Coakley had plenty of help offered to it — 28 amicus briefs were filed. Those submitting amicus briefs included the following groups:

  • Cato Institute (Ilya Shapiro) for Petitioners
  • American Center for Law & Justice (Jay Sekulow) for Petitioners
  • Rutherford Institute (John W. Whitehead) for Petitioners
  • Michigan & 11 other States (Bill Schuette) for Petitioners
  • ACLU (Steven R. Shapiro) for Neither Party
  • New York State, et  al (Eric T. Schneiderman) for Respondents
  • Planned Parenthood (Walter Dellinger) for Respondents
  • American College of Obstetricians and Gynecologists, et al (Jack R. Bierig) for Respondents
  • National League of Cities, et al (Mary Jean Dolan) for Respondents
  • Anti-Defamation League, et al (Jeffrey S. Robbins) for Respondents
  • National Abortion Federation, et al (Maria T. Vullo) for Respondents

That said, the Court elected to reference only one amicus brief, and it did so in Chief Justice John Roberts opinion.

The brief the Chief Justice found particularly useful was one filed by New York Attorney General Eric T. Schneiderman, a brief submitted on behalf of New York and 12 other states along with the territory of the Virgin Islands.  The brief was submitted on behalf of the Respondents, who lost by way of a unanimous judgment.  

As it turned out, the Chief Justice and his colleagues referenced the New York brief  in support of the Petitioners:
The buffer zones burden substantially more speech than necessary to achieve the Commonwealth’s asserted interests. At the outset, we note that the Act is truly exceptional: Respondents and their amici identify no other State with a law that creates fixed buffer zones around abortion clinics. [fn to NY et al amicus brief]  That of course does not mean that the law is invalid. It does, however, raise concern that the Commonwealth has too readily forgone options that could serve its interests just as well, without substantially burdening the kind of speech in which petitioners wish to engage. 

And then later in the opinion, the New York amicus brief was also tapped to help defeat the case for the Respondents:

If Massachusetts determines that broader prohibitions along the same lines are necessary, it could enact legislation similar to the federal Freedom of Access to Clinic Entrances Act of 1994 (FACE Act), 18 U. S. C. §248(a)(1), which subjects to both crimi­ nal and civil penalties anyone who “by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intim­ idate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services.” Some dozen other States have done so. See Brief for State of New York et al. as Amici Curiae 13, and n. 6.

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Why is Reproductive Technology a Battleground in the Abortion Debate?

Caitlin Borgmann has made the convincing argument that incrementalism in the anti-abortion movement developed from the failure of the movement’s initial post-Roe strategy to win the hearts and minds of the undecided. The strategy of equating abortion with murder and vilifying women who have abortions was far too strident to be persuasive and too off-putting to have emotional appeal. The strategy was eventually abandoned in favor of chipping away at Roe by degrees. Incrementalism takes the long view toward outlawing abortion in any form, but its progress, ironically, is asymptotic, 120px-Icsitending toward prohibition without ever achieving it. This is because incrementalism’s objective is to render access to abortion illusory. Even if Roe remains in place, rendering abortion inaccessible will mean that it is legal in theory but not in practice. Although alternatives to incrementalism have appeared in recent years as certain factions within the movement have grown restive, incrementalism remains the primary strategy of the anti-abortion movement today.

The incrementalist strategy now includes arguments for limiting assisted reproduction by raising concerns about its use at all four stages of the cycle of human reproduction: pre-conception, pre-implantation, post-implantation, and even post-birth. Although seemingly an odd direction for the anti-abortion movement to take, it should not come as a complete surprise; after all, the moral status of the embryo has played a major role in the development of the legal regimes that regulate assisted reproduction in other countries, particularly those with strong commitments to Roman Catholicism. Costa Rica, for example, banned IVF entirely for this reason in a law later struck down by the Inter-American Court of Human Rights. Although their connection may not be immediately obvious, then, abortion and assisted reproduction have a history of intertwinement in the policymaking arena.

An important question remains, though, about what is achievable in bringing anti-abortion sentiments to bear on issues in assisted reproduction. On the surface, there appears to be no clear connection between terminating a pregnancy and pursuing one. Of course, abortion and assisted reproduction are both techniques for managing reproductive life, and it is true that, in some applications, assisted reproduction may result in embryo loss. Hence, calls to regulate embryo disposition (called “adoption” in this context) and embryonic stem cell research make a certain amount of sense. But the claim that embryos have a moral status is not a good explanation for why other areas of assisted reproduction have become attractive battlegrounds for pursuing an anti-abortion agenda: egg donation, sex selection, and intentional parenthood.

It is obvious why the movement decries sex-selective embryo discarding or sex-selective abortion. Less clear is the reason for the movement’s opposition to pre-conception sex-selective techniques. Furthermore, anti-abortion advocates have claimed, respectively, that egg donation harms women and that intentional parenthood in the absence of a genetic connection harms children. Neither of these positions has much to do with abortion. If it is safe to assume that the stances assumed by the anti-abortion movement against assisted reproduction have more to do with banning abortion than with regulating reproduction, it is important for us to inquire into why the movement believes its resources are well spent in this area and what the implications of its activities might be for law and policy.